(a) 
Definitions.
The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:
Aerosol paint container
means any aerosol container that is adapted or made for the purpose of applying spray paint or other substances capable of defacing property.
Aerosol paint container tips
means any device used to insert upon an aerosol paint container to create various graffiti designs of various configurations.
Consent
means assent, in fact, expressed or apparent, by a person legally authorized to act for the owner.
Felt-tip marker
means any felt tip marker or similar implement with a flat or angled writing surface that at its broadest width is one-fourth inch or greater containing ink or other liquid that is not water soluble.
Graffiti
means any inscription, word, letter, figure, painting, drawing, mark or other defacement that is written, marked, etched, scratched, sprayed, drawn, painted or engraved or otherwise affixed to any surface or public or private property without advance consent of the owner, or is otherwise deemed a public nuisance.
Graffiti abatement
means either:
(1) 
Removal of graffiti through chemical or abrasive means; or
(2) 
Concealment of graffiti with paint or other materials so that it is no longer visible.
Graffiti implement
means an aerosol paint container, paint gun, paint ball gun, felt-tip marker, paint, stick or graffiti stick, brush, or etching tool or etching device capable of scarring, marking or otherwise defacing glass, metal, concrete, wood or any other surface.
Minor
means any person under 17 years of age.
Owner
means any person who has title to the property or a legal right to control the property, including the owner's authorized representative.
Paint stick and graffiti stick
means 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 visible mark.
Parent
means any person having legal custody of a minor, such as:
(1) 
A natural parent, adoptive parent or step-parent;
(2) 
A legal guardian;
(3) 
A person who stands in loco parentis; or
(4) 
A person to whom legal custody has been given by order of the court.
Vandalism
means deliberate destruction of or damage to public or private property.
(b) 
Prohibited acts.
(1) 
Applying graffiti. It shall be unlawful for any person to apply graffiti to public or private property without the permission of the owner. This provision is intended to supplement and not conflict with the penal code provision on criminal mischief.
(2) 
Possession of graffiti implement. It shall be unlawful for a minor to possess any graffiti implement on public or private property without the prior consent of the owner. It shall be a defense to prosecution that the graffiti implement was possessed in a place where it was going to be used in a non-graffiti activity, such as employment, school, church, art, or other activity, or en route to or from such place. The burden of proof to establish this defense for a violation of this section shall be upon the minor to establish that such graffiti implement was going to be used in a non-graffiti activity.
(3) 
Possession of graffiti implement in public places. It shall be unlawful for any person to possess any graffiti implement while in or upon any public facility, park, playground, swimming pool, recreational facility, school ground, right-of-way, or other public building or structure owned or operated by the city or the Harlingen Consolidated Independent School District, or while in or within 50 feet of an underpass, bridge, abutment, storm drain, canal, or similar type of infrastructure, unless otherwise authorized by the owner.
(4) 
A parent or guardian of a minor commits an offense if he permits, or by insufficient control allows, the minor to apply graffiti to public or private property, or to vandalize public or private property.
(5) 
An owner of private property commits an offense if that owner fails to remove graffiti applied to property under his control after receiving notice to do so as hereafter provided.
(c) 
Delivery of aerosol paint container to a minor; offense.
(1) 
It shall be unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan, or otherwise furnish an aerosol paint container to any minor.
(2) 
For purposes of this section, the actions of an employee shall not be attributable to an employer if:
a. 
The employer requires its employees to attend a training program regarding this section;
b. 
The employee has actually attended such a training program; and
c. 
The employer has not directly or indirectly encouraged the employee to violate this section.
(d) 
Penalties.
(1) 
Fines.
An offense under this section is punishable by a fine of not less than $200.00 or more than $500.00.
a. 
In the case of a minor, the parents shall be jointly and severally liable with the minor for the payment of all fines.
b. 
Upon application and finding of indigence, the court, in lieu of ordering a fine, shall instead order the minor and parents to jointly perform community service work.
(2) 
Restitution.
In addition to any punishment specified in this section, the court may order any violator to make restitution to the victim for the 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 shall be ordered jointly and severally liable with the minor to make the restitution.
(3) 
Community service.
In lieu of or a 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 requirements:
a. 
The minor or adult shall perform at least 30 hours of community service.
b. 
At least one parent of the minor shall be in attendance at a minimum of 50 percent of the period of assigned community service.
c. 
Reasonable efforts shall be made to assign the minor or adult to a type of community service that is reasonably expected to have the most rehabilitative effect in the minor or adult, including community service that involves graffiti removal.
(e) 
Removal by 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 city manager (or the designee of the city manager). Any person applying graffiti shall be responsible for the removal or the payment of the removal. Failure of any person to remove graffiti or pay for the removal shall constitute an additional violation of this section. It is a separate violation for each 24-hour period after notice a person fails to remove the graffiti. Where graffiti is applied by a minor, the parents shall be responsible for such removal or for the payment for the removal.
(f) 
Nuisance declared.
Graffiti which is located in any place where it is visible from a public right-of-way is detrimental to the safety and general welfare of the general public, tending to reduce the value of private property, to invite vandalism and other criminal offenses, creating a hazard to the health and safety of minors, and is detrimental to the economic welfare of the city by producing urban blight which is adverse to the maintenance and continuing development of the city, and is therefore declared to be public nuisance. To effectively deal with the nuisance of graffiti, the city hereby adopts the procedures for abatement and removal of graffiti in subsection (g) of this section and said procedures may be utilized by police department officers and code enforcement officers when dealing with the nuisance created by graffiti.
(g) 
Graffiti abatement procedures.
(1) 
Authority.
The city manager shall designate the appropriate city staff to enforce the provisions of this section.
(2) 
Abatement.
Whenever the designated city staff determine that graffiti on any structure is visible from the street or other public property, they may issue an abatement notice to the owner of the property.
(3) 
Notice; action.
Upon finding a violation, a written abatement notice may be served upon the owner in control of the affected premises, giving notice that the property is in violation of this section and that graffiti on the premises must be removed within 24 hours after the date of the notice. Such notice shall state further that if the condition is not corrected within 24 hours of such notice, the city will, without further notice, abate this public nuisance by removing or painting over the graffiti. The cost of this action will be assessed by the city, and, therefore, at no cost to the owner of the property.
(Code 1997, § 130.05; Ordinance 07-73, adopted 11/19/2007)