A. Definitions: In this section unless the context requires otherwise:
ABATEMENT: The act of removal of graffiti.
AEROSOL PAINT CONTAINER: Any aerosol container that is adapted or made for the purposes of applying spray paint or other substances.
BROAD TIPPED MARKER: Any type of marker or similar instrument with a flat or angled writing surface of one-fourth inch (1/4") or greater which contains ink or other pigmented liquid that is not water soluble.
BUSINESS DAYS: The days of the week of Monday through Friday, excluding legal holidays.
ETCHING EQUIPMENT: Any tool, device or substance that can be used to make permanent marks on the surface of any property.
FIRST NOTICE OF VIOLATION: The first letter to the owner or person in possession of the property stating a violation has occurred. This letter is to be sent certified mail return receipt requested. Notice shall be deemed given when postmarked.
GRAFFITI: Any unauthorized inscription, word, figure, painting or other defacement that is written, marked, etched, scratched, sprayed, imprinted, drawn, painted, or engraved on or otherwise affixed to any surface of public or private property whether real or personal, by any graffiti implement, to the extent that the graffiti was not authorized in advance by the owner of the property, or, despite advance authorization, is otherwise deemed a public nuisance by the City Council.
GRAFFITI IMPLEMENT: An aerosol paint container, a broad tipped marker, paint stick or graffiti stick, etching equipment, brush or any other device capable of leaving a visible mark on any natural or manmade surface when such tools are used in a criminal act.
PERSON IN POSSESSION: Any person or entity in possession or control of property on the date of violation of this section.
PRIOR AUTHORIZATION: With prior permission of the owner, manager or other person in possession of the private or public property.
B. Graffiti Prohibited:
1. No person may apply any graffiti to any natural or manmade surfaces on any publicly owned property or any privately owned property without first obtaining the prior written consent of the owner or person in possession. The application of graffiti is deemed to be a violation of this section.
2. No person may possess aerosol paint containers, broad tipped markers, etching equipment, or any graffiti implements on any public property or private property with the intent to violate or in violation of this section.
3. No minor may be in possession of aerosol paint containers, broad tipped markers, etching equipment, or any other graffiti implements on any public property, structure or facility, any school property, structure or facility, or any private property without first obtaining written permission of the lawful owner or person in possession of the property. The provisions of this section do not apply to minors possessing such implements for classes or organized extracurricular activities that require the use of such implements and which use is limited to legitimate activities.
C. Accessibility To Graffiti Implements:
1. Furnishing To Minors Prohibited:
a. No person may sell any aerosol paint containers or broad tipped markers, nor shall anyone sell, give, lend, or otherwise make available other graffiti implements to a minor unless that minor is accompanied by a parent or legal guardian at the time of the purchase or transfer.
b. No minor may furnish fraudulent or misleading evidence of majority at the time of purchase or transfer of any aerosol paint containers, broad tipped markers, or any other graffiti implements.
2. Display And Storage: Every person who owns, operates, or manages a commercial retail establishment that sells aerosol paint containers or broad tipped markers must store the implements in an area inaccessible to the public without employee or owner assistance, or in the alternative that is continuously observable through direct visual observation or surveillance equipment by the establishment's owner(s) or employees during the regular hours of business.
3. Signs Required: Every person who operates a commercial retail establishment that sells graffiti implements shall:
a. Place a sign at or near the display of such products stating:
Graffiti is against the law. Any person who marks or defaces property with paint, markers, any other liquid or marking device is guilty of a crime punishable by imprisonment and/or fines as allowed by law and for restitution to the owner.
b. Place a sign in view of persons accepting customer payment for graffiti implements stating:
Selling aerosol paint containers or broad-tipped markers to persons under the age of 18 is against the law and punishable by imprisonment and/or fines as allowed by law and restitution to the owner.
D. Graffiti As Nuisance; Graffiti Removal:
1. Graffiti As Nuisance: The existence of graffiti on public and private property in violation of this section is expressly declared to be a public nuisance.
2. Removal Of Graffiti By Perpetrator: Any person applying graffiti on public or private property must remove or pay for the removal of the graffiti in a manner approved by the property owner within twenty four (24) hours of notification. Failure of any person to remove or pay for removal of graffiti constitutes an additional violation of this section. If graffiti is applied by a minor, the parent(s) or legal guardian are also responsible for removal or payment for removal of graffiti.
3. Removal Of Graffiti By Property Owner/Person In Possession: It shall be unlawful for any person owning or otherwise in possession of any real property within the city of Artesia to maintain, permit or allow graffiti to remain on any property where the graffiti is visible from any street or other public or private property. The owner or other person in possession of any public or private property shall remove or cause to be removed any graffiti on the property within three (3) business days, excluding legal holidays and weekends, of the placement of the graffiti. Absenteeism from the property of the owner or person in possession of the property or knowledge of the graffiti by the owner or person in possession of the property shall be considered when determining a violation of this section.
4. Removal Of Graffiti By City: A reasonable fee shall be charged to all utility customers served by the solid waste department to fund the graffiti removal program. The city is authorized to use these fees for graffiti abatement on public or private property. The city is not required to paint, remove, or repair an area more extensive than that covered by graffiti, unless the owner has made prior arrangements with the city and agreed to pay the costs for more extensive painting, removal or repair. The city is authorized to use city employees, contractors, and/or volunteers who have been duly made available for such graffiti removal work.
E. Abatement Procedures; Notice:
1. Permission For Entry; Cost Recovery; Notices; Enforcement:
a. Permission From An Owner: If the owner or person in possession of the property grants permission, the city or its private contractor may enter the property to abate graffiti.
b. No Permission From An Owner: If the property owner or person in possession refuses to grant permission as provided in subsection E1a of this section or cannot be located, then the city, at its sole discretion, may abate graffiti on the property.
2. Notice: A notice of graffiti abatement may be made by the city to the property owner or other person in possession of the property. The notice shall contain those items required in subsections E2a, E2b, and E2c of this section, as follows:
a. Identify the property and describe the nature of the graffiti.
b. A statement declaring that the property is a public nuisance.
c. A statement declaring that abatement shall commence within three (3) business days from the date of the notice.
d. In the event the graffiti contains or depicts obscenity, then the three (3) day notice shall not be required and the city is authorized to immediately enter the property for abatement or otherwise require the obscenity to be forthwith abated.
3. Method Of Abatement: If the city abates the graffiti, the property owner or person in possession may indicate a preferred available method of abatement, either city provided paint, or may provide the paint to the eradicator. The city shall retain the right in all instances to make a final decision with respect to which method shall be utilized and/or which materials shall be used for the abatement so long as the city shall proceed with the abatement.
4. Liability Waived: Neither the city nor its private contractor shall be liable for any abatement of graffiti that does not match or resemble the original surface.
5. Service Of Notice: The notice may be served personally, or by certified mail, or by posting on a prominent place on the property, or by publishing one time in a newspaper of general circulation published in the city.
6. Designation Of Enforcement Authority: All officers and investigators of the city department of public safety may issue citations or make arrests for violations of this section. The city building inspector, the code enforcement officer, and/or other city employees as may be authorized by the mayor are additionally authorized to issue notices of graffiti abatement as well as citations for violations of this section.
F. Penalties:
1. Fine; Imprisonment: Any person who violates any provision of this section, with exception to that specified in subsection F2 of this section, shall be punished for each separate violation by a fine not exceeding five hundred dollars ($500.00) or by imprisonment not exceeding ninety (90) days, or by both such fine and imprisonment.
2. Exception: Any property owner or person in possession of property who is not a violator under the provisions of subsection B1 of this section shall be punished for each separate violation by a fine not exceeding two hundred fifty dollars ($250.00).
3. Restitution: As a condition of any probation, the court may provide some form of restitution to the victim who is the owner or person in possession of property, and/or to the city for any expenses or damages caused directly or indirectly by a defendant's violation of this section.
4. Collection Of Civil Damages: The city and/or victim of any violation of this section may pursue civil damages in a court of competent jurisdiction against any parent and/or person into whose custody a minor has been granted or entrusted for any act committed by the minor in violation of this section irrespective whether the minor may be prosecuted for the violation. This section does not impair any application of any other provision of this section. (Ord. 803, 11-11-2008)