If graffiti is not removed by the perpetrator according to section 5-19-7 of this chapter, graffiti may be removed pursuant to the following provisions:
A. Voluntary Graffiti Removal Assistance Program: The city has determined that removal of graffiti as soon as practicable is essential to its policy of prohibiting and preventing defacement of property within the city. In all cases, removal is sought to be accomplished within twenty four (24) hours. The city hereby establishes a graffiti removal assistance program which will be set forth in further detail by resolution of the city council and as may be amended from time to time to reflect changes in methods and funding for graffiti removal. The purpose of such program shall be to encourage the fast abatement/eradication of the graffiti and lessen the economic and resource burden upon the owner of the property subjected to graffiti without fault of the owner and/or to the city. Such program shall contain at least the following:
1. Any agreement for removal assistance between the city and the owner of the defaced property shall be in writing.
2. Prior to a written notice to any private property owner to remove graffiti, the city manager or his designee will make reasonable efforts to informally contact the owner to explore the possibilities and terms for an agreement between the city and the owner for graffiti removal or eradication under the graffiti removal assistance program.
3. Prior to entry upon the private property at issue or the use of city resources or equipment by the property owner, the city shall require the consent and release required by resolution of the city council.
4. Nothing herein or in the agreement between the parties shall relieve the perpetrator of the graffiti from responsibility for violating this chapter or from any remedies or claims the city or the owner may assert against the perpetrator for damages or costs.
5. Whenever the city becomes aware or is notified and determines that graffiti is located on public or privately owned property viewable from a public or quasi-public place, the city is authorized to use public funds for the removal of the graffiti pursuant to the voluntary removal program, or for the painting or repairing of the graffiti but may not authorize or undertake to provide for the painting or repair of any more extensive an area than where the graffiti is located, unless the city manager determines in writing that a more extensive area is required to be repaired in order to avoid an aesthetic disfigurement of the neighborhood or community, or unless the property owner or responsible party agrees to pay for the costs of repainting or repairing the more extensive areas.
B. Property Owner Responsibility: It is a violation of this code for a property owner to allow graffiti to remain on the property after the expiration of the ten (10) day notice provided in subsection B1 of this section; however, property owners shall not be criminally liable for graffiti which is placed upon their property by another. In cases where it is determined by the city council to be in the best interest of the city to seek removal of any particular graffiti to discourage further graffiti or defacement within the city, and where the property owner and the city have been unable to resolve the matter through the voluntary removal program, the city council may direct staff to pursue abatement/eradication through a court action.
1. Prior to filing a court action, the city manager shall cause a notice to be sent by certified mail to all property owners of record to the last known address as shown at the Elko County assessor's office that a court action will be pursued in the event the property owner has not reached an agreement with the city for abatement/eradication of the graffiti within ten (10) days of the date of mailing of the notice.
2. The municipal court or any court of competent jurisdiction shall have authority over violations of property owner responsibilities under this code and, further, shall have authority to order abatement/eradication of the graffiti at the cost and expense of the property owner(s).
3. If a court orders a property owner to abate/eradicate graffiti and the property owner fails to comply with such order, the court may order that the city enter upon the property to complete the required abatement/eradication actions at the expense of the property owner. In the event the property owner fails to pay any expenses incurred by the city for abatement/eradication actions as ordered by the court, any court approved expenses at a hearing held for such purpose shall constitute a lien upon the property and may be perfected and enforced by giving notice thereof, recording a lien claim and following the process of enforcing the lien as required concerning mechanic's liens under state law.
C. Exceptions To Property Owner Responsibility For Costs: A property owner's removal expense responsibilities of subsection B of this section shall not apply to a property owner if the property owner can demonstrate that the property owner lacks the financial ability to remove the graffiti. To qualify for this exception, a property owner must demonstrate the lack of financial ability to the court.
D. Right Of Entry Of Private Or Public Property: Unless as set forth by a court order, prior to entering upon private property or property owned by a public entity other than the city for the purpose of graffiti removal, the city must secure the consent of the property owner or responsible party and release of the city from liability for property damage or personal injury.
E. Duty Of City: Nothing herein shall require the city to remove graffiti from private property or property owned by another public entity. The city manager shall have the discretion whether or not to bring the matter before the city council for direction to proceed to do so in any particular case. (Ord. 682, 6-24-2008)