Chapter 9-14
GRAFFITI
Sections:
9-14-030 Accessibility to graffiti implements.
9-14-040 Rewards and reimbursements for information.
9-14-050 Graffiti as nuisance.
9-14-060 Removal of graffiti by perpetrator.
9-14-070 Removal of graffiti by property owner or city.
9-14-080 Ease of removal provisions.
9-14-090 Prevention provisions.
9-14-110 Violations—Penalties.
9-14-010 Definitions.
For the purposes of this chapter, the following words shall have the meanings respectively ascribed to them in this section, except where the context clearly indicates a different meaning:
“Aerosol paint container” means any aerosol container that is adapted or made for the purpose of applying spray paint or other substances capable of defacing property.
“Broad-tipped marker” means any felt tip indelible marker or similar implement with a flat or angled writing surface that, at its broadest width, is greater than one-fourth of an inch, containing ink or other pigmented liquid that is not water soluble.
“Etching equipment” means any tool, device or substance that can be used to make permanent marks on any natural or manmade surface.
“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 any graffiti implement, to the extent that the graffiti was not authorized in advance by the owner or occupant of the property, or, despite advance authorization, is otherwise deemed a public nuisance by the city council.
“Graffiti implement” means an aerosol paint container, a broad-tipped marker, gum label, paint stick or graffiti stick, etching equipment, brush or any other device capable of scarring or leaving a visible mark on any natural or manmade surface.
“Paint stick” or “graffiti stick” means any device containing a solid form of paint, chalk, wax, epoxy, or other similar substance capable of being applied to a surface by pressure and leaving a mark of at least one-eighth of an inch in width.
“Person” means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or any other legal entity. (Ord. 2940 § 1, 1995)
9-14-020 Prohibited acts.
A. Defacement. It is unlawful for any person to apply graffiti to any natural or manmade surface on any city-owned property or, without the permission of the owner or occupant, on any non-city-owned property.
B. Possession of Graffiti Implements.
1. By Minors at or Near School Facilities. It is unlawful for any person under the age of eighteen (18) years to possess any graffiti implement while on any school property, grounds, facilities, buildings or structures, or in areas immediately adjacent to those specific locations upon public property, or upon private property without the prior written consent of the owner or occupant of such private property. The provisions of this section shall not apply to the possession of broad-tipped markers by a minor attending or traveling to or from a school at which the minor is enrolled if the minor is participating in a class at the school that formally requires the possession of broad-tipped markers. The burden of proof in any prosecution for violation of this section shall be upon the minor student to establish the need to possess a broad-tipped marker.
2. In Designated Public Places. It is unlawful for any person to possess any graffiti implement while in or upon any public facility, park, playground, swimming pool, recreational facility, or other public building or structure owned or operated by the city or while on or within fifty (50) feet of an underpass, bridge abatement, storm drain or similar types of infrastructure unless otherwise authorized by the city. (Ord. 2940 § 2, 1995)
9-14-030 Accessibility to graffiti implements.
A. Furnishing to Minors Prohibited. It is unlawful for any person, other than a parent or legal guardian, to sell, exchange, give, loan or otherwise furnish, or cause or permit to be exchanged, given, loaned or otherwise furnished, any aerosol paint container, broad-tipped marker, or paint stick to any person under the age of eighteen (18) years without the written consent of the parents or guardian of the person.
B. Display and Storage.
1. Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol paint containers, paint sticks or broad-tipped markers shall store the containers, sticks or markers in an area continuously observable, through direct visual observation or surveillance equipment, by employees of the retail establishment during the regular course of business.
2. In the event that a commercial retail establishment is unable to store the aerosol paint containers, paint sticks or broad-tipped markers in an area as provided above, the establishment shall store the containers, sticks and markers in an area not accessible to the public in the regular course of business without employee assistance.
C. Signage Required. Every person who operates a retail commercial establishment selling graffiti implements shall:
1. Place a sign in clear public view at or near the display of such products stating: “Graffiti is against the law. Any person who defaces real or personal property with paint or any other liquid or device is guilty of a crime punishable by a fine up to $1,000.00”;
2. Place a sign in the direct view of such persons responsible for accepting customer payment for graffiti implements stating: “Selling spray paint, paint sticks, or broad-tipped markers to persons under 18 years of age is against the law and punishable by a fine of $1,000.00.” (Ord. 2940 § 3, 1995)
9-14-040 Rewards and reimbursements for information.
A. The city may offer a reward in an amount to be established by resolution of the city council for information leading to the identification and apprehension of any person who willfully damages or destroys any public or private property by the use of graffiti. In the event of damage to public property, the offender or the parents or legal guardian of any unemancipated minor must reimburse the city for any reward paid. In the event of multiple contributors of information, the reward amount shall be divided by the city in the manner it shall deem appropriate.
B. Claims for rewards under this section shall be filed with the city in the manner specified by the city council.
C. No claim for a reward shall be allowed unless filed with the city in the manner specified by the city council.
D. The city shall reimburse to any person reporting by means of a mobile or cellular phone an act of graffiti vandalism or existence of graffiti within the city the amount of the direct phone charges, exclusive of taxes, incurred by the person. (Ord. 2940 § 5, 1995)
9-14-050 Graffiti as nuisance.
A. The existence of graffiti on public or private property in violation of this chapter is expressly declared to be a public nuisance and, therefore, is subject to the removal and abatement provisions specified in this chapter.
B. It is the duty of both the owner of the property to which the graffiti has been applied and any person who may be in possession or who has the right to possess such property to at all times keep the property clear of graffiti. (Ord. 2940 § 6, 1995)
9-14-060 Removal of graffiti by perpetrator.
Any person applying graffiti on public or private property shall have the duty to remove the graffiti within twenty-four (24) hours after notice by the city or private owner of the property involved. Such removal shall be done in a manner prescribed by the chief of police, the director of the department of public works, or any additional city department head, as authorized by the city council. Any person applying graffiti shall be responsible for the removal or for the payment of the removal. Failure of any person to remove graffiti or pay for the removal shall constitute an additional violation of this chapter. Where graffiti is applied by an unemancipated minor, the parents or legal guardian shall also be responsible for such removal or for the payment for the removal. (Ord. 2940 § 7, 1995)
9-14-070 Removal of graffiti by property owner or city.
If graffiti is not removed by the perpetrator according to Section 9-14060, 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 with graffiti to remain defaced for a period of twenty (20) 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 code; and
4. An information sheet identifying any graffiti removal assistance programs available through the city and private graffiti removal contractors.
B. Exceptions to Property Owner Responsibility. The removal requirements of subsection A of this section shall not apply if the property owner or responsible party can demonstrate that:
1. The property owner or responsible party lacks the financial ability to remove the defacing graffiti; or
2. The property owner or responsible party 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 fifteen (15) days after service by first class mail of notice of the defacement.
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 or quasi-public place, the city shall be authorized to use public funds for the removal of the graffiti, or for the painting or repairing of the graffiti, but shall authorize or undertake to provide for the painting or repair of any more extensive area than that where the graffiti is located, unless the city council, or the designee of the city council, determines by resolution 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 shall 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 property owner or 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 shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below.
D. Abatement and Cost Recovery Proceedings.
1. Notice of Due Process Hearing. The mayor, or the designee of the mayor, serving as the hearing officer, shall 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 forty-eight (48) hours notice of the city’s intent to hold a due process hearing at which the property owner or responsible party shall be entitled to present evidence and argue that the property does not constitute a public nuisance. Notice shall be served by postal service or certified mail return receipt requested. 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.
2. Determination of Hearing Officer. The determination of the hearing officer after the due process hearing shall be final. 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 shall give written notice in an eradication thereof as the hearing officer determines appropriate, and shall provide the owner and the responsible party thereafter with an accounting of the costs of the eradication effort on a full cost recovery basis.
3. Eradication Effort. Not sooner than the time specified in the order, the hearing officer shall implement the eradication order and shall provide an accounting to the owner and the responsible party costs thereof.
4. 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 costs 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, shall be due and payable by the owner or responsible party within thirty (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 shall be explained by written letter from the hearing officer to the city council.
5. 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 thirty (30) days, the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the eradication effort. The director of public works shall present a resolution of lien to the city council, and upon passage and adoption thereof, shall cause a certified copy of the lien to be recorded with the city clerk’s office and the Cook County recorder’s office. (Ord. 2940 § 8, 1995)
9-14-080 Ease of removal provisions.
A. Common Utility Colors and Paint-Type. Any gas, electric, water, sewer, cable, telephone and other utility operating in the city shall paint its above-surface metal fixtures with a uniform paint type and color that meets with the approval of the city.
B. Condition Encroachment Permits. All encroachment permits issued by the city shall, among such other things, be conditioned on:
1. The permittee’s application of an anti-graffiti material to the encroaching object of a type and nature that is acceptable to the city, or the city’s designee;
2. The permittee’s immediate removal of any graffiti;
3. The city’s right to remove graffiti or to paint the encroaching object; or
4. The permittee’s providing the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting of the encroaching object containing graffiti.
C. Condition Tentative Maps. In approving tentative or parcel maps, conditional use permits, variances, or other similar land use entitlement, the city shall consider imposing any or all of the following conditions, or other similar or related conditions, at the public hearing required by law for approval of the tentative or parcel map, conditional use permit, variance or other similar land use entitlement.
1. Use of Anti-Graffiti Material. Developer shall apply an anti-graffiti material of a type and nature that is acceptable to the city, or the designee of the city, to the publicly viewable surfaces on the improvements to be constructed at the site deemed by the city, or designee, to be likely to attract graffiti;
2. Right of Access to Remove Graffiti. Developer shall grant, prior to resale of any of the parcels that are within the territory of the map, the right of entry over and access to such parcels, upon forty-eight (48) hours posting of notice by authorized city employees or agents, to the city for the purpose of removing or painting over graffiti;
3. Supply City With Graffiti-Removal Material. Developer shall, for a period of two years after the resale of the final lot, provide the city with sufficient matching paint and/or anti-graffiti material on demand for use in the painting over or removal of graffiti; or
4. Owner to Immediately Remove Graffiti. Developer shall, either as part of the general conditions, covenants and restrictions, or separate covenants recorded against individual lots, prior to resale of any of the parcels, covenant in a form satisfactory to the city that the owner of the lots shall immediately remove any graffiti placed thereon. (Ord. 2940 § 9, 1995)
9-14-090 Prevention provisions.
A. Design of Potential Graffiti-Attracting Surfaces. Any applicant for design review approval, conditional use permit, special use permit, unclassified use permit, development agreement, or other form of development or building permit shall, to the extent deemed feasible by the city, or the designee of the city, have designed any building structures visible from any public or quasi-public place in such a manner to consider prevention of graffiti, including, but not limited to the following:
1. Use of a protective coating to provide for the effective and expeditious removal of graffiti;
2. Use of additional lighting;
3. Use of non-solid fencing;
4. Use of landscaping designed to cover large expansive walls such as ivy or similar clinging vegetation; or
5. Use of architectural design to break up long, continuous walls or solid areas.
B. Retro-Fit Existing Graffiti-Attracting Surfaces —Nonresidential Structures. The following provisions may be incorporated in a graffiti eradication order during an abatement hearing, at the discretion of the hearing officer.
1. At Owner’s Expense. Any surface of a structure on a parcel of land used for nonresidential purposes that has been defaced with graffiti more than five times in twelve (12) months shall be declared a public nuisance and required to be retrofitted, at the cost of the property owner, with features or qualities as may be established by the city as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal of graffiti. In exercising the authority hereunder, the city may not impose a cost on the property owner of greater than one thousand dollars ($1,000.00).
2. At City’s Cost. The owner of property used for nonresidential purposes on which is located a surface of a structure that has been defaced with graffiti more than five times in twelve (12) months shall permit the city to enter the property and, at the city’s cost, make modifications as necessary to reduce the attractiveness of the surface for graffiti, or as necessary to permit more convenient or efficient removal of graffiti. (Ord. 2940 § 10, 1995)
9-14-100 Trust fund.
The city council creates the city anti-graffiti trust fund. Penalties assessed against violators of this chapter shall be placed in the fund, along with any monetary donations received from persons wishing to contribute to the fund. The council shall direct the expenditures of monies in the fund. Such expenditures shall be limited to the payment of the cost of graffiti removal, the payment, at the discretion of the city manager, of rewards for information leading to the conviction of violation of this chapter, the costs of administering this chapter, and such other public purposes as may be approved by the council by resolution. (Ord. 2940 § 11, 1995)
9-14-110 Violations—Penalties.
A. Fines and Imprisonment. Any person violating this chapter shall be punished by a fine of two hundred fifty dollars ($250.00) for the first offense; five hundred dollars ($500.00) for the second offense; and one thousand dollars ($1,000.00) for each subsequent offense.
1. In the case of a minor, the parents or legal guardian shall be jointly and severally liable with the minor for payment of all fines.
2. Failure of the parents or legal guardian to make payment will result in the filing of a lien on the parents’ or legal guardian’s property that includes the fine and administrative costs.
3. Upon an application and finding of indigence, the court may decline to order fines against the minor, parents or guardian.
B. Restitution. In addition to any punishment specified in this section, the court shall order any violator to make restitution to the victim for damages or loss caused directly or indirectly by the violator’s offense in the amount or manner determined by the court. In the case of a minor, the parents or legal guardian shall be ordered jointly and severally liable with the minor to make the restitution.
C. Community Service. In lieu of, or as part of, the penalties specified in this section, a minor or adult may be required to perform community service as described by the court based on the following minimum requirements:
1. The minor or adult shall perform at least thirty (30) hours of community service.
2. At least one parent or guardian of the minor shall be in attendance a minimum of fifty (50) percent of the period of assigned community service.
3. The entire period of community service shall be performed under the supervision of a community service provider approved by the chief of police.
4. Reasonable effort shall be made to assign the minor or adult to a type of community service that is reasonably expected to have the most rehabilitative effect on the minor or adult, including community service that involves graffiti removal.
D. Civil Responsibility for Damages for Wrongful Sale, Display or Storage. Any person who sells, displays or stores, or permits the sale, display or storage, of any graffiti implement in violation of the provisions of this chapter shall be personally liable for costs, including attorney’s fees and court costs, incurred by any party in connection with the removal of graffiti, the repair of any property containing graffiti, or such party’s prosecution of a civil claim for reimbursement or damages resulting from such graffiti removal or property repair, arising from the use by any person of such wrongfully sold, displayed or stored graffiti implement in violation of the provisions of this chapter; provided, that such liability shall not exceed one thousand five hundred dollars ($1,500.00). (Ord. 2940 § 4, 1995)