(1) Definitions. For the purpose of this Chapter the following definitions apply:
(a) "Property" as used herein shall mean all property, public and private, with or without apparent ownership, real and personal property, and anything temporarily or permanently affixed thereto or thereon, including but not limited to structures, plant life, signs, banners, etc.
(b) "Graffiti" as used herein shall mean the painting, writing, drawing, application of stickers or logos of any material, or otherwise marking of any property without the express written consent of the true owner, or that is not otherwise allowed by ordinance, which defaces, detracts, or diminishes the value or reasonable appearance of the property. For purposes of Section 10-11-1 et seq., of the Utah Code (as amended), graffiti is deleterious and/or unsightly.
(c) "Gang" as used herein shall mean a group or association which condones, encourages, facilitates, or promotes among its membership:
(i) Unlawful activities;
(ii) The establishment of alleged territorial areas beyond their own actual property ownership, wherein they intend to exclude those that otherwise may lawfully enter in or proceed through; or
(iii) Divisiveness among other such groups, neighborhoods, races, colors, or nationalities.
(d) "Gang Graffiti" as used herein shall mean, in addition to the definition for graffiti given herein, graffiti that identifies, indicates, infers, or communicates in any way that it was done by a gang or member thereof, is about a gang or member thereof, or is to a gang or member thereof. The criteria to be used in making such a determination may include, but is not limited to, content (whether words, names, letters, initials, signs, pictures, or symbols), style of writing, colors used, location of the graffiti and that location's history regarding graffiti, how it was placed in reference to existing graffiti or gang graffiti (such as overstriking other graffiti or in response to other graffiti or gang graffiti), absence of or overstriking of certain letters, or the absence of particular colors.
(2) Graffiti prohibited. It is unlawful for any person to place, or assist, encourage, aid or participate, in the placement of, or cause to be placed, or be in attendance with others and acquiescing in the placement of graffiti upon any property.
(3) Penalties; Enhancement.
(a) Any violation of any provision of this ordinance which causes, or is intended to cause a pecuniary loss of Five Hundred Dollars ($500.00) or less shall be a class B misdemeanor and is punishable as such. Any person found guilty of violating this ordinance shall be punished as follows:
(i) Upon a first conviction a minimum fine of Three Hundred Dollars ($300.00) shall be imposed.
(ii) Upon a second conviction a minimum fine of Five Hundred Dollars ($500.00) shall be imposed.
(iii) Upon a third conviction a minimum fine of Seven Hundred Dollars ($700.00) shall be imposed.
(iv) Upon a fourth and subsequent conviction a minimum fine of Nine Hundred Dollars ($900.00) shall be imposed.
Upon any of the foregoing convictions restitution shall be ordered in an amount sufficient to enable the victim or victims to restore the property to the condition as it existed prior to the violation. Any incarceration, probation, or other conditions of sentencing are left to the discretion of the sentencing court. It is recommended that for second and subsequent convictions the court weigh seriously the imposition of a jail sentence. It is also recommended that if the court, in its discretion, imposes any community service in lieu of a fine as penalty and/or a jail sentence, that said community service be assigned in the area of graffiti removal.
(b) Gang enhancement provision. The fines and penalties set forth in paragraph (3) of this Section shall be enhanced by an amount equal to twenty percent (20%) of the fine to otherwise be imposed under any one of the following criteria:
(i) If the actor is shown, by clear and convincing evidence at a sentencing hearing, to be a member of a gang, to hold oneself out to be a member of a gang, or to purposely appear to be a member of the gang, regardless of whether the graffiti was gang graffiti; or
(ii) If the graffiti, which formed the basis of the actors conviction was shown, by clear and convincing evidence at a sentencing hearing, to be gang graffiti, regardless of whether the actor was associated with a gang.
(4) Graffiti removal; Private property.
(a) Owners of property, structures, buildings, or natural features upon which graffiti has been placed shall remove the graffiti within five (5) calendar days after it was placed. If the owner of said structure fails to remove such graffiti within the required five (5) calendar days, owner shall be given written notice sent by certified mail that if not removed within five (5) days after notice, said graffiti may be removed by the City at the expense of the owner. The City shall do so at the expense of a property owner for the actual and reasonable costs of cleaning the graffiti, including labor.
(b) The owner may appeal the order requiring graffiti clean-up by filing an appeal with the City Manager or designee within five (5) days of the date of the order. The City Manager or designee may sustain, modify, or reverse the order based on evidence regarding the following criteria: history of graffiti being placed on the same location and the owner's timely removal thereof; the extent and frequency of graffiti incidents; owner's ability to bear the costs of removal; general upkeep of the property; and other related, articulated criteria.
After the time for appeal has expired and the property is cleaned by the City, if the owner fails to make payment to the City Treasurer within twenty (20) days of the date of billing, the City may either cause suit to be brought in an appropriate court of law, or certify the amount to the County Treasurer for inclusion in the tax notice of the property owner.
In the event collection of expenses of removal are pursued through the court, the City shall sue for and receive judgment for all expenses of removal, together with reasonable attorney's fees, interest, and court costs, and shall execute upon such judgment in the manner provided by law.
In the event that the City elects to certify the expenses of removal to the County Treasurer for inclusion in the tax notice of the property owner, an itemized statement of all expenses incurred in such removal shall be delivered to the County Treasurer within ten (10) days of the completion of the graffiti removal.
Ord. No.97-35, Recodified, 6/19/1997