[HISTORY: Adopted by the City Council of the City of Springfield
as indicated in article histories. Amendments noted where applicable.]
[Adopted as Title 8, Ch. 8.20, § 8.20.080, of the
1986 Code]
As used in this article, the following terms shall have the
meanings indicated:
Any felt-tip marker, china marker or similar device that
is not water soluble and which has a flat or angled writing surface
1/2 inch or greater.
Any person under the age of 18 years.
Any retail establishment.
A.
No person shall sell or offer for sale, transfer or offer to transfer
any spray paint container or indelible marker unless such spray paint
container or indelible marker is held for sale or transfer in an enclosed
device which is constructed to prevent removal of the merchandise
except by authorized attendants or is stored, out of sight, in such
a way as to prevent free access to the merchandise by the public.
B.
No person shall sell or otherwise transfer any spray paint container
or indelible marker to a minor, unless the minor is accompanied by
his or her parent or legal guardian at the time of the purchase or
transfer.
C.
No minor shall, at the time of purchase of items specified in Subsection B of this subsection, knowingly furnish fraudulent evidence of maturity, including, but not limited to, a motor vehicle operator's license, a registration certificate issued under the Federal Selective Service Act, an identification card issued to a member of the Armed Forces, or any document issued by a federal, state, county or municipal government.
Any person who violates the provisions of this article shall
be subject to a fine or penalty of not less than $50 nor more than
$300 for each offense.
[Adopted 11-14-2000; amended in its entirety 6-20-2006 (Title 8, Ch. 8.32, of the 1986 Code)]
A.
The City Council of the City of Springfield has determined that there
has been an increase in vandalism in the City of Springfield. This
article has been enacted through the efforts of an ad hoc subcommittee
consisting of members of the Springfield School Committee and the
City Council. In fiscal year 2007, it has been estimated that the
City will expend $800,000 in vandalism and graffiti repair.
B.
Vandalism and graffiti are public nuisances which interfere with
the rights and values of property owners and the entire community.
This article is intended to provide enforcement tools to protect public
and private property from acts of vandalism and graffiti; to establish
a plan to remove graffiti; to seek reimbursement of all vandalism
and graffiti repair costs incurred by the City; and to impose penalties
upon violators. Unless action is taken, other properties within the
City become targets of vandalism and graffiti. As a result, entire
neighborhoods can become less desirable places in which to reside,
attend school, work, and visit, all to the detriment of the City.
The City Council does not intend for this article to conflict with
any existing vandalism and anti-graffiti state laws or as amended.
For the purpose of this article, the following words, terms,
and phrases shall have the meanings respectively ascribed to them
in this section, except where the context clearly indicates a different
meaning:
Any aerosol container that is adapted or made for the purpose
of applying spray paint or other substances capable of defacing property.
Any felt-tip indelible marker or similar implement with a
flat or angled writing surface that, at it broadest width, is greater
than 1/4 of an inch, containing ink or other pigmented liquid that
is not water soluble.
Any tool, device or substance that can be used to make permanent
marks on any natural or man-made surface.
Any inscription, word, figure, painting or other defacement
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 Code Enforcement Commissioner. As used herein, graffiti is
considered a form of vandalism.
An aerosol paint container, a broad-tipped marker, gum label,
paint stick or graffiti stick, etching equipment, brush or any other
device capable of scarring or leaving a visible mark on any natural
or man-made surface.
Any device containing a solid form of paint, chalk, wax,
epoxy, or other similar substance capable of being applied to a surface
by pressure and leaving a mark hereon.
Any individual, association, private corporation, personal
trustee, assignee, or any other legal entity, partnership, cooperative
representative, receiver, trustee, assignee, or any other legal entity.
Any property, real or personal, located within the City of
Springfield or any City-owned property, real or personal, regardless
of whether such property is located within the City of Springfield.
To intentionally, willfully and maliciously or wantonly paint,
mark, scratch, etch or otherwise mark, injure, mar, deface or destroy
the real or personal property of another. (See MGL c. 266, §§ 126A
and 127.) As used herein graffiti is considered a form of vandalism.
It shall be unlawful for any person to commit acts of vandalism
or graffiti to property.
A.
Display and storage.
(1)
Every person who owns, conducts, operates, or manages a retail commercial
establishment selling aerosol paint containers, paint sticks, or broad-tipped
markers shall store the containers, sticks or markers in an area continuously
observable, through direct visual observation or surveillance equipment,
by employees of the retail establishment during the regular course
of business.
(2)
In the event that a commercial retail establishment is unable to
store the aerosol paint containers, paint sticks, or broad-tipped
markers in an area as provided above, the establishment shall store
the containers, sticks and markers in an area not accessible to the
public in the regular course of business without employee assistance.
B.
Signage required. Every person who operates a retail establishment
selling graffiti implements shall:
(1)
Place an interior sign in clear public view stating: "Graffiti Is
Against The Law. Any person who defaces real or personal property
with paint or any other liquid device shall be punishable by a fine
of $300." Such sign(s) shall be at least 48 square inches and shall
be posted in public view in the store at a height of not less then
four feet or greater than nine feet from the floor.
(2)
Place a sign in clear public view stating "Selling spray paint, paint
sticks, or broad-tipped markers to persons under 18 years of age is
against the law and punishable by a fine of $300."
A.
The existence of graffiti on public or private property in violation
of this article is expressly declared to be a public nuisance and,
therefore, is subject to the removal and abatement provisions specified
in this article.
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 or who has
the right to possess such property to at all times keep the property
clear of graffiti.
A.
Any person applying graffiti shall be responsible for the removal
thereof or for the payment of the costs of removal. Failure of any
person to remove graffiti or pay for the removal shall constitute
an additional violation of this article. Where graffiti is applied
by an unemancipated minor, the parents with legal custody or the legal
guardian shall also be responsible for such removal or for the payment
for the costs of removal. Such removal shall be done in a manner prescribed
by the Director of the Department of Public Works, the Commissioner
of Code Enforcement, or any additional City department head, as authorized
by the City Council.
B.
Any removal of graffiti from a historical property shall be reviewed
by the Springfield Historical Commission in accordance with its rules
and regulations.
If graffiti is not removed by the violator according to this
article, graffiti shall be removed pursuant to the following provisions:
A.
Property owner responsibility. 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 a legal 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 shall be removed within 10 days after the receipt of the notice and that if the owner does not abate the graffiti within that time the City will declare the property to be a public nuisance, subject to the abatement procedures in § 201-11;
(4)
An information sheet identifying any graffiti removal assistance
programs available through the City and private graffiti removal contractors;
and
(5)
An extension of time to remove graffiti may be granted by the City.
B.
Right of City to remove.
(1)
Use of trust funds. Whenever the City becomes aware of 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 trust funds for the removal 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 Mayor or his/her designee 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.
(2)
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 article, 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 may commence a civil action in the Housing
Court for right of entry upon the property and to recover to recover
administrative and abatement costs for the graffiti removal.
(3)
Lien. As to such property where the responsible party is the property
owner, if all or any portion of the assessed eradication charges remain
unpaid after 30 days, pursuant to the authority created by Massachusetts
General Laws Chapter 139 (Common Nuisances Statute), the portion thereof
that remains unpaid shall constitute a lien on the property that was
the subject of the eradication effort. The City shall request an order
for a lien from the Housing Court and thereafter shall cause a certified
copy of the lien to be recorded with the Registry of Deeds where the
land is located.
A.
Common utility colors and paint type. Any gas, electric, telephone,
water, sewer, cable, telephone and other utility operating in the
City shall paint its above-surface metal fixtures with a uniform paint
type and color that meets the universal standards of the industries.
Said painting may be done on the utility's regular maintenance
scheduled if said schedule is within one year of this article.
B.
Condition encroachment permits. All encroachment permits issued by
the City shall, among such other things, be conditioned on:
(1)
The permittee's application to the encroaching object of an
anti-graffiti material of a type and nature that is acceptable to
the Commissioner of Code Enforcement or his designee;
(2)
The permittee's immediate removal of any graffiti;
(3)
The City's right to remove graffiti or to paint the encroaching
object; or
(4)
The permittee's providing the City with sufficient matching
paint and/or anti-graffiti material on demand for use in the painting
of the encroaching objects containing graffiti.
The City Council hereby creates the "City of Springfield Anti-Vandalism
and Graffiti Trust Fund." Penalties assessed against violators of
this article shall be placed in the fund, along with any monetary
donations received from persons wishing to contribute to the fund.
The Commissioner of Code Enforcement shall direct the expenditures
of monies in the fund. Such expenditures shall be limited to the payment
of the cost of graffiti removal and the costs of administering this
article and such other public purposes as may be approved by an order
of the City Council. This provision is not intended to conflict with
the statutory authority of the Springfield Financial Control Board
created under Chapter 169 of the Acts of 2004 and the provisions thereunder.
A.
Indemnification. Any person who commits an act of vandalism, including
graffiti, in violation of this article shall be responsible to indemnify
the property owner for all damages and costs incurred as direct result
of such vandalism or graffiti.
B.
Noncriminal disposition. Any person who commits an act of vandalism,
including graffiti, in violation of this article shall be punished
by a fine of $300. All such fines shall be payable to the City of
Springfield. The Police Department and the Code Enforcement Department
shall enforce the provisions of this article.
C.
Liability of parents and legal guardians. In the case of an unemancipated
minor, parents with legal custody ("parent") or a legal guardian shall
be jointly and severally liable with the minor for payment of damages
and costs to the property owner and fines to the City. This provision
is not intended to conflict with MGL c. 231, § 85G
(Parents Liability for Willful Act of Minor Children).
D.
Failure to pay indemnification or penalties. If the violator of this
article, or if the violator is an unemancipated minor the parent or
legal guardian, fails to make payment to the City, the City is authorized
to commence a civil action against such violator or parent or legal
guardian seeking payment of the fine(s), indemnification for damage
to City-owned property, and administrative costs. If necessary, the
City may seek a lien against the personal and/or real property of
the violator or parent or legal guardian to secure payment of the
fine, restitution, and administrative costs.
E.
Springfield public school students. If at the time of the vandalism
occurrence the violator is a student with the Springfield public schools,
he or she may be subject to the Springfield public schools' Code
of Student Conduct, as amended, which is hereby incorporated by reference.
F.
Criminal disposition; restitution. In addition to any punishment
specified in this chapter or the Massachusetts General Laws, a court
may order any violator to make restitution to the victim for damages
or loss caused directly or indirectly by the violator's offense
in the amount or manner determined by the court. In the case of a
minor, the parents or legal guardian shall be ordered jointly and
severally liable with the minor to make restitution. It is acknowledged
that upon an application and finding of indigence, the court may decline
to order fines against the minor, parents or guardian.
G.
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 article shall be forfeitable
to the City by the court. In forfeiting such personal property, the
court shall follow the procedures outlined in Massachusetts General
Laws concerning the forfeitures of personal property. In any forfeiture
proceeding under this section, the court shall not order forfeiture
unless it finds that the forfeiture is commensurate with the severity
of the violation to the extent required by the laws of Commonwealth
of Massachusetts and the United States Constitution.
H.
Community service. In lieu of, or as part of, the penalties specified
in this section, a minor or adult may be required to perform community
service as described by the court based on the following minimum requirements:
(1)
The violator shall perform at least 30 hours of community service.
(2)
At least one parent or guardian of the minor shall be in attendance
a minimum of 50% of the period of assigned community service.
(3)
The entire period of community service shall be performed under the
supervision of a community service provider approved by the Chief
of Police or the Probation Department of the court.
(4)
Reasonable effort shall be made to assign the violator to a type
of community service that is reasonably expected to have the most
rehabilitative effect on the violator, including community service
that involves the performance of vandalism repair or graffiti removal.
(5)
Any minor determined to be a ward of the court under the laws of
the Commonwealth of Massachusetts as a result of committing an offense
in the City shall be required, at the City's option, to perform
community service, including vandalism repair or graffiti removal
service of not less than 15 hours or more than 80 hours.
I.
Civil responsibility for wrongful sale, display or storage. Any person
who sells, displays or stores, or permits the sale, display or storage
of any graffiti implement in violation of the provisions of this article
shall be personally liable for all costs, including attorney's
fees and court costs, incurred by any party in connection with the
removal of graffiti, the repair of any property containing graffiti,
or such party's prosecution of a civil claim for reimbursement
or damages resulting from such graffiti removal or property repair,
arising from the use by any person of such wrongfully sold, displayed
or stored graffiti implements in violation of the provisions of this
article, provided that such liability shall not exceed $1,500.
J.
Collection of indemnification payments, fines and costs for damage
to City property. The Director of Parks and Buildings or his/her designee
shall calculate the damages, costs and fines, and he or she shall
send itemized demand letters to the responsible party and/or to the
appropriate district attorney's office handling the criminal restitution
claim. The responsible party shall receive no less than two itemized
demand letters. The first itemized demand letter shall require full
payment of all damages, costs and fines within 30 days. The second
demand letter shall require immediate payment. If full payment has
not been received after the demand letters have been sent by the Director
of Parks and Buildings or his or her designee, the collection matter
shall be referred to the City Solicitor of the Springfield Law Department.
The City Solicitor or his or her designee shall make all reasonable
and practical efforts to collect all outstanding damages, costs and
fines. From time to time, the City Council may request updates on
collection efforts from the Director of Parks and Buildings and/or
the Law Department.
