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HomeMy WebLinkAbout3370 Ordinance ORDINANCE NO , 3370 AN ORDINANCE OF THE CITY OF PASCO , TO HELP PREVENT THE SPREAD OF GRAFFITI VANDALISM AND TO ESTABLISH A PROGRAM FOR THE REMOVAL OF GRAFFITI FROM PUBLIC AND PRIVATE PROPERTY, COUNCIL IS AUTHORIZED TO ENACT THIS ORDINANCE PURSUANT TO ITS POLICE POWERS AS SPECIFIED IN RCW 35A ET AL. THIS ORDINANCE SHALL REQUIRE THE REMOVAL OF GRAFFITI IN ORDER TO PROTECT THE PUBLIC HEALTH , SAFETY AND WELFARE , DECLARING THAT PROPERTY MAY BECOME A NUISANCE OWING TO THE FAILURE OF RESPONSIBLE PARTIES TO REMOVE GRAFFITI AFTER HAVING BEEN REQUESTED TO DO SO BY THE CITY, ESTABLISHING A PROCESS FOR VOLUNTARY OR INVOLUNTARY CLEAN-UP OF GRAFFITI AND THE RECOVERY OF PUBLIC CLEAN-UP EXPENSES , CREATING CIVIL REMEDIES , AND ADDING A NEW CHAPTER TO TITLE 9 OF THE PASCO MUNICIPAL CODE . WHEREAS, graffiti is criminal vandalism defacing public and private property without permission of the owner, costing citizens , businesses and the City thousands of dollars annually to repair; and WHEREAS, graffiti can be a powerful visual symbol of criminal gang activity and disorder which erodes public safety, reduces the attractive physical qualities of neighborhoods , and can contribute to a downward spiral of blight and decay, lessening property values , business viability and ultimately tax revenues ; and i WHEREAS , reducing graffiti requires a comprehensive strategy that includes increased efforts to apprehend and hold accountable those responsible for such vandalism, the prompt removal of graffiti as soon as reasonably possible , and the encouragement of artistic expression only on appropriate spaces obtained with the permission of public and private property owners ; and WHEREAS, there is substantial evidence that the prompt removal of graffiti is an effective prevention strategy which discourages its return while the failure to promptly remove graffiti increases the likelihood that more graffiti will occur on the same site and on other nearby property; and i WHEREAS, the City and many property owners commit resources and energy to diligently removing graffiti and the City supports the efforts of many GRAFFITI ORDJNAJiCE - 1 community, business and school volunteers who work each week to remove graffiti in their neighborhoods and business districts ; and WHEREAS , the failure to maintain one 's property by removing graffiti to a reasonable degree and within a reasonable period of time constitutes a public nuisance for the reasons set forth above ; and WHEREAS , many other jurisdictions across the United States , have adopted graffiti nuisance Ordinances and have found them to be a useful tool in reducing graffiti, NOW THEREFORE; BE IT ORDAINED BY THE CITY OF PASCO AS FOLLOWS : Section 1 : That Chapter 9 . 64 . 250 of the Pasco Municipal Code entitled "Unlawful Possession of Graffiti Tools" shall be and hereby repealed in its entirety. I i i unlawful any-persen under- the eeei&teen ( ! 8) years to-possess-an aerosol eentKaror of paint ^r K jumbo paint marker y.�h e on any publi ^ stFeet , alleysidewalk�et-her- pub he plae°�°�diess of ` hem°��°�nis-or- s i not in a4iy motor- ye i ^lo Section 2 : A new chapter, Chapter 9 . 85 , to be entitled iGraffiti Nuisance Codei is added to the Pasco Municipal Code shall read as follows : CHAPTER 9 . 85 GRAFFITI NUISANCE CODE 9 . 85 . 010 PURPOSE AND INTENT 9 . 85 . 020 DEFINITIONS 9 . 85 . 030 VIOLATION OF CHAPTER 9 . 85 . 040 PENALTIES 9085 . 050 GRAFFITI AS A NUISANCE 9 . 85 . 060 NOTICE 9 . 85 . 070 HEARING BEFORE THE CODE ENFORCEMENT BOARD 90850080 MONETARY PENALTY 9 . 85 . 090 ABATEMENT BY THE CITY 9 . 85 . 100 ENFORCEMENT 9 . 85 . 110 SEVERABILITY GRAFFITI ORDINANCE - 2 1 1 9 . 850010 PURPOSE AND INTENT. The purpose and intent of this Ordinance is to help prevent the spread of graffiti vandalism and to establish a program for the removal of graffiti from public and private property. Graffiti is a public nuisance and destructive to the rights and values of property owners as well as the entire community. Unless the City acts to remove graffiti from public and private property, the graffiti tends to remain. Other properties then become the target of graffiti, and entire neighborhoods are effected and become less desirable places in which to be , all to the detriment of the City. This section intends to provide additional enforcement tools to protect public and private property from acts of graffiti vandalism and defacement. 9 . 85 . 020 DEFINITIONS . ( 1 ) "Abate " means to remove the graffiti by such means , in such a manner and to such an extent as the Director or the Code Enforcement Board reasonably determines is necessary to remove the graffiti from public view. (2) "Aerosol Paint Container" means any aerosol container that is adapted or made for the purpose of applying spray paint or other substances capable of defacing property. (3) "Broad Tipped Marker" means any felt tip indelible marker or similar implement with a flat or angled writing surface that, at its broadest width is greater than 1 / 8 of an inch, containing ink or other pigmented liquid that is not water soluble . (4) "Director" means the Director of the Community Development Department or his or her designee . (5) "Etching Equipment " means any tool , device , or substance that can be used to make permanent marks on any natural or man made surface . (6) "Graffiti " means unauthorized markings , visible from premises open to the public , that have been placed upon any property through the use of paint, ink, chalk, etching, scratching, dye or any other substance capable of marking property. (7) "Graffiti Implement " means an aerosol paint container, a broad tip marker, gum label, paint stick or graffiti stick, etching equipment, brush or j any other device capable of scarring or leaving a visible mark on any natural or man made surface . (8) "Graffiti nuisance property " means property upon which graffiti has not been abated after the abatement date established pursuant to subsection 9 . 85 . 060(2) 9 (9) "Code Enforcement Board" means The City of Pasco Code Enforcement Board and the office thereof established pursuant to Pasco Municipal Code , Chapter 11 . 04 . ( 10) "Owner" means any entity or entities having a legal or equitable interest in real or personal property including but not limited to the interest of a tenant GRAFFITI ORDINANCE - 3 I I or lessee . ( 11 ) "Paint Stick or Graffiti Stick" means any device containing a solid form of paint, chalk, wax, epoxy, shoe polish or other similar substance capable of being applied to a surface by pressure and leaving a mark of at least 1 / 8 of an inch in width . ( 12) "Premises open to the public " means all public spaces , including but not limited to streets , alleys , sidewalks , parks , and public open space , as well as private property on to which the public is regularly invited or permitted to enter for any purpose . ( 13) "Property " means any real or personal property and that which is affixed , incidental or appurtenant to real property, including but not limited to any structure , fence , wall, sign, vehicle or any separate part thereof, whether permanent or not. ( 14) "Responsible party " means the recorded owner according to the land records of Franklin County, State of Washington or an entity or person acting as an agent for an owner by agreement, who has authority over the property or is responsible for the property's maintenance or management. Irrespective of any arrangement to the contrary with any other party, each owner shall always be a responsible party for the purposes of this chapter. There may be more than one responsible party for a particular property. ( 15) "Unauthorized" means without the consent of a responsible party. 9 . 85 . 030 VIOLATION OF CHAPTER. ( 1 ) Defacement. It shall be unlawful for any person to apply graffiti to any natural or man made surface on any City owned property or, without the permission of the owner or occupant, on any non city owned property. (2) Possession of Graffiti Implements . It shall be unlawful for any person to posses any graffiti implement commonly used in the application of graffiti under circumstances evincing an intent to use or employed in the act of applying graffiti, or knowing that the same is intended to be so used . (3) Any property located in the City of Pasco that becomes a graffiti nuisance property is in violation of this chapter and is subject to its remedies . (4) Every responsible party who permits a property to become a graffiti nuisance property is in violation of this chapter and subject to its remedies . 9 . 85 . 040 PENALTIES . ( 1 ) Fines and imprisonment. Any person violating this Ordinance shall be guilty of a gross misdemeanor and punished by a fine of $250 dollars for the first offense ; $500 dollars for the second offense ; and $ 1 , 000 dollars for each subsequent offense , or by imprisonment in the city jail for a term not to exceed sixty days , or by both fine and imprisonment at the discretion of the court. GRAFFITI ORDINANCE - 4 (2) Restitution . In addition to any punishment specified in this section , the court shall order any violator to make restitution to the victim for damages or loss caused directly or indirectly by the violators offense in the amount or manner determined by the court. (3) Community Service . In lieu of , or as part of, the penalties specified in paragraph one of this section, a minor or adult may be required to perform community service as described by the court based on the following minimum requirements . (a) The offender shall perform at least 50 hours of community service . (b) The entire period of community service shall be performed under the supervision of a community service provider approved by the Courts . (c) Reasonable efforts shall be made to assign the offender to a type of community service that is reasonably expected to have the most rehabilitative effect on the offender, including community service that involves graffiti removal. 9 . 85 . 050 GRAFFITI AS A NUISANCE . ( 1 ) Existence of graffiti on public or private property in violation of this Ordinance is expressly declared to be a public nuisance and , therefore , is subject to the removal and abatement provisions specified in this Ordinance . (2) It is the duty of both the owner of the property to which the graffiti has been applied and any person who may be in possession or who has the right to possess such property to at all times keep the property clear of graffiti. 9 . 85 . 060 NOTICE . When the Director has reason to believe that a property within the City may be a potential graffiti nuisance property, the Director shall : ( 1 ) Identify a responsible party and send that party notice which describes the nature and location of the graffiti and requesting that the graffiti be removed within Three (3) days . The notice shall explain the problems caused by the continued presence of graffiti and the need for its prompt removal , and give notice that failure to remove graffiti is a violation of City law that may lead to legal action to remove the graffiti at the expense of the responsible party and may subject the responsible party to civil penalties . The notice shall also contain the following information : (a) The street address or description of the property reasonably sufficient for identification of the property, (b) A concise description of the conditions leading the Director to believe that the property may be a graffiti nuisance property, (c) A description of what must be done to abate the graffiti, (d) A statement that the graffiti must be abated within Three (3) calendar days after receipt of the letter, and a statement that if the graffiti is not GRAFFITI ORDINANCE - 5 abated within that time the property will be a graffiti nuisance property subject to abatement by the City in accordance with section 9 . 85 . 090 of this Chapter, and the responsible party will be subject to monetary penalties and costs in accordance with sections 9 . 85 . 040 , 9 . 85 . 060, 9 . 859070 , 9 . 85 . 080 and 9 . 85 . 090 ; (e) A statement that if the responsible party objects to their property being designated as a graffiti nuisance and/ or they object to the City's notice that the City will enter onto the premises to abate the graffiti nuisance , they must request a compliance hearing before the City's Code Enforcement Board pursuant to 9 . 85 . 070 , within Three (3) business days from the receipt of the Graffiti Nuisance Notice . The request must be in writing and delivered to the City Clerk's office . (2) The Graffiti Nuisance Notice referred to in subsection 1 of this section shall be mailed by certified mail to the responsible party at that party's last known address . The notice shall also be posted at the property. As an alternative to mailing the notice , the Director may cause a copy of the notice to be personally served on the responsible party in the manner authorized by statute for personal service . (3) The Director shall serve the notice of civil violation and hearing in the manner described in subsection 9 . 85 . 060(2) of this chapter. If an address for mailed service cannot, after due diligence , be ascertained and the person to whom the notice is issued cannot, after due diligence , be personally served within Franklin County, notice shall be served by posting a copy of the notice conspicuously at the graffiti nuisance property. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service , declaring the time and date of service , the manner by which the service was made , and, if by posting, the facts showing that due diligence was used in attempting to serve the person personally or by mail. 9 . 85 . 070 HEARING BEFORE THE CODE ENFORCEMENT BOARD . ( 1 ) At the request of an aggrieved party , the Code Enforcement Board shall conduct a hearing on the civil violation pursuant to the rules of procedure of the Code Enforcement Board for the conduct of hearings . The Director and the person to whom the notice of civil violation and hearing was issued are parties to the hearing and each may call witnesses . (2) The date set for the hearing before the Code Enforcement Board shall be no sooner than ten ( 10) and no later than thirty (30) calendar days from the date the notice of civil violation and hearing are issued . (3) The Director shall have the burden to prove by a preponderance of the evidence that the property contains graffiti, that the person issued the notice is a responsible party, that the required abatement is reasonable , and that the required abatement has not been completed prior to the date established in the GRAFFITI ORDINANCE - 6 notice issued pursuant to subsection 9 . 85 . 060 ( 1 ) . (4) If the Code Enforcement Board finds that the property contains graffiti , that the person issued the notice is a responsible party, but that the abatement required by the Director is not reasonable , then the Code Enforcement Board shall modify the abatement so that it is reasonable . (5) The Code Enforcement Board shall issue to the responsible party a decision and order containing the following information : (a) The decision and order regarding the alleged graffiti nuisance property, including findings of fact and conclusions in support of the decision and order; (b) Any required abatement action and the date by which the abatement must be completed , (c) Any monetary penalties assessed based on subsection 6 of this section which shall be due ten ( 10) calendar days after the date of the decision and order; (d) A description of the additional civil penalties which will automatically accrue pursuant to subsection 9 of this section if the responsible party fails to abate the graffiti nuisance property by the date established in the decision and order; (e) The date after which the City may abate the graffiti nuisance property pursuant to section 9 . 85 . 090 if the required abatement is not completed ; and (fl Notice that judicial review of the decision and order may be sought pursuant to subsection 11 of this section . (6) Monetary penalties assessed by the Code Enforcement Board shall accrue in the amount up to one hundred dollars ($ 100) per day beginning on the correction date set by the Director or on a subsequent date set by the Civil Infractions Board , provided that the maximum monetary penalty shall be five thousand dollars ($5 , 000) . In the alternative , the Code Enforcement Board may choose to assess no monetary penalties . (7) In determining the monetary penalty assessment, the Code Enforcement Board shall consider the following factors : (a) Whether the responsible party cooperated with efforts to abate the graffiti nuisance property; (b) Whether the responsible party failed to appear at the hearing; (c) Whether the responsible party made substantial progress in abating the graffiti nuisance property ; and (d) Any other relevant factors . (8) The Code Enforcement Board shall mail a copy of the decision and order to the person to whom the notice of civil violation and hearing was issued and to the Director within ten ( 10) working days of the close of the hearing record. If an address for mailing cannot after due diligence be ascertained , a copy of the decision and order shall be posted conspicuously at the property . GRAFFITI ORDINANCE - 7 (9) If the aggrieved party, who requested a compliance hearing fails to appear at the scheduled hearing, the Code Enforcement Board shall, upon submittal of sufficient evidence by the Director, enter a decision and order finding that the property is a graffiti nuisance property, the person to whom the notice was issued is a responsible party, the required abatement is reasonable , and the required abatement action had not been completed prior to the date established in the notice ; and assessing the appropriate monetary penalty and costs . ( 10) If the responsible party fails to abate the nuisance as ordered by the Code Enforcement Board , monetary penalties in addition to any monetary penalties already assessed by the Code Enforcement Board shall automatically accrue in the amount of one hundred dollars ($ 100) per day until the abatement is complete . ( 11 ) The City will carry out the Code Enforcement Boards ' decision and order and recover all monetary penalties and costs . ( 12) Any review of the decision and order of the Code Enforcement Board must be by Land Use Petition filed , pursuant RCW 36 . 70C . 040(3) , within twenty one (2 1 ) days of issuance of the decision and order. 9 . 85 . 080 MONETARY PENALTY. ( 1 ) Payment of a monetary penalty pursuant to this chapter does not relieve the responsible party of the duty to abate the graffiti nuisance . (2) The monetary penalty constitutes a personal obligation of the responsible party to whom the notice of civil violation and hearing is issued . (3) Any monetary penalty imposed pursuant to this chapter shall accrue interest from the date payment is due at the maximum rate authorized by law for interest on civil judgments , and there shall be added to such penalty the reasonable attorneys ' fees and costs incurred in collecting it. (4) As to such party or the responsible party is the property owner, if all or any portion of the assessed or eradication charges remain unpaid after 30 days , the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the eradication effort. The City Manager or his /her designee shall present a resolution of lien to the City Council , and upon passage and adoption shall be recorded with the County Auditor' s office . 9 . 85 . 090 ABATEMENT BY THE CITY. ( 1 ) The Director may abate a graffiti nuisance property at anytime after the responsible party has received notice pursuant to 9 . 85 . 060 ( 1 ) and failed to abate the nuisance within the time allotted or after a decision and order has been issued by the Code Enforcement Board pursuant to section 9 . 85 . 070(5) of this chapter and the required abatement has not been completed by the date specified in the decision and order. (2) The Director may call upon other City departments and other agencies GRAFFITI ORDINANCE - 8 and resources for assistance in abating a graffiti nuisance property. (3) Right of entry on private property. Prior to entering upon private property or property owned by a public entity other than the Director for the purpose of graffiti removal the Director shall attempt to secure the consent of the property owner or responsible party and a release of the City for liability for property damage or personal injury. If the property owner or responsible party fails to remove the confounding graffiti within the time specified within this Ordinance , or if the Director has requested consent to remove or repaint over the offending graffiti and the property owner or responsible party has refused consent for entry on terms acceptable to the Director and consistent with the terms of this section the City shall commence abatement and cause recover proceedings for the graffiti removal according to the provisions specified below. (4) The costs of correcting the violation shall be billed to the responsible party and shall be due and payable to the City within ten ( 10) calendar days . Costs include both the value of the use of City staff and equipment and payments made to third parties , including but not limited to : (a) Personnel costs , both direct and indirect, including attorneys' fees and costs and administrative overhead ; (b) Costs incurred in documenting the violation; (c) Hauling, storage and disposal expenses ; (d) Actual expenses and costs of the City in preparing notices , specifications and contracts , and in accomplishing or contracting and inspecting the work; and (e) The costs of any required printing and mailing. (5) Use of public funds . Whenever the City becomes aware or is notified and determines that graffiti is located on publicly or privately owned property viewable from a public or quasi public place , the City Manager shall be authorized to use public funds for the removal of the graffiti, or for the painting or repairing of the graffiti, but shall not authorize or undertake to provide for the painting or repair of any more an extensive an area than that where the graffiti is located , unless the City Manager or the designee of the City Manager determines in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the property owner or responsible party agrees to pay for the cost of repainting or repairing the more extensive area. 9985a 100 ENFORCEMENT. Actions necessary for effective enforcement of this chapter may be brought in Superior Court. 9 . 85 . 110 SEVERABILITY. The provisions of this Ordinance are declared to be separate and severable . If any clause , sentence , paragraph , subdivision, section, subsection or portion of this Ordinance , or the application thereof to any person or circumstance , is held to be invalid , it shall not affect the validity GRAFFITI ORDINANCE - 9 of the remainder of this Ordinance , or the validity of its application to other persons or circumstances . Section 3 . This Ordinance shall take full force and effect five (5) days after its passage , approval and publication as required by law. PA SED by the City Council of the City of Pasco this 19th day of July, 199 - Charles D . Kilbury, M or ATTEST: APPROVED AS TO FO Zo�i R Catherine Seaman , Deputy City Clerk Leland If Rerr, City Attorney/ i i GRAFFITI ORDINANCE - 10