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