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HomeMy WebLinkAboutOrdinance 18771-08-2009ORDINANCE NO. I87'7l-as-zao~ AN ORDINANCE AMENDING DIVISION 4, "GRAFFITI," OF APPENDIX B OF THE CODE OF THE C[TY OF FORT WORTH TO CONFORM TO NEW STATE L.AW BY PROVIDING FOR OFFER TO REMOVE GRAFFITI AT NO COST, REVISING NOTICE REQUIREMENTS, AND REFINING PROCESS FOR PLACING A LIEN ON AFFECTED PROPERTY, PROVIDING THAT THIS ORDINANCE SHALL SE CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE, PROVIDING FOR A PENALTY CLAUSE, PROVIDING A SAVINGS CLAUSE, PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Fort Worth City Council has previously found that graffiti that is visible from a public place, public right-of--way, or the property of others is detrimental to the safety and welfare of the public; tends to reduce the value of private property; invites vandalism, additional graffiti, and other criminal activities; and produces urban blight adverse to the maintenance and continuing development of the City of Fort Worth; and WHEREAS, on March 29, 199'7, the City Council adopted ordinance 12931, which includes the ahove findings and declares the presence of certain graffiti to be a nuisance, requires property owners to remove graffiti, and allows the City to remove graffiti and assess the costs against a property if the owner does not remove the graffiti after being notified by the City to do so; and WHEREAS, the 81st Legislature passed House Bill 2086 ("HB2086"), to be effective September 1, 2009, pertaining to criminal street gangs and certain other criminal activity; and WHEREAS, HB2086 includes a provision allowing counties and cities to enact local laws related to graffiti abatement and requires that such laws include certain processes; and Page 1 of 8 ~'VHEREAS, the processes under the existing City ordinance, which was passed pursuant to the City's police powers as a home-rule municipality, differ from those outlined in H82086; and WHEREAS, the Fort worth City Council wishes to reaffirm its previous findings regarding ~affiti as a public nuisance and to revise the local ordinances to bring them into conformance with the requirements of the new state law. NO~~V, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF' THE CITY OF FORT WORTH, TEXAS, AS FOLLOWS: SECTION 1. That Section 11 A-91, "Failure to remove graffiti," of Appendix B, "Department of Code Compliance," of the Code of the City of Fort Worth, Texas, is hereby amended to make it an offense to fail to remove graffiti after receiving notice from the City to do so, to strike the current subsection (b) relating to an affirmative defense, and to add a new subsection {b} providing an exception as required under state law. Section 11 A-91 shall read: (a) Except as otherwise provided herein, a person commits an offense if the person is the owner of property and, after receiving notice from the city in accordance with section llA-93, knowingly fails to remove, or knowingly fails to cause the removal of graffiti from the property, when the graffiti is visible from: (1) A public place; (2) Public right-of--way; or (3) Another person's property. {b) In accordance with state law, a person is excepted from subsection (a) and from any requirement to remove graffiti from the owner's property if and only if: (1) the graffiti is located on transportation infrastructure; and (2) the removal of the graffiti would create a hazard for the person performing the removal. Page 2 of 8 SECTION 2. That Division 4, "Graffiti," of Appendix B, "Department of Code Compliance," of the Code of the City of Fort Worth, Texas, is hereby amended to add a new Section 11 A-92 to be titled "Clffer to Remove" to provide a process whereby the City offers to remave graffiti from an owner's property free of charge. Section 11 A-92 shall read: Sec. llA-92. Offer to remove. (a} Prior to issuing a citation under section 11 A-9I, sending a notice to abate in accordance with section 11 A-93, or taking action to abate pursuant to section 11 A-93, the city shall make an offer to remove the graffiti from the owner's property free of charge. The offer may be made orally or in writing. (b) If an offer is made orally, it must be made: (1) in person to the property owner; or (2) via telephone or telephone message to the property owner but only if the city has a current, valid telephone number for the property owner. (c) If an offer is in writing, it must be made: (1) in person to the property owner; (2) by first class United States mail or common or contract carrier addressed to the property owner at the property owner's address as contained in the records of the appraisal district in which the property is located; (3) by publication at least once in a newspaper of general circulation; (4) by posting the offer on or near the front door of each building on the property to which the offer relates; or (5) by posting the offer on a placard attached to a stake driven into the ground on the property to which the offer relates. (d) For purposes of making an offer, the property owner shall be the individual identified as the current owner of the property according to the records of the appraisal district in which the property is located. Page 3 of 8 {e} Service by publication under subsection {c}{3) may include more than one piece of property and more than one property owner so long as each address and owner is clearly identified. {fj An offer will be deemed to have been received: (I} For oral or written personal service, as of the date the offer was made in person to the property owner; {2} For telephone service, as of the date the offer was made via telephone or telephone message to the property owner; (3) For service via mail or common or contract carrier, three (3) days after the date that the offer was deposited in the mail or given to the carrier; {4) For service by publication, on the date that the offer was published in the newspaper; or (~) For service by posting, three {3) days after the date on which the offer was posted. {g) If an owner does not contact the city to accept an offer by 5:00 p.m. an the third business day a$er the date an offer is deemed received, it shall be presumed that the owner has refused the offer, and the city may proceed as though the owner actually refused the offer effective the date of that third day. SECTI(7N 3. That Division 4, "Graffiti," of Appendix B, "Department of Code Compliance," of the Code of the City of Fort Worth, Texas, is hereby amended to re-designate and amend Section 11 A-92, "Notice and abatement," to revise requirements regarding service of notice and to remove language allowing for an extension in order to reflect standards specified by state law. Section 11 A-92 shall read: Sec. 11A-93. Notice and abatement. {a) The city must notify the property owner of a violation of this article, and must give the owner the opportunity to remove the graffiti before: (1} Issuing a citation for a violation of section 11A-91; or Page4of8 (2) Entering the property and doing the work necessary to abate the nuisance. (b) Notice must require a property owner to remove the graffiti or cause the graffiti to be removed on or before the 15th day after the date that the property owner is deemed to have received the notice. (c) Notice may be given no earlier than the date: (1) on which the property owner actually refuses the city's offer of removal; or (2) on which the offer of removal is presumed to have been refused under Section 11 A-92(g}. (d} Notice must be in writing and must be given: (1) To the owner in person; (2) By letter addressed to the property owner at the property owner`s address as contained in the records of the appraisal district in which the property is located, and sent by certified mail, return receipt requested; or (3} If service cannot be obtained under subsection (d}(1) or (2}: a. By publication at least once in a newspaper of general circulation; b. By posting the notice on or near the front door of each building on the property to which the notice relates; or c. By posting the notice on a placard attached to a stake driven into the ground on the property to which the notice relates. (e) Notice will be deemed to have been received: (1) For personal service, as of the date the notice was given personally to the owner; (2} For mailed notice, three (3) days after the date on which the notice was deposited in the mail; (3) For notice by publication, on the date that the notice was published in the official newspaper; or (4) For notice by posting, ten (10} days after the date on which notice was posted. Page 5 of 8 (f} If a property owner does not comply with the notice to abate on or before the 15th day after the date on which the property owner is deemed to have received the notice, a citation for a violation of section 11A-91 may be issued. (g) If a property owner does not comply with the notice to abate on or before the 15th day after the date on which the property owner is deemed to have received the notice, the city may enter the property and do all work necessary to abate the graffiti. (h) If the city does the abatement work pursuant to subsection (g), the city shall initially pay for the work done, and shall charge the expenses to the owner of the property in accordance with a fee schedule adopted annually by the city council. SECTION 4. That Division 4, "Graffiti," of Appendix B, "Department of Code Compliance," of the Code of the City of Fort Worth, Texas, is hereby amended to re-designate and amend Section 11A-93, "Assessment of expenses; lien," to revise requirements regarding filing, content, and priority of liens in order to reflect standards specified by state law. Section 11A-93 shall read: Sec. llA-94. Assessment of expenses; lien. (a) The city may assess expenses for the abatement of graffiti pursuant to section 1 I A-93 against the real property on which the work was done. (b) To obtain a lien against the property, the city must file a statement of expenses with the county clerk of the county in which the property is located. By adoption of this ordinance, the City Council designates the City Manager or that individual's authorized representative to file the statement of expense on behalf of the City Council. (c) The statement of expenses must contain: (1) the name of the property owner, if known; (2} the legal description of the property, and (3) the amount of expenses incurred under Section 11A-93(h). (c) The lien is security for the expenditures made and interest accruing at the rate of ten (1 Q) percent per annum on the amount due from the date of payment by the city. Page 6 of 8 (d} The lien attaches to the property on the date on which the statement of expenses is filed in the real property records and is subordinate only to: {l) any previously recorded lien; and {2) the rights of a purchaser or lender for value who acquires an interest in the property before the statement of expenses is filed. (e} Alien may not be filed against real estate protected by the homestead provisions of the Texas Constitution. SECTION 5. That Division 4, "Graffiti," of Appendix B, "Department of Code Compliance," of the Code of the City of Fort Worth, Texas, is hereby amended to re-designate Section 1IA- 94, "Penalty," as Section I IA-95, "Penalty." SECTION 6. This ordinance shall be cumulative of all provisions of ordinances and of the Code of the City of Fort Worth, Texas (19$6), as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECTION 7. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and, if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. Page 7 of 8 SECTION 8. Any person, firm, or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not mare than Two Thousand Dollars ($2,000.00) for each offense. Each day that a violation exists shall constitute a separate offense. SECTION 9. All rights and remedies of the City of Fort Worth, Texas, are expressly saved as to any and all violations of the provisions of the ordinances amended herein, which have accrued at the time of the effective date of this ordinance and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 10. The City Secretary of the City of Fort Worth, Texas, is hereby directed to publish the caption, penalty clause and effective date of this ordinance for two (2) days in the official newspaper of the City of Fort Worth, Texas, as authorized by Section 52.013, Texas Local Government Code. SECTION 11. This ordinance shall take effect upon adoption and publication as required bylaw. °;~1PPROVED~AS TC~~F't~~lYl AND LEGALITY; Assistant City Aorney ADOPTED: Au~u t 25, 2009 EFFECTIVE: Page 8 of 8 City of Fart UVarth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 8125/2009 -Ord. No. 1877'(-08-2009 DATE: Tuesday, August 25, 2009 LOG NAME: 12GRAFFITI REFERENCE NO.: G-16672 SUBJECT: _ ___ Adopt an Ordinance Amending Article 4, "Graffiti," of Appendix B, of the Code of the City of Fort Worth to Conform to Newly Enacted State Law RECOMMENDATION: _ _ ___ It is recommended that City Council adopt the attached ordinance which amends Article 4, "Graffiti," of Appendix B, of the Code of the City of Fort Worth to conform to newly enacted State law. DISCUSSION: Pursuant to the police powers of a home-rule municipality, the Fort Worth City Council adopted Ordinance No. 12931 on March 29, 1997, to address the problem of graffiti within the City of Fort Worth. In the ordinance, the City Council made findings that graffiti that is visible from a public place, public right-of-way or the property of others is detrimental to the safety and welfare of the public, tends to reduce the value of private property, invites vandalism, additional graffiti and other criminal activities and produces urban blight adverse to the maintenance and continuing development of the City of Fort Worth. The ordinance enacted Division 4 of Appendix B of the City Code, which includes the listed findings and declares the presence of certain graffiti to be a nuisance. The ordinance requires property owners to remove graffiti and if the owners fail to remove the graffiti after being notified to do so, the City is authorized to remove the graffiti and assess the costs against the property. Earlier this year, the 81st Legislature passed House Bill 2086 {HB2086), which goes into effect September 1, 2009, and relates to criminal street gangs and certain other criminal activity. One provision of the Bill adds Section 250.006 to the Local Government Code, which allows counties and cities to enact local laws related to graffiti abatement but requires that such laws include certain processes and meet certain requirements. The processes under the City's current ordinance do not match the ones outlined in HB2086. Therefore, staff recommends revising the City code to bring the local ordinances into conformance with the requirements of the new State law. Notable features of the new state law include provisions that: 1) require a local ordinance to exempt a property owner from the duty to remove if the graffiti is on transportation infrastructure and removal would be hazardous; 2) state that a City ordinance cannot allow a notice to remove to issue unless the City has made an offer to remove the graffiti free of charge and the property owner has refused the offer; and 3) specify the process for a local government to recover expenses incurred in removing graffiti if the property owner has refused the offer to remove and ignored the notice to remove, including a method for filing a lien against the property. The attached ordinance is modeled on the language in NB2086 and includes the following changes: . Removes language from section 11A-91 that made it an affirmative defense if the property owner Logname: 12GRAFFITI Page I of 2 asked for City assistance with removal of the graffiti and the City failed to offer free assistance; adds the transportation infrastructure exemption required under state law; adds a new section 11A-92 addressing the required "offer to remove," and includes a presumption that a property owner refuses the City's offer to remove if he or she does not respond within three business days; Re-designates the current section 11A-92 as 11A-93, adds language clarifying what anotice-to- remove says, provides that anotice-to-remove cannot issue until the offer to remove has been presumed refused, revises haw notice can be served to mirror language in the new state law and adds a requirement that the City Council annually adopt a fee schedule for abatement charges that can be charged to a property owner and filed against the property; Re-designates the current section 11A-93 as 11A-94, designates the City Manager or that person's authorized representative to file statement of expenses liens in the real property records on behalf of the Council, specifies the contents of the statement of expenses lien in accordance with State law and changes the priority of these types of liens as specified in HB2486; and Re-destinates the current section 11A-94 as 11A-95. The Parks and Community Services Department operates the City's graffiti abatement program in coordination with the Police Department. FISCAL INFORMATION_t_CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. FR©M Fund/AccountlCenters Charles Daniels (6199) David Yett (7606) Denis McElroy (2758} Lognalne: 12GRAFFITI Page 2 of 2