[HISTORY: Adopted by the City Council of the City of Colonial Heights 10-13-2009 by Ord. No. 09-21. Amendments noted where applicable.]
It is the purpose and intent of this section to make unlawful the willful and malicious damage to or defacement of any public buildings, facilities, walls, fences, structures, or personal property, or of any private buildings, facilities, walls, fences, structures, or personal property, and to establish a procedure for the remediation of any damage or defacement, including graffiti, from public and private property, to provide for the recovery of costs of any cleaning, covering, repairing, replacing, removing without limitation and to provide a measure of rehabilitation, through community service, for those persons guilty of violations of this section.
COMMUNITY SERVICE SUPERVISOR — Shall be the City Manager or his designee who shall have the authority to supervise the court ordered community service program authorized by this section.
- Shall have the same meaning as graffiti.
- Shall mean the unauthorized application by any means of any writing, painting, drawing, etching, scratching, or marking of an inscription, word, figure, or design of any type.
- REMEDIATE or REMEDIATION
- Shall mean the removing, repairing, covering, cleaning, or replacing the defacement or damage to property.
It shall be unlawful for any person to deface or damage any public buildings, facilities, walls, fences, structures, or personal property, or any private buildings, facilities, walls, fences, structures, or personal property.
Any person convicted of a violation of Subsection A shall be guilty of a Class 1 misdemeanor. The punishment for any such violation in which the defacement or damage is (i) more than 20 feet off the ground, (ii) on a railroad or highway overpass, or (iii) committed for the benefit of, at the direction of, or in association with any criminal street gang, as that term is defined by Virginia Code § 18.2-46.1 (Definitions, Criminal Street Gang Participation), shall include a mandatory minimum fine of $500.
Upon a finding of guilt under this section in any case tried before the court without a jury, in the event the violation constitutes a first offense that results in property damage or loss, the court, without entering a judgment of guilt, upon motion of the defendant, may defer further proceedings and place the defendant on probation pending completion of a plan of community service work. If the defendant fails or refuses to complete the community service as ordered by the court, the court may make final disposition of the case and proceed as otherwise provided. If the community service work is completed as the court prescribes, the court may discharge the defendant and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt, and is a conviction only for the purposes of applying the provisions of this section in subsequent proceedings.
Community service work prescribed by the court under Subsection C shall include, to the extent feasible, the remediation of any damage or defacement to property within the City, and may include clean-up, beautification, landscaping, or other appropriate community service within the City. Any remediation which is to be done on private property will require the property owner to release the City and its officers and employees from any liability that might arise during the course of performing community service activities on such property. Should the property owner not agree to such a release, the Community Services Supervisor shall report to the Court that the community service plan can not be fulfilled according to the orders prescribed by the Court.
Community service work prescribed by the court under Subsection D shall be performed under the supervision of the Community Services Supervisor, who shall report on such work to the court imposing the community service work requirement at such times and in such manner as the court may direct.
At or before the time of sentencing under this section, the court shall receive and consider any plan for making restitution or performing community service submitted by the defendant, as well as the recommendations of the community service supervisor concerning the plan.
The court may order any person convicted of unlawfully defacing property to pay full or partial restitution to the City of Colonial Heights for costs incurred by the City in remediating the defacement. An order of restitution pursuant to this subsection shall be docketed as provided in Virginia Code § 8.01-446 when so ordered by the court or upon written request of the City of Colonial Heights and may be enforced by the City in the same manner as a judgment in a civil action.
No person convicted of a violation of this section shall be placed on probation or have his sentence suspended unless such person shall make at least partial restitution for such property damage or is compelled to perform community services, or both.
If the City seeks to remediate the damage or defacement, the City shall give notice to the owner and lessee, if any, of any private property that has been damaged or defaced that, within 15 days of receipt of such notice, if the owner or lessee does not remediate, or object to the remediation of the damage or defacement, the City may remediate the damage or defacement at the City's expense through its employees and/or agents. In exercising such duties, such agents or employees shall have any and all immunity normally provided to an employee of the City under Virginia Code § 15.2-908 and any other immunity provided by law.
In the event that damage to, or defacement or destruction of, public property is perpetrated by a minor who is living with either or both parents or a legal guardian, the City may institute an action to recover from the parents of the minor, or either of them, or from the legal guardian, the costs for damages suffered by reason of the willful destruction or defacement of, or damage to, public property by the minor. The action by the City shall be subject to any limitation on the amount of recovery set forth in Virginia Code § 8.01-43 (Action against parent for damage to public property by minor) or other applicable state law.
In the event that damage to, or defacement or destruction of, private property is perpetrated by a minor who is living with either or both parents or a legal guardian, the property owner may institute an action, and recover from the parents of the minor, or either of them, or from the legal guardian, the costs for damages suffered by reason of the willful destruction or defacement of, or damage to, private property by the minor. The action by the owner shall be subject to any limitation on the amount of recovery set forth in Virginia Code § 8.01-44 (Action against parent for damage to private property by minor) or other applicable state law.
The City Manager or his designee is authorized to undertake or contract for the remediation of the damage to or defacement of any public property.
The City Manager or his designee is also authorized to undertake or contract for the remediation of the damage to or defacement of any private property visible from any public right-of-way, in accordance with the following procedures:
Prior to such remediation of any damage to or defacement of occupied private property that is visible from a public right-of-way, the City Manager or his designee shall issue notice to the property owner and the lessee, if any, by posting in a conspicuous place on the offending premises and by regular mail, or service by a special conservator of the peace to the last known address of the owner and to the lessee. Such notice shall provide: the street address and legal description of the property; that the owner or lessee should take corrective action to remediate the damage or defacement within 15 days of receipt of the notice; and that if the damage or defacement is not remediated within the fifteen-day period, the City will begin remediation procedures.
If the defacement occurs on a private building, wall, fence, or other structure located on unoccupied property, and the City through its own agents or employees, remediates the defacement after complying with the notice provisions of this section, the actual cost or expenses thereof shall be chargeable to and paid by the owners of such property and may be collected by the locality as taxes are collected. No lien shall be chargeable to the owners of such property unless the City has given a minimum of 15 days' notice to the property owner prior to the removal of the defacement.
Every charge authorized by Subsection B(2) above with which the owner of any such property has been assessed and that remains unpaid shall constitute a lien against such property, ranking on a parity with liens for unpaid local taxes and enforceable in the same manner as provided in Articles 3 and 4 of Title 58.1 of the Code of Virginia (§§ 58.1-3940 et seq.). The City may waive and release such liens in order to facilitate the sale of the property. Such liens may be waived only as to a purchaser who is unrelated by blood or marriage to the owner and who has no business association with the owner. All such liens shall remain a personal obligation of the owner of the property at the time the liens were imposed.
Before entering upon private property for the purpose of remediating defaced property, the City shall attempt to obtain the consent of the property owner or lessee.
Where property is owned by a public entity other than the City, the remediation of the damage or defacement by the City is authorized only after securing the consent of an authorized representative of the public entity having jurisdiction over the property.
If the City undertakes to remediate any damage or defacement from private property after complying with the notice provisions set forth above, the City may seek from the property owner recovery of the total cost for such remediation.