Town of Babylon, NY Graffiti

Any felt-tip marker or similar implement containing a fluid or coloring matter that is not water soluble and which has a flat or angled writing surface of 1/2 inch or greater.

DEFACE

To mar the face or surface of, disfigure, injure or spoil the appearance of.

GRAFFITI

An inscription, figure, mark or design which is written, scratched, painted or drawn on a wall, building, monument, statue, rock or any other surface of real or personal property.

§ 136-2 Legislative intent.

The Town Board hereby finds and declares that the use of broad-tipped indelible markers, aerosol spray paint cans or other marking devices used in connection with the writing of graffiti on walls, public and private buildings, monuments, statues and other structures has become a major problem in the Town of Babylon and is harmful to the general public and violative of the public health, peace, safety and welfare of the residents of the Town of Babylon. The Board also finds graffiti indicating bias and/or hatred against people based upon their race, religion, color, disability, sexual orientation, national origin or ancestry to be particularly repugnant, having a divisive effect on the community, which is extremely harmful to the general public.

[Amended 8-17-1993 by L.L. No. 8-1993]

The Town Board further finds, based upon past experience, that such defacement of property is most often committed by persons under 18 years of age using aerosol spray paint cans and broad-tipped indelible markers; that such persons rarely have a legitimate need for such aerosol cans or markers; that, where such a need exists, such aerosol cans or markers may be furnished by a parent or guardian; and, therefore, that within the Town the sale of aerosol spray paint cans and broad-tipped indelible markers should be prohibited and persons engaged in the retail sale of such aerosol cans and markers should be required to take reasonable steps to prevent the theft of such cans and markers.

§ 136-3 Prohibited acts.

No person shall write, paint or draw any word, inscription, design, figure or mark of any type or otherwise mar or deface any property, real or personal, without the express written permission and consent of the owner or proprietor thereof or, in the case of public property, of the person having the charge, custody or control any graffiti upon:

(1)

Any property, public or private, building, church, synagogue, statue, monument, office, passenger or commercial vehicle, public passenger vehicle, bridge, mass transit equipment or facility, dwelling or structure of any kind, including those in the course of erection or construction.

(2)

The doors, windows, steps, railing, fencing, balconies, stairs, balustrades, porches, halls, walls or sides of any enclosure thereof or any movable property.

No person shall disfigure, cut, cover or rub with or otherwise place filth or excrement of any kind on any property stated in Subsection A(1) or (2) without the express written permission and consent of the owner or proprietor thereof or, in the case of public property, of the person having the charge, custody or control thereof.

No person shall carry an aerosol spray paint can or broad-tipped indelible marker into any public or private building or facility with the intent to violate the provisions of this chapter.

[Amended 8-17-1993 by L.L. No. 8-1993]

§ 136-4 Sale of aerosol paint cans and indelible markers.

[Amended 8-17-1993 by L.L. No. 8-1993]

No person shall sell or offer to sell an aerosol spray paint can or broad-tipped indelible marker to any person under 18 years of age, unless accompanied by a parent or guardian.

Any person selling or offering for sale aerosol spray paint cans shall only display and/or offer for sale aerosol spray paint cans in a secure enclosed display or behind a sales counter which is not accessible to the public.

Any person selling or offering for sale aerosol spray paint cans or broad-tipped indelible markers shall post in a conspicuous place a sign which clearly states: "It is unlawful to sell aerosol spray paint cans or broad-tipped indelible markers to any person under the age of 18 years."

§ 136-5 Penalties for violations.

[Amended 8-17-1993 by L.L. No. 8-1993; 4-27-2022 by L.L. No. 10-2022]

Any person who shall violate the provisions of § 136-4 of this chapter shall be guilty of an offense punishable by a fine not less than $100 nor more than $250 for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $250 nor more than $500; and for conviction of a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $500 nor more than $750.

Any person who shall violate § 136-3 of this chapter shall be guilty of a Class A misdemeanor, punishable by a fine of not less than $250 nor more than $1,000 or imprisonment for not more than one year, or both. The court may, in its discretion, suspend the fine if, with the consent of the property owner, the offender agrees to and does, in fact, restore the property to the condition it was in prior to its destruction, damage or defacement or agrees to and does, in fact, provide restitution for the restoration of the property to the condition it was in prior to its destruction, damage or defacement, whichever the court determines is appropriate under the circumstances. In making this determination, the court shall also consider recommendations made by the victim.

Penalty increases.

(1)

If a person does all of the following, the penalties for the offense shall be increased as provided in Subsection C(2) of this section:

(a)

Violates the provisions of § 136-3 of this chapter.

(b)

Intentionally selects the person or group of persons whose property is defaced without the express written consent of the owner or proprietor thereof or selects the property which is damaged or otherwise affected by the act because of the race, color, religion, disability, sexual orientation, national origin or ancestry of that person or group of persons or the owner or occupant of that property and defaces said property with graffiti indicating bias or hatred of the persons selected due to the victim's race, color, religion, disability, sexual orientation, national origin or ancestry.

(2)

If an offense as described in Subsection C(1) above is proven, the offender shall be guilty of a Class A misdemeanor, punishable by a fine of not more than $1,500 or imprisonment for not more than one year, or both. The court may, in its discretion, with the consent of the property owner, require the offender to restore the property to the condition it was in prior to its destruction, damage or defacement or require restitution for the restoration of the property to the condition it was in prior to its destruction, damage or defacement, whichever the court determines is appropriate under the circumstances. In making this determination, the court shall also consider recommendations made by the victim.

Any person found by the Bureau of Administrative Adjudication to have violated § 136-4 of this chapter shall be subject to a monetary penalty in an amount within the range of fines set forth in Subsection A for a first offense and subsequent offenses. Any person found by the Bureau of Administrative Adjudication to have violated § 136-3 of this chapter shall be subject to a monetary penalty in an amount within the range of fines set forth in Subsection B. The monetary penalty for a violation of § 136-3 shall be modified as provided in Subsection C if the factors specified therein for an enhanced penalty are established.

§ 136-6 Reward.

[Added 8-17-1993 by L.L. No. 8-1993]

Under the authority of § 91 of the General Municipal Law of the State of New York, any person who shall provide information which leads to the detection, arrest and conviction of any other person of a violation of this chapter shall be entitled to a reward equal to one-half (1/2) of any fine imposed by the court, but in no event greater than $1,000.

§ 136-7 Civil liability.

[Added 8-17-1993 by L.L. No. 8-1993]

The parent or legal guardian, other than the state or local social services department or foster parent, of any minor over the age of 10 and under 18 who violates any provision of this chapter shall be held liable for any damages and/or clean-up costs that result from a violation of the provisions of this chapter.

If anyone sells a broad-tipped marker and/or aerosol spray paint can to a minor or anyone he knew or should have known would use it for an illegal purpose, he shall be held liable for any damages and/or clean-up costs which result from the violation.

Article II Removal of Graffiti

[Adopted 6-15-1999 by L.L. No. 1-1999]

§ 136-8 Responsibilities of owner.

[Amended 5-5-2011 by L.L. No. 10-2011; 6-9-2014 by L.L. No. 8-2014; 4-27-2022 by L.L. No. 10-2022]

It is the responsibility of the owner, and his or her lawful occupant, lessee and person in charge, of any building or structure which has been defaced with graffiti to completely remove said graffiti from the building or structure within five days of the defacement. Failure to remove said graffiti within five days shall be an offense punishable by a fine of not less than $250 nor more than $1,000 which must be imposed and a term of imprisonment for a period not to exceed six months, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, a fine not less than $1,000 nor more than $2,500 must be imposed and a term of imprisonment for a period not to exceed 15 days may be imposed, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, a fine not less than $2,500 nor more than $5,000 must be imposed and a term of imprisonment for a period not to exceed 15 days may be imposed, or both. Each day's continued violation shall constitute a separate additional offense. Any person or entity found by the Bureau of Administrative Adjudication to have failed to remove graffiti within five days of defacement is likewise subject to a monetary penalty of an amount within the range of fines set forth above for a first offense, subsequent offenses and continuing offenses.

§ 136-9 Failure to comply.

[Amended 1-25-2011 by L.L. No. 4-2011; 5-5-2011 by L.L. No. 10-2011; 6-9-2014 by L.L. No. 8-2014; 4-27-2022 by L.L. No. 10-2022]

Failure of the owner, or his or her lawful occupant, lessee or person in charge, of any building or structure to remove graffiti therefrom within five days after receipt of the written notice shall be an offense, punishable by a fine of not less than $500 nor more than $1,000 which must be imposed and a term of imprisonment for a period not to exceed 15 days may be imposed, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, a fine not less than $1,000 nor more than $2,500 must be imposed and a term of imprisonment for a period not to exceed 15 days may be imposed, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, a fine not less than $2,500 nor more than $5,000 must be imposed and a term of imprisonment for a period not to exceed 15 days may be imposed, or both. Each day's continued violation shall constitute a separate additional offense. Any person or entity found by the Bureau of Administrative Adjudication to have failed to remove graffiti within five days after the receipt of written notice is likewise subject to a monetary penalty of an amount within the range of fines set forth herein for a first offense, subsequent offenses and continuing offenses.

§ 136-10 Notice.

[Amended 6-9-2014 by L.L. No. 8-2014]

Notice required by §§ 136-8 and 136-9 shall be served by posting said notice in a conspicuous place at the premises, personally to the owner, lessee or occupant of the premises, or certified mail to the address of the owner of the premises on file with the Assessor.

§ 136-11 Removal by Town.

[Added 6-6-2000 by L.L. No. 11-2000]

In addition to the penalties contained in this article, the Town Department of Public Works, after notices have been sent pursuant to the provisions of this article, may enter upon the property to remove the graffiti. The cost of the removal of the graffiti shall be certified by the Commissioner of the Department of Public Works to the Assessor, who shall assess the cost thereof to the property as a lien and collect it as provided by law.