[Added 12-11-2006 by L.L. 7-2006[1]]
[1]
Editor's Note: This local law also repealed
former Art. IV, Graffiti, added 10-28-1985 by L.L. No. 5-1985.
A.
The Board of Trustees of the Incorporated Village
of Freeport is enacting this article to help prevent the spread of
graffiti vandalism and to establish a program for the removal of graffiti
from public and private property.
B.
The Board of Trustees finds that graffiti is a public
nuisance and destructive of the rights and values of property owners
as well as the entire community. Unless the Village 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 Village.
C.
The Board of Trustees intends, through the adoption
of this article, to provide additional enforcement tools to protect
public and private property from acts of graffiti vandalism and defacement.
The Board does not intend for this article to conflict with any existing
anti-graffiti state laws.
For the purposes of this article, the following
words shall have the meanings respectively ascribed to them in this
section, except where the context clearly indicates a different meaning:
Any aerosol container that is adapted or made for the purpose
of applying spray paint or other substances capable of defacing property.
Any felt-tip indelible marker or similar implement with a
flat or angled writing surface that, at its broadest width, is greater
than 1/4 of an inch, containing ink or other pigmented liquid that
is not water soluble.
Any tool, device, or substance that can be used to make permanent
marks on any natural or man-made surface.
Any 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 on public or private
property.
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 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 mark of at least 1/8 of an inch in width.
Any individual, partnership, cooperative association, private
corporation, personal representative, receiver, trustee, assignee,
or any other legal entity.
A.
Defacement. It shall be unlawful for any person to
apply graffiti to any natural or man-made surface on any Village-owned
property or on any non-Village-owned property.
B.
Possession of graffiti implements.
(1)
By minors at or near school facilities. 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 in areas immediately adjacent to those specific
locations upon public property, or upon private property without the
prior written consent of the owner or occupant of such private property.
The provisions of this section 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. The burden of proof in any prosecution for violation
of this section shall be upon the minor student to establish the need
to possess a broad-tipped marker.
(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 Village or while in or within 50 feet of any underpass, bridge
abutment, storm drain, or similar types of infrastructure unless otherwise
authorized by the Village.
A.
Furnishing 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
eighteen (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.
(3)
Signage required. Every person who operates a retail
commercial establishment selling graffiti implements shall:
(a)
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 15 days and/or a fine up to $1,000.”
(b)
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 under 18 years of age is against the law and punishable
by a fine of $1,000.”
A.
Fines, imprisonment, and enforcement. Any person violating
this article shall be punished by a fine of $250 for the first offense;
$500 for the second offense; and $1,000 for each subsequent offense.
(1)
In the case of a minor, the parents or legal
guardian shall be jointly and severally liable with the minor for
payment of all fines.
(2)
Failure of the parents or legal guardian to
make payment will result in the filing of a lien on the parents' or
legal guardian's property that includes the fine and administrative
costs.
(3)
Upon an application and finding of indigence,
the court may decline to order fines against the minor, parents or
guardian.
B.
Restitution. In addition to any punishment specified
in this section, the court may order any violator to make restitution
to the victim for 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 or legal guardian shall be ordered
jointly and severally liable with the minor to make the restitution.
C.
Community service. In lieu of, or as 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 minimum requirements:
(1)
The minor or adult shall perform at least thirty
(30) hours of community service.
(2)
At least one parent or guardian of the minor
shall be in attendance at 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 or the Village Court.
(4)
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.
D.
Civil responsibility for damages for wrongful sale,
display or storage. Any person who sells, displays or stores, or permits
the sale, display or storage, of any graffiti implement in violation
of the provisions of this article shall be personally liable for all
costs incurred by any party in connection with the removal of graffiti,
the repair of any property containing graffiti, or such party's prosecution
of a civil claim for reimbursement or damages resulting from such
graffiti removal or property repair, arising from the use by any person
of such wrongfully sold, displayed or stored graffiti implement in
violation of the provisions of this article, provided that such liability
shall not exceed $2,500.
E.
If any minor is so emancipated from his parent or
legal guardian prior to the occurrence of such damage, in lieu of
any liability under this article, the court may order such minor to
perform services for the public good, as permitted under the general
obligations.
F.
This article shall be enforced by the Police Department
of the Village of Freeport or by the Superintendent of Buildings or
his duly authorized representative.
A.
The existence of graffiti on public or private property
in violation of this article is expressly declared to be a public
nuisance and, therefore, is subject to the removal and abatement provisions
specified in this article.
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 right to possess such property to at all times keep the
property clear of graffiti.
Any person applying graffiti on public or private
property shall have the duty to remove the graffiti within 24 hours
after notice by the Village or private owner of the property involved.
Such removal shall be done in a manner prescribed by the Chief of
Police, the Superintendent of the Department of Buildings, or any
additional Village department head, as authorized by the Village Board.
Any person applying graffiti shall be responsible for the removal
or for the payment of the removal. Failure of any person to remove
graffiti or pay for the removal of any shall constitute an additional
violation of this article. Where graffiti is applied by an unemancipated
minor, the parent or legal guardian shall also be responsible for
such removal or for the payment for the removal.
If graffiti is not removed by the perpetrator according to § 155-47.2, graffiti shall be removed pursuant to the following provisions:
A.
The owner, tenant and/or persons in control of any
building or personal property shall be required to remove any graffiti
applied to such property not more than 48 hours after such graffiti
occurs. Failure to remove graffiti shall be a violation of this chapter.
B.
Failure or refusal to remove graffiti.
(1)
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 such person
or persons may be notified by certified mail, return receipt requested,
mailed to the property address, by the Superintendent of Buildings
or his designated agent, that such person shall have a period of up
to 48 hours from the receipt of such notice to complete removal or
coverage of such graffiti. If weather conditions do not allow for
the removal of said graffiti, the Superintendent of Buildings and/or
their designated agent shall be permitted to extend the forty-eight-hour
time frame for a period of time until weather conditions permit the
removal of said graffiti.
(2)
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 Village of Freeport Department of Buildings
may order employees of any Village department or a contractor with
an agreement approved by the Village Board to engage in maintenance,
repair and other services needed to effectuate the elimination or
coverage of such graffiti on such property. All cost of such work
shall be billed to the owner of the property and, if unpaid after
90 days, shall be certified to the Treasurer of the Incorporated Village
of Freeport for inclusion as taxes upon such parcel of property as
was benefited thereby.
Severability is intended throughout and within
the provisions of the article. If any section, subsection, sentence,
clause, phrase or portion of this article is held to be invalid or
unconstitutional by a court of competent jurisdiction, then that decision
shall not affect the validity of the remaining portions of this article.
