(a) Definitions. The following definitions shall apply to this section.
Graffiti means any inscription, word, writing, drawing, figure, mark of paint, ink, chalk, dye or other similar substance, etching, engraving or other defacement (collectively 'defacement') by a graffiti implement or chalk or by the application of any material, gum label, paper, fabric or other matter (collectively "matter") with adhesive or other substance which is intended to make the application of the matter permanent or difficult to remove, on public or private property. Graffiti does not include temporary, easily removable chalks or other water soluble markings which are used in connection with traditional children's activities such as drawings of bases for ball games, hopscotch and similar activities, nor does it include temporary, easily removable markings used in connection with any lawful business or public purpose or activity and markings used to denote the location of underground utility infrastructure and those used in conjunction with establishing survey control data and location points by survey crews.
Graffiti implement means any aerosol paint container or paint applicator or brush, indelible marker containing ink or other pigmented liquid that is not water soluble, stick on label, paint stick, etching equipment or any other device capable of defacing or leaving a visible mark on public or private property.
Paint means paint, wax, epoxy or similar substance capable of being applied to a surface and leaving a defacement.
Property owner(s) means the owner as defined in section 1-2 and such owner's agent or manager, or any other person in lawful control or possession of property if known to the town. The owner of the property shall be deemed to be those persons whose names appear on the tax records as having an interest in the property.
Public or private property means public or private buildings, sidewalks, streets, structures, walls, equipment and other similar things and places.
(b) Placing graffiti prohibited. It shall be unlawful for any person to place graffiti upon the surface of any public or private property.
(c) Removing graffiti required.
(1) Removal by perpetrator. It shall be unlawful for any person placing graffiti on public or private property to fail to remove such graffiti or cause such graffiti to be removed within seventy-two (72) hours after notice from the town. If graffiti is applied by a person under the age of eighteen (18) years of age, the parents or legal guardians of such minor shall be responsible for removal of the graffiti with seventy-two (72) hours after notice from the town.
(2) Removal by property owner. It shall be unlawful for any property owner to fail to remove or effectively obscure any graffiti upon property they own, manage, or are in lawful control or possession of within five (5) business days after receiving written notice from the town to remove such graffiti ("Notice to Remove"). Notice to Remove shall be sent by certified mail, return receipt requested or by personal delivery, to the property owner(s). The notice to remove shall provide:
(i) the street address or other description of the property sufficient for property identification;
(ii) a description and general location of the graffiti;
(iii) a statement that the property is a public nuisance due to the existence of the graffiti;
(iv) a statement that the graffiti must be removed or effectively obscured within five (5) business days after receiving notice to remove and that if the nuisance is not so abated within that time the town will abate the public nuisance at the cost of the property owner as set forth herein;
(v) information identifying any graffiti removal assistance available through the town; and
(vi) information concerning procedures for appeal of the Notice.
(3) Removal by town. If the town has provided notice to remove under (c)(2) above and property owner fails or refuses to remove or effectively obscure graffiti upon their property, then, in addition to other enforcement actions hereunder, the town is authorized to remove the graffiti as provided herein at the expense of property owner. If the expenses of removing or obscuring the graffiti is not paid by the property owner within thirty (30) days of receipt of a statement for the cost of such removal or obscuring, the town may sue in a court of competent jurisdiction to recover all such expenses, including all administrative personnel costs, attorney's fees and costs related to enforcing this section, and the town may record a lien in the public records of Wake County, which lien shall be for all such expenses, and the amount of the lien shall bear interest from the date of recording.
(4) Appeals. Any property owner who receives a notice to remove may appeal the notice within five (5) business days of receipt of notice to the town manager. The appeal shall be in writing and shall state with specificity the reasons for the appeal ("appeal notice"). The manager or designee shall set a hearing date within ten (10) days of receipt of the appeal notice, and shall render a decision within a reasonable time after the hearing date. If, on appeal, the manager or designee determines that the graffiti is a public nuisance and must be removed, the manager shall establish a new date for such removal or obscuring.
(5) Emergency removal. If the town determines that any graffiti is a danger to the health, safety or welfare of the public and is unable to provide notice by personal service after at least two attempts to do so, then forty-eight (48) hours after either (i) mailing of the notice described in subsection (2) above by certified and first class mail or (ii) the posting of the notice in a conspicuous place on the property, the town may remove or cause the graffiti to be removed or obscured at its expense.
(6) Removal/obscuring. The town shall not clean, paint or obscure or repair any property containing graffiti more extensively than where the graffiti itself is located. The town shall not be required to restore the area that contained graffiti, or any obscured area, to its original condition including conditions of color, texture, and finish. Notwithstanding the preceding, if the town manager 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, the Town of Cary or its authorized private contractor is expressly permitted to perform the work necessary to do more extensive repainting or repairing.
(d) Enforcement/remedies.
(1) Civil penalties. Violation of subsections (b), (c)(1), or (c)(2) shall subject the offender(s) to a civil penalty in the amount of one hundred dollars ($100.00). In the event there is more than one violation within any thirty-day period, then the civil penalty shall be increased for each additional violation over one during such period, as follows. The date of the first violation shall establish the beginning date for the initial thirty-day period. The next violation within that 30-day period shall be considered the second violation. Any violations that follow within that thirty-day period shall be numbered sequentially. The penalty shall be:
Second offense within same thirty-day period: $250.00.
Third offense within same thirty-day period: $500.00.
Fourth offense within same thirty-day period: $750.00.
Fifth and any subsequent offense within same thirty-day period: $1,000.00.
Once the thirty-day period has run from the "first violation," the next violation shall be considered to be a first violation for the purposes of establishing a new thirty-day period. Each subsequent violation that follows more than thirty (30) days from the previous first violation shall be a new first violation for the purpose of establishing a new thirty-day period. In the event there are more than six violations within any twelve-month period, then each violation after six shall subject the violator(s) to a civil penalty of one thousand dollars ($1,000.00).
Violators shall be issued a written citation which must be paid within seven (7) days from the issue date and time to the Town of Cary Finance Department. The town is authorized to file suit on behalf of the town to collect any unpaid citations, and the police chief, or designee, is authorized to verify and sign complaints on behalf of the town in such suits. Any police officer may issue a citation for violations of this article.
(2) Criminal penalty. In addition to or in lieu of civil penalties or other remedies, violation of subsection (b) of this section shall constitute a misdemeanor. Any person convicted of a violation of this section shall be fined not less than two hundred fifty dollars ($250.00) for a first offense and five hundred dollars ($500.00) for a second or subsequent offense. In addition to any other remedy, the court shall order any person convicted of a violation of subsection (b) to make restitution to the victim and/or to the Town of Cary for the damage or loss suffered by the victim and/or to the Town of Cary as a result of the offense. The court may determine the amount, terms, and conditions of the restitution.
(e) Right of entry on private property. Prior to entering upon private property or property owned by a public entity other than the Town of Cary for the purpose of this section, the town shall make a reasonable attempt to secure the consent of the property owner or manager for release of the town from liability for property damage or personal injury. If the property owner or manager fails to remove the offending graffiti within the time specified herein, or 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 herein.
(f) Severability. The provisions of this section shall be deemed severable. If any portion of this section is deemed unconstitutional, it shall not affect the constitutionality of any other portions of this ordinance.
(Ord. No. 06-021, 12-14-2006)