CHAPTER 16
GRAFFITI
6-16-1: LEGISLATIVE INTENT
6-16-2: DEFINITIONS
6-16-3: PROHIBITED ACTS
6-16-4: ACCESSIBLITY TO CERTAIN PROHIBITED GRAFFITI MATERIALS
6-16-5: ENFORCEMENT
6-16-1: LEGISLATIVE INTENT: (3415) The City Council finds and declares that defacing of public or private property by painting, drawing, writing, etching, scratching or carving, by use of paint, spray paint, ink, knife or any similar method, commonly referred to as “graffiti vandalism,” constitutes a serious and growing menace, injurious to the public health, safety, morals, and general welfare of the residents of the City; that graffiti vandalism contributes substantially to the spread of gang activity, violence and crime; and that prompt eradication of graffiti vandalism is necessary to control the spread of graffiti vandalism, and promote the public health, safety, morals and general welfare of the residents of the City. It is the intent of the City Council in enacting this Chapter to prevent the destruction of public or private property by graffiti vandalism and to recover the costs associated with the cleanup thereof. Furthermore, given the substantial challenges in controlling graffiti vandalism, the City Council enlists, and places responsibility upon parents, legal guardians, retail businesses, and property owners to aid the City in preventing and cleaning up graffiti vandalism.
6-16-2: DEFINITIONS: (3415) The following words, terms and phrases, when used in this Chapter, shall have the following meaning, unless the context clearly indicates otherwise:
“City Manager” shall mean the City Manager of the City of Westminster.
“Deface” shall mean to alter the appearance of something by removing, distorting, etching, writing, painting, adding to, or covering all or a part of the property.
“Etching Equipment” shall mean any tool, device or substance that can be used to make permanent marks on any natural or man-made surface.
“Graffiti Vandalism” shall mean any unauthorized inscription, word, figure, painting or symbol that defaces public or private property created by means of painting, drawing, writing, etching, scratching or carving, by use of paint, spray paint, ink, knife, or any similar method.
“Marker Pen” shall mean a felt-tip marker, permanent marker, or similar implement containing a fluid that is not water soluble.
“Minor” shall mean any person who has not yet attained the age of eighteen (18) years.
“Owner” or “Property Owner” shall mean any person having a legal or equitable interest in any real or personal property located within the City boundaries.
“Paint Pen” shall mean a tube, marker, or other pen-like instrument with a tip of one-quarter inch (1/4”) in diameter or less that contains paint or a similar fluid and an internal paint agitator.
“Prohibited Graffiti Material” shall mean any implement capable of creating graffiti vandalism including, but not limited to, spray paint, spray paint nozzle/tip, marker pen, paint pen, glass-cutting tool, or etching equipment.
“Spray Paint” shall mean any aerosol container that is made or adapted for the purpose of applying paint or other substance capable of defacing property.
“Spray Paint Nozzle” or “Spray Paint Tip” shall mean a nozzle/tip designed to deliver a spray of paint of a particular width or flow from a can of spray paint.
6-16-3: PROHIBITED ACTS: (3415)
(A) DEFACEMENT:
(1) It shall be unlawful for any person to deface any property with graffiti vandalism, except with the written consent of the owner.
(2) It shall be unlawful for any person to aid, abet, or advise another to deface any property with graffiti vandalism, except with the written consent of the owner.
(B) PURCHASE AND POSSESSION OF GRAFFITI MATERIALS:
(1) Purchase and Possession by Any Person. It shall be unlawful for any person to purchase, procure or possess, or attempt to purchase, procure or possess any prohibited graffiti material with the intent to use such material in the commission of graffiti vandalism.
(2) Purchase and Possession by Minor. It shall be unlawful for any minor, except a minor under the direct supervision of the person’s parent, legal guardian, school teacher, or a law enforcement officer in the performance of duty, to purchase, procure or possess, or attempt to purchase, procure or possess any prohibited graffiti material. It shall be an affirmative defense to a charge of possession under this subsection that the minor possessing the prohibited graffiti material was:
(a) Within their home;
(b) While at school or enrolled in a class at school that formally required the possession of such material;
(c) At their place of employment; or
(d) Upon real property with permission from the owner to possess such materials.(3) Contributing to Unlawful Possession. It shall be unlawful for any person, except a law enforcement officer, school teacher or public official in the performance of their duty, to knowingly allow a minor to possess prohibited graffiti materials upon any property, except with the written consent of the owner. It shall be an affirmative defense to charges under this subsection that the minor possessing the prohibited graffiti material was:
(a) Within their home;
(b) While at school or enrolled in a class at school that formally required the possession of such material;
(c) At their place of employment; or
(d) Upon real property with permission from the owner to possess such materials.
6-16-4: ACCESSIBLITY TO CERTAIN PROHIBITED GRAFFITI MATERIALS: (3415)
(A) SALE AND FURNISHING: It shall be unlawful for any person, other than a parent, legal guardian, school teacher, or law enforcement officer in the performance of duty, to sell, exchange, give, deliver, loan, or otherwise furnish or cause or permit to be sold, exchanged, given, delivered, loaned or otherwise furnished marker pens, spray paint, and/or shoe polish to any minor, unless the minor is accompanied by their parent or legal guardian and provides written documentation demonstrating the consent of their parent or legal guardian. It shall be an affirmative defense to charges under this subsection that such materials were necessary for the minor to perform an essential job function.
(B) DISPLAY AND STORAGE: It shall be unlawful for any person who owns, conducts, operates or manages a retail commercial establishment selling marker pens, spray paint, and/or shoe polish to fail to store such materials in an area continuously observable, through direct visual observation or surveillance equipment, by employees of the retail establishment during the regular course of business. In the event that a retail commercial establishment is unable to store the marker pens, spray paint, and/or shoe polish in an area that is continuously observable, it shall be unlawful for the establishment to fail to store such material in an area not accessible to the public in the regular course of business without employee assistance.
(C) SIGNS REQUIRED: It shall be unlawful for any person who sells or offers to sell any marker pens, spray paint, and/or shoe polish to fail to display at all times in a prominent place a printed card to be a minimum height of fourteen inches (14”) and a width of eleven inches (11”) , with each letter to be a minimum of one-half inch (1/2”) in height, which shall read as follows:
WARNING
GRAFFITI VANDALISM IS AGAINST THE LAW. IT IS ILLEGAL TO SELL MARKER PENS, SPRAY PAINT, AND/OR SHOE POLISH TO ANY PERSON UNDER EIGHTEEN (18) YEARS OF AGE UNLESS ACCOMPANIED BY THEIR PARENT OR LEGAL GUARDIAN AND IT IS ILLEGAL FOR ANY PERSON UNDER EIGHTEEN (18) YEARS OF AGE TO POSSESS OR TO ATTEMPT TO PURCHASE THE SAME.
FINES AND/OR IMPRISONMENT MAY BE IMPOSED BY THE COURT FOR VIOLATION OF THESE PROVISIONS.
(A) PENALTIES:
(1) Criminal Violations. The following provisions of this Chapter are hereby deemed criminal violations of this Code punishable by a fine or by confinement in jail, or by both, as provided in Section 1-8-1, W.M.C.: Section 6-16-3(A) – Defacement
(2) Civil Violations. All violations of this Chapter not listed in paragraph (1), above, are hereby deemed civil infractions of this Code and, upon conviction thereof, shall be punished by a fine pursuant to Section 1-8-1, W.M.C. Each day that a violation of any of the provisions of this Chapter continues to exist shall be deemed to be a separate and distinct violation.
(3) Restitution. In addition to any punishment specified in this Section, the Court shall order any violator to make restitution to the victim for damages or loss caused directly or indirectly by the violator’s offense when such restitution can be determined by the Court.
(4) Community Service. In lieu of, or as part of, the penalties specified in this Section, a person may be required to perform community service as described by the Court, based on the following guidelines:
(a) If convicted of committing graffiti vandalism, the defendant should perform at least thirty (30) hours of community service, or should remove at least five thousand (5,000) square feet of graffiti vandalism.
(b) In the case of a minor living with his/her parent(s) or legal guardian(s) and convicted of committing graffiti vandalism, at least one (1) parent or legal guardian of that minor should be in attendance a minimum of fifty percent (50%) of the period of assigned community service. Participation of a parent or legal guardian is not required for any reason deemed appropriate by the Court, including, but not limited to, if such participation is detrimental to the minor, or if the parent or legal guardian is a single parent who must care for young children.
(c) Reasonable effort should be made to assign the defendant to a type of community service that is reasonably expected to have the most rehabilitative effect on the minor or adult, including community service that involves graffiti removal.(5) Recommended Fines. Recommended minimum fines upon conviction may be imposed as listed below:
Section 6-16-3(A) – Defacement:
First offense – Two hundred dollars ($200);
Second offense – Five hundred dollars ($500); and
Third and subsequent offenses – One thousand dollars ($1,000)
(B) PARENTAL RESPONSIBILITY:
(1) In the case of a minor living with his/her parent(s) or legal guardian(s) and convicted of a violation under this Chapter, the minor’s parents or legal guardian shall be jointly and severally liable with the minor for payment of all fines, damages, restitution and costs, including attorney’s fees and court costs ordered by the Court, because graffiti vandalism is a deliberate, willful and malicious act, provided that such liability shall not exceed two thousand five hundred dollars ($2,500).
(2) The Court may not enter an order for payment of all fines, damages, restitution and costs, including attorney’s fees and court costs, against the minor’s parent or legal guardian unless the Court, prior to entering such order for payment, holds a hearing at which the minor’s parent or legal guardian is present.
(3) If the Court finds, after the hearing, that the minor’s parent or legal guardian has made diligent, good faith efforts to prevent or discourage the minor from engaging in delinquent activity prohibited by this Chapter, or that such order for payment would cause serious hardship to the minor’s parent or legal guardian, the Court may reduce or eliminate the parent’s or legal guardian’s responsibility for fines, damages, restitution and costs, including attorney’s fees and court costs.