[HISTORY: Adopted by the City Council of the City of Papillion 9-4-2007 by Ord. No. 1518. Amendments noted where applicable.]
NEBRASKA STATUTE REFERENCES
Neb. R.R.S. §§ 16-240 and 18-1720.
Graffiti on public and private property is a blighting factor, which not only depreciates the value of the property which has been the target of such malicious vandalism, but also depreciates the value of the adjacent and surrounding properties, and in so doing negatively impacts upon the entire community. The City has in the past undertaken to remove graffiti from public property but has been unable to mount a successful program for encouraging the owners of private property to undertake to remove graffiti and other inscribed materials from walls, structures, etc. The legislation of the state has authorized the City to define, regulate, suppress and prevent nuisance and to declare what shall constitute a nuisance and to abate and remove the same.
The City Council finds and determines that graffiti is a nuisance, and, unless it and other inscribed material is removed from public and private properties, it tends to remain, and other community is depreciated in value and made a less desirable place to be. The City Council therefore determines that it is appropriate that the City develop procedures to implement the provisions of the Revised Statutes of Nebraska, 1943, as amended, and provide for the removal of graffiti and other inscribed material from both public and private property under the circumstances set forth hereinafter.
The City Council hereby declares as a matter of legislative determination that:
The increasing incidents of the defacement of public and private property through the application of graffiti upon walls, rocks, bridges, buildings, fences, gates, other structures, trees, and other real and personal property within the corporate boundaries of the City constitute a blight on this community; and, in the interests of the health, safety and general welfare of the residents and taxpayers of the City, immediate steps must be taken to remove this blight.
When appropriate, the courts should require those who commit acts of defacement of public or private property through the application of graffiti to restore the property so defaced, damaged or destroyed.
Obtaining convictions for the application of graffiti is difficult due to the fact that the offense can be committed so very quickly and secretively that witnesses to the act are frequently nonexistent.
The public should be encouraged to cooperate in the elimination of graffiti by reporting to the proper authorities the incidents of the application of graffiti which they observe.
Whenever the following terms are used in this chapter, they shall have the meanings established by this section:
- CITY FORCES
- City employees and equipment available to abate graffiti.
- The defacing, damaging or destroying of any public and private building, structure, place, or vehicle belonging to another, without the permission of the owner or occupant, by the spraying of paint or marking of ink, dye or other similar substances, or by etching.
- GRAFFITI ABATEMENT PROCEDURE
- An abatement procedure which identifies graffiti to the property owner, issues notice to the property owner, allows the property owner to grant permission to the City to abate the graffiti at no expense to the owner, or within seven calendar days of notification, the City subsequently abates the graffiti in the absence of the owner response, and the property owner is responsible for the cost of the City's expense of the abatement.
- GRAFFITI MATERIALS
- Include, but are not limited to, aerosol paint containers of any size, aerosol paint container tips, liquid paint or gel that is not water soluble and cannot be removed by soap and water; in addition, devices, tools, chemicals or materials the intended purpose of which is to engrave or etch and leave a permanent ghosting effect, paint sticks or graffiti sticks or devices that contain a solid form of paint, wax epoxy or other similar substance capable of being applied to a surface by pressure.
- A person under the age of 18 years.
- PRIVATE CONTRACTOR
- Any person with whom the City shall have duly contracted to remove graffiti.
It shall be unlawful for any person to write, paint, etch or draw upon any wall, rock, bridge, building, fence, gate, other structure, tree, or other real or personal property, including vehicles belonging to others, either publicly or privately owned, without the permission of the owner or occupant, any drawing, inscription, figure or mark of the type which is commonly known and referred to as "graffiti" within the City.
Whenever a property owner, citizen or City official determines that graffiti exists on any public or private building, structure and places which are visible to any person utilizing any public right-of-way, he shall notify the Papillion Police Department and the City Public Works Director or their designated representatives. Further, if seasonal temperatures permit the painting or abating of exterior surfaces, the Public Works Director or his designated representative authorized and directed to obtain a signed "Notification, Consent and Release of Liability Form" or cause a notice to be issued to abate such nuisance and the City's intent to remove the graffiti within seven days, and to cause the graffiti to be abated by City forces or private contract at no expense to the owner, and the City or its private contractor is expressly authorized to enter upon such premises for such purpose. The property owner will be subject to abatement by the City at the owner's expense.
The notice to abate graffiti pursuant to this section shall be served upon the owner(s) of the affected premises, as such owner's name and address appears on the last property tax assessment rolls of the county; if there is no known address for the owner, this notice shall be sent in care of the property address. The notice required by this section may be served in any one of the following manners:
All reasonable efforts to minimize damage from such entry shall be taken by the City, and any paint or other abatement methods used to obliterate graffiti shall be as close as practicable to material; he shall not authorize nor undertake to provide for the painting or repair of any more extensive area than that where the graffiti or other inscribed material is located.
When the Public Works Director, or his designated representative, becomes aware of a location with graffiti, immediate administrative steps shall be taken to identify the legal owner of record. The City representative will make every effort to contact the owner immediately, to include a visit to the structure or location where a notice may be posted, in addition to other notification methods. For the purpose of the graffiti abatement, notification or notice time lines will start the date the notice to abate is issued by either certified or registered mail, or the date the notification consent and release from liability form is signed, or the date notice is personally served on the owner, occupant or person in charge or control of the property. A written notification, consent and release from liability form may be signed by the property owner and abatement can proceed immediately, or a notice is served pursuant to the notification provisions in § 138-6 whereby the owner shall have seven days before further action can be taken.
The Consent and Release from Liability Forms shall identify the legal owner, the property address and the specific location of the graffiti proposed to be abated. The form shall specify the method of abatement (i.e., over-paint; sanding; sandblasting; or other, with general description). The form shall offer the property owner the choice to consent to abatement by City forces or private contractor and release from liability for the City to take immediate steps to abate the graffiti (weather conditions permitting) at no cost to the owner, or to decline the City offer, at which time the property owner shall have seven calendar days to abate the graffiti at the owner's expense. Failure to do so within seven calendar days after the date of notification or service pursuant to § 138-6 means the City is expressly authorized to enter the property and abate the graffiti by the method proposed by the initial offer.
Within seven days of notification of graffiti, as defined in this chapter, or within seven days from the mailing or personal service of the notice, the owner or person occupying or controlling such premises or lot affected may appeal to the City Administrator. A copy of such appeal will also be sent to the Public Works Director or his designated representative as shown on the Notification, Consent and Release from Liability Form.
Once a Written Notification, Consent and Release from Liability Form is signed by the property owner or seven calendar days after owner notification has been served and not acted upon, abatement by City forces or privately contracted forces can commence immediately. All reasonable efforts to minimize damage from such entry shall be taken by the City, and any paint used to obliterate graffiti shall be as close as practicable to background color(s).
Sale of aerosol paint. It shall be unlawful for any person other than a parent, legal guardian, school teacher, day-care provider or other adult in a supervisory capacity to sell, exchange, give, loan, or otherwise knowingly furnish any aerosol spray paint to any juvenile without prior written consent of the parent or guardian of the juvenile.
Display and storage.
Every person who owns, conducts, operates, or manages a retail commercial establishment selling aerosol spray paint shall store such products in a readily defined area that is posted that these products are prohibited for purchase under the age of 18 unless with parent or guardian permission.
Each such commercial establishment shall either:
Post a sign, in English and in any other language at the establishment manager's option, at or near the cash register or checkout area stating, in effect: "NO SPRAY PAINT SALES TO MINORS — Municipal law prohibits the sale of aerosol spray paint to persons under 18 years of age"; or
If the establishment has an electronic checkout system and the manager chooses to do so, program that system to stop and deliver a prompt to the operating employee to check the customer age whenever a spray paint product is detected by the electronic checkout system.
Evidence that a person described in § 138-10A, or his or her agent or employee, demanded or was shown acceptable evidence of the age of majority, or written consent as permitted in § 138-11A(1), shall be a defense to any prosecution of such person, agent, or employee, in any case involving a resulting sale or transaction.
It shall be unlawful for any juvenile to possess any graffiti materials while on any school property, grounds, facilities, buildings, structures, or vehicles or within 500 feet of those specific locations except where necessary for proper school-related purposes; or on public property; or on private property without the prior written consent of the owner or adult occupant of such private property or by oral or written consent if the private property is the principal residence of the juvenile.
It shall be unlawful for a juvenile to purchase or attempt to purchase any aerosol spray paint.
This prohibition shall not apply to:
A juvenile using or purchasing paint or a marker while under the immediate supervision of his or her parent, legal guardian, school teacher, day-care provider or other adult in a supervisory capacity.
An employee using paint or a marker while under the immediate supervision of his or her employer.
In addition to the general penalties of the code, violations of this chapter shall be subject to the following penalties:
For minors: minimum 80 hours of community service.
For adults: minimum 48 hours in jail, or 80 hours of community service, or both.