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Article 10-6
ANTI-GRAFFITISections:
10-6-1 Reserved
10-6-2 Definitions
10-6-3 Prohibited Acts
10-6-4 Accessibility to Graffiti Implements
10-6-5 Penalties
10-6-6 Rewards and Reimbursements for Information
10-6-7 Graffiti As Nuisance
10-6-8 Removal of Graffiti by Perpetrator
10-6-9 Removal of Graffiti By Property Owner or Town
10-6-10 Ease of Removal Provisions
10-6-11 Prevention Provisions
10-6-12 Trust Fund
10-6-1 Reserved
Reserved.
(02-07, Added, 03/20/2002)
10-6-2 Definitions
For the purposes of this Code, the following words shall have the meanings respectively ascribed to them in this Section, except where the context clearly indicates a different meaning:
A. 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.
B. 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.
C. Etching equipment means any tool, device, or substance that can be used to make permanent marks on any natural or man-made surface.
D. Graffiti means any unauthorized inscription, word, figure, painting or other defacement that is written, marked, etched, scratched, sprayed, drawn, painted, or engraved on or otherwise affixed to any surface of public or private property by any graffiti implement, to the extent that the graffiti was not authorized in advance by the owner or occupant of the property, or, despite advance authorization, is otherwise deemed a public nuisance by the Town Council.
E. Graffiti implement means an aerosol paint container, a broadtipped marker, gum label, paint stick or graffiti stick, etching equipment, or brush.
F. Paint stick or graffiti means any device containing a solid form of paint, chalk, was, epoxy, or other similar substance capable of being applied to a surface by pressure and leaving a mark of at least one-eighth (1/8th) of an inch in width.
G. Person means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or any other legal entity.
(02-07, Added, 03/20/2002)
10-6-3 Prohibited Acts
A. Defacement. It shall be lawful for any person to apply graffiti to any natural or man-made surface on any Town-owned property, or, without the permission of the owner or occupant, on any non-Town-owned property.
B. Possession of Graffiti Implements:
1. By Minors at or Near School Facilities. It shall be unlawful for any person under the age of eighteen (18) years to possess any graffiti implement while on any school property, grounds, facilities, buildings, or structures, or in areas immediately adjacent to those specific locations upon public property, or upon private property without the prior written consent of the owner or occupant of such private property. The provisions of this Section shall not apply to the possession of broad-tipped markers or other instruments by a minor attending or traveling to or from school at which the minor is enrolled if the minor is participating in a class at the school that formally requires the possession of broad-tipped markers or other such instruments. The burden of proof in any prosecution for violation of this Section shall be upon the minor student to establish the need to possess a broad-tipped marker.
2. In Designated Public Places. It shall be unlawful for any person to possess any graffiti implement while in or upon any public facility, park, playground, swimming pool, recreational facility, or other public building or structure owned or operated by the Town or while in or within fifty (50) feet of an underpass, bridge abutment, storm drain, or similar types of infrastructure unless otherwise authorized by the Town.
(02-07, Added, 03/20/2002)
10-6-4 Accessibility to Graffiti Implements
A. Furnishing to Minors Prohibited. It shall be unlawful for any person, other than a parent or legal guardian to sell, exchange, give, loan, or otherwise furnish, or cause to permit to be exchanged, given, loaned, or otherwise furnished, any aerosol paint container, broad-tipped marker, or paint stick to any person under the age of eighteen (18) years without the written consent of the parents or guardian of the person.
B. Display and Storage.
1. Every person who owns, conducts, operates, or manages a retail commercial establishment selling 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 of surveillance equipment, by employees of the retail establishment during the regular course of business.
2. 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.
C. Signage Required. Every person who operates a retail commercial establishment selling graffiti implements shall:
1. Place a sign in clear, public view at or near the display of such products stating: "Graffiti is against the law. Any person who defaces real or personal property with paint or any other liquid or device is guilty of a crime punishable by imprisonment of up to 180 days and/or a fine up to $2,500.00"
2. Place a sign in the direct view of such persons responsible for accepting customer payment for graffiti implements stating: "Selling spray paint, paint sticks, or broad-tipped markers to persons under 18 years of age is against the law and punishable by a fine of $2,500.00."
(02-07, Added, 03/20/2002)
10-6-5 Penalties
A. Fines and Imprisonment. Any person violating this Code shall be punished by a fine of not less than twenty five dollars ($25.00) for the first offense; five hundred dollars ($500.00) for the second offense; and one thousand dollars ($1,000.00) for each subsequent offense, or by imprisonment in jail or probation or by both fine and imprisonment and probation at the discretion of the court.
1. In the case of a minor, the parents or legal guardian shall be jointly and severably liable with the minor for payment of all fines.
2. Failure of the parents or legal guardian to make payment may result in the filing of a lien on the parent’s or legal guardian’s property that includes the fine and administrative costs.
3. Upon an application and finding of indigence, the court may decline to order fines against the minor, parents or guardian.
B. 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 violator’s offense in the amount or manner determined by the court. In the case of a minor, the parents or legal guardian shall be ordered jointly and severably liable with the minor to make the restitution.
C. Forfeiture of Personal Property. All personal property, including, but not limited to, automobiles, motorcycles and bicycles, used or intended to be used in violating this Code shall be forfeitable to the Town. In forfeiting such personal property, the Town shall follow the procedures outlined in State statutues concerning forfeitures of personal property. In any forfeiture proceeding under this Section, the court shall not order a forfeiture unless it finds that the forfeiture is commensurate with the severity of the violation to the extent required by the Arizona and United States constitutions.
D. Community Service. In lieu of, or as part of, the penalties specified in this Section, a minor or adult may be required to perform community service as described by the court based on the following minimum requirements:
1. The minor or adult shall perform as least thirty (30) hours of community service within the Town boundaries of Oro Valley.
2. At least one parent or guardian of the minor shall be in attendance a minimum of fifty percent (50%) of the period of assigned community service.
3. The entire period of community service shall be performed under the supervision of a community service provider approved by the Chief of Police.
4. Reasonable effort shall be made to assign the minor or adult to a type of community service that is reasonably expected to have a rehabilitative effect on the minor or adult, including community service that involves graffiti removal.
5. Any minor determined to be a ward of the court under Arizona State law as a result of committing an offense in the town shall be required, at the Town’s option, to perform community service, including graffiti removal service of not less than thirty (30) hours nor more than eighty (80) hours.
E. Civil Responsibility for Damages for Wrongful Sale, Display or Storage. Any person who sells, displays or stores, or permits the sale, display or storage, of graffiti implements in violation of the provisions of this Code shall be personally liable for all costs, including attorney’s fees and court costs, incurred by any party in connection with the removal of graffiti, or such party’s prosecution of a civil claim for reimbursement or damages resulting from such graffiti removal or property repair, arising from the use by any person of such wrongfully sold, displayed or stored graffiti implement in violation of the provisions of this Code, provided that such liability shall not exceed two thousand five hundred dollars ($2,500.00).
(02-07, Added, 03/20/2002; 02-07, Amended, 03/20/2002)
10-6-6 Rewards and Reimbursements for Information
A. Pursuant to this Section of the Town Code, the Town may offer a reward in an amount to be established by resolution of the Town Council for information leading to the identification and apprehension of any person who willfully damages or destroys any public or private property by the use of graffiti. The local police department shall administer such reward program. In the event of damage to public property, the offender or the parents or legal guardian of any unemancipated minor must reimburse the Town for any reward paid. In the event of multiple contributors of information, the Town in the manner it shall deem appropriate shall divide the reward amount.
B. Claims for rewards under this Section shall be filed with the Town in the manner specified by the Town Council.
C. No claim for a reward shall be allowed until the Town investigates and verifies the accuracy of the claim and determines that the requirements of this Section have been satisfied.
D. The Town shall reimburse to any person reporting by means of a mobile or cellular phone an act of graffiti vandalism or existence of graffiti within the Town the amount of the direct phone charges, exclusive of taxes, incurred by the person.
(02-07, Added, 03/20/2002)
10-6-7 Graffiti As Nuisance
A. The existence of graffiti on public or private property in violation of this Code is expressly declared to be a public nuisance and; therefore, is subject to the removal and abatement provisions specified in this Code.
B. 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.
(02-07, Added, 03/20/2002)
10-6-8 Removal of Graffiti by Perpetrator
Any person applying graffiti on public or private property shall have the duty to remove the graffiti within twenty-four (24) hours after notice by the Town or private owner of the property involved. Such removal shall be done in a manner prescribed by the Chief of Police, the Director of the Department of Public Works, or any additional Town department head, as authorized by the Town Council. Any person applying graffiti shall be responsible for the removal or for payment of the removal. Failure of any person to remove graffiti or pay for the removal shall constitute an additional violation of this Code. Where an unemancipated minor applies graffiti, the parents or legal guardian shall also be responsible for such removal or for the payment for the removal.
(02-07, Added, 03/20/2002)
10-6-9 Removal of Graffiti By Property Owner or Town
If graffiti is not removed by the perpetrator according to Section 10-6-8, graffiti shall be removed pursuant to the following provisions:
A. Property Owner Responsibility. It is unlawful for any person who is the owner or who has primary responsibility for control of property or for repair or maintenance of property in the Town to permit property that is defaced with graffiti to remain defaced for a period of ten (10) days after service of First Class Mail of notice of the defacement. The notice shall contain the following information:
1. The street address and legal description of the property sufficient for identification of the property;
2. A statement that the property is a potential graffiti nuisance property with a concise description of the conditions leading to the finding;
3. 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 Town will declare the property to be a public nuisance, subject to the abatement procedures in Town Code Section 10-6-9; and
4. An information sheet identifying any graffiti removal assistance programs available through the Town and private graffiti removal contractors.
B. Exceptions to Property Owner Responsibility. The removal requirements of subsection A above shall not apply if the property owner or responsible party can demonstrate that:
1. The property owner or responsible party lacks the financial ability to remove the defacing graffiti; or
2. The property owner or responsible party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it shall be unlawful to permit such property to remain defaced with graffiti for a period of fifteen (15) days after service by First Class Mail of notice of the defacement.
C. Right of Town to Remove.
1. Use of Public Funds. Whenever the Town 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 Town 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 under take to provide for the painting or repair of any more extensive an area than where the graffiti is located, unless the Town Manager, or the designee of the Town 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 costs of repainting or repairing the more extensive area.
2. Right of Entry on Private Property. Prior to entering upon private property or property owned by a public entity other than the Town for the purpose of graffiti removal, the Town shall attempt to secure the consent of the property owner or responsible party and a release of the Town from liability for property damage or personal injury. If the property owner or responsible party fails to remove the offending graffiti within the time specified by this Code, or if the Town has requested consent to remove or paint over the offending graffiti, and the property owner or responsible party has refused consent for entry on terms acceptable to the Town and consistent with the terms of this Section, the Town shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below.
D. Abatement and Cost Recovery Proceedings.
1. Notice of Due Process Hearing. The Town Manager, or the designee of the Town Manager, serving as the Hearing Officer, shall provide the property owner of record and the party responsible for the maintenance of the property, if a person is different than the owner, not less than forty-eight (48) hours notice of the Town’s intent to hold a due process 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 deemed to be completed if served by First Class Mail. There shall be a presumption that the mail was delivered in any legal proceeding. 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 and publication thereof in a newspaper of general circulation published in the area in which the property is located.
2. Determination of the Hearing Officer. The determination of the Hearing Officer after the due process hearing shall be final and not appealable. If, after the due process 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 in an eradication order that, unless the graffiti is removed within ten (10) days, the Town shall enter upon the property, cause the removal, painting over (in such color as shall meet with the approval of the Hearing Officer), or such other eradication therof as the Hearing Officer determines appropriate, and shall provide the owner and the responsible party thereafter with an accounting of the costs of the eradication effort on a full cost recovery basis.
3. Eradication Effort. Not sooner than the time specified in the order of the Hearing Officer, the Town Manager, or the designee of the Town Manager shall implement the eradication order and shall provide an accounting to the owner and the responsible party of the costs thereof.
4. Cost Hearing. The owner or responsible party may request a cost hearing before the Hearing Officer on the eradication accounting, and appropriate due process must be extended to the owner or responsible party. If following the cost hearing, or if no hearing is requested, after the implementation of the eradication order, the Hearing Officer determines that all or a portion of the costs are appropriately chargeable to the eradication effort, the total amount set forth in the eradication accounting, or an amount thereof determined as appropriate by the Hearing Officer, shall be due and payable by the owner or responsible party within thirty (30) days. Any amount of eradication charges assessed by the Hearing Officer that are less than the total amount set forth in the eradication accounting shall be explained by written letter from the Hearing Officer to the Town Council.
5. Lien. As to such property where the responsible party is the property owner, if all or any portion of the assessed eradication charges remain unpaid after thirty (30) days, pursuant to the authority created by State law, the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the eradication effort. The Director of Public Works shall present a Resolution of Lien to the Town Council, and upon passage and adoption thereof, shall cause a certified copy of the Lien to be recorded with the Town Clerk’s Office.
(02-07, Added, 03/20/2002)
10-6-10 Ease of Removal Provisions
A. Common Utility Colors and Paint-type. Any gas, electric, telephone, water, sewer, cable, telephone and other utility operating in the Town shall paint its above-surface metal fixtures with a uniform paint type and color that meets with the approval of the Town Manager.
B. Condition Encroachment Permits. All encroachment permits issued by the Town shall, among such other things, be conditioned on:
1. The permittee’s application of an anti-graffiti material to the encroaching object of a type and nature that is acceptable to the Town Manager, or the Town Manager’s designee;
2. The permittee’s immediate removal of any graffiti.
3. The Town’s right to remove graffiti or to paint the encroaching object; or
4. The permittee’s providing the Town with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object containing graffiti.
C. Condition Tentative Maps. In approving tentative or parcel maps, conditional use permits, variances, or other similar land use entitlements, the Town shall consider imposing any or all of the following conditions, or other similar or related conditions, at the public hearing required by law for approval of the tentative or parcel map, conditional use permit, variance or other similar land use entitlement.
1. Use of Anti-Graffiti Material. Developer shall apply an anti-graffiti material of a type and nature that is acceptable to the Town Manager, or the designee of the Town Manager, to the publicly viewable surfaces on the improvements to be constructed at the site deemed by the Town Manager, or designee, to be likely to attract graffiti;
2. Right of Access to Remove Graffiti. Developer shall permanently grant, prior to resale of any of the parcels that are within the territory of the map, the right of entry over and access to such parcels, upon forty-eight (48) hours posting of notice by authorized Town employees or agents, to the Town for the purpose of removing or painting over graffiti;
3. Supply Town with Graffiti-Removal Material. Developer shall, for a period of two (2) years after the resale of the final lot, provide the Town with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of graffiti; or
4. Owner to Immediately Remove Graffiti. Developer shall, either as part of the general conditions, covenants and restrictions, or separate covenants recorded against individual lots, prior to resale of any of the parcels, covenant in a form satisfactory to the Town that the owner of the lots shall immediately remove any graffiti placed thereon.
(02-07, Added, 03/20/2002)
10-6-11 Prevention Provisions
A. Design of Potential Graffiti-Attracting Surfaces. Any applicant for design review approval, conditional use permit, special use permit, unclassified use permit, development agreement, or other form of development or building permit shall, to the extent deemed feasible by the Town Manager, or the designee of the Town Manager, have designed any building structures visible from any public or quasi-public place in such a manner to consider prevention of graffiti, including, but not limited to the following:
1. Use of a protective coating to provide for the effective and expeditious removal of graffiti;
2. Use of additional lighting;
3. Use of non-solid fencing;
4. Use of landscaping designed to cover large expansive walls, such as ivy or similar clinging vegetation; or
5. Use of architectural design to break up long, continuous walls or solid areas.
B. Retro-Fit Existing Graffiti-Attracting Surfaces; Non-Residential Structures. The following provisions may be incorporated in a graffiti eradication order during an abatement hearing, at the discretion of the Hearing Officer.
1. At Owner’s Expense. Any surface of a structure on a parcel of land for non-residential purposes that has been defaced with graffiti equal to or more than five (5) times in twelve (12) months shall be declared a public nuisance and required to be retrofitted, at the cost of the property owner, with features or qualities as may be established by the Town as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal of graffiti. In exercising the authority hereunder, the Town may not impose a cost on the property owner of greater than two thousand five hundred dollars ($2,500.00).
2. At Town’s Cost. The owner of property used for non-residential purposes on which is located a surface of a structure that has been defaced with graffiti equal to or more than five (5) times in twelve (12) months shall permit the Town to enter the property and, at the Town’s cost, make modifications as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal of graffiti.
(02-07, Added, 03/20/2002)
10-6-12 Trust Fund
The Town Council hereby creates the Town of Oro Valley Anti-Graffiti Trust Fund. Penalties assessed against violators of this Code 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 shall be limited to the payment of the cost of graffiti removal, the payment, at the discretion of the Town Manager, or his designee, of rewards for information leading to the conviction of violation of the Code, the costs of administering the Code, and such other public purposes as may be approved by the Council by resolution.
((O)02-07, Added, 03/20/2002)
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