[HISTORY: Adopted by the Town Board of the Town of Oyster Bay 1-24-1995 by L.L. No. 1-1995. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
- Any structure used for commercial, business or residential purposes and any structure appurtenant to said use, such as garages, fences, retaining walls, facades or any other structure, located within the Town of Oyster Bay.
- Any mark, figure, drawing, inscription or other notation, drawn, written, etched, painted or otherwise placed on any surface, building or property, inclusive of the use of stickers or paste-on stamps containing the marks defined herein, without the permission of the owner or occupant thereof.
- GRAFFITI IMPLEMENT
- Any aerosol spray paint matter or broad-tipped marker with a marking surface of 1/4 inch or more in any direction or any other substance or item used to make graffiti and/or related vandalism.
- Any fee owner or other person exercising a legal possessive right and/or legal control over property.
- Includes any human being, corporation, partnership, authority, company, municipality, unincorporated association, special improvement district, fire company, the State of New York or any other entity able to sue or be sued.
- Includes any real property and appurtenances and personal property, including all trailers, vehicles or other similar personal property, wherever it may be.
- Any person who offers for sale and/or transfer any graffiti implement to any other person for value, consideration and/or otherwise.
No person shall make graffiti on any public or private building or other structure or any other real or personal property owned by others.
No person shall carry an aerosol spray paint can, broad-tipped indelible marker or any other graffiti implement under circumstances which evince the intent to violate the provisions of this chapter.
It is unlawful for a person to use any object, bicycle or vehicle to assist a person to commit a violation of this chapter.
Sale and display of graffiti implements; violations.
No person shall sell, offer to sell or give aerosol spray paint, broad-tipped markers or any other graffiti implements to any person under the age of 18 years of age unless accompanied by an adult parent or guardian.
No person offering aerosol spray paint and/or broad-tipped markers or other graffiti implements for sale shall display said materials except in a secure, enclosed, inaccessible display which will require vendor assistance for the handling, purchase and/or sale of said items.
Any person who shall violate the terms of this provision shall, for a first offense, be subject to a minimum fine of $100 and a maximum fine of $500. For each and every subsequent offense within five years of the date of offense on the accusatory instrument, such graffiti vendor shall be subject to a fine of not less than $500, to a maximum of $1,000, and/or 15 days imprisonment.
Any person who offers for sale or transfer any graffiti implements shall display at each entrance to the place of business and at, around or about the area where graffiti implements are offered for sale or transfer to the public a sign to be not less than two feet by three feet, in red letters, at least one inch in height, the following statement:
"It is unlawful to sell any aerosol spray paint or broad-tipped marker to any person under the age of 18. Persons under the age of 18 who possess any graffiti implements may be prosecuted for a crime. Penalties for violation of the graffiti ordinance of the Town of Oyster Bay shall include: fines up to $1,000, imprisonment up to one year in jail, community service, mandatory surcharges and forfeiture of property."
Failure to properly display such sign shall result in a fine of not less than $100 for a first offense. For any second or subsequent offense within five years of the date of offense on the accusatory instrument, there shall be a fine of $500 to $1,000 and/or 15 days' imprisonment.
The owner, tenant and/or person in control of any building or personal property shall be required to remove any graffiti applied to such property not more than 15 days after such graffiti occurs. Failure to remove graffiti shall be a violation of this chapter.
Failure or refusal to remove graffiti.
In the event that the owner, tenant and/or person in control of such a building, property or personal property shall fail or refuse to remove graffiti from his property, then said person or persons may be notified by certified mail, mailed to the property address, by the Commissioner of Planning and Development or his designated agent, that such person shall have a period of up to 15 days from receipt of such notice to complete removal or coverage of such graffiti.
If such owner, tenant and/or person in control fails to comply with the terms of such notice within the time set forth therein, then the Town of Oyster Bay Commissioner of Planning and Development may order employees of any town department or a contractor with an agreement approved by the Town Board to engage in maintenance, repair and other services needed to effectuate the elimination or coverage of such graffiti on such property. All costs of such work shall be billed to the owner of the property and, if unpaid after 90 days, shall be certified to the County of Nassau for inclusion as taxes upon such parcel of property as was benefitted thereby.
The parent or legal guardian, other than the state or a Local Social Services Department, or a foster parent having custody of an infant over 10 and less than 18 years of age shall, if such infant willfully, maliciously or unlawfully makes graffiti or damages or destroys real or personal property, which personal property is owned or maintained by another, in addition to any other civil remedy a person who has suffered damage may have, be held liable for such damage or destruction. In no event shall such liability under this section be in excess of the sum of $2,500. It shall be a defense to any action brought hereunder that restitution has been made pursuant to § 758-a or 353.6 of the Family Court Act or Subdivision 2(g) of § 65.10 of the Penal Law. It shall also be a defense to an action brought under this section that such child has become emancipated from his parent or legal guardian prior to the occurrence of such damage. In lieu of such liability, or in combination therewith, the court may order such infant to perform services for the public good, as permitted by the General Obligations Law.
It shall be the duty of any peace officer, police officer of the County of Nassau or any duly authorized agent of the Town of Oyster Bay who is authorized to issue an appearance ticket or otherwise designated by the Town Board of the Town of Oyster Bay to enforce the provisions of this chapter against any person found to be violating the same.
In accordance with appropriate law, any graffiti implement or other item, material or tool used in the violation of this chapter or in assisting with the commission of such violation shall be subject to immediate seizure by any police officer, peace officer or other individual authorized to enforce the provision of this chapter. Such items shall be held as evidence in any action or proceeding brought with reference to an offense under this chapter and shall be subject to forfeiture by an order of such court or to any order by a Justice of the Supreme Court.
Any vehicle used in the transport of graffiti implements or persons convicted of violating this chapter to or from a site or used in assisting with the commission of such offense shall be subject to immediate seizure by any police officer, peace officer or other individual authorized to enforce the provisions of this chapter. Said vehicles shall be held in evidence in any action or proceeding brought with reference to an offense under this chapter and shall be subject to an order of forfeiture of such court or to an order by a Justice of the Supreme Court.
The seizure of any graffiti implement and/or vehicle used in the transport of graffiti implements shall be subject to forfeiture. The true owner thereof must be provided with notice of such application to forfeit such property at least 10 days prior thereof [which may be mailed to such person(s), in which case at least 13 days' notice of such application must be provided]. That person(s) shall also have the opportunity to be heard with reference to the question of forfeiture of such property as is set forth in the papers provided to such person(s) before a judge of proper jurisdiction. The person(s) from whom the property was seized shall be similarly notified of such proposed forfeiture.
Any order of forfeiture shall be deemed a final order with respect to such question. After service upon the person(s) of a copy of any such order of forfeiture, such person(s) must serve and file a notice of appeal within 15 days of the service upon them of such order directing forfeiture.
The Town Attorney of the Town of Oyster Bay and/or the District Attorney of Nassau County are authorized to commence such application and prosecute the same.
Any violation of any section of this chapter except as otherwise specifically set forth shall be a Class A misdemeanor punishable by one year imprisonment and/or a fine of not less than $500 nor more than $1,000, in addition to mandatory community service hours. There shall also be imposed a mandatory $100 surcharge for the Town of Oyster Bay Anti-Graffiti Program.
Editor's Note: A copy of the Graffiti Abatement Program is on file in the Town Clerk's office.
Any person convicted of a violation of § 128-2 or 128-3A, in addition to the penalties listed above and where the violation was committed by a person under the age of 18 years, shall perform not less than 10 hours of community service during a time other than during his or her school attendance requirement. One parent or guardian shall be present at the site of the community service for at least 1/2 of the hours of community service required under this section, unless attendance by the parent or guardian is deemed by the court to be inappropriate or potentially detrimental to the child.
[Added 8-19-1997 by L.L. No. 6-1997]
In addition to and notwithstanding any other remedy for an offense against this chapter, any person violating a directive issued by the Commissioner or his/her duly authorized representative, made pursuant to the provisions of this chapter, shall be guilty of a violation punishable by a fine not exceeding $900 or imprisonment for a period not to exceed 15 days, or both.
If any clause, sentence, paragraph, section or part of any section shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy and upon which such judgment shall have been rendered.
This chapter shall take effect immediately upon filing with the State of New York.