Town of Elsmere, DE
New Castle County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Mayor and Council of the Town of Elsmere 3-11-2004 by Ord. No. 426. Amendments noted where applicable.]
GENERAL REFERENCES
Curfew — See Ch. 87.
The Mayor and 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.
As used in this chapter, the following terms shall have the meanings indicated:
GRAFFITI
Any unauthorized 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 Hearing Officer as established § 110-7D(1) of this chapter.
GRAFFITI IMPLEMENT
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.
MINOR
Any person under the age of 18.
A. 
Defacement. It shall be unlawful for any person to apply graffiti to any natural or man-made surface, on any Town-owned property, or without the permission of the owner or occupant, or on any non-Town-owned property, or upon private property when in the opinion of the Code Enforcement Officer, is inconsistent with the character of the neighborhood or is otherwise deemed a public nuisance by the Hearing Officer as established § 110-7D(1) of this chapter.
B. 
Possession of graffiti implements.
(1) 
By minors at or near school facilities.
(a) 
It shall be unlawful for any person under the age of 18 years to possess any graffiti implement while on any school property, grounds, facilities, buildings, or structures, or within 1,000 feet of those specific locations or upon public property, or upon private property without the prior written consent of the owner or occupant of such private property.
(b) 
The provisions of this subsection shall not apply to the possession of broad-tipped markers by a minor attending or traveling to or from a school at which the minor is enrolled if the minor is participating in a class at the school that formally requires the possession of broad-tipped markers. Additionally, a minor who is an employee of a person who or which is a vendor of a graffiti device may, in the course of his/her duties, possess such device for the lawful purpose of sale or transfer of the device while the minor is on the employer's place of business. The burden of proof in any prosecution for violation of this section shall be upon the minor or student to establish the need to possess a broad-tipped marker or graffiti device.
(2) 
In designated 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, or other public building or structure owned or operated by the Town or while in or within 500 feet of an underpass, bridge abutment, storm drain, or similar types of infrastructure unless otherwise authorized by the Town.
A. 
Furnishing graffiti implements to minors prohibited. 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 aerosol paint container, broad-tipped marker, or paint stick 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.
(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.
C. 
Signage required.
(1) 
Every person who operates a retail commercial establishment selling graffiti implements shall 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 60 days and/or a fine up to $1,000."
(2) 
Every person who operates a retail commercial establishment selling graffiti implements shall place a sign in the direct view of such persons responsible for accepting customer payment for graffiti implements stating: "Selling spray paint, paint sticks, or broad-tipped markers to persons less than 18 years of age is against the law and punishable by a fine of $250to $1,000."
A. 
Fines and imprisonment. Any person violating this chapter shall be punished by a fine of not less than $250 for the first offense; not less than $500 for the second offense; and not less than $1,000 for each subsequent offense, or by imprisonment for a term not to exceed 60 days, or by a combination of both fine and imprisonment at the discretion of the court.
B. 
Restitution. In addition to any punishment specified in this section, the court shall order any violator to make restitution to the victim or the Town for damages, loss or cost of abatement caused directly or indirectly by the violator's offense in the amount or manner determined by the court.
C. 
Community service. In lieu of, or as part of, the penalties specified in this section, with the exception of Subsection B (Restitution), a minor or adult may be required to perform community service as described by the court based on the following minimum requirements:
(1) 
The minor or adult shall perform at least 200 hours of community service, at least half of which shall be served removing graffiti from public property.
[Amended 4-9-2009 by Ord. No. 504]
(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. Reasonable effort 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 on the minor or adult, including community service that involves graffiti removal.
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 or who has the right to possess such property to at all times keep the property clear of graffiti.
A. 
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 Town 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 the Town Manager. 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.
B. 
Property owner responsibility. If the perpetrator according to the subsection above does not remove graffiti, graffiti shall be removed pursuant to the following provisions:
(1) 
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 Town to permit property that is defaced with graffiti to remain defaced for a period of five days after service either in person or by first class mail to the owner or occupant of a notice of the defacement.
(2) 
The notice shall contain the following information:
(a) 
The street address and legal description of the property sufficient for identification of the property.
(b) 
A statement that the property is a potential graffiti nuisance property with a concise description of the conditions leading to the finding.
(c) 
A statement that the graffiti must be removed within five days after personal receipt or the mailing date of the notice and that if the graffiti is not abated within that time the Town will declare the property to be a public nuisance, subject to the abatement procedures in Town Code and Delaware Law.
(d) 
An information sheet identifying any graffiti removal assistance programs which may be available through the Town and/or private graffiti removal contractors.
C. 
Right of Town to abate.
(1) 
Use of public funds. Whenever the Town Manager 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 Town Manager 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 Town Manager, 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.
(a) 
Prior to entering upon private property or property owned by a public entity other than the Town for the purpose of graffiti removal the Town shall attempt to secure the consent of the property owner or responsible party and a release of the Town from liability for property damage or personal injury.
(b) 
If the property owner or responsible party fails to remove the offending graffiti within the time specified by this chapter, or if the Town 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 Town and consistent with the terms of this section, the Town shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below.
D. 
Abatement and cost recovery proceedings.
(1) 
Notice of due process hearing.
(a) 
The Mayor shall appoint a member of the Council to serve as a Hearing Officer. 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 Town'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.
(b) 
Notice shall be served by personal notice or telephonic conversation to the owner or current occupant of the property. If the owner of record cannot be contacted 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 seven days.
(2) 
Determination of Hearing Officer. The determination of the Hearing Officer after the due process hearing shall be final. 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, the Hearing Officer shall give written notice in an abatement order that, unless the graffiti is removed within 72 hours, the Town 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 abatement 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 abatement effort on a full cost recovery basis.
(3) 
Abatement efforts. Not sooner than the time specified in the order of the Hearing Officer, the Town Manager, or the designee of the Town 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.
(a) 
The owner or responsible party may request a cost hearing before the Hearing Officer on the abatement 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 abatement order, the Hearing Officer determines that all or a portion of the costs is appropriately chargeable to the abatement effort, the total amount set forth in the abatement 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.
(b) 
Any amount of abatement charges assessed by the Hearing Officer that are less than the total amount set forth in the abatement accounting shall be explained by written letter from the Hearing Officer to the Mayor and Council.
As to such property where the responsible party is the property owner, if all or any portion of the assessed abatement charges remaining unpaid after 30 days, the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the abatement effort. The Town Manager shall authorize the Town Attorney to proceed with any appropriate legal action(s) to accomplish the filing of a lien against the property.
Whenever an 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 is received, and the proposed building or structures are visible from any public or quasi-public place, the Code Enforcement Office, as well as the Planning Commission, shall discuss with the applicant the prevention of graffiti, and encourage the applicant to use anti-graffiti techniques, including, but not limited to, the following:
A. 
Use of a protective coating to provide for the effective and expeditious removal of graffiti;
B. 
Use of additional lighting;
C. 
Use of non-solid fencing;
D. 
Use of landscaping designed to cover large expansive walls such as ivy or similar clinging vegetation; or
E. 
Use of architectural design to break up long, continuous walls or solid areas.