Sec.
16-41. Graffiti.
(a)
Definition. "Graffiti" shall mean the
unauthorized application by any means of any writing, painting, drawing,
etching, scratching or marking of an inscription, word, mark, figure or
design of any type on any public or private building or other real
estate or personal property owned, operated or maintained by a
governmental entity or agency or instrumentality thereof or by any
private person, firm, or corporation.
(b) Graffiti prohibited; criminal
penalty.
(1) It shall be
unlawful for any person to willfully or maliciously deface or damage by
application of graffiti any public buildings, facilities or other
property, or any private buildings, facilities or other property. Any
person convicted of a violation of this subsection shall be guilty of a
Class 1 misdemeanor. The punishment for any such violation in which the
defacement is (i) more than 20 feet off the ground, (ii) on a railroad
or highway overpass, or (iii) committed for the benefit of, at the
direction of, or in association with any criminal street gang, as that
term is defined by Code of Virginia § 18.2-46.1, shall include a
mandatory minimum fine of five hundred dollars ($500.00).
(2) Upon a finding of
guilt in any case tried before the court without a jury, in the event
the violation constitutes a first offense which results in property
damage or loss, the court, without entering a judgment of guilt, upon
motion of the defendant, may defer further proceedings and place the
defendant on probation pending completion of a plan of community service
work. If the defendant fails or refuses to complete the community
service as ordered by the court, the court may make final disposition of
the case and proceed as otherwise provided. If the community service
work is completed as the court prescribes, the court may discharge the
defendant and dismiss the proceedings against him. Discharge and
dismissal under this section shall be without adjudication of guilt and
is a conviction only for the purposes of applying the ordinance in
subsequent proceedings.
(3) Any
community service ordered by the court shall, to the extent feasible,
include the repair, restoration or replacement of any damage or
defacement to property within the county and may include clean-up,
beautification, landscaping or other appropriate community service
within the county. The county administrator shall supervise the
performance of any community service work required and to report thereon
to the court imposing such requirement. At or before the time of
sentencing under the ordinance, the court shall receive and consider any
plan for making restitution or performing community service submitted by
defendant. The court shall also receive and consider the recommendations
of the court's supervisor of community services concerning the plan.
(4) Notwithstanding
any other provision of law, no person convicted of a violation of this
ordinance shall be placed on probation or have his sentence suspended
unless such person shall make at least partial restitution for such
property damage or is compelled to perform community services, or both
in accordance with Code of Virginia § 19.2-305.1, as it may be amended
from time to time.
(c) Parental liability for cost of
graffiti. In the event graffiti is applied to any public property by a
minor who is living with either or both parents or a legal guardian, the
county may institute an action and recover from the parents of the
minor, or either of them, or from the legal guardian the costs for
damages suffered by reason of the willful or malicious destruction of,
or damage to, public property by the minor. The action by the county
shall be subject to any limitation of the amount of recovery set forth
in Code of Virginia § 8.01-43 or other applicable state law.
(d) Graffiti declared a nuisance. The
existence of graffiti within the county in violation of this section is
expressly declared a public nuisance, and is subject to the removal and
abatement procedures specified in this section.
(e) Removal of graffiti.
(1) The county
administrator is authorized to undertake or contract for the removal or
repair of the defacement by the application of graffiti of any public
building, wall, fence or other structure or any private building, wall,
fence or other structure where such defacement is visible from any
public right-of-way.
(2) If the defacement
occurs on a public or private building, wall, fence or other structure
located on an unoccupied property and the county, through its own agents
or employees, removes or repairs the defacement after complying with the
notice provisions set out below, the actual cost or expense incurred by
the county shall be chargeable to and paid by the owners of such
property and may be collected by the county as taxes are collected.
a. Prior to such removal of graffiti from private property, the
county administrator shall issue to the property owner, by certified
mail, return receipt requested, sent to the last address listed for the
owner in county property assessment records, a notice which states: the
street address and legal description of the property; that the property
has been determined by the county to constitute a graffiti nuisance;
that the owner must take corrective action to abate the nuisance created
by such graffiti within fifteen (15) days of the date of the owner's
receipt of the notice or refusal of the owner to receive notice; and
that if the graffiti is not removed within the 15-day period, the county
will begin removal procedures, the cost of which shall by charged to the
property owner, or may institute a legal action to require the property
owner to remove or obscure the graffiti. Where the property owner fails
to abate the nuisance within fifteen (15) days after receipt of the
notice or refusal of the owner to receive notice, the county
administrator is authorized to undertake efforts forthwith to remove or
obscure the graffiti.
b. Before entering upon private property for the purpose of
graffiti removal, the county shall attempt to obtain the consent of the
property owner, occupant or other responsible party.
c. In the event no owner or occupant or person responsible for
the graffiti can be found to whom to direct the notice provided for in
this subsection, the county, after giving fifteen (15) days notice in a
newspaper having general circulation in the county, may proceed to
remove or obscure the graffiti and charge the property owner for costs
therefor as provided in (g) below.
(3) Where a structure
defaced by graffiti is owned by a public entity other than the county,
the removal of the graffiti by the county is authorized only after
securing the consent of an authorized representative of the public
entity having jurisdiction over the structure.
(4) In addition to
the foregoing, the county administrator is authorized to institute
appropriate legal action on behalf of the county, including but not
limited to actions pursuant to Code of Virginia section 15.2-900, to
compel the owner or owners of the subject property to abate or remove
the graffiti at the owner's own cost.
(f) Emergency removal of graffiti. If
the county administrator determines that any graffiti is an immediate
danger to public health, safety or welfare, then forty-eight (48) hours
after the later of (1) mailing notice to the property owner or other
responsible party, as provided above and (2) posting notice in a
conspicuous place on the property, the county may remove or cause the
graffiti to be removed. The county may bring an action against the
property owner or other responsible party to recover the necessary costs
reasonably required to remove or obscure the graffiti.
(g) Assessment of costs against
property owner for removal of graffiti.
(1) If the county
undertakes corrective action to remove graffiti from private property
after complying with the notice provisions of subsection (e)(2) above,
the total cost for such removal and related repairs shall be charge-able
to and paid by the property owner, and may be collected as a special
assessment against the respective lot or parcel of land to which it
relates in the manner in which county taxes and levies are collected.
(2) Every
charge authorized by this section with which the owner of any such
property has been assessed and which remains unpaid shall constitute a
lien against such property with the same priority as liens for unpaid
local taxes and enforceable in the same manner as such liens. The county
may waive and release such liens in order to facilitate the sale of the
property. Such liens may be waived only as to a purchaser who is
unrelated by blood or marriage to the owner and who has no business
association with the owner. All such liens shall remain a personal
obligation of the owner of the property at the time the liens were
imposed.
(3) The court
may order any person convicted of unlawfully defacing any property
described in subsection (e) to pay full or partial restitution to the
county for costs incurred by the county in removing or repairing the
defacement. An order of restitution pursuant to this section shall be
docketed as provided in Code of Virginia section 8.01-446 when so
ordered by the court or upon written request of the county and may be
enforced by the county in the same manner as a judgment in a civil
action.
(h) Nothing herein shall be deemed a
limitation on the rights of the county to seek and enforce the removal
or obscuration of graffiti by any other means or remedies available at
law or equity.
(i) Severability. If any part,
subsection, or sentence of this section is for any reason determined by
a court of law to be unconstitutional or invalid, such decision shall
not affect the remaining portions of this section.
(Ord.
No. 01-16, 9/04/01; Ord. No. 05-15(R), 6/21/05; Ord.
No. 09-14, 8/18/09) |