2005-149
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ORDINANCE NO. rJ()tl5- /44
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE PROVISIONS
OF CHAPTER 21 BY CREATING ARTICLE 111 RELATING TO GRAFFITI; PROVIDING
FOR A SEVERABILITY CLAUSE; PROVIDING A REPEALER CLAUSE; PROVIDING A
SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR
VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That Chapter 21 of the Code of Ordinances of the City ("Offenses") be and
the same is hereby amended by creating Article III relating to Graffiti:
SECTION 21 - OFFENSES
ARTICLE III. GRAFFITI
Sec. 21-50 Definitions
The following words, tenTIs, and phrases, when used in this article shall have the meaning
ascribed to them in this section, unless the context of their usage clearly indicates a different
meaning:
Designee(s). City employee or employees designated by the city manager to perfonTI activities
related to notification and abatement of graffiti.
Graffiti. Visual blight or any unauthorized fOnTI of painting, scratching, writing, or inscription
including initials, slogans, symbols or drawings, regardless of the content or nature of the
material that has been applied to any wall, building, fence, window, sign or other structure or
surface and is visible from any public property or right-of-way or is visible from the private
property of another person. "Graffiti" does not include any of the foregoing used for advertising
purposes placed on any property in compliance with any applicable city ordinance, state or
federal law.
Graffiti implement. An aerosol paint container, paint stick or graffiti stick, etching equipment,
brush or any other device capable of scarring or leaving a visible mark on any natural or man-
made surface.
Minor. Any person under seventeen (17) years of age.
Owner. Any owner of record or other person who has contractual responsibility for the property.
Parent. A person who is a natural parent or adoptive parent of a minor. As used herein, "parent"
shall also include a court-appointed guardian or other person twenty-one (21) years of age or
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older, authorized by the parent, by a court order, or by the court appointed guardian to have the
care and custody o'rthe minor.
Unauthorized. Means without the consent of the owner or without authority oflaw, regulation or
ordinance. Unless the owner proves otherwise, lack of consent will be presumed under
circumstances tending to show (1) the absence of evidence of specific authorization by the
owner, (2) that the visual blight is inconsistent with the design and the use of the subject
property, or (3) that the person causing the visual blight was unknown to the owner.
Sec. 21-51. Declaration of public nuisance.
Graffiti is declared to be a public nuisance. Whenever the existence of graffiti on any property
within the city shall come to the attention of a designee, the designee shall cause a written notice
as provided in this article identifying the graffiti and direct its removal to the owner of the
property.
In addition to the penalty provided in this division, the city shall have all remedies available at
law and equity to abate such nuisance.
Sec. 21-52. Sale of pressurized paint containers to minors prohibited.
It is unlawful for any person to knowingly sell, exchange, give, loan, or cause or penTIit to be
sold, exchanged, given, or loaned, any pressurized devices containing paint to any minor person.
Sec. 21-53. Possession by minors.
(A)
It is unlawful for any minor to possess any graffiti implements.
(B)
It shall be an affinTIative defense to a violation of this section that at the time of
possession:
(1)
The minor was accompanied or supervised by a parent, guardian, or
teacher in connection with a bona fide school project; or a supervisor
during the minor's regular employment;
.(2)
The minor possessed the graffiti implement on the property on which he or
she lives.
(3)
The possession occurred as part of an organized event sponsored by a
school, church or some other officially recognized entity and supervised
by an adult representative of the organization; or
(4)
The possession occurred during employment while the minor was
supervised by his or her employer.
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Sec. 21-54. Other Prohibited Acts.
(A)
(B)
Defacement. It shall be unlawful for any person to apply graffiti to any natural or
manmade surface of any city-owned property or without the penTIission of the
owner or occupant on any non-city owned property.
Possession of graffiti implements. It shall be unlawful for any person:
To possess any graffiti implement while in or upon any public facility,
transportation vehicle, park, playground, swimming pool, recreation facility, or
other public building or structure owned or operated by the city or while in or
within 50 feet from an underpass bridge abutment, stOnTI drain, or similar type of
infrastructure, unless authorized by the city.
Sec. 21-55. Owner responsibility.
(A)
(B)
An owner of property commits an offense if, after notification by the city, the
owner fails to paint over or remove all graffiti from the owner's property that is
visible from any public property or right-of-way or from any private property
other than the property on which the graffiti exists.
Before issuing a citation for a violation under subsection (A) of this section, the
designee shall serve the property owner with written notice to remove the graffiti
within fourteen (14) calendar days from the date the notice was served. The
notice shall contain: .
(I)
The date and nature of the violation;
(2)
Physical location of the violation by street address, lot and block number;
(3)
Name of owner; and
(4)
If the condition is not corrected within fourteen (14) days of receipt of
such notice or the owner fails to file an appeal within fourteen (14) days of
receipt of notice to the designee, the city may, without further notice, enter
upon thc property by its agent or its contractors, remove the graffiti and
charge the costs incurred to the owner. If the graffiti is removed by the
city, the cost may be charged to the property owner and a lien may be filed
against the property.
(C)
The notice may be served by personal delivery, or by United States certified mail,
return receipt requested to the owner at the owner's post office address as shown
on the tax rolls. If the owner cannot be found or the notice is returned by the
United States Postal Service as undeliverable, then the owner may be notified by:
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(D)
(E)
(F)
(G)
(I)
Publication at least twice within ten (10) consecutive days;
(2)
Posting notice of the violation on or near the front door of each building
on the property in violation; or
(3)
If the property contains no buildings, posting the notice of a violation on a
placard attached to a stake driven into the ground on the property.
The owner of the property subject to abatement under this article may appeal the
decision of the designee by requesting a hearing by notifying, in writing, the
designee within fourteen (14) days following the receipt of the notice. The
hearing shall be conducted by the designee for the purpose of detenTIining
whether the conditions constitute a public nuisance under the provisions of this
article. The owner shall be provided written notice of the time and place of the
hearing at least ten (10) days prior thereto. At the hearing, the owner and the
designee may present evidence relevant to the proceeding. The designee's
decision shall be final.
If the owner fails to timely abate the graffiti or request a hearing, or if it is
detenTIined at the hearing that the graffiti constitutes a nuisance, the designee will
assess expenses, and place a lien on the property.
Prior to the filing of a lien, the designee shall mail the owner an invoice for the
costs of removal. In the event the invoice is not paid within thirty (30) days, a
lien shall be filed on the property.
An owner maintains a public nuisance if he fails to remove graffiti or refuses to
allow graffiti to be removed from his property after having been notified by the
city or in the event of appeal, upon order by the designee.
Sec. 21-56. Imposition of civil penalty for applying, permitting, or allowing graffiti.
(A)
(B)
(C)
The City Council finds and detenTIines that graffiti applied to any natural or man-
made surface on public or private property creates an objectionable, or unsightly
condition that damages the surrounding homes and businesses in the community.
Any person who applies or creates graffiti, or any parent who knowingly penTIits
or by insufficient control allows their minor child to apply graffiti to any natural
or man-made surface or any public property is liable for a civil penalty.
The civil penalty for which the person or parent is liable is the fees and cost
incurred for removing the graffiti, plus a $125 fine for the first removal, provided
that for a third or subsequent offense in any 12-month period, the amount of the
penalty fine shall be a minimum of$200 but will not exceed $500.
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(D)
(E)
The civil penalties collected will be placed in reserve or used exclusively in city
initiated abatement proceedings.
Civil Enforcement; procedures.
(1)
The designee is responsible for the enforcement and administration of this
article.
In order to impose a civil penalty under this section of the article, the
designee shall send a notice of violation to the person or parent liable for
the civil penalty not later than the 30th day after the date the graffiti is
alleged to have been removed. A notice issued under this section of this
article shall be sent to:
(2)
(a)
(b)
the last known address of the person or parent of the accused
minor; or
hand-delivered in person to the person or parent of the accused
minor alleged to be responsible for the civil penalty.
(3)
A notice of violation issued under this article shall contain the following:
(a)
(b)
(c)
a description of the violation alleged;
the location where the violation occurred;
the date and time of the violation or when the violation was
discovered;
(d)
the name and address of the owner of the property involved in the
violation;
(e)
a copy of a recorded image of the graffiti involved in the violation;
(I)
the amount of the civil penalty to be imposed for thè violation,
including the fees and costs for removal of the graffiti;
(g)
the date by which the civil penalty must be paid;
(h)
a statement that a recorded image is evidence in a proceeding for
the imposition of a civil penalty;
(i)
infonTIation that infonTIs the person or parent named in the notice
of violation:
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(F)
(4)
(5)
(i)
of the person's or parent's right to contest the imposition of
the civil penalty against the person in an administrative
adjudication;
(ii)
of the manner and time in which imposition of the civil
penalty may be contested;
(iii)
that failure to pay the civil penalty or to contest liability in
a timely manner is an admission of liability and that failure
to appear at an administrative adjudication hearing after
having requested a hearing is an admission ofliability; and
(iv)
that failure to pay the civil penalty within the time allowed
shall result in the imposition of a late-payment fee of $50.
A notice of violation under this article is presumed to have been received
either on the fifth day after the date the notice of violation is mailed or on
the date personal delivery is made to the person or parent of the accused
minor alleged to be responsible for the civil penalty.
In lieu of issuing a notice of violation, the Department may mail a warning
notice to the owner that, in addition to any other infonTIation contained in
the warning notice, must contain the infonTIation required by subsection
(C).
Administrative adjudication hcaring.
(I)
A person who receives a notice of violation under this article may contest
the imposition of the civil penalty by requesting in writing an
administrative adjudication of the civil penalty within the time provided in
the notice (which period shall not be less than 14 days following the
mailing of the notice). Upon receipt of the request, the Director shall
notify the person of the date and time of the hearing on the administrative
adjudication. The administrative adjudication hearing shall be held before
one or more hearing officers appointed by the City Manager.
(2)
Failure to pay a civil penalty or to contest liability in a timely manner is an
admission ofliability in the full amount of the civil penalty assessed in the
notice of violation and constitutes a waiver of the right to appeal under
Section 21-56(F)(8).
(3)
Failure to appear at an administrative adjudication hearing after having
requested a hearing is an admission of liability for the full amount of the
civil penalty assessed in the notice of violation and constitutes a waiver of
the right to appeal under Section 21-56(F)(8).
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(4)
(5)
(6)
(7)
(8)
(G)
A person or parent who fails to pay a civil penalty within the time allowed
by this article shall be additionally liable for a late-payment penalty in the
amount of$50.
The civil penalty shall not be assessed if after a hearing, the hearing
officer(s) enter(s) a finding of no liability.
A person or parent who is found liable after an administrative adjudication
hearing or who requests an administrative adjudication hearing and
thereafter fails to appear at the time and place of the hearing is liable for
administrative haring costs in the amount of $50 in addition to the amount
of the civil penalty assessed for the violation. A person or parent who is
found liable for a civil penalty after an administrative adjudication hearing
shall pay the civil penalty and costs within ten days of the hearing.
In an administrative adjudication hearing, the issues must be proven at the
hearing by a preponderance of the evidence.
A person or parent who is found liable after an administrative adjudication
hearing may appeal that finding of liability to the Municipal Court by
filing a notice of appeal with the clerk of the Municipal Court. The notice
of appeal must be filed .not later than the 31" day after the date on which
the administrative adjudication hearing officer entered the finding of
liability and shall be accompanied by the payment of an appellate filing
fee of $50. Unless the person, on or before the filing of the notice of
appeal, posts a bond in the amount of the civil penalty and any late fees,
an appeal docs not stay thc enforcement of the civil penalty. An appeal
shall be detenTIined by the Municipal Court by trial de novo. Any
affidavits submitted under Section 21-56(F)(8) shall be admitted by the
municipal judge in the trial de novo, and the issues must be proven by a
preponderance of the evidence.
Effect of liability; exclusion of civil remedy; enforcement.
(1)
The imposition of a civi I penalty under this section is not a conviction and
may not be considered a,conviction for any purpose.
(2)
The City Attorney is authorized to file suit to enforce collection of a civil
penalty assessed under this article.
SECTION 2. That if any section, subsection, paragraph, sentence, clause, phrase, or
word in this ordinance, or application thereof to any person or circumstances is held invalid by
any court of competent jurisdiction, such holding shall not effect the validity of the remaining
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portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it
would have enacted such remaining portions despite any invalidity.
SECTION 3. That save and except as amended hereby, all the provisions, sections,
subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain
in full force and effect.
SECTION 4. That any person found guilty of violating this ordinance by a court of
competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500) per day.
Each day that a provision of this ordinance is violated shall constitute a separate offense.
SECTION 5. This ordinance providing for a penalty shall become effective fourteen (14)
days from the date of its passage, and the City Secretary is hereby directed to cause the caption
of this ordinance to be publishcd twice in the Denton Record-Chronicle, the official newspaper
of the City of Denton, Texas, within ten (IO) days of the date of its passage.
PASSED AND AP~ROVED this the o? t./fÞ. day of c¡¡¿ ~
(~ ~cL
EULINE BROCK, MAYOR
,2005.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
ßY~'~ L '"\ 9'h t A
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APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
BY ~ 17, 7
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