§ 22-87. Graffiti.

(a)

Definitions. Except as is otherwise required by the context, as used in this section, the following words and terms shall have the meanings ascribed to them as follows:

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 tools, device or substance that can be used to make permanent marks on any natural or manmade surface.

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 on 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 public officer.

Graffiti implement means a 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 thereon.

Person means any individual, individuals, corporation, partnership, unincorporated association, other business organization, committee, board, trustee, receiver, agent or other representative who has charge, care, control or responsibility for maintenance of any premises, regardless of status as owner, renter, tenant or lessee, whether or not in possession.

(b)

Legislative determination. The unified government board of commissioners hereby declares as a matter of legislative determination that:

(1)

The increasing incidents of the defacement of public and private property through the application of graffiti upon walls, rocks, bridges, buildings, fences, gates, other structures, trees and other real and personal property within the corporate boundaries of the city constitute a blight on this community, and, in the interests of health, safety and general welfare of the residents and taxpayers of the city, immediate steps must be taken to remove this blight.

(2)

Based upon reports which the unified government board of commissioners has received, such defacement of property is most often committed by persons under the age of 18 years using aerosol containers of spray paint and broad tipped indelible markers.

(3)

When appropriate, the courts should require those who commit acts of defacement of public or private property through the application of graffiti to restore the property so defaced, damaged or destroyed.

(4)

Obtaining convictions for the application of graffiti is difficult due to the fact that the offense can be committed so very quickly and secretively that witnesses to the act are frequently nonexistent.

(5)

The public should be encouraged, through the promise of a reward, to cooperate in the elimination of graffiti by reporting to the proper authorities the incidents of the application of graffiti which the members thereof observe.

(6)

The public should be encouraged to cooperate in the removal or abatement of graffiti by undertaking to provide for the painting or repair of areas where graffiti is located.

(c)

Right of entry. Whenever necessary to make an inspection of or abate graffiti or to enforce any provision of this section, the public officer, his agent, or any other unified government employees may enter onto property at all reasonable times to inspect or abate the graffiti.

(d)

Prohibited. It shall be unlawful for any person to write, paint or draw upon any wall, rock, bridge, building, fence, gate, other structure, tree or other real or personal property, either publicly or privately owned, any drawing, inscription, figure or mark of the type which is commonly known and referred to as "graffiti" without the permission of the owner or operator of such property.

(e)

Violation of subsection (d) of this section; penalty. Violation of subsection (d) shall be unlawful and shall be punished by a fine not to exceed $1,000.00, by imprisonment for a term of not to exceed one year, or by any combination of such fine and imprisonment. In addition to such punishment, the court may, in imposing sentence, order the defendant to restore the property so defaced, damaged or destroyed or order the defendant to make restitution to the victim for damages or loss caused directly by the defendant's offense. In the case of a minor, the parents or legal guardian shall be ordered jointly and severably liable with the minor to make such restitution. If the graffiti has previously been abated by a person other than the defendant, the court may, in addition to any other punishment, order the defendant to perform community service work (in an amount equal to the cost of abatement). Imprisonment shall include placement in a juvenile facility.

(f)

Reward for information leading to arrest of perpetrator.

(1)

The unified government will pay to any person who provides information which leads to the arrest and conviction of any person who applies any drawing, inscription, figure or mark of the type which is commonly known and referred to as "graffiti" to any wall, rock, bridge, building, fence, gate, other structure, tree or other real or personal property a reward in the amount of $250.00. In no event shall rewards be paid beyond the amount allocated by the unified government board of commissioners for this expenditure.

(2)

The reward shall be paid to the person who provides such information immediately upon the conviction of the person so arrested.

(g)

Unlawful to maintain building with graffiti, notice, etc. It shall be unlawful for any person to maintain any building or structure in a condition whereby graffiti is allowed to remain on said building or structure for a period of time in excess often days. Said ten days shall commence with written notice being given to said person by the public officer, and if said person fails to remove the same, then, upon conviction, the owner shall be punished by a fine of not less than $250.00, by imprisonment for a term not to exceed six months, or by both fine and imprisonment. Said ten-day period can be extended at the discretion of the public officer due to inclement weather conditions.

(h)

Nonliability of unified government. Neither the unified government, its employees or agents, nor any party assisting the unified government shall assume any liability in the inspection or abatement of graffiti found within the city.

(i)

Possession of graffiti paraphernalia.

(1)

It shall be unlawful for any person under the age of 18 to possess any graffiti implement while on public or private property without the express consent of the owner of such property. Any person violating this provision shall be guilty of a misdemeanor.

(2)

A person under the age of 18 is not guilty of a violation of subsection (i)(1) of this section if:

a.

Such person is under the direct supervision and in the presence of a parent, legal guardian or teacher;

b.

Such person, at the time, is within the scope and course of such person's employment or involvement with an activity sanctioned by a school, church or legally recognized nonprofit organization; or

c.

Such person has the prior express consent of a responsible party or is in the presence of a responsible party.

(3)

It is unlawful for any person to have in his possession any graffiti implement while:

a.

In, upon or about any public park, playground, swimming pool, public recreational facility, or publicly owned building;

b.

In or within 100 feet of an underpass, bridge abutment, storm drain, or similar types of infrastructure; or

c.

On private property without the written consent of the owner.

(4)

Violations of subsection (i) shall be unlawful and shall result in a fine of $250.00 for the first offense and $500.00 for subsequent offenses.

(j)

Sale of spray paint and markers.

(1)

No person or firm shall sell or cause to be sold to any person under the age of 18 years, and no person under the age of 18 years shall buy any aerosol container of spray paint or broad-tipped indelible markers. Evidence that a person, his employee, or agent demanded and was shown bona fide evidence of majority and acted upon such evidence in a transaction or sale shall be a defense to any prosecution thereof.

(2)

Every person who owns, conducts, operates or manages a retail commercial establishment selling aerosol containers of spray paint or broad-tipped indelible markers shall:

a.

Place a sign in clear public view at or near the display of such products stating, in lettering at least three-eighths of an inch high:

"GRAFFITI IS A CRIME. ANY PERSON DEFACING REAL OR PERSONAL PROPERTY NOT HIS OR HER OWN WITH PAINT OR ANY OTHER LIQUID OR DEVICE IS GUILTY OF A CRIME PUNISHABLE BY IMPRISONMENT OF UP TO ONE YEAR AND/OR A FINE OF UP TO $1,000.00."

b.

Place a sign, in lettering at least three-eighths of an inch high, in the direct view of such persons responsible for accepting customer payment for aerosol containers of spray paint or broad-tipped indelible markers.

"IT IS A VIOLATION OF THE LAW TO SELL AEROSOL CONTAINERS OF SPRAY PAINT OR BROAD-TIPPED INDELIBLE MARKERS TO PERSONS UNDER 18 YEARS OF AGE, PUNISHABLE BY A FINE OF $250.00."

(3)

No person who owns, conducts, operates, or manages a retail commercial establishment where aerosol containers of spray paint or broad-tip makers are sold, nor any person who sells or offers to sell aerosol containers of spray paint or broad-tip markers, shall store, display, or cause to be stored or displayed, such aerosol paint containers or broad-tip markers in an area that is not continually observable, through direct observation, by employees of the retail establishment during the regular course of business.

(4)

In the event that a commercial retail establishment is unable to store the aerosol containers of spray paint or broad-tip markers in the area as provided in subsection (3) of this section, the establishment shall store the aerosol paint containers, paint sticks, and broad-tipped markers in an area not accessible to the public in the regular course of business without employee assistance.

(5)

Violation of subsections (j)(1), (j)(2), (j)(3) and (j)(4) of this section shall be unlawful and shall result in a fine of $250.00 for a first offense and $500.00 for subsequent offenses. When three violations of subsections (j)(1), (j)(2), (j)(3) or (j)(4) occur within any calendar year at a commercial establishment, that establishment shall be subject to an injunction from a court of competent jurisdiction forbidding the sale of aerosol containers of spray paints and broad-tipped markers for a period up to two years.

(k)

Liability of parents. Every parent, guardian or other person having lawful physical custody or right to control a minor person under the age of 18, having actual or constructive knowledge of the minor's act and having a present reasonable ability to restrain, control or thwart a minor from committing such prohibited damage, destruction or defacement, as defined in this section, shall be guilty of a violation of this section.

(Code 1988, § 22-51; Ord. No. 65285, § 1, 3-17-1988; Ord. No. 65498, § 23, 1-4-1990; Ord. No. 65621, § 1, 5-2-1991; Ord. No. 65720, § 1, 6-2-1992; Ord. No. O-40-03, § 1, 9-18-2003; Ord. No. O-21-13, § 1, 3-7-2013)

Cross reference

Definitions generally, § 1-2.