Consideration and Adoption of Ordinance No. 2014-13:  An ordinance of the Council of the City of Flagstaff, Arizona amending Flagstaff City Code Title 6, Police Regulations, Chapter 6-01, General Offenses, by adding a new Section 6-01-001-0004, Graffiti Prohibited; and amending Title 7, Health and Sanitation, by adding a new Chapter 7-01, Graffiti Abatement.

Ordinance 2014-13 will amend City Code Chapter 6-01 by adding a new section to prohibit graffiti within the City. The ordinance also adds a new Chapter 7-01 to provide standards for the removal and abatement of graffiti, including the recovery of expenses by the City for abatement.

Subsidiary Decisions Points: This ordinance provides tools and procedures that will enable City staff to more comprehensively deal with an increase of graffiti within our community, thereby ensuring the preservation of property values, a reduction in urban blight, and causing the removal of graffiti within a reasonable period of time.

None. The adoption of Ordinance 2014-13 will not result in increased costs to the Comprehensive Planning and Code Administration Program. Currently $7,750 is allocated for graffiti removal by volunteers as part of the Graffiti Busters Program, including costs associated with the graffiti van, purchase of materials and supplies, etc.

11. Effective governance

The idea of developing improved standards for the abatement of graffiti was considered when a proposed Property Maintenance Ordinance was first discussed with the Council some years ago. In a work session on November 12, 2013 in which an update on various distressed properties was presented to the Council, a majority directed staff to prepare amendments to the City Code to provide tools and standards for graffiti removal and abatement. At the Council's June 17, 2014 meeting, Council directed staff to reconsider three sections of Ordinance 2014-13. These are described in further detail below.

Please see Expanded Options and Alternatives below.

The prevalence of graffiti within the City of Flagstaff has been an ongoing concern to the Flagstaff Police Department and City residents for many years. A volunteer program to abate graffiti was initially developed under the Police Department, but over time and due to limited resources, the program became difficult to administer and fund. However, when the Sustainability and Environmental Management enforcement staff were combined with the code enforcement staff in the Community Development Division, staff saw an opportunity to reinvigorate this program under the leadership of Tom Boughner, Code Compliance Manager. Following a presentation to the Council by Lt. Frank Higgins of the Police Department on November 21, 2012 on the issues and challenges associated with graffiti and its abatement during the FY13 budget process, funds were allocated for the creation of a "Graffiti Busters" graffiti removal and abatement program. The kick-off for this event was held on May 3, 2013 as illustrated in the attached photographs.

The Graffiti Busters program has been effective in that volunteers are deployed to roll out or otherwise remove graffiti on public and private property. The number of cases abated by year is summarized below (Note that these totals under count the number of actual sites abated because not all abatements (such as on street poles or small utility cabinets) were documented:

1. If graffiti is observed on private property, staff and volunteers seek the property owner's permission before entering the property to remove the graffiti. When the property owner is out-of-town, on vacation, or lives in another state, it sometimes takes a long time to secure this permission. It has been proven in numerous studies by police departments across the country that prompt removal of graffiti is critical to avoid its detrimental impacts on a city and its residents, and to prevent the spread of additional graffiti. In one case a downtown offensive graffiti remained in place for over two weeks before permission was secured for staff and/or volunteers to remove it. The proposed ordinance allows staff and volunteers to enter private property to abate graffiti after notice has been provided to the property owner.
2. Consistent with similar ordinances adopted by cities in Arizona, Ordinance 2014-13 requires property owners to remove any graffiti on their property visible from public or quasi-public spaces  within a reasonable period of time. This will save the use of City resources to abate this graffiti.
3. The proposed ordinance provides a method for the recovery of costs associated with the removal of graffiti by the City.

1. A comprehensive definition of graffiti;
2. A statement that graffiti is prohibited on, for example, walls, buildings, utility structures, etc. when it is viewed from public or quasi-public property;
3. A provision that the person who created the graffiti, if caught in the act, is required to remove it within 24 hours after notice by the City or the property owner;
4. If the graffiti is not removed by the perpetrator (because the individual may be unknown), then the property owner is required to remove the graffiti within 5 calendar days after notice has been served by the City;
5. If the property owner fails to abate the graffiti within 5 calendar days the City may abate the graffiti and may bill the property owner for the costs of the abatement;
6. If a property owner has an active maintenance program that includes graffiti removal (as property management companies often do), then the graffiti must be scheduled to be removed within 10 calendar days;
7. An appeal procedure is established in which an aggrieved person may file an appeal to the City Manager within 5 calendar days after receipt of the notice of violation;
8. In the event that the property owner fails to abate the graffiti as required in the notice of violation or fails to appeal the notice within 5 days, the City may proceed to abate the graffiti and may bill the owner for the costs of the abatement;
9. The City or its authorized contractor is authorized to enter private property and abate graffiti visible from public or quasi -public spaces located within or on it;
10. Any person found guilty of violating the prohibition on graffiti established in Section 6-01-001-0003 is guilty of a class 1 misdemeanor.

As an outcome from the Council's June 17, 2014 meeting, staff was asked to reconsider and possibly amendment the following sections of Ordinance 2014-13.

• Section 7-01-001-0001 (Purpose and Intent): A - Reconsider the definition of graffiti from the perspective of a presumption that a property owner has not granted permission for the graffiti. The definition of graffiti has been amended to further clarify the presumption that a property owner has not granted permission when graffiti is applied to the surface of a wall or structure – please refer to page 2 of the attached ordinance.
• Section 7-01-001-0003 (Graffiti Removal): B - Clarification of "actual notice". Staff has modified the second paragraph of this subsection to better clarify the distinction between “actual notice” and “notice by first class mail”. Consistent with the desire to expedite the removal of graffiti, staff recommends that the 5 calendar day requirement should be retained. Actual notice has been clarified as “the giving of notice directly in person, by telephone, or e-mail”. This may not occur immediately following receipt of a report of the graffiti based on staff demands at the time (egregious graffiti, such as that containing profanity will be addressed as the highest priority). Thus a property owner may have more time to remove the graffiti. If notice is sent via first class mail to the property owner, they have 5 calendar days after receipt of the notice to remove the graffiti. As the notice also will include information on the City’s graffiti removal assistance program, staff recommends that no further amendments to this section are needed.
• Section 7-01-001-0006 (Right of City to Remove):  Councilmember Oravits suggested that staff amend this section to include a clearly defined threshold to define the circumstance when a lien may be placed on the subject property to cover the cost of graffiti abatement by the City. After doing some follow-up research staff has determined that the language proposed in this section of Ordinance 2014-13 came from the City of Phoenix’s graffiti ordinance. Interestingly, the City of Tucson has a different approach – regardless of the amount of graffiti on a property, the City contracts with an independent contractor and pays for the removal of the graffiti, i.e. the property owner is not responsible for doing so. The justification for this approach is the City’s desire to ensure a safe, clean, and graffiti-free City. This is certainly an approach Flagstaff could emulate but there are budget and staffing considerations if we should do so.
  
  Staff suggests that Section 7-01-001-0006 as written should not be amended and no threshold should be included. A principal reason for this is that the lien serves as the only threat of a penalty in the case when a property owner fails to abate graffiti as required in a notice of violation. Stated another way, the lien serves in lieu of civil penalties, which in staff’s opinion is the appropriate approach to take. If a threshold is established, for example at 10 sq. ft., then a property owner who has 11 sq. ft. or more of graffiti could be subject to a lien for failing to abate the graffiti, whereas if the area of graffiti was less than 10 sq. ft., then no lien would be served and the City volunteer program would abate the graffiti. This essentially establishes as a policy, therefore, that all property owners are entitled to a max. of 10 sq. ft. of graffiti that will be removed by the City. This means that City staff would have to record the area of graffiti abated on all properties, as well as the address, etc., the tracking of which would be complicated and time consuming. Staff also considered a possible voucher program – the idea came from a city in Victoria, Australia; but this too will involve considerable staff time.
  
  In summary, staff suggests that Section 7-01-001-0006 as written should not be amended and no threshold should be included.
  
  Councilmember Oravits also asked for an explanation of how the lien amount would be calculated, especially with regard to determining the cost of staff versus volunteer time. Section 7-01-001-0006 (Right of City to Remove) states that a lien may be placed on the subject property for the actual cost of the graffiti removal plus 10 percent of actual cost for administrative overhead. This is the same formula for calculating a lien that was recently adopted by Council as an amendment to the Abatement of Dangerous Buildings Code. The actual cost of graffiti removal is fairly easy to determine, although it will vary based on the area of the graffiti on the structure or building surface and the type of surface from which the graffiti is being removed. It would include, for example, the cost of materials (i.e. rollers, brushes, scrapers, solvents if needed, etc.), the cost of using a power washer or other tool if needed, and when applicable, the cost of paint. Any recycled paint received from the City's recycling facility would not be calculated into the lien amount. However, if the surface where the graffiti is located warrants more careful attention (such as on a Malapai rock wall), then fairly expensive specialized aerosol paints are used to ensure a good color match. Vehicle costs  would also be included based on the standard rate used in the City, currently about 52 cents per mile. If volunteers are used exclusively to remove the graffiti there would not be any cost associated with their time. However, if the graffiti is of a nature that it requires prompt removal (it includes obscene symbols or foul language), then staff may act to abate the graffiti if volunteers are not immediately available. The cost of staff time would be based on their hourly full burden rate. Note that this latter scenario would only occur rarely as for the most part we’ve been fortunate to find volunteers at short notice. Once these costs have been determined, an additional 10 percent will be added to partially cover administrative costs. A memo from Tom Boughner, Code Compliance Manager, providing additional information on this subject is attached.

Graffiti has been determined to be obnoxious, contributes to neighborhood blight and deterioration, provides a communication system for gangs and other vandals, damages property, and constitutes a public nuisance. Further, graffiti must be abated as quickly as possible in order to avoid its detrimental impacts on the City and its residents, and to prevent the spread of additional graffiti.

Not applicable.

The incidents of graffiti on businesses, homes, utility cabinets, fences, and other structures has increased significantly in recent years. As a result Flagstaff residents have expressed concern that the continued presence of graffiti erodes community spirit and adversely impacts the overall attractiveness of their neighborhoods. It has also been determined that graffiti is a demoralizing visual symbol detrimental to the safety and welfare of the public as it tends to reduce the value of private property, invites vandalism, additional graffiti and other criminal activities, and it allows gangs to communicate threats. In general, graffiti produces urban blight which is adverse to the maintenance and continuing development of the City.

Ordinance 2014-13 is intended to ensure the prompt removal of graffiti. It also provides the Flagstaff Police Department with additional enforcement tools to protect public and private property from acts of graffiti vandalism and defacement as well providing code enforcement personnel with the tools necessary for compelling property owners to remove graffiti within a reasonable amount of time or, in the alternate, for the removal of graffiti by City staff or volunteers within a reasonable amount of time.

Inform - over the past few months when staff has been meeting with various local stakeholders and organizations such as NAAR, NABA, Chamber of Commerce, etc. the issue of graffiti has been discussed. Community residents have been informed of the proposed amendments to the City Code to provide more effective tools for graffiti removal and abatement by notice on the City's webpage and traditional noticing locations of the Council's meetings on these amendments.

OPTION 1: Adopt Ordinance 2014-13 to amend City Code Chapter 6-01 by adding a new section to prohibit graffiti within the City, and add a new Chapter 7-01 to provide standards for the removal and abatement of graffiti.

OPTION 2: Do not adopt Ordinance 2014-13, and, therefore, maintain the status quo without adequate standards to require the removal and abatement of graffiti.