Chapter 193: Graffiti - Village of Port Chester, NY

As used in this chapter, the following terms shall have the meanings indicated:

Any letter, word, name, number, symbol, slogan, message, drawing, picture, writing or other mark of any kind made on property without the permission or authority of the owner.

GRAFFITI IMPLEMENT

Any aerosol spray paint container, broad-tipped marker with a marking surface greater than 1/2 inch or more in width, etching equipment or other device capable of scarring or leaving a visible mark on any property.

OWNER

Any and all persons with legal and/or equitable title to a property in the Village, as reflected by name and address in the records of the Town Assessor.

PERSON

Any natural person, partnership, corporation, company, association, joint-stock company, or other entity capable of being sued.

PROPERTY

Any building or structure, fence, wall, abutment, bridge, tunnel, sign, street or traffic sign, utility box, utility pole, waste receptacle, newsrack, monument, playground equipment, and all other articles of personal property or real property upon which one can write, draw, paint, etch or otherwise make a mark, whether privately owned or owned by the Village of Port Chester.

VIOLATOR

Any and all persons who commit the act of placing graffiti within the Village limits, as prohibited by this chapter.

§ 193-2 Prohibited acts.

No person shall write, paint, or draw any inscription, figure, or mark of any type on any public or private building or structure or other real or personal property, owned, operated, or maintained by a governmental entity or any agency or instrumentality thereof or by any person, firm, or corporation, unless the express prior written permission of the owner, owner's agent, manager or operator of the property has been obtained.

§ 193-3 Possession of graffiti implements.

No person shall possess any graffiti implements with the intent to violate the provisions of this chapter.

No person under the age of 18 shall have in his or her possession any graffiti implements while on any public property, highway, street, alley or way except in the company of a supervising adult over the age of 18.

No person under the age of 18 shall have in his or her possession any aerosol graffiti implements while on any private property unless the owner, agent, or manager, or person in possession of the property knows of the minor's possession of such aerosol container or marker and has consented to the minor's possession while on his or her property.

§ 193-4 Accessibility to graffiti implements.

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, broad-tipped indelible markers, or other graffiti implements.

It shall be the duty of any person who sells or offers for sale any graffiti implement to require from any person desiring to purchase such articles and appearing to be less than 18 years of age identification and proof of such person's age before selling or delivering same to such person.

Evidence that a person, his or her 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.

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

(1)

Place a sign in clear public view at or near the display of such products stating:

	Any person defacing real or personal property without the express written consent of the owner with paint or any other liquid, device, or any other graffiti implement is subject to imprisonment of up to 15 days and/or a fine of up to $1,000.
	Local Law No. 3-2010 of the Village of Port Chester

(2)

Place a sign in the direct view of such persons responsible for accepting customer payment for aerosol containers of spray paint or broad-tipped indelible markers stating:

	It is a violation of the law to sell aerosol containers of spray paint, broad-tipped indelible markers, or any other graffiti implements to persons under 18 years of age; punishable by civil fine of up to $400 and/or injunction from a court of competent jurisdiction.
	Local Law No. 3-2010 of the Village of Port Chester

(3)

Store or cause such aerosol containers or marker pens to be stored either;

(a)

In the direct line of sight from the cash-register work station or any other work station that is normally continuously occupied while the store is open; or

(b)

In a place not accessible to the public in the regular course of business without employee assistance, pending legal sale or disposition of such marker pens or paint containers.

§ 193-5 Removal of graffiti.

The owner or agent of the owner of premises upon which graffiti has been placed shall remove such graffiti or repaint the defaced surface of the property using the same color as previously existed on the surface or repainting the entire property within 15 business days after written notice of violation by personal service or by posting and regular first-class mail on the owner or agent or other responsible party of the graffiti condition as a nuisance, ordering the abatement of same or be in violation of this chapter and subject to enforcement and the penalties prescribed herein.

The owner or agent of the owner may retain a contractor to remove or repaint the graffiti at his or her own expense.

Written application may be made by the owner or agent to the Village Manager or his or her designee for an extension of time to remove or repaint the graffiti on the grounds of severe economic hardship or for a waiver of this removal requirement if the subject property has been victimized by graffiti at least once within any calendar year and, during such time, has removed or otherwise attempted to prevent such graffiti. On such application, the Manager or his or her designee may, in his or her discretion, grant an extension of time of such period as he or she may deem just conditioned upon the owner's or agent's assistance in implementing preventative measures recommended by the Police Department to minimize a further recurrence of graffiti on the premises.

In the event that the graffiti condition is not cured or corrected within the written notice period, of 15 business days, or otherwise arranged with the Village as provided herein, the Village may commence enforcement proceedings for violation of this chapter.

§ 193-6 Enforcement.

The provisions of this chapter shall be enforced by officers of the Police Department, officers of the Department of Code Enforcement, and inspectors of the Building Department.

§ 193-7 Penalties for offenses; enforcement; abatement by Village.

Any person found in violation of §§ 193-2 and 193-3 shall be:

(1)

Punished by a fine of $250 for the first offense; $500 for the second and $1,000 for each subsequent offense or by imprisonment for a term not to exceed 15 days, or both, at the discretion of the court.

(2)

Subject to restitution to the victim for damage or loss caused directly or indirectly by the defendant's offense.

(3)

Subject to perform monitored community service in the removal of graffiti.

Any person found in violation of § 193-4 shall be:

(1)

Punished by a fine of $200 for a first offense and a fine of $400 for subsequent offenses; and

(2)

Subject to a civil action in a court of competent jurisdiction commenced by the Village Attorney or other duly authorized official of the Village of Port Chester in the name of the Village for an amount of $200 for a first offense and in the amount of $400 for a subsequent offense; and

(3)

Subject to the Village making application for an injunction from a court of competent jurisdiction enjoining the sale of aerosol containers of spray paints, broad-tipped indelible markers, and/or other graffiti implements for a period up to two years where three violations or more occur within any calendar year.

Any person in violation of § 193-5 shall be:

(1)

Punished by a fine of $100 for a first offense, $250 for a second offense and $500 for a subsequent offense; and

(2)

Subject to a civil action in a court of competent jurisdiction commenced by the Village Attorney or other duly authorized official of the Village of Port Chester in the name of the Village for an amount of $100 for a first offense, $250 for a second offense and $500 for a subsequent offense; and

(3)

Subject, after due notice and an opportunity to be heard provided before the Village Manager or his or her designee, to the Village's entry upon the subject premises causing the abatement of the graffiti condition and thereafter charging the property owner, or the property owner's manager or agent or the person in possession or control of such property, for the expenses incurred by the Village. The Village Attorney is authorized to commence proceedings in a court of competent jurisdiction to recover all expenses, which expenses shall include but are not limited to all administrative personnel costs, attorneys' fees and costs related to enforcing this chapter and collecting such expenses; and/or the Village may record a lien in the public records, which lien shall be for all expenses, including but not limited to attorney's fees and costs related to enforcing this chapter, and may be recorded and enforced as other such liens may be imposed, recorded and enforced by the Village.

§ 193-8 Emergency removal by Village.

If the Village Manager determines that any graffiti is an imminent threat to the health, safety or welfare of the public and is unable to provide notice to the owner or agent of the subject premises by personal service after at least two attempts to do so, then 48 hours after the latter of the mailing of the notice described herein by certified and first-class mail to the person owning the property, acting as agent or manager for the owner of such property, and the posting of the notice in a conspicuous place on the property, the Village may remove or cause the graffiti to be removed. In no case shall the Village paint or repair any more extensive area than that where the graffiti is located. The Village shall not be required to restore the obscured area to its original condition (i.e., color, texture, etc.).

§ 193-9 Exemption.

This chapter shall not be construed to prohibit temporary, easily removable chalk or other water-soluble markings on public or private sidewalks, streets or other paved surfaces which are used in connection with traditional children's activities, such as drawing or bases for stickball, kickball or handball, hopscotch and the like, nor temporary, easily removable chalk or other water-soluble markings used in connection with any lawful business or public purposes or activity.