HomeMy WebLinkAbout02/24/2009 03C Report from Legal Division RE: Infractions for Graffiti Deterrence CITY 07 YA. . c
0 LEGAL -
_ .
D E P A R T M E N T -
200 SouthTidal Street, Yakima, Washington 96901 (509)575.6030 Fax (509)575.6160
PRIVILEGED AND CONFIDENTIAL: COVERED BY THE ATTORNEY - CLIENT AND
ATTORNEY WORK PRODUCT PRIVILEGES
MEMORANDUM
February 18, 2009
TO: The Honorable Mayor, Dave Edler, Members of the City Council, and
Dick Zais, City Manager
FROM: Jon L. Seitz, Assistant City Attorney . R6 .
® SUBJ: Infractions for graffiti deterrence
"Graffiti" is a criminal offense under our municipal code, YMC 6.04.235. The act of
writing, painting, or drawing on public or private buildings or structures without -the
express permission of the property owner ( "graffiti") is actually considered "malicious
injury to property. " That crime is a gross misdemeanor under our municipal code.
Our municipal ordinance mirrors the Revised Code of Washington provision for
malicious mischief, third degree. Thus, making the act commonly considered "graffiti"
an infraction would create a conflict with state law. Our City cannot make the same
conduct an infraction because the State has already defined the conduct and made it
. criminal. .
Conduct that has not already been defined and made criminal by the State could be
defined by ordinance and penalized with civil infraction. The City currently penalizes
graffiti perpetrators with an infraction for failure to remove graffiti after being given
0 1 YMC 6.04.235(A)(2). (attached)
2 YMC 6.04.235(B)(2)
3 See, RCW 9A.48.090
6.04.180 ,
0 controlled in such a manner so as to comply with the pro- A violation of this section is a misdemeanor. (Ord. 94 -22
visions of this section; or § 15, 1994: Ord. A-236 § 1(43), 1917). ■ '
(c) The activity creating the noise constitutes a pro-
gram of a temporary nature for the benefit of the entire 6.04.235 Malicious injury to property.
municipality or for the benefit of a charitable purpose. A. A person is guilty of malicious injury to property
2. Offenses. It is unlawful for any person to know- if he:
ingly join or participate in any activity conducted in viola- (1) Knowingly and maliciously causes physical dam-
tion of any term of any permit granted by this chapter. age to the property of another, public or private, under
3. Parade and Motorcade Permits. The provisions, circumstances not amounting to malicious mischief in the
controls and prohibitions of this section shall not apply to first or second degree as defined by RCW 9A.48.070 and
noise made and acts performed by bona fide participants in RCW 9A.48.080; or
a. parade or motorcade authorized by a permit issued pur- (2) Writes, paints or draws any inscription, figure, or
suant to the provisions of Section 9.70.010 et seq. - mark of any type on any public or private building or other
H. Public disturbance noise is a misdemeanor. structure or any real or personal property owned by any -
(Ord. 2004 -15 § 4, 2004: Ord. 94 -22 § 13, 1994; Ord. other person unless the person has obtained the express
3385 § 1, 1991: Ord. 2159 § 1, 1978; Ord. 1329 § 1, 1971: permission of the owner or operator of the property, under
Ord. A -236 § 1(33), 1917). circumstances not amounting to malicious mischief in the
first or second degree as defined by RCW 9A.48.070 and
6.04.185 Criminal impersonation. RCW 9A.48.080.
. A. A person is guilty of criminal impersonation in the B. (1) Malicious injury to property is a gross mis-
first degree if the person: (1) assumes a false identity and demeanor if the damage to the property is in an amount
does an act in his or her assumed character with intent to exceeding fifty dollars; otherwise, it is a misdemeanor.
defraud another or for any other unlawful purpose;. or (2) (2) Malicious injury to property under subsection '
pretends to be a representative of some person or.organiza- (A)(2) of this section is a gross misdemeanor. (Ord. 2001-
tion or a public servant and does an act in his or her pre- 30 § 1, 2001: Ord. 94 -22 § 16,
IIIII tended capacity with intent to defraud another or for any -
other unlawful purpose.
B. Criminal impersonation in the first degree is a -
gross misdemeanor.
C. A person is guilty of criminal impersonation in the .
second degree if the person: (1) claims to be a law en-
forcement officer or creates an impression that he or she is -
a law enforcement officer; and (2) under circumstances not
amounting to criminal impersonation in the first degree,
does an act with intent to convey the impression that he or ,
she is acting in an official capacity and a reasonable per-
son would believe the person is a law enforcement officer.
D. Criminal impersonation in the second degree is a . -
misdemeanor. (Ord. 94 -22 § 14, 1994: Ord. A -236 § 1(34),
1917).
6.04.215 Playing ball in streets.
Any person who plays ball or throws or kicks any ball
to and fro upon any street or avenue of the city of Yakima,
is a disorderly person. (Ord. A -236 § 1(40), 1917).
6.04.230 Poultry at large.
Any person who, as owner of ducks, geese, turkeys,
chickens or other poultry, permits the same to run at large ,
in the city of Yakima, is declared to be a disorderly person. ,
• (
(Yakima Supp. No. 3, 9 -04) 246-2 c
6.50.010
Chapter 6.50 "Paint stick" or "graffiti stick" means any device c
taining a solid form of paint, epoxy, or other similar s
GRAFFITI stance that is not water - soluble and is capable of being
applied to a surface by pressure and leaving a mark of at
Sections: least one - fourth of an inch in width.
6.50.010 Purpose and intent. "Unauthorized" means not expressly permitted by the
6.50.020 Definitions. owner or legal occupant of the property. (Ord. 2003 -48
6.50.030 Prohibited acts. § 2, 2003).
6.50.040 Signage required.
6.50.050. Miscellaneous. 6.50.030 Prohibited acts.
6.50.200 Graffiti— Notice to remove. A. Possession of Graffiti Implements.
1. It shall be unlawful for any person under the age
6.50.010 Purpose and intent. of eighteen years to possess any graffiti implement while
The city council of Yakima is enacting the ordinance on any public or private property, other than the minor's
cod ified in this chapter to help prevent the spread of graf- residence. The minor's residence does not include the
fiti vandalism. The city council finds that graffiti is a pub- common areas of any multiunit residence. It is an affirma-
lic nuisance and destructive of the rights and values of tive defense to a violation of this subsection, which the
property owners as well as the entire community. The city defendant must prove by a preponderance of the evidence,
council intends, through the adoption of this chapter, to that (I) the individual in possession of the graffiti imple-
provide additional enforcement tools to protect public and ment was attending or traveling to or from a school at
private property from acts of graffiti vandalism and de- which the individual was participating in a class that for-
- facement. The city council does not intend for this chapter mally required the use of the graffiti implement or (2) that
to conflict with any existing anti - graffiti state laws or local the individual had express permission to possess the graf-
ordinances. (Ord. 2003 -48 § 1, 2003). fiti implement from the owner or legal occupant of the
property on which the graffiti implement was possessed.
6.50.020 Definitions. 2. It shall be unlawful for any person to possess
For the purposes of this chapter, the following words graffiti implement while in or upon any public facili
s respectively ascribed to them in ark playground, swimmin
shall have the meanin pool, recreational facility,
g P Y park, p Yg g p
this chapter, except where the context clearly indicates a school or other public building or structure. The terms
different meaning: "public facility" and "public buildings or structures" do
"Aerosol paint" container means any aerosol container not include public streets or alleys. It is an affirmative de-
that is adapted or made for the purpose of applying paint fense to a violation of this subsection, which the defendant
or pigment that is not water - soluble. must prove by a preponderance of the evidence, that (1)
`Broad_ tipped "marker" means any felt tip indelible the individual in possession of the graffiti implement was
marker or similar implement with a flat or angled writing attending or traveling to or from a school at which the in-
surface that, at its broadest width, is greater than one- dividual was participating in a class that formally required
- fourth of an inch, containing ink or other pigment that is the use of the graffiti implement or (2) that the individual
not water - soluble. had express permission to possess the graffiti implement
"Etching equipment' means any tool or device with a from the owner or legal occupant of the property on which
cutting blade, which, under the time, manner and circum- the graffiti implement was possessed.
stances in which it is possessed, is or is likely to be used to 3. Possession of graffiti implements is a gross mis-
etch graffiti. It shall not mean any key, silverware, garden- demeanor.
ing tool, pocketknife or tool used primarily for hunting. " B. Accessibility to Graffiti Implements.
"Graffiti'.' means any unauthorized inscription, figure, 1. Furnishing to Minors Prohibited. It shall be
%t etching or mark of any type that is written, marked, etched, unlawful for a person, other than a parent or legal guardian
scratched, sprayed, drawn, painted, or engraved on or oth- to sell, exchange, give, loan, or otherwise furnish, or per -
erwise affixed to any surface of public or private property. init any person under the age of eighteen years of age to
"Graffiti implement" means an aerosol paint container, possess any aerosol paint container, broad - tipped marker,
a broad- tipped marker, gum label, paint stick or graffiti or paint stick.
stick, etching equipment or paintbrush. 2. Display and Storage.
274a (Yakima Supp. No 3; 9 -04)
6.50.030
a. Every person who owns, conducts, operates, or 6.50.050 Miscellaneous.
manages a retail commercial establishment selling aerosol A. Any minor violating this chapter shall be subject
paint containers, paint sticks, or broad - tipped markers shall to the jurisdiction of juvenile court pursuant to Title 13 of ,_
store the containers, sticks or markers in an area continu- the Revised Code of Washington.
ously observable, through direct visual observation or sur- B. Restitution. In addition to any punishment speci-
veillance equipment, by employees of the retail establish - fled in this chapter, the court shall order any violator to
ment during the regular course of business. make restitution to the victim for damages or loss caused
b. In the event that a commercial retail establishment directly or indirectly . by the violator's offense in the _
is unable to store the aerosol paint containers, paint sticks, amount or manner determined by the court.
or broad tipped markers in an area as provided in this sec- C. Community Service. As part of the penalties
tion, the establishment shall store the aerosol paint con- specified in this section, the court shall order any violator
tainers, sticks, and markers in an area not accessible to the to perform community service under the supervision of a
public in the regular course of business without employee community service provider approved by the chief of po-
assistance. lice. Reasonable effort shall be made to assign the violator
3. Each violation shall be a separate and distinct of- to a type of community service that is reasonably expected
fense. to have the most rehabilitative effect on the violator, in-
4. It shall be defense to a violation ofthis subsection, eluding community service that involves graffiti removal.
that the person who sold, gave or furnished any aerosol D. Severability. if any clause, part or section of this
paint container, broad tipped marker, or paint stick rea- chapter shall be adjudged invalid or unconstitutional, such
sonably relied on an officially issued identification that judgment shall not affect or invalidate the remainder of
shows the purchaser's age and bears his or her signature this chapter nor the application of any such clause, part or
and photograph. As used in this section `officially issued section to any other person, but shall be confined in its
identification" shall include driver's license, instruction operation to the clause, part or section directly involved in
permit, or identification card of a state or providence of the controversy in which such judgment was rendered.
Canada; or identicard issued by the Washington State De- (Ord. 2004 -49 § 2, 2004: Ord. 2003 -48 § 5, 2003).
• partment of Licensing under Chapter 46.20 RCW; .pass-
port; or merchant marine identification card issued by the 6.50.200 Graffiti Notice to remove.
United States Coast Guard. A. Definitions: For the purposes of this section, the i
5. Any person who wrongfully sells, displays or following terms shall have the following meanings:
stores graffiti implements shall be guilty of a civil infrac- 1.. "Perpetrator" means the person who applied graf-
tion with a penalty in the amount of one hundred dollars. fiti or the custodial parent(s) or legal guardian of any mi-
For any second or subsequent violation ofthis section the nor who has applied graffiti;
- penalty shall be in the amount of two hundred and fifty 2. "Director" means the city of Yakima director of
dollars. (Ord. 2004-49 § 1, 2004: Ord. 2003 -48 § 3, 2003). community and economic development and/or their desig- --
nee; •
6.50.040 Signage required. 3. "Removal" means where practicable, the painting
Every person who operates a retail or commercial es- over orr washing off of graffiti in a manner so as to restore
tablishment selling aerosol paint, broad tipped markers, the affected property to a condition substantially similar to -
paint sticks or graffiti sticks shall place a sign in clear pub- the condition of the property prior to the application of the
Iic view stating: "Graffiti is against the law." Any person graffiti. Where painting would fail to restore the property
who defaces real or personal property with paint or any to its original condition, such as non water - soluble media
other liquid or device is guilty of a crime punishable by , on an otherwise unpainted brick wall, removal shall mean
imprisonment of up to three hundred sixty-five days and/or removal by chemical or mechanical means or, where nec
-a fine up to five thousand dollars. Each person violating essary such as deep etching into property which can not
this section shall be guilty of a civil infraction with a pen- reasonably be restored by other means to a condition sub-
alty in the amount of twenty-five dollars. For a second or stantially similar to that in which it was prior to the appli-
subsequent violation of this section the penalty shall be in cation of the graffiti for which the perpetrator is responsi-
the amount of two hundred dollars. (Ord. 2003 -48 § 4, ble, replacement of the damaged property.
2003).
IIII I
(Yakima Supp. No. 3, 9-04 ) 274b
6.50.200
B. Removal of Graffiti by Perpetrator. Each perpetra- City may issue to you an infraction with a fine of $1
tor shall have the duty to remove graffiti within seventy- for each day that the graffiti remains. You are respo
two hours after service by the director of a notice to re- ble for the costs of removal. Removal or replacement
move graffiti. Failure of any perpetrator to remove graffiti must be done in a manner and at a time and date agreed
or pay for the removal of same shall constitute a violation . upon by the property owner. See the attached Consent
of this chapter. Each twenty-four hour period that elapses to Remove Graffiti that specifies the method of removal
in which the graffiti is not removed or payment for re- or replacement.
moval has not been made shall constitute a separate viola-
tion of this ordinance. Each violation shall be punishable All persons having any objection to, or interest in
as a civil infraction with a penalty of one hundred dollars. said matters, are hereby notified to submit any objec-
C. Whenever the director determines that graffiti tions or comments to the Director of Community and
exists on any public or private buildings, structures or Economic Development of the City of Yakima Wash -
other real or personal property; the individual responsible ington at (address). Objections must be in writing and
for applying the graffiti has been identified; and the owner must be received within Seventy-two (72) hours from
or legal occupant of the subject property has given written the date of this notice. Failure to object in a timely
consent for the removal, the director shall cause a notice to manner will waive such . objections.
remove graffiti to be issued to the perpetrator. The director
may specify a period in excess of seventy-two hours after F. The written consent to remove graffiti shall be on
the date of notice to remove graffiti when weather.condi -. a form approved by the city attorney, and shall specify the
tions do not permit the painting of exterior surfaces. method of removal. A copy of the consent to remove graf-
D. The notice to remove graffiti issued to the perpe- fiti shall be attached to the notice to remove graffiti.
trator pursuant to this section shall be in writing and shall G. Upon receipt of a timely objection from the perpe-
be served upon the perpetrator. The notice required by this trator or other interested party, the director shall, within
section may be served in any one of the following man- ten days of receipt of said timely objection, forward the
ners:. same to the Yakima Municipal Court. The Yakima Mu-
1. By personal service on the perpetrator, or nicipal Court shall conduct a hearing within thirty days
2. By registered or certified mail addressed to the receipt of such notice. The director or their designee, t
perpetrator at his or her last known address. owner of the victimized property, and perpetrators entitle
A copy of the notice to remove graffiti shall be pro- to be served with the notice to remove graffiti shall be
vided to the owner and legal occupant by mailing a copy to notified in writing of the date of the hearing, shall. be end-
the owner and legal occupants at their last known address. tled to participate in the hearing as affected parties and
E. The notice to remove graffiti required by this sec- each party may call witnesses. Any party or other person
tion shall be in substantially the following form: affected by the graffiti may appear and present evidence.
The city shall have the burden of demonstrating by a pre -
NOTICE TO REMOVE GRAFFITI 'ponderance of the evidence that the perpetrator is in viola-
tion of this chapter. The court may specify a method of
Date removal when the parties can not agree to a removal
method, however, the court shall not order a perpetrator to
To: (perpetrator - include parental relation if applicable) remove graffiti when the property owner objects to such
removal by the perpetrator. When the . property owner is
The City of Yakima has determined that (perpe- unable or unwilling to consent to removal, the city may
trator) is responsible for applying graffiti to (affected then require said property owner to remove said graffiti in
address /description of affected structures or personal . accordance with Chapter 11.11 of this code.
property). H. Removal in accordance with the provisions of this
section shall not be considered an admission of guilt in any
NOTICE IS HEREBY GIVEN that you are re- criminal proceeding against the perpetrator for the act of
quired by chapter 6.50 of the Yakima Municipal Code, • inscribing the graffiti. (Ord. 200348 § 6, 2003).
at your own expense, to remove, replace or paint over
the graffiti located on the property located at (address),
Yakima, Washington, within seventy-two (72) hours af-
ter the date of this notice; or, if you fail to do so, the
274b. 1 (Yakima Supp. No. 3, 9 -04)
11.11.010
® Chapter 11.11 D. "Director" means the city of Yakima director of
community and economic development and their desig-
GRAFFITI nee. (Ord. 2001 -16 § 2, 2001).
Sections: 11.11.030 Graffiti—Notice to remove.
11.11.010 Graffiti deemed nuisance. A. Whenever the director determines that graffiti
11.11.020 Definitions. ' exists on any public or private buildings, structures, and -
11.11.030 Graffiti— Notice to remove. places which are visible to any person utilizing any public
11.11.035 Graffiti— Failure to remove — road, parkway, alley, sidewalk, or other right -of -way
Penalty. within the city the director shall cause a notice to be issued
11.11.040 Voluntary correction agreement. to abate such nuisance. The property owner shall have fif-
11.11.050 City costs enforceable as debt -lien. teen days after the date of the notice to remove the graffiti
11.11.055 . Appeal to city council —Stay of or the same will be subject to abatement by the city. The
proceedings. director may specify a period in excess of fifteen days
11.11.070 Removal by city. after the date of notice to remove the graffiti when weather
conditions do not permit the painting of exterior surfaces.
11.11.010 Graffiti deemed nuisance. B. The notice to abate graffiti pursuant to this section
A. Graffiti and other defacement of public and pri- • shall cause a written notice to be served upon the owner(s)
vate property, including walls, rocks, bridges, fences, of the affected premises, as such owners' name and
gates and other structures, trees and other real and per- address appears on the last property tax assessment rolls
sonal property within the city, constitutes a nuisance. for Yakima County, Washington. If there is no known
B. Although it is appropriate, where possible, to address for the owner, the notice shall be sent in care of the
request that the courts require people who are convicted of property address. The notice required by this section may
acts of defacement and vandalism involving application of be served in any one of the following manners:
graffiti to public or private property to restore the property 1. By personal service on the owner, occupant or
so defaced, damaged or destroyed, apprehension of per- person in charge or control of the property;
sons who commit such acts is difficult because the 2. By registered or certified mail addressed to the
• offenses involved can be committed quickly and surrepti- owner at the last known address of said owner. If this
' tiously so*that`witnesses to the acts are frequently nonex- address is unknown, .the ,notice will be sent to the property
istent. address.
C. Although the public should be encouraged to ' C. The notice required by this section shall be in sub-
cooperate in the elimination of graffiti by reporting the stantially the following form:
same to the proper authorities, it is also important to elim-
inate the presence of graffiti from the community so that NOTICE OF INTENT TO REMOVE GRAFFITI
the product of the illegal acts of those involved in applica- , ,
tion of graffiti is not visible and the property on which the Date:
graffiti is located and surrounding properties do not suffer
diminution of value. (Ord. 2001 -16 § 1, 2001). To:. . .
11.11.020 • Definitions. NOTICE IS HEREBY GIVEN that you are re-
For the purposes of this chapter, the following words quired, by Chapter 11.11- of the Yakima Municipal
shall the following meanings: Code, at your own expense, to remove or paint over
A. "Graffiti" means the defacing, damaging or the graffiti located on the property located at (ad-
destroying by painting by whatever. means or marking of dress), Yakima, Washington, which is visible to pub -
ink, chalk, dye, or other similar substances or placement lic view, within fifteen (15) days after the date of this
of stickers or appliques on public or private buildings, notice; or if you fail .to do so, pursuant to Section
structures and places. • 11.11.035 of the Yakima Municipal Code you will be -
B. "Graffiti abatement procedure" means the abate - fined four hundred dollars ($400.00) following this
ment procedure which identifies graffiti; issues notice to fifteen (15) day notice, and the - City may abate the
nuisance created by said graffiti, either itself or
the landowner to abate the graffiti, and cures the absence
ffi
of response. through the use of a private contractor, by painting
C. "Private contractor" means any person with over the graffiti. The cost of the abatement by the City
whom the city shall have duly contracted to remove graf or private contractors utilized by the City to abate the
fiti nuisance will be assessed upon your property and
f
l 486 -8.3 (Yakima 1 -07)
11.11.035
such costs will constitute a lien upon the land until (d) The corrective action to be taken, and a date and
paid. time by which the corrective action must be completed;
(e) A stipulation by the owner that the illegal condi-
All persons having any objection to, or interest in tion(s) identified in the complaint or notice and order do
said matters, are hereby notified to submit any objec- exist and that the corrections specified in the voluntary
tions or comments to the Director of Community and correction agreement are appropriate;
Economic Development of the City of Yakima within (f) A stipulation by the owner that the city of Yakima
ten (10) days from the date of this notice. If no objec- may abate the illegal condition(s) and recover costs as an
tions or comments to the notice are received by the assessment to the owner and a lien on the property pursu-
City, the City will, at the conclusion of the fifteen (15) ant to this chapter in the event of a material breach of the
day period, proceed with abatement of the graffiti in- voluntary correction agreement;
scribed on your property at your expense without fur- (g) Permission by the owner for the city to enter upon
ther notice. the property at any reasonable times until the illegal con- "
dition(s) is abated; and
If you can not afford to remove or paint over the (h) An acknowledgement.
graffiti, or are physically unable to do the work in- (3) The director may, in his or her sole discretion,
volved; you may qualify for assistance programs. extend deadlines for correction if the owner has been dili-
Please contact the City of Yakima Housing Office at gent and made substantial progress but has been unavoid-
(phone # currently 575 -6101) to see if you qualify. ably delayed.
(4). The director may determine that a material breach
(Ord. 2005 -05 § 1, 2005: Ord: 2001 -16 § 3, 2001). of a voluntary correction agreement has occurred, - and
may further determine what shall be done to abate the ille-
11.11.035 Graffiti — Failure to remove — Penalty. gal conditions that were the subject of the voluntary cor-
A. A property owner who violates YMC 11.11.030 rection agreement. The director shall provide notice of
by failing to remove graffiti within the fifteen days fol- such a determination to the other party. A party to the vol
lowing the "notice to abate graffiti" shall be guilty of a untary correction agreement may appeal such a determi-
civil infraction with a penalty in the amount of four hun- nation to the city council by filing a request for hearing
dred dollars, unless an objection is filed•pursuant to YMC with the office of the city clerk within fifteen days` of the
11.11.055. date'notice of breach is mailed by the director (Ord. 2001 -_
B. If an objection is filed pursuant to YMC 16 § 4,
11.11.055 and the city council issues a "determination of
intent to proceed," a property owner who violates YMC 11.11.050 City costs enforceable as debt -lien.
11.11.055 or 11.11.030 by failing to remove graffiti Any and all costs incurred by the city in the abatement
within the ten days following the issuance of the "notice off the graffiti nuisance as provided in this chapter shall
of determination of the intent to proceed," or within the constitute a debt owed to the city by the property owner or
fifteen days following the issuance of the "notice to abate person in charge or control of the property, and shall, in
graffiti," whichever is later, shall be guilty of a civil addition to any and all other legal remedies available for
infraction with a penalty in the amount of four hundred the enforcement of debts, -be enforceable as a lien against
dollars. (Ord. 2005 -05 § 2, 2005). the property upon which such nuisance existed. (Ord.
2001 -16 § 5, 2001). -
11.11.040 Voluntary correction agreement.
(1) In lieu of issuing a notice to remove, the director 11.11.055 Appeal to city council —Stay of .
may execute a voluntary correction agreement with the proceedings.
owner of a dwelling, building, structure, or other premises A. Upon receipt of a timely objection or comment
the director determines is in violation of this chapter. from the owner or person occupying or controlling the
(2) . A voluntary correction agreement is a contract premises affected, the director shall, within ten days of
between . the city and the owner in which such person receipt of said timely objection or comment forward the
. agrees to abate the illegal conditions within a specified .. objection to the Yakima city council. The Yakima city
time and according to specified conditions. The voluntary - council shall conduct a hearing. The director or their des-
correction agreement shall include: ignee, the owner, and other parties entitled to be served
(a) The name and address of the owner and any other ' with the notice to abate graffiti may participate as parties
person bound under the contract; in the hearing and each party may call witnesses. Any
(b) The street address and a legal description suffi- complainant or person affected by the graffiti may appear
cient to identify the premises; and present evidence. The city shall have the burden of
(c) A description of the violation; demonstrating by a preponderance of evidence that the
(Yakima 1-07) 486 -8.4 •
11.11.070
graffiti at issue is in violation of this chapter and that a
110 determination of hardship should not issue. Following
such hearing, the Yakima city council shall:
1. Issue a determination of intent to proceed;
2. Issue a determination of hardship; or
3. Issue a determination of termination of proceed-
ings.
Decisions of the council shall be determined by a ,
majority vote of the council members present provided
that there is a quorum.
B. A determination of intent to proceed shall be
served in the same manner as the notice to abate graffiti
contained in YMC 11.11.030(B). Such determination •
shall notify the property owner of the city's intent to pro -
ceed with the abatement ten days after the issuance of the
determination of intent or fifteen days after the issuance of
the notice to abate graffiti, whichever is later.
C. A determination of hardship shall stay the -
enforcement of this chapter for a specified period. A deter-
mination of hardship shall be issued to give appropriate
effect to special and extenuating circumstances which, in
order to do substantial justice, warrant the exercise of dis-
cretion to adjust the timeframes, standards, and other pro - -
visions of this chapter. Examples of circumstances which
may warrant such exercise of discretion include, without
- limitation: medical illness or disability affecting a prop- .
erty owner's ability to comply, absences from Yakima
III County; and bona fide insurance coverage disputes that
create a definite risk that enforcement of this chapter
would unfairly result in a substantial economic losstb the
property owner. (Ord 2001 -16 § 6, 2001). `
•
11.11.070 Removal by city.
Upon failure of persons to comply with the notice or ,
determination by the designated date, then the director is ._
authorized and directed to cause the graffiti to be abated
by city forces or by private contractor. Prior to abating the .
graffiti nuisance, the director shall attempt to obtain the '
written consent of the property owner to enter and abate
the nuisance. If such consent is not forthcoming, then the
director, using lawful means such as the obtaining of an
administrative warrant, may enter upon the property and
abate the nuisance. The director may seek judicial process,
as is deemed necessary, to carry out the abatement. All
reasonable efforts to minimize damage from such entry
. shall be as taken by the city, and any paint used to obliter -
ate or cover graffiti shall be as close as practicable to back -
ground color(s). If the director provides for the removal of .
the graffiti, the director shall not authorize nor undertake
to provide for the painting or repair of any more extensive
area than the area where the graffiti is located. (Ord. 2001 -
16 §7,2001). -
11/ 486 -8.5 - cY anima 1-07)
•
Tacoma Municipal Code
8.110.020 Unlawful inhalation — Exception. Chapter 8.120 •
C ha p
It is unlawful for any person to intentionally smell or
inhale the fumes of any type of substance as defined GRAFFITI
in this chapter, or to induce any other person to do
so, for the purpose of causing a condition of, or Sections:
inducing symptoms of intoxication, elation, euphoria, 8.120.010 Definitions.
dizziness, excitement, irrational behavior, 8.120.020 Violation of chapter.
exhilaration, paralysis, stupefaction, or dulling of the 8.120.030 Prohibited acts..
senses of the nervous system, or for the purpose of, 8.120.040 Removal of graffiti.
in any manner, changing, distorting, or disturbing the 8.120.050 Severability.
audio, visual, or mental processes. This section does
not apply to the inhalation of any anesthesia for 8.120.010 Definitions.
medical or dental purposes. (Ord. 26117 § 2; passed A. "Abate" means to remove Graffiti by such means,
Aug. 19, 1997) in such a manner, and to such an extent, as the
Director or the Hearing Examiner reasonably
8.110.030 Possession of certain substances determines is necessary to remove the Graffiti from
• prohibited, when. public view.
No person may, for the purpose of violating this B. "Director" means the Director of Public Works,
chapter, use, or possess for the purpose of so using, • or his or her designee.
any substance containing a solvent having the
property of releasing toxic vapors or fumes. C. "Graffiti "means any unauthorized writing,
(Ord. 26117 § 2; passed Aug. 19, 1997) . - painting, drawing, inscription, figure, or mark of any
type that has been placed upon any property through,
8.110.040 Sale of certain substances the use of paint, ink, chalk, dye, markers, objects, •
prohibited, when. adhesive material; or any other substance capable of
marking property.'
No person may sell, offer to sell, deliver, or give to
any other person any container of a substance D "Graffiti Vandalism" means the act of•. •
containing a solvent having the property of releasing intentionally altering; marking, or defacing property
toxic vapors or fumes, if he has knowledge that the through the use of Graffiti.
product sold, offered for sale, delivered, or given will E "Hearing Examiner" means the City of Tacoma
be used for the purpose set forth in TMC 8.110.020. Hearing Examiner and the office thereof, established
• (Ord. 26117 § 2; passed Aug. 19, 1997) pursuant to Tacoma Municipal Code ( "TMC ") 1.23.
8.110.050 Penalty. F. "Marker Pen" means a broad tip indelible marker
Any person who violates this chapter shall be guilty . with a tip exceeding four millimeters at its diameter.
of a misdemeanor and, upon conviction thereof, shall. G. "Owner" means any entity or entities having a
be punished by a fine of not more than $100.00 or by legal or equitable interest in real or personal property,
imprisonment for not more than 30 days, or by both. including, but not limited to, the interest of a tenant
(Ord. 26117 § 2; passed Aug. 19, 1997) or lessee.
H. "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, the
doorways and entrances to those buildings or
dwellings, and the grounds enclosing them.
I. "Pressurized Container" means any can, bottle,
spray device, or other mechanism designed to propel
•
liquid which contains ink, paint, dye, or other similar
substance which is expelled under pressure, either
through the use of aerosol devices, pumps, or similar
Ia •
Chapter 8.120 is effective beginning December 20, 1999.
(Revised 11/2008) _ 8 -116 City Clerk's Office
• Tacoma Municipal Code
• propulsion devices, and is capable of marking 5. A United States passport that contains the
property. signature, date of birth, and a photograph of the
J. "Property" means any real or personal property individual;
which is affixed, incidental, or appurtenant to real 6. An immigration and naturalization service form
property, including, but not limited to, any structure, that contains the signature, date of birth, and
fence, wall, sign, or any separate part thereof, photograph of the individual; or
• whether permanent or not. 7. If the individual is a minor, an affidavit of the .
K. "Unauthorized" means without the prior express individual's parent or guardian where the parent or -.
permission or consent of the owner of the property or guardian displays or provides at least one piece of
of the person in control of the property. identifying documentation, as specified in this • •
(Ord. 27632 Ex. B; passed Jul. 17, 2007: Ord. 26395 subsection, along with additional documentation
§ 2; passed Sept. 21, 1999) establishing the relationship between the parent or
.. guardian and the applicant. -
8.120.020 Violation of chapter. B. Unlawful for Minor to Purchase. It shall be
Any Property located in the City that has graffiti on it unlawful for any person under the age of 18 years.to
' is deemed a Public Nuisance as defined in TMC purchase a Pressurized Container or Marker Pen:
8.30.040 and is subject to the enforcement
provisions in Chapter 8.30 TMC (Nuisance Code). C. Possession in Posted Area. It is unlawful for any
(Ord. 27632 Ex. B; passed Jul. 17, 2007: Ord. 26395 person to carry on his,or her person, or in plain view
§ 2; passed Sept. 21, 1999) to the public, a Pressurized Container while in any
• posted public facility, park, playground, swimming
8.120.030 Prohibited acts. pool, beach, or recreational area, other than a
. A. Unlawful to Furnish to Minor. It shall be , highway, street, alley, or way, unless he or she has
unlawful for any person, firm, or corporation, except first received valid authorization from the •
• a parent or legal guardian, to sell, give, or in any way governmental entity which has jurisdiction over the
. furnish to another person under the age of 18 years, public area. "Posted ".mmeans a sign placed in a -
any Pressurized Container or Marker Pen. It shall be reasonable location or locations providing notice that
a defense to a violation of this subsection, that the it is a misdemeaior.to openly possess a Pressurized
person, firm, or corporation which, sold, gave, or Container in such public facility, park, playground,
furnished any Pressurized Container or Marker Pen, swimming pool, beach, or recreational area without .
did so after first obtaining bona fide evidence of valid authorization.
• majority and identity. For,purposes of this D. Possession with Intent. It is unlawful for any
_ subsection, "bona fide evidence of and person to possess a Pressurized Container, Marker
identity" is any document evidencing the age and Pen, or any other object capable of defacing
' identity of an individual, which has been issued by a Property, for the purpose of committing Graffiti •
federal, state, or local governmental entity, and Vandalism.
includes, but is not limited to: _
E. Minor in Possession. It is unlawful for any
1. A valid or. recently expired driver's license or individual under the age of 18 years, who is not
instruction permit that contains the signature, date of accompanied by a responsible adult, to possess a
birth; and a photograph of the individual; - Pressurized Container or Marker Pen in or upon a
2. A Washington State identicard or an identification public place or private Property, without the consent
card issued by another state that contains the of the Owner,.lessee, or other person entitled to legal
• signature and a photograph of the individual; posse thereof. .
3. An identification card issued by the United States, F. Graffiti Vandalism. Graffiti Vandalism is •
a state, or agency of either the United States or a unlawful. _
state, of a kind commonly used to identify the G.. Penalty. Violation of any of the provisions of
members of employees of the government agency, Sections 8.120.030.A through 8.120.030.E is a
that contains the signature, date of birth, and a misdemeanor, punishable by a fine not to exceed
photograph of the individual; $1,000, or imprisonment not to exceed 90 days, or
4. A military identification card that contains the . both such fine and imprisonment. Violation of
signature, date of birth, and a photograph of the • Section 8.120.030.F is a gross misdemeanor, .
11111 individual; punishable by a fine not to exceed $5,000, or
imprisonment not to exceed one year, or both such
•
City Cleric's Office 8 -117 (Revised 11/2005)
Tacoma Municipal Code
fine and imprisonment. Violation of
Section 8.120.030.G is a Class 1 civil infraction, with Chapter 8.122
a maximum penalty and default amount of $250, not NOISE ENFORCEMENT
including statutory assessments. Each day
constitutes a separate violation of Sections:
Section 8.120.090.G. (Ord. 27632 Ex. B; passed 8.122.010 General definitions.
,Jul. 17, 2007: Ord. 26395 § 2; passed Sept. 21, 1999) 8.122.020 General powers of the Director.
8.122.030 Testing by order of the Director.
8.120.040 Removal of graffiti. 8.122.040 Inspection.
Notwithstanding the remedies available under 8.122.050 Procedures for the determination of
Chapter 8.30 TMC, whenever Graffiti exists upon the sound levels.
Property owned by a public agency, or a private 8.122.060 Nuisance regulations not prohibited.
Property Owner, the City may remove it with the 8.122.070 Exemptions.
consent of the public entity or private Property 8.122.080 General prohibitions.
Owner owning such Property. (Ord. 27632 Ex. B; 8.122.090 Construction.
passed Jul. 17, 2007: Ord. 26395 § 2; passed Sept. 8.122.100 - Commercial music.
21, 1999) 8.122.110 Variances.
8.122.120 Noise control plan.
8.120.050 Severability. 8.122.130 Penalty for violation. •
The provisions of this chapter are declared to be 8.122.140 Notice of Violation and civil penalty.
separate and severable. If any clause, sentence, 8.122.150 Hearing by the Hearing Officer.
paragraph, subdivision, section, subsection or portion
8.122.010 General definitions. .
of this chapter, or the application thereof to any
• person or circumstance, is held to be invalid, it shall As used in this Chapter, the following terms shall
not affect the validity of the remainder of this have the meanings set forth in this Section, unless a
chapter, or the validity of its application to other different meaning is clearly indicated by. the context
persons or circumstances. (Ord. 27632 Ex. B; passed in which the term is used
Jul. 17, 2007: Ord. 26395 § 2; passed Sept. 21, 1999) A. "Activity" means any act or combination of acts,
which actually results in the production of sound.
B. "Ambient" sound means the sound level at a
given location that exists as a result of the combined
contribution in that location of all sound sources,
excluding the contribution of a source or sources
• under investigation for violation of this code and
excluding the contribution of extraneous sound
sources. For purposes of the enforcement of this
code, the ambient sound level of a given location
- may be determined based upon measurements taken
at a comparable site (which includes but is not
limited to comparable physical locations and time of
• day) in the nearby area.
C. "ANSI " means the American National Standards
• Institute,-which serves as the administrator and
coordinator of the United States private sector
voluntary standardization system.
D. "Apparatus" means any mechanism that prevents,
controls, detects, measures or records the production
of sound. .
E. "Building" means a structure as defined in
Section 2.01.050 of the Tacoma Municipal Code.
F. "Charter" means the charter of the city of Tacoma
including all of its amendments.
(Revised 11/2008) 8 -118 City Clerk's Office