Graffiti Draft Ordinance

We want to know your feedback about the changes being proposed for City Ordinance Chapter 38 that includes language about graffiti.

Please read the following draft, and use the form at the bottom of the web page to send in your comments.

The ordinance amending chapter 38 is also available in this printable format [pdf/32kb/5p]

DRAFT

ORDINANCE AMENDING CHAPTER 38 ENTITLED "MISCELLANEOUS

OFFENSES AND PROVISIONS"

BE IT ORDAINED, by the City Council of the City of Winston-Salem as follows:

Section 1: Sec. 38-15. ~~Injuring or destroying public property;~~ uUse of city property for private purposes.

(a) It shall be unlawful for any person to willfully destroy, injure, carry away, break or deface any ornament, street sign, lamp, railing, fixture, gate, seat, bench, swing, fountain, tool, machinery; nor shall any person pull any flowers, or cut or injure in any way any tree, shrub, plant, vine or other property belonging to the city within or upon any of its streets or parks.

~~(b) Subsection (a) of this section shall not apply to the servants, employees or officers of the city actually and necessarily engaged in the duties of their office or employment.~~

~~(c)~~ All automobiles, trucks, wagons, tools and other property owned by the city shall be used exclusively for the benefit of the city, and it shall be unlawful for any person, whether he is an officer or an employee of the city or not, to use any automobile, truck, wagon, tool or other property for his own private purpose, or for that of any person other than the city.

Section 2: Sec. 38-15.1 is hereby created to read as follows:

“Section 38-15.1 Injuring, or destroying public property; graffiti declared public nuisance; removal of graffiti from public and private property.

(b) Graffiti is destructive of the rights and values of property owners as well as the entire community. Unless the city council acts to remove graffiti from public and private property, the graffiti may remain. Other properties then become the target of graffiti and entire neighborhoods are affected and become less desirable places in which to live, all to the detriment of the city. The city council intends, through the adoption of this ordinance, to provide additional enforcement tools to protect public and private property from acts of graffiti vandalism and defacement. 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.

(1) Definitions.

(i) Graffiti means any 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, without the prior written consent of the property owner. Graffiti as defined herein shall constitute a nuisance. However, it shall not be construed to 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.

(ii) 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.

(iii) Person means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

(vi) 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.

(2) Prohibited act.

Any person who applies graffiti to any natural or man-made surface of any city-owned or private property without the permission of the owner or occupant shall be subject to prosecution in accordance with the statutes relating to malicious injury to property, N.C.G.S. 14-127, G.S. 14-160 or any other applicable statute.

(3) 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 property owner of the property involved. This notice may be given in any manner deemed appropriate by the city or private property owner. Such removal shall be done in a manner that effectively removes or obscures the graffiti. The costs of removal or obscuring shall be borne by the person applying the graffiti. Failure of any person to remove or obscure the graffiti or pay for such costs shall constitute an additional violation of this ordinance. Where graffiti is applied by an unemancipated minor, the parents or legal guardian shall also be responsible for such abatement or the costs thereof.

(4) Removal of graffiti by property owner or city.

If the graffiti is not removed by the perpetrator in accordance with paragraph (3) above, the graffiti shall be removed pursuant to the following provisions:

(i) Property Owner responsibility. It is unlawful for any property owner to permit property that is defaced with graffiti to remain defaced for a period of five (5) days after service of the abatement notice. Said abatement notice shall be served upon the property owner by the city by personal service, by registered mail or certified mail in conjunction with regular mail and posting. If regular mail is used, a notice of the violation shall be posted in a conspicuous place on the premises in violation. If the regular mail is not returned within ten (10) days, service shall be deemed sufficient. If the certified mail is claimed before the ten (10) day process for regular mail, the five (5) day abatement notice period shall commence running based upon the earliest service date.

The abatement notice shall contain the following information: street address and tax block and lot, if any; general description of the graffiti; instructions to effectively remove or obscure the graffiti within five (5) days after receipt of notice and notice that if not abated within that time, the city will officially declare the graffiti a nuisance and remove or obscure the same in accordance with this ordinance; notice of the process for requesting a hearing; and information identifying any graffiti removal assistance program(s) available through the city and private graffiti removal contractors, if known.

(ii) Right of city to remove. 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 city shall be authorized to use public funds for the removal, painting, obscuring or repairing of the graffiti, but shall not be authorized or undertake to provide for the painting or repair of any more extensive an area than that where the graffiti is located, unless the property owner agrees to pay for the additional cost of repainting, obscuring or repairing the more extensive area.

(iii) 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 and a release of the city from liability for property damage or personal injury. If the property owner is unavailable or has refused consent for entry on terms acceptable to the city and consistent with this ordinance, the city shall obtain an administrative inspection warrant, if inspection is necessary. If the property owner fails to remove the graffiti within the time specified by this ordinance or if the city has requested consent to remove or paint over the graffiti and the property owner has refused consent, the city may apply to the court for remedies available in N.C.G. S. 160A-175, including an order of abatement. The cost of obtaining said order shall be a lien in accordance with N.C.G.S. 160A-193.

(iv) Hearing. 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 delivered either in person to the neighborhood services director or by certified mail return receipt requested. The neighborhood services director or his designee shall serve as the hearing officer. If after the hearing, regardless of the attendance of the 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 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) and shall provide the owner thereafter with an invoice regarding the costs as set forth in subsection (v) herein unless other non city avenues, such as volunteers or community service workers, are available to defray the costs.

(v) Lien. If the property owner is not eligible for financial assistance through a city program, the cost of removal or for obscuring of said graffiti shall be $25.00 for each occurrence up to and including the third occurrence. For the fourth occurrence up to and including the seventh occurrence, the fee shall be $50.00 per occurrence. For the eight and subsequent occurrences, the fee shall be $100.00 per occurrence. Any abatement costs not paid within thirty (30) days shall constitute a lien in accordance with N.C.G.S. 160A-193.

(vi) Severability. Severability is intended throughout and within the provisions of this ordinance. If any section, subsection sentence, clause, paragraph or portion thereof is held to be invalid or unconstitutional by a court of competent jurisdiction, then that decision shall not affect the validity of any of the remaining portions of this ordinance.

(5) The provisions of this section shall not apply to the servants, employees or officers of the city actually and necessarily engaged in the duties of their office or employment.

Section 3: This ordinance shall become effective upon adoption.

Article 23

Trespasses to Personal Property.

G.S. § 14-160. Willful and wanton injury to personal property; punishments.

(a) If any person shall wantonly and willfully injure the personal property of another he shall be guilty of a Class 2 misdemeanor.

(b) Notwithstanding the provisions of subsection (a), if any person shall wantonly and willfully injure the personal property of another, causing damage in an amount in excess of two hundred dollars ($200.00), he shall be guilty of a Class 1 misdemeanor.

(c) This section applies to injuries to personal property without regard to whether the property is destroyed or not. (1876-7, c. 18; Code, s. 1082; 1885, c. 53; Rev., s. 3676; C.S., s. 4331; 1969, c. 1224, s. 14; 1993, c. 539, s. 105; 1994, Ex. Sess., c. 24, s. 14(c).)

G.S. § 14-127. Willful and wanton injury to real property.

If any person shall willfully and wantonly damage, injure or destroy any real property whatsoever, either of a public or private nature, he shall be guilty of a Class 1 misdemeanor. (R.C., c. 34, s. 111; 1873-4, c. 176, s. 5; Code, s. 1081; Rev., s. 3677; C.S., s. 4301; 1967, c. 1083; 1993, c. 539, s. 67; 1994, Ex. Sess., c. 24, s. 14(c).)

Graffiti Draft Ordinance

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