[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:
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.
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 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.