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HomeMy Public PortalAboutOrdinance No. 740-95 01-24-1995 • ORDINANCE NO. 7 4 0- 9 5 AN ORDINANCE AMENDING CHAPTER 7, "OFFENSES AND NUISANCES" OF THE CODE OF ORDINANCES OF THE CITY OF RICHLAND HILLS, TEXAS, BY THE ADDITION OF A NEW SECTION 17, ENTITLED "GRAFFITI", RELATIVE TO GRAFFITI REMOVAL; PROVIDING FOR A FINE OF UP TO $500 FOR EACH OFFENSE IN VIOLATION OF THE ORDINANCE; PROVIDING THIS ORDINANCE BE CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR GOVERNMENTAL IlViMUNITY; PROVIDING FOR INJUNCTIONS; PROVIDING A SAVING CLAUSE AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Richland Hills is a home rule municipal corporation organized and existing by virtue of the Constitution and laws of the State of Texas and by its Charter adopted in 1986; and WHEREAS, the City Council of the City of Richland Hills finds that the use of "graffiti" by members of the populace has grown to significant levels in certain areas of the community, both public and private; and WHEREAS, the City Council further finds that graffiti serves as a method of communication for individuals who engage in illegal activities of all sorts, and • therefore graffiti serves as an aid in the proliferation of criminal activities; and WHEREAS, the City Council further finds that a large proportion of the individuals who engage in the criminal activity are in fact minors, and that the favored medium for the application of graffiti is aerosol paint ("spray paint"); and WHEREAS, the City of Richland Hills possesses all the rights, powers and authorities possessed by all home rule municipalities, including the police power, as recognized in Article II, Section 5 of the Constitution of the State of Texas; and WHEREAS, the City Council recognizes that the control of graffiti, and of the implements of graffiti are within the police power of the City of Richland Hills; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF RICHLAND HILLS, TEXAS: I. That the Chapter 7, "OFFENSES AND NUISANCES" of the Code of Ordinances of the City of Richland Hills, Texas, be and the same is hereby amended by the addition thereto of a new Section 17: "Graffiti", so that hereafter said Section shall be and read as follows: ORDINANCE NO. 7 4 0- 9 5 Page 1 SECTION 17: GRAFFITI • Preamble -The City of Richland Hills recognizes that graffiti is a blight upon our community and brings with it the possibility of violence for youths and adults alike. The City further recognizes that it is only through a cooperative effort of our citizens that graffiti, and its resultant negative effects, can be controlled. This ordinance is passed with the understanding that the body charged with enforcing the ordinance will make every reasonable effort to abate the problem through cooperative efforts. The punitive measures of this ordinance will only be used as a last resort, when all reasonable alternatives have been exhausted. A. Definitions The following terms and phrases, as used in this Section unless the context clearly shows otherwise, shall have the following meanings: "Aerosol Paint" - An aerosolized paint product, including a clear or pigmented lacquer or finish. "Chief of Police" -the Chief of the Richland Hills Police Department or, in the absence or upon the disability of said Chief, the person designated by the Chief of Police to serve in the absence or upon the disability of the Chief of the Richland Hills Police Department. "Graffiti" -Any unauthorized inscription, word, signature, symbol, design or other marking of any sort which is etched, written, painted, drawn or applied in • any other way to any structure, building or property of any sort or to any portion or element thereof, whether the property is public or private. "Guardian" - A person who, under court order, is the guardian of the person of a minor; or a public or private agency with whom a minor has been placed by a court. "Minor" -Any person under seventeen (17) years of age. "Owner" -Any person with the legal right of possession of tangible property which includes, but is not limited to the actual owner or his lessee. "Parent" - A person who is a natural parent, adoptive parent or stepparent of another person. "Unauthorized" -Without the permission of the owner or person in control of property, whether public or private. B. Graffiti Removal Requirement 1. Owner Responsibility. An owner of any tangible property in the City commits an offense if he or she fails to remove all graffiti from the property that is visible from any public property or right-of-way or from any private property other than the property on which the graffiti exists, unless the graffiti was created on the property with the owner's consent • and does not violate the sign regulations of the City of Richland Hills or any other applicable City ordinance or state or federal law. ORDINANCE NO. 7 4 0- 9 5 Page 2 • 2. Notice of Requirement to Remove Graffiti Prior to issuance of a citation for failure of a person to remove graffiti from property under his or her control, the owner must be given notice of the violation. Notice may be made personally to the owner in writing, by letter addressed to the owner's mailing address or by publication in a newspaper of general circulation in the City of Richland Hills at least twice within ten (10) consecutive days, if personal service cannot be obtained or the owner's mailing address is unknown. Citation for a violation of Subsection B(1) hereof may be issued fourteen (14) calendar days after notification of the violation. Notice will be deemed to have occurred as of the day the notice was given personally to the owner, or three (3) days after written notice was mailed to the owner, or if notice is by publication, on the date that the second or last notice is published in the newspaper of general circulation of the City of Richland Hills. Notice shall be sufficient if it states the following regarding the offense: Date, physical location denoted by street address, name of owner, notation of the violation of the graffiti section of this Chapter of the Code of Ordinances of the City of Richland Hills. 3. Owner's Responsibility. Once provided notice by the City, an owner shall have the option of arranging graffiti removal himself, or he may request assistance through the City's volunteer program, as set out in Subsection B(5) hereof. The request shall be in writing and directed to the Chief of Police. All time limits, as set forth in Subsections B(2) and B(6) of this ordinance, shall apply. • 4. Request for Extension of Time. Once the owner has received notice and arranged for clean-up, either personally or through the volunteer program, the owner may request, in writing, an extension of time. The request shall be directed to the Chief of Police and must set out the reasons for the delay. The request must be received prior to the expiration of the fourteen (14) day period set out in Subsection B(2). The Chief shall be authorized to grant one (1) fourteen (14) calendar day extension. 5. Prerequisite for the City: Volunteer Assistance The Chief of Police shall be responsible for establishing a written policy to address a volunteer program for graffiti removal. The policy shall address the following issues: (a) That all resources available shall be utilized to assist those who ask for help. All requests for assistance must be in writing and directed to the Chief of Police. Requests may be delivered to the main police station, or sent via U.S. mail. (b) That the volunteer program will make every reasonable effort, relying to the greatest extent possible on donated materials, to restore the property to its condition immediately preceding the application of the grafitti. When deemed necessary in the judgment of the Chief of Police, the program may spend City funds as authorized by the City Council and utilize City forces • ORDINANCE NO. 7 4 0- 9 5 Page 3 • as authorized by the City Manager to restore such property; however, no expenditure of City funds or use of City forces shall ever be required under said program. The program will only address actual grafitti damage; it will not address collateral damage of any type. (c) That the volunteer program specifically prohibits the use, unless a written waiver is submitted by the property owner, of any volunteer who is currently on probation or deferred adjudication or deferred prosecution or community supervision for a Class B misdemeanor offense or greater offense. (d) That the property owner, by signing a written waiver of liability, states he is aware that volunteers, as described in Subsection B(5)(c) above, are available, and he affirmatively consents to their presence on his property, understanding that they will not be supervised by City employees and agrees to hold harmless the City for any conduct, act or omission by said volunteers. 6. Responsibility of Owner to Arrange Removal. It shall be the responsibility of the property owner to coordinate with the volunteers an appropriate time for the removal of the graffiti, within the time limits established by this ordinance. 7. City Liability. The City of Richland Hills or its employees shall not be • liable for any aspect of the work performed by volunteers, pursuant to this section, nor shall the City or its employees be liable for the conduct of any person performing work pursuant to this section or for any accident, mishap or misfortune that occurs to any person(s) participating in the volunteer assistance program. 8. Computation of Time. The fourteen (14) calendar days will be counted: 1. From the date the notice is personally served on the owner or from the third (3rd) day after the notice is placed in the United States mail; or 2. If the owner cannot be found or the notice is returned by the United States Postal Service, from the date the notice is published for the second time, in accordance with Subsection B(2) of this section. 3. The fourteen (14) day extension, if granted, shall commence immediately upon the expiration of the preceding fourteen (14) day period, as calculated above. C. Responsibility of Parent or Guardian For Graffiti Created By Minor Permitting or Allowing Minor to Create Graffiti A parent or guardian of a minor commits an offense if he or she intentionally, knowingly, recklessly or with criminal negligence permits the minor to create graffiti on tangible property in the City without the property owner's consent. • ORDINANCE NO. 7 4 0- 9 5 Page 4 D. Possession Of Aerosol Paint By Minor • 1. Possessing Aerosol Paint. It shall be unlawful fora minor to possess aerosol paint of any sort or character. 2. Affirmative Defense. It shall be an affirmative defense to a violation of the preceding paragraph that, at the time of possession, the minor was accompanied or supervised by a parent or guardian, a teacher in connection with a bona fide school project, a supervisor during the minor's regular employment, or that the minor possessed the aerosol paint on the property on which he or she lives or that the possession occurred as part of an organized event sponsored or supervised by the City, a school, a church or some other officially recognized entity. E. Enforcement 1. Enforcement. It shall be the duty of the Chief of Police to enforce this ordinance. Any person, firm, corporation, or agent or employee thereof, who violates any of the provisions of this ordinance shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined an amount not to exceed Five Hundred and No/00 Dollars ($500.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. 2. Affirmative Defenses. It is an affirmative defense to prosecution under Subsection B(1) of this Section that: • (a) No notice was served on the property owner, in compliance with Subsection (B)(2); (b) The property owner has removed graffiti from that particular property three (3) or more times within the preceding twelve (12) months; or (c) Before being issued a citation under this section, the property owner gave the Chief of Police written authorization to allow persons to enter onto the property and remove the graffiti, pursuant to a volunteer or community service program approved by the Chief of Police in which the property owner is eligible to participate. II. This ordinance shall be and is hereby declared to be cumulative of all other ordinances of the City of Richland Hills, and this ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this ordinance, in which event such conflicting provisions, if any, in such other ordinance or ordinances are hereby repealed. • ORDINANCE NO. 7 4 0- 9 5 Page 5 III. • Severability Clause. That it is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared invalid or unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such invalidity or unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such invalid or unconstitutional phrase, clause, sentence, paragraph or section. IV. All of the regulations provided in this ordinance are hereby declared to be governmental and for the health, safety and welfare of the general public. Any member of the City Council or any City official or employee charged with the enforcement of this ordinance, acting for the City of Richland Hills in the discharge of his/her duties, shall not thereby render himself/herself personally liable; and he/she is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his/her said duties. V. Any violation of this ordinance can be enjoined by a suit filed in the name of the • City of Richland Hills in a court of competent jurisdiction, and this remedy shall be in addition to any penal provision in this ordinance or in the Code of Ordinances of the City of Richland Hills. VI. Saving Clause. That Chapter 7 of the Code of Ordinances, City of Richland Hills, Texas, as amended, shall remain in full force and effect, save and except as amended by this ordinance. VII. Effective Date. This ordinance shall be in full force and effect from and after its passage and publication as provided by the Richland Hills City Charter and the laws of the State of Texas. PRESENTED, GIVEN FIRST READING AND APPROVED at a regular meeting of the Richland Hills City Council on the2 4th day ofJanuary 199 S, by a vote of ayes, 0 nays, and 0 abstentions. APPROVED: G C. F. Kelley, Mayor • ORDINANCE NO. 7 4 0- 9 5 Page 6 ATTEST: Terri illis, C' y Secretary AP D AS TO FORM AND LEGALITY: r Paul F. Wieneskie, ty Attorney mlib644/bh/122395 ORDINANCE NO. 7 4 0- 9 5 Page 7