[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.]
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:
To permanently remove or cover graffiti.
Paint in an aerosol container.
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.
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.
An individual who is less than 18 years of age.
A product purposely sold to permanently etch glass such as
Armour Etch and etchall® dip 'n etch.
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.
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 fees specified in Chapter 171 in reimbursement for costs incurred by the City for abatement.
[Amended 7-11-2019 by Ord. No. 2019-03]
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.
