City of Española, NM
Rio Arriba County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Mayor and Council of the City of Española 10-26-2010 by Ord. No. 2010-11 (Ch. 70, Art. VII, of the Code of Ordinances). Amendments noted where applicable.]
GENERAL REFERENCES
Building codes — See Ch. 150.
Housing standards — See Ch. 222.
Minors — See Ch. 241.
Nuisances — See Ch. 254.
Offenses — See Ch. 260.
Subdivision of land — See Ch. 294.
Zoning and development — See Ch. 350.
This chapter may be cited as the "Anti-Graffiti Ordinance."
Graffiti is a public nuisance and form of vandalism which injures and stains Española, causes neighborhoods to deteriorate, encourages other crimes, erodes property values, and undermines the sense of well being, safety and pride citizens feel for their community. It is a public purpose and the intent of this chapter to eradicate or minimize this visual blight. Unless the City acts to remove graffiti from public and private property, the graffiti tends to remain. Other properties then become the target of graffiti, and entire neighborhoods are affected and become less desirable places in which to be, all to the detriment of the City. The City Council intends, through the adoption of this chapter, to provide additional enforcement tools to protect public and private property from acts of graffiti vandalism and defacement. The Council does not intend for this chapter to conflict with any existing anti-graffiti state laws. If there is such a conflict in specific fact situations, the Council intends the state law to prevail and the remainder of the chapter to be enforced along with the state law.
As used in this chapter, the following terms shall have the meanings indicated:
ABATE
To permanently remove or cover graffiti.
AEROSOL PAINT CONTAINER or SPRAY PAINT
Paint in an aerosol container.
GRAFFITI
Any unauthorized inscription, word, figure, painting, other defacement or gang mark or symbol of any type 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 City Council. Graffiti consists of intentionally and maliciously defacing any real or personal property of another with graffiti or the use of any graffiti implement without the consent or reasonable grounds to believe there is consent of the owner of the property. When a single occurrence of graffiti is committed by more then one individual, the court may apportion the amount of restitution owed by each offender in accordance with each offender's degree of culpability.
GRAFFITI IMPLEMENT
An aerosol paint container, a broad-tipped marker, gum label, paint stick or graffiti stick, etching materials or equipment, brush or any other device capable of scarring or leaving a visible mark on any natural or man-made surface.
MINOR
An individual who is less than 18 years of age.
PERMANENT GLASS ETCHER
A product purposely sold to permanently etch glass such as Armour Etch and etchall® dip 'n etch.
PROVISION OF GRAFFITI IMPLEMENTS
Giving, selling or otherwise making available graffiti implements to minors.
A. 
Furnishing to minors. It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged, given, loaned, or otherwise furnished, any graffiti implement to any person under the age of 18 years without the written consent of the parents or guardian of the person.
B. 
Display and storage. A commercial retail establishment shall store aerosol paint containers, paint sticks, broad-tipped markers, and etching devices or equipment 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 90 days and/or a fine of up to $500."
(2) 
Place a sign in the direct view of such persons responsible for accepting customer payment for graffiti implements stating: "Selling graffiti implements, spray paint, paint sticks, broad-tipped markers, or etching devices to persons less than 18 years of age is against the law and punishable by imprisonment up to 90 days and a fine of up to $500."
D. 
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 chapter shall be forfeitable to the City. In forfeiting such personal property, the City shall follow the procedures outlined in law 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 New Mexico and United States Constitutions.
A. 
The City may offer a reward in an amount to be established by resolution of the City 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.
B. 
Claims for rewards under this section shall be filed with the City in the manner specified by the City Council.
C. 
No claim for a reward shall be allowed unless the City investigates and verifies the accuracy of the claim and determines that the requirements of this section have been satisfied.
A. 
The existence of graffiti on public or private property in violation of this chapter is expressly declared to be a public nuisance and, therefore, is subject to the removal and abatement provisions specified in this chapter.
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 of or who has the right to possess such property to at all times keep the property clear of graffiti.
C. 
Removal by the perpetrator. Any person applying graffiti on public or private property shall have the duty to remove the graffiti within 24 hours after notice by the City 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 City Manager designee. Any person applying graffiti shall be responsible for the removal or for the payment for the removal. Failure of any person to remove graffiti or pay for the removal shall constitute an additional violation of this chapter.
D. 
Property owner responsibility. If graffiti is not removed by the perpetrator according to the subsection above, graffiti shall be removed pursuant to the following provisions. 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 City to permit property that is defaced with graffiti to remain defaced for a period of 10 days after service by first class mail of notice of the defacement. The notice shall contain the following information:
(1) 
The street address and general 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 10 days after receipt of the notice and that if the graffiti is not abated within that time the City will declare the property to be a public nuisance, subject to the removal procedure in this chapter; and
(4) 
An information sheet identifying any graffiti removal assistance programs available through the City and private graffiti removal contractors.
E. 
Exceptions to property owner responsibility. The removal requirements 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 15 days after service by first class mail of notice of the defacement.
A. 
Whenever the City becomes aware of the existence of graffiti on any real property within the City and visible from the public right-of-way or City-owned land, the City shall make a reasonable, good faith effort to give notice to the property owner or agent that the graffiti should be abated within five days. Reasonable, good faith effort to give notice consists of delivery by mail or hand delivery or posting in a conspicuous place on the property of notice to the owner or agent. If the person advises the City within five days of receipt of the notice of his intent to abate the graffiti, the City will work with him to come up with a reasonable time schedule. Within a similar period, the person may advise the office that the marking identified was authorized and thus is not graffiti as herein defined. In that event, the City may either discontinue its efforts to remove the graffiti or pursue abatement and cost recovery proceedings under Subsection E.
B. 
If the property owner or agent requests the City's assistance, the City may engage in graffiti abatement using materials provided or authorized by the property owner. Any color used shall be similar to that of the structure affected.
C. 
Use of public funds. Whenever the City 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 City 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 undertake to provide for the painting or repair of any more extensive an area than that where the graffiti is located, unless the City Manager, or the designee of the City 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.
D. 
Right of entry on private property. Prior to entering upon private property or property owned by a public entity other than the City for the purpose of graffiti removal, the City shall attempt to secure the consent of the property owner or responsible party and a release of the City 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 chapter, or if the City 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 City and consistent with the terms of this section, the City shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below.
E. 
Abatement and cost recovery proceedings.
(1) 
Notice of due process hearing. The City Manager, or the designee of the City 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 different from the owner, not less than 48 hours' notice of the City'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 served in person or by first class mail to the address carried on the City utility accounts. 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 10 days and publication thereof in a newspaper of general circulation published in the area in which the property is located.
(2) 
Determination of 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 (authorized or not), the hearing officer shall give written notice in an eradication order that unless the graffiti is removed within 10 days, the City 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 thereof 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 City Manager, or the designee of the City 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 30 days. Any amount of eradication charges assessed by the hearing officer that is less than the total amount set forth in the eradication accounting shall be explained by written letter from the hearing officer to the City 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 remains unpaid after 30 days, pursuant to the authority created by New Mexico law, the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the eradication effort. The City Manager shall present a resolution of lien to the City Council and, upon passage and adoption thereof, shall cause a certified copy of the lien to be recorded with the City Clerk and the County Clerk.
A. 
In approving tentative or parcel maps, conditional use permits, variances, site plans, building or renovation permits or other similar land use entitlements, at the public hearing required by law for approval or at the building permit issuance, the City shall consider imposing any or all of the following conditions, or other similar or related conditions:
(1) 
Use of anti-graffiti material. The developer shall apply an anti-graffiti material of a type and nature that is acceptable to the City Manager, or designee, to the publicly viewable surfaces on the improvements to be constructed at the site deemed by the City to be likely to attract graffiti;
(2) 
Right of access to remove graffiti. The developer shall grant, prior to transfer of any of the parcels that are within the development site, the right of entry over and access to such site by the City, upon 48 hours' posting of notice by the City, to the City for the purpose of removing or painting over graffiti;
(3) 
Supply City with graffiti-removal material. The developer shall, for a period of two years after the sale of the final portion of the development, provide the City with sufficient matching paint and/or anti-graffiti material and removal equipment on demand for use in the painting over or removal of graffiti; or
(4) 
Owner to immediately remove graffiti. The developer shall, either as part of the general conditions, covenants and restrictions, or separate covenants recorded against the development and individual lots, prior to sale of any of the development or parcels, covenant in a form satisfactory to the City that the owner of the lots shall immediately remove any graffiti placed thereon.
B. 
Design of potential graffiti-attracting surfaces. Any applicant for design review approval, a 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 City Manager or designee, have any building structures visible from any public or quasi-public place designed in such a manner as 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 nonsolid 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.
A. 
Retrofit existing graffiti-attracting surfaces; nonresidential 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 used for nonresidential purposes that has been defaced with graffiti more than five times in 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 City as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal of graffiti.
(2) 
At City's cost. The owner of property used for nonresidential purposes on which is located a surface of a structure that has been defaced with graffiti more than five times in 12 months shall permit the City to enter the property and, at the City'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.
B. 
Enforcement of this section shall be in accordance with procedures in § 213-7.
A. 
Any minor in possession of graffiti implements between 6:00 p.m. and 8:00 a.m. commits a violation of this chapter and shall be punished by imprisonment up to 90 days and be fined up to $500, or both.
B. 
Whoever places graffiti on real or personal property or whoever commits possession, sale or use of graffiti implements in violation of this chapter shall be punished by imprisonment up to 90 days and be fined up to $500, or both. It shall not be a defense to placing graffiti on real or personal property that the owner or responsible party has authorized it unless the accused shows written evidence of the authorization and proof by a preponderance of the evidence that in fact it was the owner or responsible party who authorized it.
C. 
Community service. In lieu of, or as part of, the penalties specified, the person convicted of a violation of this chapter may be required to perform mandatory community service of at least 30 hours of community service. Whoever commits graffiti to real or personal property when the damage to the property is $500 to $1,000, but in any event less than $1,000, is guilty of a petty misdemeanor and shall be required to perform a mandatory 100 hours of community service within a continuous six-month period immediately following his conviction and shall be required to make restitution to the property owner for the cost of damages and restoration.
(1) 
The entire period of community service shall be performed under the supervision of a community service provider approved by the Chief of Police.
(2) 
Each violation shall be a separate and distinct offense.
(3) 
Reasonable effort shall be made to assign community service that is reasonably expected to have the most rehabilitative effect, including community service that involves graffiti removal.
D. 
Any person perpetrating graffiti, and engaging in property damage estimated at more than $1,000 should be referred to the District Attorney's Office for prosecution as a felony at the higher penalties afforded that office.
E. 
All juveniles perpetrating graffiti shall be referred to the New Mexico Juvenile Probation Office for prosecution.
F. 
In an effort to remediate graffiti vandalism and maintain the beauty of Española, the court shall assess the following fees in reimbursement for costs incurred by the City for abatement:
(1) 
Less than 16 square feet of graffiti: $250.
(2) 
Between 16 square feet and 64 square feet of graffiti: $500.
(3) 
Over 64 square feet of graffiti: $750.
G. 
The fees collected shall be used to abate graffiti.
H. 
The fines, penalties and fees imposed as a result of this chapter shall be deposited with the City of Española and earmarked for the purpose of defraying the costs of graffiti removal, including the purchase of tools and materials, and the development of outreach programs.
Any person convicted of providing graffiti implements in violation of this chapter shall be subject to the penalties set forth in § 213-15.
Evidence of the age and identity of the person may be shown by any document that contains a picture of the person issued by a federal, state, county or municipal government, including a motor vehicle driver's license or an identification card issued to a member of the Armed Forces.
Any person selling goods at retail or wholesale may refuse to sell graffiti implements to any person who is unable to produce an identity card as evidence that the person is 18 years of age or over.
The City shall conduct random, unannounced inspections of facilities where graffiti implements, spray paint or permanent glass etchers are sold to ensure compliance with the provisions of this chapter.
Whoever sells or provides, by gift or otherwise, spray paint or permanent glass etchers to any minor is in violation of this chapter. Each violation shall be a separate and distinct offense. Any person convicted of this chapter may be fined up to $500 or imprisoned for a period of 90 days, or both. As a condition of probation, the perpetrator may be required to perform mandatory community service, including graffiti abatement. In addition, the perpetrator shall pay all court costs required by law as well as fees associated with the abatement of graffiti.