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HomeMy WebLinkAbout06236ORDINANCE NO. 6236 AN ORDINANCE AMENDING TITLE XI OF THE 1971 CODE OF ORDINANCES OF THE CITY OF PUEBLO BY THE ADDITION OF CHAPTER 9 RELATING TO GRAFFITI, ADOPTING A COMPREHENSIVE ANTI - GRAFFITI ORDINANCE, PROVIDING PENALTIES FOR VIOLATION THEREOF, AMENDING AND REPEALING SECTIONS OF SAID CODE OF ORDINANCES INCONSISTENT THEREWITH, SPECIFICALLY SECTIONS 402, 403 AND 706 OF CHAPTER 1 OF TITLE XI BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (Brackets indicate matter to be omitted, underscoring indicates new matter.) SECTION 1 Title XI of the 1971 Code of Ordinances of the City of Pueblo, Police Regulations, is amended by the addition of the following new chapter: TITLE XI POLICE REGULATIONS CHAPTER 9 GRAFFITI Section Subject 11 -9 -1 Purpose and Intent 11 -9 -2 Definitions 11 -9 -3 Prohibited Acts 11 -9 -4 Prohibition on Display and Sale 11 -9 -5 Penalty 11 -9 -6 Rewards and Reimbursements for Information 11 -9 -7 Graffiti as Nuisance 11 -9 -8 Removal of Graffiti 11-9- Local Improvement Fund 11 -9 -10 Severability 11 -9 -1: PURPOSE AND INTENT The City Council of Pueblo finds and determines that graffiti is a public nuisance and destructive of the rights and values of property owners as well as the entire community. Graffiti promotes blight in the neighborhoods in which it occurs and encourages similar acts of vandalism. Unless the City acts to remove graffiti from public and private property, the graffiti tends to remain. Without prompt and immediate removal of graffiti, other properties become the tamet of graffiti, and entire neighborhoods are affected and become less desirable places in which to be, all to the detriment of the City and its citizens. The City Council further finds and declares that, to be truly effective in the deterrence, eradication and removal of graffiti, it is necessary to implement a comprehensive anti - graffiti ordinance. 11 -9 -2: DEFINITIONS "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. LU "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 one- fourth (1 /4th) of an inch, containing ink or other pigmented liquid that is not water soluble. U "Etching equipment" means any tool, device, or substance that can be used to make permanent marks on any natural or man -made surface. "Graffiti" means any unauthorized inscription, word, figure, painting or other marking that is written etched scratched sprayed drawn painted or engraved on or otherwise affixed to any surface of public or private property b�any_graffiti implement, to the extent the graffiti was not authorized in advance by the owners or occupants of the property, or, despite advance authorization is otherwise deemed a public nuisance by the City Council. U "Graffiti implement" means an aerosol paint container, broad - tipped marker gum label paint stick or graffiti stick etching equipment brush or any other device capable of scarring or leaving; a visible mark on any natural or man -made surface. Lf "Minor" means any person under the age of eighteen (18) years. "Paint stick or eraffiti stick" means any device containing a solid form of paint chalk, wax oxy, or other similar substance capable of being applied to a surface by pressure and leaving a mark of at least one- ei�h�l /8th1 of an inch in width. -2- kW "Person" means any individual, partnership, association, corporation, limited liability company, personal representative, receiver, trustee, assignee or any other legal entity. o "Responsible party" means a person other than the owner of property who has primary responsibility for control of the property or for repair or maintenance of the property_ 11 -9 -3: PROHIBITED ACTS O Graffiti. It shall be unlawful for any person to apply graffiti to any natural or man -made surface on any city -owned property or on any non -city -owned property. It shall be an affirmative defense to a violation of this subsection 11- 9 -3(a) that the graffiti was applied with the permission of the owner or occupant on any non -city -owned property. Possession. It shall be unlawful for any minor to buy or carry on his or her person any graffiti implement. It shall be an affirmative defense to a violation of this subsection 11- 9 -3(b) that the minor was carrying or possessing the graffiti implement with the consent of the minor's parent, guardian or school teacher, or that the minor was usiniz or applying any graffiti implement under the direct supervision of such minor's parent guardian or school teacher. 11 -9 -4: PROHIBITION ON DISPLAY AND SALE U Sale. It shall be unlawful for any person, other than a parent, legal guardian or school teacher, to sell exchange give loan or otherwise furnish or cause or permit to be exchanged,, given loaned or otherwise furnished, any aerosol paint container, broad - tipped marker, or paint stick to any minor without the written consent of the parents or guardian of the minor. Display and Storage. W Every person who owns, conducts operates, or manages a retail commercial establishment sellin4 aerosol paint containers. paint sticks, or broad - tipped markers shall store the containers, sticks or markers in an area continuously observable through direct visual observation or surveillance equipment, by employees of the retail establishment during the regular course of business. Q In the event that a commercial retail establishment is unable to store the aerosol paint containers paint sticks, or broad - tipped markers in an area as provided above the establishment shall store the containers. sticks, and markers in an area not accessible to the public in the regular course of business without employee assistance. -3- (c) Required Sign. Every person who operates a retail commercial establishment selling graffiti implements shall: W Place a sign with a minimum height of fourteen (14) inches and a width of eleven (11) inches_ with lettering of at least one -half (1/2) inch in height which is in clear public view at or near the display of such products and which states: "WARNING: IT IS ILLEGAL TO SELL OR DISTRIBUTE AEROSOL PAINT, PAINT STICKS OR BROAD - TIPPED MARKERS TO ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS OR FOR ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS OF AGE TO POSSESS OR TO ATTEMPT TO PURCHASE SAME. IT IS ILLEGAL IF YOU ARE OVER EIGHTEEN YEARS OF AGE FOR YOU TO PURCHASE AEROSOL PAINT. PAINT STICKS OR BROAD - TIPPED MARKERS FOR A PERSON UNDER EIGHTEEN YEARS OF AGE IF YOU ARE NOT SUCH PERSONS PARENT OR GUARDIAN. FINES OF UP TO $300.00 MAY BE IMPOSED FOR VIOLATION OF THESE PROVISIONS." 11 -9 -5: PENALTY (a Any violation of subsection 11- 9 -3(a) of this Chapter is a Class 1 municipal offense, provided that if the person was under eighteen (18) years of age on the date of violation, the court shall not impose a jail sentence. Any person found ,guilty of violating subsection 11- 9 -3(a) of this Chapter shall, in addition to any sentence of jail time, pay a fine of not less than one hundred dollars ($100.00) for the first offense: two hundred dollars ($200.00) 00) for the second offense: and three hundred dollars ($300.00) for the third or any subsequent offense. Any violation of any _provision other than subsection 11- 9 -3(a) of this Chapter is a Class 2 municipal offense. U Restitution. In addition to any punishment imposed for violation of subsection 11- 9 -3(a) of this Chapter, the court shall order any violator to make restitution to the victim for damages or loss caused by the violator's offense in the amount or manner determined by the court. In the case of an unemancipated minor, the parents or legal guardian shall be ordered jointly and severely liable with the minor to make restitution, but such liability shall not exceed the damages sets forth in Section 13- 21- 107(1) C.R.S. Uj Within ten (lo) days after entry of any order for restitution any persons ordered to pay such restitution may file written objections to the amount of restitution including evidence that the amount of restitution exceeds the damages or loss caused by the violator's offense. The court may, based upon such objections and evidence or after hearing at the court's discretion, reduce the amount of restitution. m !Q Upon an Uplication and finding of indigence, the court may decline to order restitution. Seizure of Graffiti Implement. The Chief of Police or his authorized agent may seize, take, and remove any graffiti implement used in violation of subsection 11- 9 -3(a) of this Chapter or in the possession of a minor in violation of subsection 11 -9 -3(b ) of this Chapter. U Community Service. In lieu o£ or as part o£ any punishment imposed for violation of either subsection 11- 9 -3(a) or 11- 9 -3(b) of this Chapter, a minor or adult may be required to perform community service as described by the court based on the following minimum requirements: W The minor or adult shall perform at least thirty (30) hours of community service. Q At least one parent or guardian of the unemancipated minor shall be in attendance a minimum of fifty percent (50 %) of the period of assigned community service. W The entire period of community_ service shall be performed under the supervision of a community service provider approved by the Chief of Police. W Reasonable effort shall be made to assign the minor or adult to a type of community service that is reasonably expected to have the most rehabilitative effect on the minor or adult, including community service that involves graffiti removal. 11 -9 -6: REWARDS AND REIMBURSEMENTS FOR INFORMATION U The City may offer a reward in an amount to be established by resolution of the City Council for information leading to the identification and conviction of any person who violated subsection 11- 9 -3(a) of this Chapter. In the event of multiple contributors of information the reward amount shall be divided by the City in the manner it shall deem appropriate. fW Claims for rewards under this section shall be filed with the Chief of Police. U No claim for a reward shall be allowed unless the City investigates and verifies the accuracy of the claim and determines that the requirements of section 11-9-6 of this Chapter have been satisfied. -5- 11 -9 -7: GRAFFITI AS NUISANCE U The existence of graffiti on public or private property in violation of this Chapter is expressly declared to be a public nuisance and, therefore, is subject to the removal and abatement provisions specified in this Chapter. (W It is the duty of both the owner and responsible party of property to which graffiti has been applied to at all times keep the property clear of rag ffiti. 11 -9 -8: REMOVAL OF GRAFFITI U Property Owner Responsibility. It is unlawful for the owner or responsible party of property upon which graffiti exists or has been applied in the City permit such graffiti to remain for a period of ten (10) days after service by certified mail of notice of the graffiti. The notice shall contain the following information: CU The street address and legal description of the property sufficient for identification of the property, Q A statement that the property is a potential graffiti nuisance property with a concise description of the conditions leading to the findings W A statement that the graffiti must be removed within ten (10) days after receipt of the notice and that if the graffiti is not abated within that time the property will be declared to be a public nuisance, subject to the abatement procedures contained within subsection 11- 9 -8(d) of this Chapter: and An information sheet identifying any graffiti removal assistance programs available through the City and private graffiti removal contractors. Exceptions to Responsibility. The removal requirements of subsection 11-9 - 8(a) of this Chapter shall not apply if the property owner or responsible part demonstrate that the property owner or responsible party lacks the financial ability to remove the graffiti. U Right of City to Remove. LU 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 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 or any more extensive an area than that where the graffiti is located, unless the City w Manager or the designee of the City Manager, determines in writing that 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 costs of repainting or repairing the more extensive area. Right of Entry on Private Property. Prior to entering upon private property or property owned by a public entity other than the City for the purpose of graffiti removal the City shall attempt to secure the consent of the property owner or responsible party and a release of the City from liability for property damage or personal injury. If the property owner or responsible party fails to remove the graffiti within the time specified by this Chapter, or if the City has requested consent to remove or paint over the graffiti and the property owner or responsible part refused consent for entry on terms acceptable to the City and consistent with the terms of this Chapter, the City shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below. W Abatement and Cost Recovery Proceedings. W Notice of Hearing. The City Manager, or the designee of the City Managr, serving as the Hearing Officer, shall provide the property owner of record and the responsible party if a person different than the owner, not less than forty- eight (48) hours notice of the City's intent to hold a hearing at which the property owner or responsible party shall be entitled to present evidence and argue that the property does not constitute a public nuisance. Notice shall be served bbl, pursuant to and in accordance with Section 1 -1 -11(6) of the Pueblo Municipal Code. If the owner of record cannot be found after a diligent search, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days. W Determination of Hearing Officer. The determination of the Hearing Officer after the hearing shall be final and not appealable. I£ after the hearing, regardless of the attendance of the Owner or the responsible party or their respective agents the Hearing Officer determines that the property contains graffiti viewable from a public or quasi public place the Hearing Officer shall give written notice, served in the manner specified in subsection 11- 9- 8(d)(1) of this Chapter, that, unless the graffiti is removed within ten (10) days, the City shall enter upon the property, cause the removal painting over ver (in such color as shall meet with the approval of the Hearing Officer), or such other eradication thereof as the Hearing Officer determines appropriate. W Eradication Effort. Not sooner than the time specified in the order of the Hearing Officer, the City Manager, or the designee of the City Manager, shall -7- implement the eradication order and shall provide an accounting to the Owner and the responsible12arty of the costs of such eradication. W Lien. If all or any portion of the cost of such eradication remain unpaid after thirty_(30days, the amount thereof shall be charged against the owner of the property that was the subject of the eradication effort. Upon recording in the office of the Pueblo County Clerk and Recorder of a statement under oath of the City Manager showing the amount of the unpaid cost of such eradication and describing the property, the unpaid cost of such eradication plus interest at the rate of ten (10) percent per annum from the date such costs were incurred, shall be and constitute a perpetual lien in the property having priority over all other liens and encumbrances except general ad valorem tax liens, and such lien shall remain in full force and effect until paid in full. 11 -9 -9: LOCAL IMPROVEMENT FUND The City Council hereby creates the City of Pueblo Anti- Graffiti Local Improvement Fund Penalties assessed against violators of this Chapter shall be placed in the Fund, along 'With any monetary donations received from persons wishing to contribute to the Fund. The Council shall direct the expenditures of monies in the Fund. Such expenditures in the discretion of the City Council, may be appropriated to the payment of the cost of rrg affiti removal, the payment of rewards for information leading to the conviction of violation of this Chapter, the costs of administering this Chapter, and such other purposes as the Council may determine. 11 -9 -10: SEVERABILITY Severability is intended throughout and within the provisions of this Chapter. If any section, subsection, sentence. clause, phrase or portion of this Chapter is held to be invalid or unconstitutional by a court of competent jurisdiction, then that decision shall not affect the validity of the remaining portions of this Chapter. SECTION 2 Section 402 of Chapter 1 of Title XI of the 1971 Code of Ordinances of the City of Pueblo is amended to read as follows: 11 -1 -402: Damaging, Defacing or Destruction of Private Property Oa [(I)] It shall be unlawful for any person to knowingly damage, deface, destroy or injure the real or personal property of one (1) or more other persons in the course of a M single episode where the aggregate damage to the real or personal property is less than four hundred dollars ($400.00). [(2) "Deface" as used in subsection (1) shall include, but not be limited to, the writing, painting, inscribing, drawing, scratching or scribbling upon any wall or surface owned, operated or maintained by any person, unless there is written permission for said writing, painting, inscribing, drawing, scratching or scribbling. (3) Any person found guilty of violating subsection (1) of this section shall, in addition to any sentence of jail time, pay a fine not less than the following amounts: First offense $ 75.00 Second offense $150.00 Third or subsequent offense $300.00 The court shall have the authority to suspend any fine provided for above only when it orders a person found guilty of violating subsection (1) to perform useful public service, and credits the dollar amount earned through such public service toward payment of the minimum fine owed. The person shall be credited at the standard hourly rate for such public service as established by the rules and regulations of the court. Useful public service shall be considered work which is beneficial to the public and which involves a minimum of public cost and may include ordering the person found guilty of violating subsection (1) to personally make repairs to the property damaged or defaced.] (W[(4)] Damaging, defacing or destruction of property is a Class 1 municipal offense, provided that if the person found guilty of violating subsection (1) was [is] under eighteen (18) years of age on the date of violation the court shall not impose a jail sentence. SECTION 3 Section 403 of Chapter 1 of Title XI of the 1971 Code of Ordinances of the City of Pueblo is amended to read as follows: 11 -1 -403: Damaging, Defacing or Destruction of City Property (q[(1)] It shall be unlawful for any person to knowingly damage, deface, destroy or injure the real or personal property of the City in the course of a single episode where the aggregate damage to the real or personal property is less than four hundred dollars ($400.00). [(2) "Deface" as used in subsection (1) shall include, but not be limited to, the writing, painting, inscribing, drawing scratching or scribbling upon any public wall or public ®' surface owned, operated or maintained by the City, unless the City grants written permission for said writing, painting, inscribing, drawing, scratching or scribbling. (3) Any person found guilty of violating subsection (1) of this Section shall, in addition to any sentence of jail time, pay a fine not less than the following amounts: First offense $ 75.00 Second offense $150.00 Third or subsequent offense $300.00 The court shall have the authority to suspend any fine provided for above only when it orders a person found guilty of violating subsection (1) to perform useful public service, and credits the dollar amount earned through such public service toward payment of the minimum fine owed. The person shall be credited at the standard hourly rate for such public service as established by the rules and regulations of the court. Useful public service shall be considered work which is beneficial to the public and which involves a minimum of public cost and may include ordering the person found guilty of violating subsection (1) to personally make repairs to the property damaged or defaced.] (h)[(4)] Damaging, defacing or destruction of City property is a Class 1 municipal offense, provided that if the person found guilty of violating subsection (1) was [is] under eighteen (18) years of age on the date of violation the court shall not impose a jail sentence. SECTION 4 Section 706 of Chapter 1 of Title XI of the 1971 Code of Ordinances of the City of Pueblo is repealed in its entirety: 11 -1 -706: RESERVED [Regulation of Spray Paint and Jumbo Indelible Markers] [(1) Definitions. (A) "Spray paint" means paint in the form of a fine solid or a mixture of pigment and suitable liquid within a pressurized contained which dispenses or distributes the paint as a spray. (B) "Minor" means any person under the age of eighteen (18) years. (C) "Required warning" means a printed card with a minimum height of fourteen (14) inches and a width of eleven (11) inches, with lettering of at least one - half (1/2) inch in height, which states as follows: "WARNING: IT IS ILLEGAL TO -10- SELL OR DISTRIBUTE SPRAY PAINT OR JUMBO INDELIBLE MARKERS TO ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS OR FOR ANY PERSON UNDER THE AGE OF EIGHTEEN YEARS OF AGE TO POSSESS OR TO ATTEMPT TO PURCHASE SAME. IT IS ILLEGAL IF YOU ARE OVER EIGHTEEN YEARS OF AGE FOR YOU TO PURCHASE SPRAY PAINT OR JUMBO INDELIBLE MARKERS FOR A PERSON UNDER EIGHTEEN YEARS OF AGE. FINES MAY BE IMPOSED FOR VIOLATION OF THESE PROVISIONS." (D) "Jumbo indelible marker" means a container or device more than five (5) inches in length contained a liquid or mixture of liquid and solid designated for or capable of making marks which cannot easily be removed. (2) Every person engaged in whole or in part in the business of selling at retail spray paint or jumbo indelible markers shall prominently display the required warning at all places where spray paint or jumbo indelible markers are sold. (3) Unlawful Conduct. (A) It shall be unlawful and a Class 2 municipal offense for any person knowingly to sell, loan or furnish any spray paint or jumbo indelible marker to any minor. (B) It shall be unlawful and a Class 2 municipal offense for any minor to buy or carry on his or her person any spray paint or jumbo indelible marker, (C) It shall be unlawful and a Class 2 municipal offense for any person engaged in whole or in part in the business of selling at retail spray paint or jumbo indelible markers not to prominently display the required warning. (D) Nothing in this subsection (3) shall prevent any minor from carrying, possessing, using or applying any spray paint or jumbo indelible marker under the direct supervision of such minor's parent, guardian or teacher.] SECTION 5 This Ordinance shall become effective within thirty (30) days of final passage and approval. INTRODUCED August 11 , 1997 By Patrick Avalos Councilperson -ll- ATTEST: City C le APPROVED: President of tig City ouncil -12-