The City's Code of Ordinances concerning graffiti states:
Sec. 38-141. - Definitions.
The following words, terms, and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Graffiti. Any unauthorized painting, scratching, writing or inscription, including initials, slogans, symbols or drawings, that has been applied to any wall, building, fence, windows, sign or other structure or surface, which is visible from: (i) any public property; (ii) any public right-of-way; or (iii) another person's property. " Graffiti" does not include any of the foregoing that is placed on the property in compliance with any applicable city ordinance, state or federal law.
Owner. Any owner of record, person who has contractual responsibility for the property, or person who has the legal right of possession of the property. There shall be a rebuttable presumption in prosecutions under this division that the person who is listed on the tax records for the county wherein the property is situated is the owner. There shall be a rebuttable presumption in prosecutions under this division that the person currently named on the account for utility services furnished by the City of Deer Park is the person who has the legal right of possession of the property.
Unauthorized means without the consent of the owner or without authority of law. Unless the owner proves otherwise, lack of consent will be presumed under circumstances tending to show: (i) the absence of evidence of specific authorization by the owner; (ii) that the visual blight is inconsistent with the design and the use of the subject property; or (iii) that the person causing the visual blight was unknown to the owner.
(Code 1991, § 11-241; Ord. No. 3324, § I, February 2, 2010)
Cross reference- Definitions generally, § 1-2.
Sec. 38-142. - Graffiti declared a public nuisance.
- The city finds and determines that graffiti is an impure and unwholesome matter and its existence:
- The existence of graffiti on public or private property in violation of this chapter is expressly declared to be a public nuisance and is subject to the removal and abatement provisions provided by law. It is the duty of the owner of the property to which graffiti has been applied to at all times keep the property clear of graffiti.
(Code 1991, § 11-242; Ord. No. 3324, § I, February 2, 2010)
Sec. 38-143. - Owner responsibility & graffiti removal program.
- It shall be unlawful for the owner of property in the city or certain areas located in the city's ETJ, to knowingly permit graffiti to remain on his or her property except where:
- Prior to any enforcement or removal efforts by the city, the property owner shall be informed in writing that the city, at its sole expense, shall remove the graffiti from the owner's property, provided the property owner gives written permission for removal of the graffiti and releases the city, its contractors, and/or volunteer personnel from liability in the performance of the graffiti removal by completing a permission and release from liability form.
- If the property owner gives written permission for the city to remove the graffiti, the city shall remove the graffiti at its sole expense.
- If the city provides notice in accordance with this division and the United States Postal Service returns the notice as "refused" or "unclaimed" or the property owner fails to respond to the city's offer on or before the 15th day after the date the property owner receives notice of the city's offer, the property owner shall be deemed to have declined the city's offer.
- If the property owner declines the city's offer to remove the graffiti, the city shall serve the property owner with notice to remove the graffiti from the property on or before the 15th day after the date the property owner receives notice to remove the graffiti. Failure of the property owner to remove the graffiti as described herein is a violation of this section.
(Code 1991, § 11-243; Ord. No. 3324, § I, February 2, 2010)
Sec. 38-144. - Notice.
- The notice requirements of this division must be given:
- In writing and delivered to the owner in person;
- By letter addressed to the owner at the owner's post office address, and sent certified mail, return receipt requested; or
- If personal service cannot be obtained or the owner's post office address is unknown:
- By posting the notice on or near the front door of each building on the property to which the violation relates; or
- By posting the notice on a placard attached to a stake driven into the ground on the property to which the violation relates, if the property contains no building; or
- By publication at least once in a newspaper of general circulation in the city.
- Utility companies may request to be notified electronically by submitting a written request to the city. The request for electronic notification must include the email address to which all notifications will be sent.
- Notice will be deemed to have been received:
- For personal service, as of the date the notice was given personally to the owner.
- For mailed notice, three days after it was mailed.
- For notice by posting, ten days after notice was posted.
- For electronic notification, one day after it was emailed.
(Code 1991, § 11-244; Ord. No. 3324, § I, February 2, 2010)
Sec. 38-145. - Abatement by the city; expenses & liens.
- The city shall be authorized to carry out the abatement of graffiti on any property at the cost to the owner as provided in section 28-143, provided that the property's owner or occupant refuses such abatement within 15 days of notification from an authorized representative of the city. Extensions may be granted at the discretion of the city manager or his duly designated agents.
- If the owner fails to abate the graffiti after notice from the city, then the city shall be authorized to carry out the abatement of the graffiti and to assess its expenses and place a lien on the property.
(Code 1991, § 11-245; Ord. No. 3324, § I, February 2, 2010)
Sec. 38-146. - Filing of statement of expenses incurred.
- After compiling the cost of the work and after charging the cost against the owner of the premises, the city manager or his duly designated agents, shall file a lien on the property if the owner of the premises fails to pay the expenses within 15 days of receipt of statement.
- To remove a lien from a property the owner must pay the cost of the lien, in addition to, a fee as provided in the fee schedule in appendix B to this Code, per property for administrative costs.
(Code 1991, § 11-246)
Sec. 38-147. - Abatement & cost recovery proceedings; lien.
Upon filing the lien with the county clerk, the city shall have a privileged lien upon the land described therein and upon which such improvements have been made, in accordance with the provisions of V.T.C.A., Health and Safety Code § 3421 et seq. Such liens shall be second only to tax liens and liens for street improvements to secure the expenditures so made, and shall bear ten% interest on the amount of such expenditures from the date of such payment by the city. For any such expenditures and interest, suit may be instituted by the city attorney and recovery and foreclosure of the lien may be had in the name of the city, and the statement of expenses made, or a certified copy thereof, shall be prima facie proof of the amount expended in such work or improvements. Upon payment of the full charges assessed against any property, pursuant to the procedure set forth in this section, the city manager or his duly designated agents shall be authorized to execute, for and on behalf of the city, a written release of the lien heretofore mentioned, such written release to be on a form prepared and approved in each case, by the city attorney.
(Code 1991, § 11-247)
Sec. 38-148. - Penalty.
- Any person violating a provision of this division shall be guilty of a class C misdemeanor.
- An offense under this division shall be punishable:
- By a fine of not less than $1, and not more than $100 for the first offense;
- By a fine of not less than $1, and not more than $250 for the second offense; and
- By a fine of not less than $1, and not more than $500 for all subsequent offenses.
(Ord. No. 3324, § I, February 2, 2010)
Sec. 38-149. - Defenses.
It is an affirmative defense to prosecution of this offense that the property owner:
- Has removed graffiti from that particular property three or more times within the preceding 12 months; and
- Has taken reasonable efforts to prevent the application of graffiti on that property.
(Ord. No. 3324, § I, February 2, 2010)