Chapter 9.25
GRAFFITI NUISANCES
Sections:
9.25.030 Violation of chapter.
9.25.050 Graffiti as a nuisance.
9.25.070 Hearing before the real estate conservation and management board.
9.25.090 Abatement by the city.
9.25.010 Purpose and intent.
The purpose and intent of this chapter is to help prevent the spread of graffiti vandalism and to establish a program for the removal of graffiti from public and private property. Graffiti is a public nuisance and destructive to the rights and values of property owners as well as the entire community. Unless the city acts to remove graffiti from public and private property, the graffiti tends to remain. Other properties then become the target of graffiti, and entire neighborhoods are affected and become less desirable places in which to be, all to the detriment of the city. This section intends to provide additional enforcement tools to protect public and private property from acts of graffiti vandalism and defacement. [Ord. 16-08 § 1, 2008].
9.25.020 Definitions.
“Abate” means to remove graffiti by such means, in such a manner and to such an extent as the code enforcement officer or the real estate conservation and management board reasonably determines is necessary to remove the graffiti from public view.
“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-eighth of an inch, containing ink or other pigmented liquid that is not water soluble.
“Code enforcement officer” means the person designated by the mayor whose responsibility is to enforce the West Richland Municipal Code, or his or her designee.
“Etching equipment” means any tool, device, or substance that can be used to make permanent marks on any natural or manmade surface.
“Graffiti” means unauthorized markings, visible from premises open to the public, that have been placed upon any property through the use of paint, ink, chalk, etching, scratching, dye or any other substance capable of marking property.
“Graffiti implement” means an aerosol paint container, a broad tip 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.
“Graffiti nuisance property” means property upon which graffiti has not been abated after the abatement date established pursuant to WRMC 9.25.060(A).
“Owner” means any entity or entities having a legal or equitable interest in real or personal property including but not limited to the interest of a tenant or lessee. “Owner” also means the recorded owner according to the land records of Benton County, state of Washington or an entity or person acting as an agent for an owner by agreement, who has authority over the property or is responsible for the property’s maintenance or management. Irrespective of any arrangement to the contrary with any other party, each owner shall always be a responsible party for the purposes of this chapter. There may be more than one owner for a particular property.
“Paint stick” or “graffiti stick” means any device containing a solid form of paint, chalk, wax, epoxy, shoe polish 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.
“Premises open to the public” means all public spaces, including but not limited to streets, alleys, sidewalks, parks, and public open space, as well as private property onto which the public is regularly invited or permitted to enter for any purpose.
“Property” means any real or personal property and that which is affixed, incidental or appurtenant to real property, including but not limited to any structure, fence, wall, sign, vehicle or any separate part thereof, whether permanent or not.
“Real estate conservation and management board” means the city of West Richland real estate conservation and management board and the office thereof established pursuant to WRMC 8.17.041.
“Unauthorized” means without the consent of the property owner. [Ord. 16-08 § 1, 2008].
9.25.030 Violation of chapter.
A. Defacement. It shall be 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. It shall be unlawful for any person to posses any graffiti implement commonly used in the application of graffiti under circumstances evincing an intent to use or employed in the act of applying graffiti, or knowing that the same is intended to be so used.
C. Any property located in the city of West Richland that becomes a graffiti nuisance property is in violation of this chapter and is subject to its noncriminal remedies as set forth below.
D. Every owner who permits a property to become a graffiti nuisance property is in violation of this chapter and subject to its noncriminal remedies as set forth below. [Ord. 16-08 § 1, 2008].
9.25.040 Penalties.
A. Any person violating WRMC 9.25.030(A), Defacement, and/or WRMC 9.25.030(B), Possession of Graffiti Implements, shall be guilty of a gross misdemeanor and punished by a fine of not more than $5,000 or by imprisonment in the city/county jail for a term not to exceed 365 days, or by both fine and imprisonment at the discretion of the court.
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.
C. Community Service. In lieu of, or as part of, the penalties specified in subsection A of 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 offender shall perform at least 50 hours of community service.
2. The entire period of community service shall be performed under the supervision of a community service provider approved by the courts.
3. Reasonable efforts shall be made to assign the offender to a type of community service that is reasonably expected to have the most rehabilitative effect on the offender, including community service that involves graffiti removal. [Ord. 16-08 § 1, 2008].
9.25.050 Graffiti as a nuisance.
A. 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. 16-08 § 1, 2008].
9.25.060 Notice.
When the code enforcement officer has reason to believe that a property within the city may be a potential graffiti nuisance property, the code enforcement officer shall:
A. Identify the property owner and send that party notice which describes the nature and location of the graffiti and requesting that the graffiti be removed within three days. The notice shall explain the problems caused by the continued presence of graffiti and the need for its prompt removal, and give notice that failure to remove graffiti is a violation of city law that may lead to legal action to remove the graffiti at the expense of the property owner and may subject the property owner to civil penalties. The notice shall also contain the following information:
1. The street address or description of the property reasonably sufficient for identification of the property;
2. A concise description of the conditions leading the code enforcement officer to believe that the property may be a graffiti nuisance property;
3. A description of what must be done to abate the graffiti;
4. A statement that the graffiti must be abated within three calendar days after receipt of the letter, and a statement that if the graffiti is not abated within that time the property will be a graffiti nuisance property subject to abatement by the city in accordance with WRMC 9.25.090, and the property owner will be subject to monetary penalties and costs in accordance with this section and WRMC 9.25.040, 9.25.070, 9.25.080 and 9.25.090;
5. A statement that if the property owner objects to the property being designated as a graffiti nuisance and/or objects to the city’s notice that the city will enter onto the premises to abate the graffiti nuisance, the property owner must request a compliance hearing before the city’s real estate conservation and management board pursuant to WRMC 9.25.070, within three business days from the receipt of the graffiti nuisance notice. The request must be in writing and delivered to the city clerk’s office.
B. The graffiti nuisance notice referred to in subsection A of this section shall be mailed by certified mail to the property owner at that party’s last known address. The notice shall also be posted at the property. As an alternative to mailing the notice, the code enforcement officer may cause a copy of the notice to be personally served on the property owner in the manner authorized by statute for personal service.
C. The code enforcement officer shall serve the notice of civil violation and opportunity for hearing in the manner described in subsection B of this section. If an address for mailed service cannot, after due diligence, be ascertained and the person to whom the notice is issued cannot, after due diligence, be personally served within Benton County, notice shall be served by posting a copy of the notice conspicuously at the graffiti nuisance property. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and, if by posting, the facts showing that due diligence was used in attempting to serve the person personally or by mail. [Ord. 16-08 § 1, 2008].
9.25.070 Hearing before the real estate conservation and management board.
A. At the request of an aggrieved party, the real estate conservation and management board shall conduct a hearing on the civil violation pursuant to the rules of procedure of the real estate conservation and management board for the conduct of hearings. The code enforcement officer and the person to whom the notice of civil violation and opportunity for hearing was issued are parties to the hearing and each may call witnesses.
B. The date set for the hearing before the real estate conservation and management board shall be no sooner than 10 and no later than 30 calendar days from the date the notice of civil violation and opportunity for hearing are issued.
C. The code enforcement officer shall have the burden to prove by a preponderance of the evidence that the property contains graffiti, that the person issued the notice is the property owner, that the required abatement is reasonable, and that the required abatement has not been completed prior to the date established in the notice issued pursuant to WRMC 9.25.060(A).
D. If the real estate conservation and management board finds that the property contains graffiti, and that the person issued the notice is the property owner, but that the abatement required by the code enforcement officer is not reasonable, then the real estate conservation and management board shall modify the abatement so that it is reasonable.
E. The real estate conservation and management board shall issue to the property owner a decision and order containing the following information:
1. The decision and order regarding the alleged graffiti nuisance property, including findings of fact and conclusions in support of the decision and order;
2. Any required abatement action and the date by which the abatement must be completed;
3. Any monetary penalties assessed based on subsection F of this section which shall be due 10 calendar days after the date of the decision and order;
4. A description of the additional civil penalties which will automatically accrue pursuant to subsection I of this section if the property owner fails to abate the graffiti nuisance property by the date established in the decision and order;
5. The date after which the city may abate the graffiti nuisance property pursuant to WRMC 9.25.090 if the required abatement is not completed; and
6. Notice that judicial review of the decision and order may be sought pursuant to subsection K of this section.
F. Monetary penalties assessed by the real estate conservation and management board shall accrue in the amount up to $100.00 per day beginning on the correction date set by the code enforcement officer or on a subsequent date set by the civil infractions board; provided, that the maximum monetary penalty shall be $5,000. In the alternative, the real estate conservation and management board may choose to assess no monetary penalties.
G. In determining the monetary penalty assessment, the real estate conservation and management board shall consider the following factors:
1. Whether the property owner cooperated with efforts to abate the graffiti nuisance property;
2. Whether the property owner failed to appear at the hearing;
3. Whether the property owner made substantial progress in abating the graffiti nuisance property; and
4. Any other relevant factors.
H. The real estate conservation and management board shall mail a copy of the decision and order to the person to whom the notice of civil violation and opportunity for hearing was issued and to the code enforcement officer within 10 working days of the close of the hearing record. If an address for mailing cannot after due diligence be ascertained, a copy of the decision and order shall be posted conspicuously at the property.
I. If the aggrieved party who requested a compliance hearing fails to appear at the scheduled hearing, the real estate conservation and management board shall, upon submittal of sufficient evidence by the code enforcement officer, enter a decision and order finding that the property is a graffiti nuisance property, that the person to whom the notice was issued is the property owner, that the required abatement is reasonable, and that the required abatement action had not been completed prior to the date established in the notice; and assessing the appropriate monetary penalty and costs.
J. If the property owner fails to abate the nuisance as ordered by the real estate conservation and management board, monetary penalties in addition to any monetary penalties already assessed by the real estate conservation and management board shall automatically accrue in the amount of $100.00 per day until the abatement is complete.
K. The city will carry out the real estate conservation and management board’s decision and order and recover all monetary penalties and costs.
L. Any review of the decision and order of the real estate conservation and management board must be by land use petition filed pursuant to RCW 36.70C.040(3) in Benton County superior court within 21 days of issuance of the decision and order. [Ord. 16-08 § 1, 2008].
9.25.080 Monetary penalty.
A. Payment of a monetary penalty pursuant to this chapter does not relieve the property owner of the duty to abate the graffiti nuisance.
B. The monetary penalty constitutes a personal obligation of the property owner to whom the notice of civil violation and opportunity for hearing is issued.
C. Any monetary penalty imposed pursuant to this chapter shall accrue interest from the date payment is due at the maximum rate authorized by law for interest on civil judgments, and there shall be added to such penalty the reasonable attorneys’ fees and costs incurred in collecting it.
D. If all or any portion of the assessed monetary penalty remains unpaid after 30 days, the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the enforcement action. The mayor or his/her designee shall present a resolution of lien to the city council and upon passage and adoption shall be recorded with the county auditor’s office. [Ord. 16-08 § 1, 2008].
9.25.090 Abatement by the city.
A. The code enforcement officer may abate a graffiti nuisance property at any time after the property owner has received notice pursuant to WRMC 9.25.060(A) and failed to abate the nuisance within the time allotted or after a decision and order has been issued by the real estate conservation and management board pursuant to WRMC 9.25.070(E) and the required abatement has not been completed by the date specified in the decision and order.
B. The code enforcement officer may call upon other city departments and other agencies and resources for assistance in abating a graffiti nuisance property.
C. 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 code enforcement officer shall attempt to secure the consent of the property owner and a release of the city for liability for property damage or personal injury. If the property owner fails to remove the offending graffiti within the time specified within this chapter, or if the code enforcement officer has requested consent to remove or repaint over the offending graffiti and the property owner 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 cause recovery proceedings for the graffiti removal according to the provisions specified in subsection D of this section.
D. The costs of correcting the violation shall be billed to the property owner and shall be due and payable to the city within 10 calendar days. Costs include both the value of the use of city staff and equipment and payments made to third parties, including but not limited to:
1. Personnel costs, both direct and indirect, including attorneys’ fees and costs and administrative overhead;
2. Costs incurred in documenting the violation;
3. Hauling, storage and disposal expenses;
4. Actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing or contracting and inspecting the work; and
5. The costs of any required printing and mailing.
6. If all or any portion of the assessed or abatement charges remain unpaid after 30 days, the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the abatement activity. The mayor or his/her designee shall present a resolution of lien to the city council, and upon passage and adoption shall be recorded with the county auditor’s office.
E. Use of Public Funds. Whenever the city becomes aware of or is notified and determines that graffiti is located on publicly or privately owned property viewable from a public or quasi-public place, the mayor is authorized to use public funds for the removal of the graffiti, or for the painting or repairing of the graffiti, but shall 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 mayor or the designee of the mayor 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 agrees to pay for the cost of repainting or repairing the more extensive area. [Amended during 2010 recodification; Ord. 16-08 § 1, 2008].
9.25.100 Enforcement.
Actions necessary for effective enforcement of this chapter may be brought in superior court or district court. [Ord. 16-08 § 1, 2008].
9.25.110 Severability.
The provisions of this chapter are declared to be separate and severable. If any clause, sentence, paragraph, subdivision, section, subsection or portion of this chapter, or the application thereof to any person or circumstance, is held to be invalid, it shall not affect the validity of the remainder of this chapter, or the validity of its application to other persons or circumstances. [Ord. 16-08 § 1, 2008].