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
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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
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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.
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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
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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
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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
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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 ($5 , 000) . In the alternative , the Code Enforcement Board may
choose to assess no monetary penalties .
(7) In determining the monetary penalty assessment, the Code Enforcement
Board shall consider the following factors :
(a) Whether the responsible party cooperated with efforts to abate the
graffiti nuisance property;
(b) Whether the responsible party failed to appear at the hearing;
(c) Whether the responsible party made substantial progress in abating
the graffiti nuisance property ; and
(d) Any other relevant factors .
(8) The Code Enforcement Board shall mail a copy of the decision and order
to the person to whom the notice of civil violation and hearing was issued and
to the Director within ten ( 10) working days of the close of the hearing record.
If an address for mailing cannot after due diligence be ascertained , a copy of
the decision and order shall be posted conspicuously at the property .
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(9) If the aggrieved party, who requested a compliance hearing fails to
appear at the scheduled hearing, the Code Enforcement Board shall, upon
submittal of sufficient evidence by the Director, enter a decision and order
finding that the property is a graffiti nuisance property, the person to whom
the notice was issued is a responsible party, the required abatement is
reasonable , and the required abatement action had not been completed prior to
the date established in the notice ; and assessing the appropriate monetary
penalty and costs .
( 10) If the responsible party fails to abate the nuisance as ordered by the
Code Enforcement Board , monetary penalties in addition to any monetary
penalties already assessed by the Code Enforcement Board shall automatically
accrue in the amount of one hundred dollars ($ 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
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Catherine Seaman , Deputy City Clerk Leland If Rerr, City Attorney/
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