G47-09 Ordinance No. G47-09
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AN ORDINANCE
AMENDING CHAPTER 9.17 OF THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED,
ENTITLED "GRAFFITI"
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS:
Section 1. That Chapter 9.17 of the Elgin Municipal Code, 1976, as amended, entitled
"Graffiti," be and is hereby amended to read as follows:
Chapter 9.17
GRAFFITI
Section:
9.17.010 Definitions
9.17.020 Prohibited Acts
9.17.030 Accessibility to Graffiti Implements or Paraphernalia
9.17.040 Parental Responsibility
9.17.050 Nuisance Declaration: Prohibition
9.17.060 Removal of Graffiti by Perpetrator
9.17.070 Removal of Graffiti by Property Owner or the City
9.17.080 Lien
9.17.080 Release of Lien
9.17.100 Voluntary Graffiti Abatement Program
9.17.110 Ease of Removal
9.17.120 Graffiti Prevention
9.17.130 Enforcement
9.17.140 Penalty.
9.17.010: DEFINITIONS:
"Aerosol Paint Container" shall mean any aerosol container that is adapted or made for the
purpose of applying spray paint or other substances capable of defacing property.
"Broad-tipped marker" shall mean any felt tip indelible marker or similar implement with a flat
or angled writing surface that, at its broadest width, is greater than one-fourth of an inch (1/4"),
containing ink or other pigmented liquid that is non-water soluble, and which does not constitute
a "permanent broad-tipped marker" under this section.
"Etching equipment" shall mean any tool, device, or substance that can be used to make
permanent marks on any natural or man-made surface including, but not limited to, a masonry or
glass drill bit, carbide drill bit, glass cutter, grinding stone, awl, carbide scribe, acid etching
solutions, or other etching tool or device capable of scarring any surface.
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• "Graffiti"' shall mean any writing, printing, marks, signs, symbols, figures, designs, inscriptions
or other drawings which are marked, scratched, etched, scrawled, painted, drawn or otherwise
placed on any exterior surface of a building, wall, fence, sidewalk, curb or other permanent
structure on public or private property and which have the effect of defacing the property.
"Graffiti implement or paraphernalia" shall mean any aerosol paint container, broad-tipped
marker, permanent broad-tipped marker, gum label, paint stick or graffiti stick, etching
equipment, or any other device capable of scarring or leaving a visible mark on any natural or
man-made surface, or any paper, design, scrapbook or drawings illustrating graffiti marks or
signs.
"Gum label" shall mean any sheet of paper, fabric, plastic or other substance with an adhesive
backing, including any type of sticker, which, when placed upon a surface, is not easily removed.
"Legal guardian" shall mean any person appointed as a guardian or given custody of a minor by
a Circuit Court of this State or similar court in any other state, but does not include a person
appointed as a guardian or given custody of a minor under the Illinois Juvenile Court Act.
"Minor" shall mean any natural person who has not yet attained eighteen (18) years of age.
"Paint stick or graffiti stick" shall mean any device containing a solid, non-water soluble form of
paint, chalk, wax, epoxy, or other similar non-water soluble substance capable of being applied
• to a surface by pressure and leaving a mark of at least one eighth of an inch (1/8") in width.
"Parent'' shall mean the lawful father or mother of an unemancipated minor, whether by birth or
adoption.
"Permanent broad-tipped marker" shall mean any felt tip indelible marker or similar implement
with a flat or angled writing surface that, at its broadest width, is one-fourth of an inch (1/4") or
greater, containing ink or other pigmented liquid that is non-water soluble, and which is labeled,
advertised, marketed or identified as being permanent in nature or otherwise as being difficult to
remove.
"Person" shall mean any individual, firm, partnership, association, corporation, company,
organization, receiver, trustee, or any other legal entity of any kind, the State of Illinois, or any
governmental unit.
'`Property" shall mean any real estate, including any improvements thereon, and any tangible
personalty.
"Retail commercial establishment" shall mean any business enterprise, including any
partnership, association, corporation, company, organization, or other legal entity, which offers
for sale or trade aerosol paint containers, broad-tipped markers, gum labels, paint sticks or
graffiti sticks, etching equipment, or any other graffiti implements or paraphernalia.
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• 9.17.020: PROHIBITED ACTS:
A. Defacement. It shall be unlawful for any person to write, paint, spray, chalk, etch or
otherwise apply graffiti on, or to deface, damage, disfigure, destroy or mar, any public or
privately owned buildings, signs, walls; permanent structures, places, or other surfaces
located on any public or privately owned property within the City.
The provisions of this Section shall not apply y to federal, state or local
1. Exception: p pp } ,
government officials and employees, or to authorized public or private utility
officials and employees, with respect to the posting or labeling of tags, notices, or
other markings on buildings or other property while in the course of their
employment or in the performance of their official duties.
2. Affirmative Defense: It shall be an affirmative defense to an alleged violation of
this subsection if such activity was undertaken with the prior written consent of
the owner of the property demonstrating that the owner was aware of the content
and method of the marking or inscription to be placed thereon; provided,
however, that no owner of property shall place or give permission to place on any
property, real or personal, that is in the public view, any sign, symbol, marking,
name, initial, work, diagram, sketch, picture or letter that incites violence by
reference to gang or criminal activity, depicts or expresses obscenity by referring
to sexual activity, or contains defamatory material about a public or private
• person.
B. Possession of Graffiti Implements or Paraphernalia.
1. It shall be unlawful for any person to have in his or her possession any graffiti
implement or paraphernalia while in, upon or immediately adjacent to any public
property, or while in or upon private property without the consent of the owner,
with the intent to paint, spray, chalk; etch or otherwise apply graffiti on, or to
deface, damage; disfigure; destroy, or mar, any public or privately owned
buildings, signs, walls, permanent structures, places or other surfaces located on
any public or privately owned property within the City in a manner prohibited by
this Chapter.
2. It shall be unlawful for any minor to have in his or her possession any graffiti
implement or paraphernalia while in, upon or immediately adjacent to any public
property, or while in or upon any private property without the consent of the
owner, whether the minor is or is not in a vehicle.
Exceptions:
a. A minor who is accompanied by his or her legal guardian or under the
immediate supervision of an adult teacher.
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b. A minor who is attending and actively enrolled in a class which requires
• use of such implements, for which written permission from the school is in
his or her possession.
9.17.030: ACCESSIBILITY TO GRAFITTI IMPLEMENTS OR PARAPHERNALIA:
A. Furnishing to Minors Prohibited.
1. It shall be unlawful for any person, other than a parent or legal guardian, to sell,
exchange, give, loan, or otherwise furnish, or cause or permit to be exchanged;
given, loaned, or otherwise furnished, any graffiti implements or paraphernalia to
any minor without the written consent of the parent or legal guardian of such
minor.
2. It shall be unlawful for any retail commercial establishment to sell any graffiti
implements or paraphernalia to any minor.
B. Signage Required. Every person who owns, conducts, operates or manages a retail
commercial establishment that offers for sale or trade graffiti implements or
paraphernalia shall:
1. Place a sign in clear public view at or near the display of such products or
materials stating as follows: "Graffiti is against the law. Any person who defaces
• real or personal property with paint or any other liquid or device is guilty of a
crime punishable by a fine of not less than One Thousand Dollars ($1,000.00)."
2. Place a sign in direct view of such persons responsible for accepting customer
payment for graffiti implements or paraphernalia stating as follows: "Selling
spray paint, paint sticks, broad-tipped markers, or other graffiti implements or
paraphernalia to persons under eighteen (18) years of age is against the law and
punishable by a fine of not less than One Thousand Dollars ($1,000.00)."
C. Identification. Every retail commercial establishment that offers for sale or trade graffiti
implements or paraphernalia shall require a photographic form of identification to be
produced by each person purchasing any graffiti implement or paraphernalia establishing
that such person is eighteen (18) years or older.
9.17.040: PARENTAL RESPONSIBILITY:
A. It shall be unlawful for any person eighteen (18) years or older, including a parent or
legal guardian, to willfully, knowingly or recklessly permit, cause or aid any minor to
violate any provisions of this Chapter.
B. It shall be unlawful for any parent or legal guardian of an unemancipated minor who
resides with such parent or legal guardian to neglect to restrain such minor from
• committing any act prohibited by this Chapter. A minor shall be deemed to have
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• committed any of the offenses enumerated in this Chapter with the knowledge, consent,
acquiescence, and permission of such minor's parent or legal guardian. The parent or
legal guardian of an unemancipated minor who resides with such parent or legal guardian
shall be liable for any acts of graffiti or any other violations of this Chapter committed by
said minor, and such parent or legal guardian shall be jointly and severally liable with the
minor for the payment of all fines, or any requirement of restitution or reparation, that
may be imposed by a court upon the minor defendant for a violation of this Chapter.
C. Parental responsibility under this Section shall apply where a parent or legal guardian has
received written notice of a violation of this Chapter, either by certified or registered
mail, return receipt requested, or by personal service of summons or notice to appear. In
any action brought pursuant to the provisions of this Chapter against an unemancipated
minor, the parent or legal guardian shall be made a party defendant.
9.17.050: NUISANCE DECLARATION, PROHIBITION:
Graffiti is declared to be a public nuisance. It is declared to be illegal for the owners, occupants;
or any other persons otherwise in control of any real property in the City to permit upon, allow to
remain; or otherwise fail to remove graffiti from any buildings, signs, walls, permanent
structures, places, or other surfaces located upon such real property, and each day on which
graffiti is found to exist on the property shall constitute a separate violation.
9.17.060: PAYMENT FOR REMOVAL OF GRAFFITI AND RESTITUTION BY
• PERPETRATOR:
Any person applying graffiti on any public or private property in violation of this Chapter shall
have the duty to pay for the removal of such graffiti. In addition, any violator of this Chapter
shall make restitution to the owner of the property involved for any damages or loss caused
directly or indirectly by the violator's offense. The failure of any person to pay for the removal
of graffiti, or to make restitution to the owner of the property involved, shall constitute an
additional violation of this Chapter. Where graffiti is applied by an unemancipated minor, the
parents or legal guardian of said minor shall also be responsible for the payment for such
removal, and for the payment of restitution.
9.17.070: REMOVAL OF GRAFFITI BY PROPERTY OWNER OR THE CITY:
If graffiti is not removed pursuant to Section 9.17.100; graffiti shall be removed pursuant to the
following provisions:
If the owner of any real property permits upon, allows to remain, or otherwise fails to remove
graffiti; the City shall be entitled to enter onto any such real property and remove such graffiti
upon ten (10) days' written notice, sent by certified mail, return receipt requested, in addition to
the imposition of any other applicable rights and penalties. Such notice shall advise the property
owner that unless the subject graffiti nuisance is abated or unless the property owner objects to
the entry onto the subject property in writing to the Director of Code Administration and
• Preservation on or before a date certain, which date shall not be less than ten (10) days from the
date of mailing, the City shall enter onto the subject property and abate the nuisance as provided
herein. In the event of a timely written objection as provided herein, the City shall file an action
in the Circuit Court complaining of a violation of the provisions of this Chapter, and requesting
an order authorizing entry onto the subject property to remove the graffiti and for such other
relief as may be provided by law. If no written objection is timely filed, the City, or such person
authorized to remove the graffiti on behalf of the City, shall be entitled to enter onto the subject
property and abate the nuisance by causing the removal of any graffiti located thereon. The City
or its authorized agent shall not be liable for any claims for damages resulting from working on
or otherwise removing graffiti from an owner's property pursuant to this Section.
9.17.080: LIEN:
Except as provided in Section 9.17.100 of this Chapter, if graffiti is removed by the City or by
someone directed to remove the graffiti on behalf of the City, a notice of lien of the cost and
expense thereof incurred by the City shall be recorded in the following manner:
The City or the person performing the service by authority of the City, in its or his own name,
may file a notice of lien in the office of the recorder of deeds in the county in which said real
estate is located. The notice of lien shall consist of a sworn statement setting out a description of
the real estate sufficient for identification thereof, the amount of money representing the cost and
expense incurred or payable for the service, and the date or dates when said cost and expense
was incurred by the City, and shall be filed within sixty (60) days after the cost and expense is
incurred.
• For the purpose of this Chapter, cost and expense shall be a sum equal to the actual cost of
graffiti removal, plus an additional administrative fee equal to the actual cost of graffiti removal
but not less than fifty dollars ($50.00) nor more than two hundred fifty dollars ($250.00), to
cover general overhead, inspection expenses, location of and notice to owner, and incidental and
related actions.
Upon filing of a notice of lien as provided herein, the City shall have a lien upon the land
described therein and upon which the graffiti removal or other service have been made to secure
cost and expenses thereof and nine percent (9%) interest per year on the amount, which interest
shall begin accruing sixty (60) days after the cost is incurred. Such lien shall be in addition to
and shall not constitute a waiver of any additional penalties, including, but not limited to, fines,
as may be available by law.
9.17.090: RELEASE OF LIEN:
After a notice of lien has been filed, a release of lien shall be issued upon payment of the cost,
expenses and interest as provided herein. The party seeking the release shall be responsible for
filing same in the office of the recorder of deeds for the appropriate county.
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• 9.17.100: VOLUNTARY GRAFFITI ABATEMENT PROGRAM:
The owner of any real estate may enter into the voluntary graffiti abatement program. To enter
into said program, the owner of real estate shall execute a written agreement with the City which
authorizes the City to enter onto a subject property at any time graffiti appears thereon. Such
agreement will also provide that the owner agrees to release and hold harmless the City and the
City's agent or contractor from any claims for damages resulting from working or otherwise
removing graffiti on a property. Graffiti removal done pursuant to the voluntary graffiti
abatement program shall be done free of charge to the owner of the real estate.
9.17.110: EASE OF REMOVAL:
A. Common Utility Colors And Paint Type. Any gas, electric, telephone, water, sewer,
cable, telephone and other utility operating in the City shall paint its above-surface metal
fixtures with a uniform paint type and color that meets with the approval of the Director
of the Department of Code Administration.
B. Conditions on Encroachment Permits. All encroachment permits or licenses issued by
the City shall, among such other things, be conditioned on the following:
1. The permittee's application of an anti-graffiti material to the encroaching object
of a type and nature that is acceptable to the Director of the Department of Code
Administration, or the Director's designee:
• 2. The permittee's immediate removal of any graffiti:
I The City's right to remove graffiti or to paint the encroaching object: and,
4. The permittee's providing the City with sufficient matching paint and/or anti-
graffiti material on demand for use in the painting of the encroaching object
containing graffiti.
C. Conditions on Land Use Development. In approving any subdivisions of property,
zoning map amendments, conditional use permits, variations, or other similar land use
entitlements, the City shall consider imposing any or all of the following conditions, or
other similar or related conditions, as a condition for approval of the subdivision, zoning
map amendment, special use permit, variance or other similar land use entitlement:
1. Use Of Anti-graffiti Material. Developer shall apply an anti-graffiti material of a
type and nature that is acceptable to the Director of the Department of Code
Administration, or the Director's designee, to the publicly viewable surfaces on
the improvements to be constructed at the site deemed by the City Manager, or
designee, to be likely to attract graffiti:
2. Right Of Access To Remove Graffiti. Developer shall grant to the City the right
• of entry over and access to any such parcels, upon forty-eight (48) hours posting
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• of notice by authorized City employees or agents, for the purpose of removing or
painting over graffiti:
3. Supply City With Graffiti Removal Material. Developer shall, for a period of two
(2) years after final approval of any applicable land use relief, provide the City
with sufficient matching paint and/or anti-graffiti material on demand for use in
the painting over or removal of graffiti; and/or,
4. Owner To Immediately Remove Graffiti. Developer shall, either as part of the
general conditions, covenants and restrictions, or separate covenants recorded
against individual lots, prior to resale of any of the parcels, covenant in a form
satisfactory to the City that any subsequent owner of such lots shall immediately
remove any graffiti placed thereon.
9.17.120: GRAFFITI PREVENTION:
Design Of Potential Graffiti-Attracting Surfaces. Any applicant for design review or subdivison
approval, variations, conditional use permits, development agreement, or other form of
development or building permit shall, to the extent deemed feasible by the Director of the
Department of Code Administration, or the Director's designee, design any building structures
visible from any public or quasi-public place in such a manner so as to consider prevention of
graffiti, including, but not limited to, the following:
• A. Use of a protective coating to provide for the effective and expeditious removal of
graffiti;
B. Use of additional lighting;
C. Use of nonsolid fencing;
D. Use of landscaping designed to cover large expansive walls such as ivy or similar
clinging vegetation; and/or,
E. Use of architectural design to break up long, continuous walls or solid areas.
9.17.130: ENFORCEMENT:
It shall be the duty of the Director of the Department of Code Administration and Preservation to
enforce the provisions of this Chapter and to administer the preparation and filing of all notices
and demands provided herein.
9.17.140: PENALTY FOR VIOLATION:
Any person, firm or corporation violating any of the provisions of this Chapter shall be punished
by a fine of not less than one thousand dollars ($1,000.00) for each offense. Any such fine shall
• be in addition to the obligation to pay the costs of graffiti removal and administrative costs as
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provided in this Chapter, and to make restitution to any private property owner or to the City for
• damages or loss caused by, or costs incurred as a result of, the violator's offense. In the case of a
minor; the parents or legal guardian shall be jointly and severally liable with the minor for the
payment of all fines, the payment of all costs of graffiti removal and administrative costs, and
any costs for restitution as provided in this Chapter.
Section 2. That all ordinances or parts of ordinances in conflict with the provisions of
this ordinance be and are hereby repealed.
Section 3. That this ordinance shall be in full force and effect upon its passage and
publication in the manner provided by law.
C 1
Ed SchcZk, Mayor
Presented: August 12, 2009
Passed: August 12, 2009
OmnibusVote: Yeas: 7 Nays: 0
Recorded: August 13, 2009
Published: August 14, 2009
Attest:
a
Diane Robertson, City klerk
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