|Legal Opinion: |
Text of Document: From: Ashburn, Melissa Ann
Sent: Thursday, April 12, 2012 10:01 AM
Subject: Graffiti removal program
You asked me about the legality of an ordinance or other action to institute an order of maintenance aimed specifically at graffiti, under which the city could go in and cover or remove the graffiti and levy the costs against the property owner. I have found no legislative authority for your City to start such a program. As you know, Tennessee municipalities only have those powers granted to them by the State legislature. Tennessee is a Dillon’s Rule state.
Dillon’s Rule says:
It is a general and undisputed proposition of law that a municipal corporation possess and can exercise the following powers, and no others: First, those granted express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied.
[For the statement and application of this rule in Tennessee, see Miller v. Memphis, 178 S.W.2d 382 (1944); Penn-Dixie Cement Corporation v. Kingsport, 225 S.W2d 270 (1949); City of Lebanon v. Baird, 756 S.W.2d 236 (Tenn. 1988).]
Under Dillon’s Rule, as interpreted by the Tennessee courts, cities have implied, as well as express, powers. However, as that Rule itself states, implied powers must be “necessarily or fairly implied or incident to the powers expressly granted.” Implied powers must derive from, and rest upon, express powers; they cannot be pulled out of thin air on the ground that the powers would be desirable for a municipality to hold.
There is no general law or private act in Tennessee granting your City or other cities authority to enact a graffiti removal program under which the property owner must bear the costs of removal. In my opinion, such a program does not fit within the definition of an implied power. Your City does have specific authority to go after property owners with overgrown and/or dirty lots, under T.C.A. 6-54-113, and may levy a lien for cleanup costs if the owner fails to mow or clean up the property after notice. But there is no such specific statutory authority for graffiti removal.
There are no cases or laws in Tennessee to guide us on this specific issue, other than the absence of laws and cases. In researching actions taken in other states, I have found there are 2 approaches taken by cities dealing with graffiti: 1) as a property maintenance issue; or, 2) as a law enforcement action against gang activity. Many states have laws prohibiting cities from charging property owners for the removal of graffiti, based on the idea that the victim of vandalism should not be victimized further by being forced to bear the expense of removal. I think this is a position courts in Tennessee may adopt if such a program were instituted and enforced through our courts without legislative authority. The other approach, using graffiti removal to fight gang activity, is funded entirely by the local government with no expense charged to the property owner. This approach makes good sense, as the power of graffiti, or the purpose for which the gang members tag buildings, is accomplished within 24 or 48 hours of the graffiti being put on the building. The message is sent and read by those for whom it was intended during that short time period. To be effective in fighting graffiti, law enforcement agencies assert that the removal must take place within either 24 or 48 hours to accomplish any true law enforcement objective. Obviously, this would cause due process problems if the property owner were expected to remove the graffiti themselves, or bear the expense of removal. Therefore, the vast majority of graffiti removal programs I found are paid for by the local governments. Most have a hotline for people to call when graffiti is discovered, and a crew operates, sometimes 7 days a week, to remove the graffiti as soon as possible. Such programs are funded by these local governments, some by grants from the Dept. of Justice to fight gang activity, and some through the general fund. I do not know if there are still grants available from the Dept. of Justice for these programs, unless it is covered by the community policing or safe neighborhood programs.
It seems to me that your question for your City is more of a code enforcement/property maintenance issue. That being the case, there are 2 options for code enforcement in Tennessee. One is through the city court. If your City adopted an ordinance requiring property owners to remove graffiti, and cites people to court for refusal to remove or cover the graffiti, the very most the city court could do is levy a $50 fine, in addition to court costs and litigation taxes. City courts in Tennessee have no authority to order people to take action such as cover graffiti, and the city judge cannot jail persons who refuse to comply. Yes, city courts do have the ability to levy a $50 fine per day that a code violation exists, but due process must still be provided. Town of Nolensville v. King, 151 S.W.3d 427 (Tenn. 2004). If the city chose to follow this option, they should be prepared to defend a potential appeal to circuit court, where it is likely a state court judge could find the ordinance punitive and decide as other states have that such an ordinance unfairly punishes victims of vandalism. However, as our Senior Legal Consultant Sid Hemsley argues, this could be treated just like a litter or trash offense, in which case a property owner is expected to pick up litter others throw in his yard. He thinks a state court would uphold such an ordinance and multiple fines levied against a property owner.
It appears to me the best option may be to approach this as a property maintenance issue through the administrative hearing officer program. Administrative code enforcement actions are much easier to defend, and an administrative hearing officer has the power to levy costs of removal, unlike a city court judge. The administrative hearing officer program was created by statute located at T.C.A. 6-54-1001, et seq. [I think your City may already be considering this program] The administrative hearing officer hears violations of model codes and property maintenance codes, and may levy costs of cleanup or other remedial fines to bring properties into compliance. A standalone ordinance on graffiti removal may be enforced through the administrative hearing officer process, or you may rely on model code provisions. I note that your City adopted the 2006 International Residential Code, but has not adopted any model property maintenance code. There is an International Property Maintenance Code which contains language requiring property owners to remove graffiti. [Note – your City will be required to adopt newer model codes in the near future, as the model code enforced by a city must be current within 7 years of the latest edition of that code, under T.C.A. 68-120-101. The International Code Council has published the 2012 codes, so your City will be forced to adopt newer model codes next year. MTAS can provide materials to assist you in explaining this to the council when you are ready]
When your City considers model codes next, you may want to encourage them to review the International Property Maintenance code. This model code covers most of the issues cities have with property maintenance in general, including a provision requiring the removal of graffiti. Following is one such provision from the 2009 edition:
2009 International Property Maintenance Code:
302.9 Defacement of property.
No person shall willfully or wantonly damage, mutilate or deface any exterior surface of any structure or building on any private or public property by placing thereon any marking, carving or graffiti.
It shall be the responsibility of the owner to restore said surface to an approved state of maintenance and repair.
The model code has provisions on enforcement and remedies which are very similar to the notice and hearing requirements for the administrative hearing officer program created by our state law. If the city uses this process, the costs of clean up or removal of graffiti may be levied against the property owner. There is no power to attach a lien, without a state court order, but there is a strong likelihood that a state court would uphold the levy made in this administrative process, if all notices were provided, etc.
Such an action would satisfy Dillon’s Rule, as Tennessee cities have specific authority to adopt these model codes under T.C.A. 6-54-119 and administrative enforcement authority is provided through T.C.A. 6-54-1001, et seq.
If the city is interested in a standalone ordinance on graffiti removal, let me know. We do not have such an ordinance at MTAS, but I noticed one in a municipal ordinance treatise we get through west law, which we can modify to suit your City’s needs. I do think it is best to use the administrative process to enforce such an ordinance. But if your City decides against starting an administrative hearing officer program, such an ordinance may be enforced through city court with a $50 fine.
I hope this information is helpful. Let me know if you need any further assistance.
Melissa A. Ashburn
University of Tennessee
Institute for Public Service
Municipal Technical Advisory Service