[HISTORY: Adopted by the City Council of the City of Newburgh as indicated in article histories. Amendments noted where applicable.]
[Adopted 11-13-1967 (Ch. 15, Art. I, Sec. 15-5, of the Code of Ordinances)]
No person shall injure or deface in any way, without the consent of the owner thereof, any fence, post or building.
No person shall attach to or place upon any telegraph pole, telephone pole, poles used for the support of electric wires or gas lamps in the streets and parks any bill, notice, poster, sign or advertisement whatsoever.
No person shall injure, deface, mar, disturb or befoul any grounds, trees or shrubs, waters or watercourses, buildings, signs, equipment or any other property owned by the City of Newburgh, its agencies, boards or commissions.
[Adopted 6-11-2007 by Ord. No. 9-2007]
Editor's Note: This ordinance also repealed former Art. II, Graffiti, adopted 12-9-1985 by Ord. No. 1, as amended.
The use of broad-tipped pens, spray cans or other marking devices used in connection with writing graffiti on the walls and other places of public and private buildings and other facilities and properties and on buses and other vehicles used by the public is harmful to the general public and is violative of the good and welfare of the people of the City of Newburgh. Such activity continues to occur regularly in the City of Newburgh.
The Council of the City of Newburgh finds that for the health, safety and welfare of the residents of the City, the laws designed to deter the defacement of public and private property through the use of aerosol spray paint cans, broad-tipped indelible markers and other marking devices shall be strengthened. The City Council finds further that such defacement of property is most often committed by persons under 18 years of age, using aerosol spray paint cans and broad-tipped indelible markers; that such aerosol cans and markers are frequently stolen from retail stores by such persons; that such persons rarely have a legitimate need for such aerosol cans or markers; that, where such a legitimate need exists, such aerosol cans or markers may be furnished by a parent or guardian and, therefore, that within the City of Newburgh the sale of such aerosol cans and markers to such underage persons should be prohibited; and that persons engaged in the retail sale of such aerosol cans and markers should be required to take reasonable steps to prevent the theft of such cans and markers or the sale thereof to minors; and that parents and legal guardians who are responsible for the custody and supervision of such minors shall be held legally accountable for the costs associated with the damage done to property and the cost of remediating such damage, including but not limited to the legal expenses of enforcement thereof resulting from the conduct of such minors in defacing property with graffiti as described herein and prohibited hereby.
The Council further finds that the defacement of private property by graffiti, especially vacant buildings, is proliferating throughout the City and requires the enactment of measures to effect its removal and to preserve, enhance and protect the aesthetics of the City and to protect the general welfare of the public.
The need for legislative intervention is necessary and advisable to regulate the distribution and sale of aerosol cans of paint and similar products used in writing graffiti. Punishment by fine and imprisonment insofar as our youthful offenders are concerned has thus far failed to halt this vandalism. It is the intent of the Council that any person guilty of writing graffiti on public and private buildings and the conduct of persons who aid and abet same should be punished so that the punishment shall fit the crime. Further, the City Council finds that it is appropriate and necessary to impose responsibility upon adults who are legally charged with and responsible for the care of minors who engage in such destructive and antisocial behavior.
The Council of the City of Newburgh accordingly recommends to the judiciary that when an offender has been convicted of violating this article, among the other remedies designed to deter and prevent persons from engaging in such activity, he may be sentenced to remove graffiti under the supervision of an officer or employee designated by the court, including but not limited to Chief of Police or his designee, in addition to the other penalties provided for herein, and as further provided by the statutes, codes, rules and regulations of the City of Newburgh and State of New York, and to such other and further terms as shall provide restoration and restitution to the victim and to the community and rehabilitation to the offender if appropriate.
As used in this article, the following terms shall have the meanings indicated:
- BROAD-TIPPED INDELIBLE MARKER
- Any felt-tip marker or similar implement containing a fluid or coloring matter that is not water soluble and which has a flat or angled writing surface of 1/2 inch or greater.
- To mark, alter, mar or obscure the face or surface or to disfigure, injure or spoil the appearance of a surface or image, without proper or legal permission or authority.
- An inscription, figure, mark or design, or the addition of color or material, or the unauthorized destruction, alteration or removal of same, which is written, scratched, sprayed, painted, removed, applied or drawn on a wall, building, monument, picture, poster, painting, sign, surfaces, image, artwork, statue, rock or any other surface of real or personal property without proper legal permission or authority.
No person shall write, paint, scratch, apply, remove, spray or draw any inscription, color, material, figure or mark, or otherwise mar or deface any building, or surfaces, public or private, or any other property, real or personal, or any statue, monument, artwork, office, passenger or commercial vehicle, bridge, dwelling or structure of any kind, including those in the course of construction or any portion thereof, without the consent and express permission of the owner, operator or proprietor of said property or, in the case of public property, of the person having charge, custody or control thereof; nor shall any person act to aid or abet same, including but not limited to furnishing any implement or other means of causing such graffiti or acting in concert with the perpetrator of such graffiti, including acting as a lookout.
Absent express permission to the contrary, it shall be unlawful for any person to carry an aerosol can of paint in any public or private building or on any other public or private property or facility with the intent to use the same in violation of this article. All such aerosol cans shall be handled, delivered or transported completely enclosed in a sealed container, such that said aerosol cans cannot be utilized unless the seal is broken and which seal cannot be resealed by the purchaser.
Sale of aerosol spray paint cans and broad-tipped indelible markers.
No person shall sell or offer to sell an aerosol spray paint can or broad-tipped indelible marker to any person under 18 years of age.
A person who sells or offers for sale aerosol spray cans or broad-tipped indelible markers to the general public shall not place such cans or markers on display or within reach of customers but shall display only signs, images or facsimiles of such cans or markers containing no paint, ink or other colored fluid.
It shall be the duty of any person or entity who sells or offers for sale any container described in Subsection A to require from any person desiring to purchase such container identification and proof of such person's age before selling or delivering a container to such a person.
Persons engaged in the handling and/or sale of aerosol spray paint cans and broad-tipped markers shall store and keep same in a secure and segregated container, room and location such that they are not accessible to the public or to unauthorized persons.
Owners of property in the City of Newburgh shall be responsible for removing or painting over graffiti or otherwise restoring the property so defaced. Owners shall be responsible for complying with any and all laws, codes, rules, regulations and standard practices with respect to such removal and other remediation thereof, including the provision of all supervision, training, equipment, uniforms and all other protections and measures which are necessary and appropriate to protect all persons, including their agents, employees and contractors and members of the general public.
Upon written notice or complaint or of his own volition and after inspecting the property, the Building Inspector, or his designee, shall have the power and duty to request the restoration of property defaced with graffiti, upon seven days' written notice to the property owner or other responsible person in charge of the property indicating the noncompliant condition of the property, offering technical advice and information to assist in the restoration of the property and providing notification of the City's intent to restore the property so defaced should the owner fail to do so. Upon the property owner's failure to comply with such request, the City may take appropriate action to remedy, remove or paint over the graffiti, including but not limited to the treatment of outer surfaces with sealant or other protective substances or materials designed to prevent the future addition of or facilitate the further removal of graffiti therefrom.
In any case in which the City takes appropriate action to remedy, remove or paint over graffiti as provided in Subsection B hereinabove, after providing the notice as required therein, then in such case the City shall be entitled to recover from the owner or from the offender or from both, jointly and severally, reimbursements for the actual costs and expenses associated with such remedy, removal or painting over. The City may undertake any and all available actions which may be appropriate and necessary to securing such reimbursement, including but not limited to any or all of the following: negotiation with the responsible party, mediation, arbitration, legal action, and/or assessing a lien against the property for the costs of such remedy, removal, or painting over, together with an administrative fee of 15%, pursuant to the procedures set forth in Chapter 226 of the City Code.
[Amended 1-10-2011 by Ord. No. 2-2011]
Nothing herein shall be deemed to relieve any property owner from the continuing and ongoing obligation to comply with all provisions of all applicable codes, rules and regulations, including those of the State of New York and of the City of Newburgh. This obligation shall include compliance with the requirements of the City Code, and the Codes Compliance Supervisor, and of the Building Inspector, and of the Planning Board, and Zoning Board of Appeals, and if the property is located in the Historic District with the design standards and with the requirements of the Architectural Review Committee applicable thereto, and if the property is located in the Waterfront District with the design standards and with the local waterfront revitalization plan and with the requirements of the Conservation Advisory Council authorized by law and applicable thereto.
[Amended 8-19-2013 by Ord. No. 10-2013]
The City Manager may offer a reward in any amount up to $250 or such other sum as the City Council may approve for information which leads to the arrest and conviction of any person for violating this article. In the event that such reward is paid as provided herein, the City may seek reimbursement of the actual amount of such reward paid, in addition to such other costs and expenses incurred by the City as provided in § 234-8C and the other sections of this article.
Any parent or legal guardian having legal or physical custody or control of a minor who violates any section of this article shall be personally liable for any and all costs to the City of Newburgh and for any and all costs to any property owner incurred in connection with damage to premises caused and costs and expenses incurred in connection with the removal and subsequent prevention measures taken in connection with graffiti caused by such minor, including but not limited to those described in § 234-8 and other sections of this article and those incurred in connection with and for legal charges and expenses, court costs and attorneys' fees for and in connection with the civil, criminal or other legal enforcement action undertaken in connection with the acts of said minor. The liability of such parent and/or lawful guardian set forth herein shall be in addition to and not instead of any other remedies or provisions of law or equity.
Any person who violates this article shall be guilty of a Class A misdemeanor, punishable by a fine of not more than, $1,000 or imprisonment for not more than one year, or both. It is the recommendation of the City Council that, where appropriate, the courts imposing punishment require those who commit such acts of defacement to also restore the property so damaged and/or otherwise be required to provide and perform appropriate acts of restitution and/or community service as a term or condition of the sentence and/or disposition of such matter.
If any term, part, provision, section, subdivision or paragraph of this article shall be held unconstitutional, invalid or ineffective, in whole or in part, such determination shall not be deemed to invalidate the remaining terms, parts, provisions, sections, subdivisions and paragraphs.
This article shall take effect immediately, as provided under the Municipal Home Rule Law and other laws of the State of New York.