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HomeMy WebLinkAboutO-1998-2214 - . , ORIGINAL ORDINANCE NO. 98 - 2214 AN ORDINANCE TO PROTECT THE PUBLIC HEALTH AND PROMOTE THE PUBLIC WELFARE OF THE CITY OF LA PORTE, TEXAS, BY PROHIBITING THE SPREAD OF GRAFFITI VANDALISM; REQUIRING THE REMOVAL OF SAID GRAFFITI; MAKING IT UNLAWFUL FOR ANY PERSON TO DEFACE ANY PUBLIC OR PRIVATE PROPERTY; PROVIDING THAT ANY PERSON VIOLATING THE TERMS OF THIS ORDINANCE SHALL BE DEEMED GUILTY OF A MISDEMEANOR AND UPON CONVICTION SHALL BE FINED IN ANY SUM NOT MORE THAN FIVE HUNDRED DOLLARS ($500.00) AND EACH DAY OF VIOLATION SHALL BE DEEMED A SEPARATE OFFENSE; CONTAINING A SEVERABILITY CLAUSE; FINDING COMPLIANCE WITH THE OPEN MEETINGS ACT; AND PROVIDING AN EFFECTIVE DATE HEREOF. WHEREAS, pursuant to Texas law, including the City's powers as a home rule municipality, the City may enact ordinances to protect the health, safety and welfare of its citizens; and WHEREAS, the City Council has determined that unauthorized markings, including graffiti, on buildings and other structures constitute a visual blight and safety hazard, and are often used to identify gang territory, promote organized crime and provide a communication system for gangs that furthers criminal activities; and WHEREAS, the City Council has also determined that visual blight as described herein contributes to neighborhood deterioration and damages property, as well as being objectionable and unsightly, and therefore constitutes a public nuisance; and WHEREAS, the City Council finds that visual blight as described herein is a public nuisance, and as a result, wishes to provide for the abatement thereof within the City of La Porte; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF LA PORTE, TEXAS, THAT: SECTION 1. DEFINITIONS. Agent shall mean any individual employed the City of La Porte, or a volunteer for the City of La Porte, duly designated and authorized by the City Manager to act on behalf of the City of La Porte pursuant to the terms of this ordinance. Graffiti shall mean 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 of public or private property by any graffiti implement. ORDINANCE NO. 98 - 2_ e ORI&lcl~AL Graffiti ImDlement shall mean 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. Owner or OCCuDant shall mean the record owner of the lot or parcel or responsible party or the tenant of a residential or commercial property. Unauthorized shall mean without the consent of the owner or occupant or without authority of law, regulation or ordinance. Unless the owner proves otherwise, lack of consent will be presumed under circumstances tending to show (i) the absence of evidence of specific authorization of the graffiti by the owner, (ii) that the graffiti is inconsistent with the design and use of the subject property, or (Hi) that the person causing the graffiti was unknown to the owner. SECTION 2. GRAFFITI AS A NUISANCE. It shall be unlawful for any person to apply graffiti to any natural or man-made surface on public or private property. The existence of graffiti on public or private property in violation of this Ordinance is expressly declared to be a public nuisance and, therefore, is subject to the removal and abatement provisions specified in this Ordinance. 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. SECTION 3 REMOVAL OF GRAFFITI BY PERPETRATOR. Any person applying graffiti on public or private property shall have the duty to remove within seventy-two (72) hours after notice by the City. Such removal shall be done in a manner prescribed by the City Manager, or his designee. Any person applying graffiti shall be responsible for the removal or for the payment of the removal, provided that the owner of the property gives consent for the perpetrator to enter the affected property for purposes of said removal. An officer or an agent of the City of La Porte (as designated by the City Manager) shall be present at all times that a perpetrator has re-entered a property for purposes of removal of graffiti, for purposes of supervision of the removal. It is an unlawful act, punishable in accordance with the terms of this ordinance, for any person to fail to remove graffiti or pay for the removal of graffiti applied by such person. ORDINANCE NO. 98. 2_ OR'~NAL PAGE 3 SECTION 4. REMOVAL OF GRAFFITI BY PROPERTY OWNER. If the perpetrator does not remove graffiti, graffiti shall be removed pursuant to the following provisions: 1. Property Owner Responsibility. 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 City to permit property that is defaced with graffiti to remain defaced for a period of thirty (30) days after being issued a warning notice about the defacement. 2. Exceptions to ProDerty Owner Responsibility. The removal requirements shall not apply if the property owner or responsible party can demonstrate that: (a) The property owner (residential only) or responsible party lacks the financial ability to remove the defacing graffiti: or (b) The property owner or responsible party is not responsible for the removal of graffiti if the perpetrator removes the graffiti per Section 3 of this Ordinance. The owner of any property in the City shall have the right to contract with the City to remove all such graffiti as may be on such real estate by requesting, in writing, the City Manager or his duly designated agents to do so, and by agreeing to pay, no less than twenty-five dollars ($25.00) per address. SECTION 5 HEARING. The owner or occupant of a lot or parcel subject to abatement under this ordinance may request a hearing by notifying the building official within ten (10) days following the date the city mails a notice of violation. The hearing shall be conducted by a hearing official designated by the City Manager or his designee, for the purpose of determining whether the conditions constitute a public nuisance under the provisions of this ordinance. Unless notice is waived by the owner, the owner shall be provided written notice of the time and place of the hearing at least ten (10) days prior thereto. At the hearing, the owner and the building official may present any evidence relevant to the proceedings, in accordance with reasonable rules adopted by the City Manager or his designee and subject to approval by the city attorney. If the hearing official finds that conditions constituting a nuisance hereunder exist, the hearing official shall issue an order so stating. ORDINANCE NO. 98 _ 2_ ORI~NAL PAGE 4 SECTION 6. RIGHT OF THE CITY TO REMOVE. Right of Entry on Private Property. If the City has requested consent to remove or paint over the offending graffiti and the owner or occupant has refused consent for entry on terms acceptable to the City and consistent with the terms of this Section, the City shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below. Correction or removal by City-Generally. In the event of the failure, refusal or neglect of the owner or occupant of any premises or property to comply with a notice given him pursuant to this article, it shall be the duty of the City Manager or his duly designated agents to cause the graffiti matter or condition constituting a nuisance to be promptly and summarily abated, in a reasonable and prudent manner, at the expense of the City. The City Manager or his duly designated agents shall carefully determine the cost of such work done and shall charge such cost against the owner of such premises. SECTION 7 PENALTIES - PERPETRATOR. (a) Restitution. In addition to any punishment specified in the Texas Penal Code, 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 severely liable with the minor to make the restitution. (b) Community Service. In-lieu of, or as part of, the penalties specified in this Section, a minor or adult who is convicted of applying graffiti to public or private property 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 community service. (2) At least one parent or guardian of the juvenile shall be in attendance a minimum of one-hundred percent (100%) of the period of assigned community service. If the parent chooses not to attend community service the penalty prescribed by the court system shall be doubled. (3) The entire period of community service shall be performed under the supervision approved by the Court. (4) A perpetrator found to be in violation of Section 2 shall be fined in any sum not more than $500.00 per day and each day may be deemed a separate offense. ORDINANCE NO. 98. L e OR,IGINAL PAGE 5 SECTION 8: PENALTIES - OWNER/OCCUPANT (1) Per Section 4 of this Ordinance the owner or occupant will be given a maximum of 30 days to abate the said violation. (2) An owner or occupant found to be in violation of Section 4 shall be fined in any sum not more than $500.00 per day and each day may be deemed a separate offense. (3) If the City has exercised its right to remove per Section 6 of this Ordinance the City may pursue cost recovery as outlined in Sections 9 & 10. SECTION 9. FILING OF STATEMENT OF EXPENSES INCURRED. After compiling the cost of the work and after charging the same against the owner of the premises, the City Manager or his duly designated agents, shall file a lien on the property if the owner of the premises fails to pay the expenses within 15 days of receipt of statement. To remove a lien from a property the owner must pay the cost of the lien, in addition to, $50.00 per property for administrative costs. SECTION 10. ABATEMENT AND COST RECOVERY PROCEEDINGS. Lien. Upon filing the statement of expenses with the County Clerk, the City shall have a privileged lien upon the land described therein and upon which such improvements have been made, in accordance with the provisions of Texas Codes Annotated, Health and Safety Code, Section 342.001, et seq. Such liens shall be second only to tax liens and liens for street improvements to secure the expenditures so made, and shall bear ten per cent (10%) interest on the amount of such expenditures from the date of such payment by the City. For any such expenditures and interest, suit may be instituted by the City Attorney and recovery and foreclosure of the lien may be had in the name of the City, and the statement of expenses made, or a certified copy thereof, shall be prima facie proof of the amount expended in such work or improvements. Upon payment of the full charges assessed against any property, pursuant to the procedure set forth in this section, the City Manager or his duly designated agents shall be authorized to execute, for and in behalf of the City, a written release of the lien heretofore mentioned, such written release to be on a form prepared and approved in each case, by the City Attorney. ORDINANCE NO. 98- e OR'~NAL PAGE 6 SECTION 11. TRUST FUND. The City Council hereby creates the City of La Porte Anti-Graffiti Trust Fund. Penalties assessed against violators of this Ordinance shall be placed in the fund, along with any monetary donations received from persons wishing to contribute to the fund. The City Manager or his duly designated agents shall direct the expenditures of moneys in the fund. Such expenditures shall be limited to the payment of the cost of graffiti removal, the payment, and rewards to report violators at the discretion of the City Manager or his duly designated agents, and the costs of administering the Ordinance. The Council may approve such other public purposes as by resolution. The reward shall be in any sum not more than two hundred and fifty dollars for information leading to the capture and conviction of the violator. SECTION 12. SEVERABILITY. If any section, sentence, phrase, clause, or any part of any section, sentence, phrase, or clause, of this ordinance shall, for any reason, be held invalid, such invalidity shall not affect the remaining portions of this ordinance, and it is hereby declared to be the intention of this City Council to have passed each section, sentence, phrase or clause, or part thereof, irrespective of the fact that any other section, sentence, phrase or clause, or part thereof, may be declared invalid. SECTION 13. OPEN MEETINGS COMPLIANCE. The City Council officially finds, determines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council is posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Chapter 551, Tx. Gov't Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. SECTION 14. EFFECTIVE DATE. This Ordinance shall take effect and be in force from and after its passage, approval and publication as required by law. ORDINANCE NO. 98. 2. O~GINAL PAGE 7 PASSED AND APPROVED this the ~ day of M' 1998. CITY OF LA PORTE By4~~~~_ Norman L. Malone, Mayor ATTEST: