(a) The existence of graffiti on public and private property in violation of this section is expressly declared to be a public nuisance and, therefore, is subject to the removal and abatement provisions specified in this section.
(b) Definitions:
(1) "City Official" means an officer(s) or employee(s) of the City designated by the Mayor.
(2) "Defacement" means the intentional altering of the physical shape or physical appearance of property.
(3) "Graffiti" means any unauthorized 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 a 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. Graffiti shall not be construed to mean or prohibit temporary, easily removable chalk or other water soluble markings on public or private sidewalks, streets or other paved surfaces which are used in connection with traditional children's activities, such as drawings, or bases for stickball, kickball, handball, hopscotch or similar activities, nor shall it be construed to prohibit temporary, easily removable chalk or other water soluble markings used in connection with any lawful business or public purpose or activity.
(4) "Graffiti Implement" means any aerosol paint container, broad tipped marker, stick on label, paint stick, paint, etching equipment, brush or other device capable of scarring or leaving a visible mark on any natural or man-made surface.
(5) "Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
(6) "Property Owner" shall mean and include the owner of the property, such property owner's agent or any person in lawful control or possession of the property.
(c) Prohibited Acts:
(1) Any person who applies graffiti to any natural or man-made surface of any public or private property in violation of this Ordinance shall be subject to prosecution in accordance with Section 533.05 of the Code of the City of South Charleston and applicable criminal statutes of the State of West Virginia.
(2) No person shall permit any graffiti which is viewable from a public or quasi- public place to remain on any building, structure, tree, shrub, sidewalk, or curb owned or possessed by such person.
(d) Removal From Private Property:
(1) Graffiti Upon Private Property. Once the City Official becomes aware of the existence of graffiti on private property, that is viewable from a public or quasi-public place, the City shall serve an abatement notice upon the property owner.
(2) Property Owner Responsibility. It is unlawful for any private property owner to permit property that is defaced with graffiti to remain defaced for a period of more than five (5) days from the date of service of the abatement notice.
(3) Notice to Property Owner. The abatement notice shall be served upon the property owner by the City by either (i) personal service or (ii) certified mail in conjunction with regular mail and posting of the notice in a conspicuous place on the premises in violation. The five (5) day abatement period shall commence running on the earlier of (i) the date the certified mail is claimed, or (ii) ten (10) days from the date of mailing of the abatement notice by regular mail.
(4) Contents of Notice to Property Owner. The abatement notice shall contain the following information: (i) name of property owner; (ii) street address and tax block and lot, if any; (iii) general description of the graffiti; (iv) instructions to remove or obscure the graffiti within five (5) days after receipt of notice, and that if not abated within that time, the City will declare the property to be a public nuisance, subject to the abatement procedures in Section 1119.15 of the Code of the City of South Charleston; (v) if the City has to abate the graffiti, the property owner will be invoiced for, and required to pay the City's costs of such abatement; and (vi) formal notice of the process for requesting a hearing.
(5) Hearing:
A. Requested by Property Owner. The property owner shall have the right to request a hearing to show cause why the graffiti specified in the abatement notice should not be removed. The hearing must be requested in writing within five (5) days of receipt of the abatement notice. The request for hearing must be delivered to the City Official either in person or by certified mail return receipt requested. The City Official shall serve as the hearing officer. If after the hearing, regardless of the attendance of the property owner, the hearing officer determines that the property contains graffiti viewable from a public or quasi-public place, the hearing officer shall give written notice of such in an abatement order, with service of such order to occur in such manner as prescribed for the abatement notice, and provide further that, unless the graffiti is removed or obscured within five (5) days, the City shall enter upon the property, cause the removal, painting over (in such color and manner to effectively obscure and minimize distinctions between the graffiti and non-graffiti surfaces), or such other eradication of the graffiti as the Hearing Officer determines appropriate, and shall provide the property owner thereafter with an invoice setting forth the City's documented actual costs of such graffiti abatement.
B. Called by the City. If, after receiving an abatement notice, the property owner has not abated the graffiti in accordance with the abatement notice, and has not requested a hearing to show cause why the graffiti specified in the abatement notice should not be removed, the City shall attempt to secure the consent of the property owner to enter the property to abate the graffiti and to obtain a release of the City from liability for property damage or personal injury. If such consent is refused by the property owner, the City shall give the property owner not less than forty-eight (48) hours notice of a hearing for the purpose of the property owner to show cause why the graffiti specified in the abatement notice should not be removed. The City shall give notice of the hearing by personal service on the property owner or, if the property owner cannot be located upon a diligent search, posting of the notice in a conspicuous place on the premises in violation. The City Official shall serve as the hearing officer. If after the hearing, regardless of the attendance of the property owner, the hearing officer determines that the property contains graffiti viewable from a public or quasi-public place, the hearing officer shall give written notice of such in an abatement order, with service of such order to occur in such manner as prescribed for the abatement notice, and provide further that, unless the graffiti is removed or obscured within five (5) days, the City shall enter upon the property, cause the removal, painting over (in such color and manner to effectively obscure and minimize distinctions between the graffiti and non-graffiti surfaces), or such other eradication of the graffiti as the Hearing Officer determines appropriate, and shall provide the property owner thereafter with an invoice setting forth the documented actual costs of such graffiti abatement.
(6) Appeal.If any person is aggrieved by the action taken by the hearing officer in ascertaining that a nuisance exists or directing that a nuisance be abated or removed, they shall, upon written request submitted to the City Clerk with a copy to the City Official within 48 hours of the hearing, be heard by Council. Submittal of a request to be heard by Council shall act as a temporary stay of the abatement order. Any person aggrieved by the action of Council shall have the right to apply to the circuit court for a temporary injunction restraining the Council pending final disposition of the case.
(7) Cost Responsibility of Property Owner. The property owner is responsible for the costs of abatement of the graffiti. If the City has abated the graffiti in accordance with the provisions of this Section, the City shall provide the property owner with an invoice setting forth the City's documented actual costs of such abatement.
(8) Use of Public Funds. The City shall be authorized to use public funds to assist a private property owner in the removal, painting over, or such other eradication of graffiti on the owner's property. A private property owner who has received an abatement notice may request the City for funding assistance for graffiti abatement. The City, at its sole discretion, may provide up to one thousand dollars ($1,000) to the private property owner, provided however, that the City's funding assistance cannot exceed fifty percent (50%) of the total cost of abatement. The City's commitment of funding can be made prior to completion of the abatement, however, the City will not provide the funds to the private property owner until the abatement is complete and invoices and/or other documentation supporting the actual cost of the abatement are presented to the City.
(e) Removal From Public Property:
(1) Whenever the City Official determines that graffiti exists upon property owned by the City, it shall be removed as soon as possible. When the property is owned by a public entity other than the City, the removal of the graffiti is authorized after securing written consent of the public agency having jurisdiction over the property.
(f) Non-Exclusivity:
(1) The remedies in this Section and Chapter are in addition to other remedies and penalties available under the laws of the City, the State of West Virginia, and the United States. The City Council does not intend this ordinance to conflict with existing anti-graffiti state laws, including but not limited to, malicious injury to property.
(Ord. 2110. Passed 8-21-08.)