If graffiti is not removed by the perpetrator according to § 92.39, graffiti shall be removed pursuant to the following provisions:
(A) 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 by graffiti to remain defaced for a period of ten days after service by first class mail of notice of the defacement. The notice shall contain the following information:
(1) The street address and legal description of the property sufficient for identification of the property;
(2) A statement that the property is a potential graffiti nuisance property with a concise description of the conditions leading to the finding;
(3) A statement that the graffiti must be removed within ten days after receipt of the notice and that if the graffiti is not abated within that time the city will declare the property to be a public nuisance, subject to the abatement procedures in this City Code.
(B) Exceptions to property owner responsibility. The removal requirements of division (A) do not apply if the property owner or responsible party can demonstrate that:
(1) The property owner or responsible party demonstrates, to the satisfaction of the City Administrator, that immediate removal of the defacing graffiti would constitute a genuine financial hardship;
(2) The property owner has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it is unlawful to permit such property to remain defaced with graffiti for a period of 15 days after service by first class mail of notice of the defacement; or
(3) Between the months of November 1 and April 1, because of cold weather, the graffiti cannot be effectively removed or painted over without unusual expense and difficulty. In situations coming within this subdivision, the city may require the property owner to cover the graffiti in a temporary manner.
(C) Right of city to remove.
(1) Use of public funds. Whenever the city becomes aware or is notified and determines that graffiti is located on publicly or privately owned property viewable from a public place, the city is authorized to use public funds for the removal of the graffiti, or for the painting or repairing of the graffiti, but will not authorize or undertake to provide for the painting or repair of any more extensive an area than that where the graffiti is located, unless the City Administrator, or the designee of the City
Administrator, 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, or unless the property owner or responsible party agrees to pay for the costs of repainting or repairing the more extensive area.
(2) Right of entry on private property. 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 attempt to secure the consent of the property owner or responsible party and a release of the city from liability for property damage or personal injury. If the responsible party fails to remove the offending graffiti within the time specified by this chapter, or if the city 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 city and consistent with the terms of this section, the city will commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below.
(3) Abatement and cost recovery proceedings.
(a) Notice of due process hearing. The City Administrator, or the designee of the City Administrator, serving as the Hearing Officer, must provide the property owner of record and the party responsible for the maintenance of the property, if a person different than the owner, not less than 48 hours notice of the city's intent to hold a due process hearing at which the property owner or responsible party is entitled to present evidence and argue that the property does not constitute a public nuisance. Notice must be served in the same manner as a summons in a civil action according to state law. If the owner of record cannot be found after a diligent search, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in the area in which the property is located.
(b) Determination of Hearing Officer. The determination of the Hearing Officer after the due process hearing is final and not appealable. If, after the due process hearing, regardless of the attendance of the owner or the responsible party or their respective agents, the Hearing Officer determines that the property contains graffiti viewable from a public or quasi-public place, the Hearing Officer must give written notice in an eradication order that, unless the graffiti is removed within ten days, the city may enter upon the property, cause the removal, painting over (in such color as that meets with the approval of the Hearing Officer) or such other eradication thereof as the Hearing Officer determines appropriate, and provide the owner and the responsible party thereafter with an accounting of the cost of the eradication effort on a full cost recovery basis.
(c) Eradication effort. Not sooner than the time specified in the order of the Hearing Officer, the City Administrator or the designee of the City Administrator is to implement the eradication order and provide an accounting to the owner and responsible party of the costs thereof.
(d) Cost hearing. The owner or responsible party may request a cost hearing before the Hearing Officer on the eradication accounting, and appropriate due process must be extended to the owner or responsible party. If following the cost hearing or, if no hearing is requested, after the implementation of the eradication order, the Hearing Officer determines that all or a portion of the cost are appropriately chargeable to the eradication effort, the total amount set forth in the eradication accounting or an amount thereof determined as appropriate by the Hearing Officer is due and payable by the owner or responsible party within 30 days. Any amount of eradication charges assessed by the Hearing Officer that are less than the total amount set forth in the eradication accounting must be explained by written letter from the Hearing Officer to the City Council.
(D) Lien. As to such property where the responsible party is the property owner, if all or any portion of the assessed eradication charges remain unpaid after 30 days, the portion thereof that remains unpaid constitutes a lien on the property that was the subject of the eradication effort.
(Ord. 878, passed 6-14-99)