Chapter 10
NUISANCES

Articles:

I. In General

II. Noise

III. Graffiti

Article I.
IN GENERAL

Sections:

10-1 – 10-25 Reserved.

10-1 – 10-25 Reserved.

Article II.
NOISE

Sections:

10-26 General prohibition.

10-27 Illustrative enumeration.

10-28 Exclusion.

10-29 Enforcement.

10-30 – 10-50 Reserved.

10-26 General prohibition.

It is unlawful for any person to cause, or for any person in possession of property to allow to originate from the property, sound that is a public disturbance noise. (Ord. No. 90-37, § 1(A), 2-20-90)

10-27 Illustrative enumeration.

The following sounds are public disturbance noises in violation of this article:

(1) The frequent, repetitive or continuous sounding of any horn or siren attached to a motor vehicle, except as a warning of danger or as specifically permitted or required by law.

(2) The creation of frequent, repetitive or continuous sounds in connection with the starting, operation, repair, rebuilding or testing of any motor vehicle, motorcycle, off-highway vehicle or internal combustion engine within a residential district, so as to unreasonably disturb or interfere with the peace and comfort of owners or possessors of real property.

(3) Yelling, shouting, whistling or singing on or near the public streets, particularly between the hours of 10:00 p.m. and 8:00 a.m. or at any time and place as to unreasonably disturb or interfere with the peace and comfort of owners or possessors of real property.

(4) The creation of frequent, repetitive or continuous sounds which emanate from any building, structure, apartment or condominium, which unreasonably disturbs or interferes with the peace and comfort of owners or possessors of real property, such as sounds from musical instruments, audio sound systems, band sessions or social gatherings.

(5) Sound from motor vehicle audio sound systems, such as tape players, radios and compact disc players, operated at a volume so as to be audible greater than 50 feet from the vehicle itself.

(6) Sound from portable audio equipment, such as tape players, radios, and compact disc players, operated at a volume so as to be audible greater than 50 feet from the source, and if not operated upon the property of the operator.

(7) The squealing, screeching or other such sounds from motor vehicle tires in contact with the ground or other roadway surface because of rapid acceleration, braking or excessive speed around corners or because of such other reason; provided, that sounds which result from actions which are necessary to avoid danger shall be exempt from this section.

(8) Sounds originating from construction sites, including but not limited to sounds from construction equipment, power tools and hammering between the hours of 8:00 p.m. and 7:00 a.m. on weekdays and 8:00 p.m. and 9:00 a.m. on weekends.

(9) Sounds originating from residential property relating to temporary projects for the maintenance or repair of horns, grounds and appurtenances, including but not limited to sounds from lawnmowers, powered hand tools, snow removal equipment and composters between the hours of 10:00 p.m. and 7:00 a.m. on weekdays and 10:00 p.m. and 9:00 a.m. on weekends. (Ord. No. 90-65, § 1(B), 7-3-90; Ord. No. 99-341, § 3, 5-4-99)

10-28 Exclusion.

This article shall not apply to regularly scheduled events at parks, such as public address systems for baseball games or park concerts between the hours of 9:00 a.m. and 10:30 p.m. (Ord. No. 90-37, § 1(C), 2-20-90; Ord. No. 90-65, § 2, 7-3-90)

10-29 Enforcement.

Civil enforcement of the provisions of this chapter shall be governed by Chapter 1 FWCC, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the city including, but not limited to, criminal sanctions as specified herein or Chapter 1 FWCC, Articles II, III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this chapter. For second and subsequent violations of the provisions of this chapter, the person shall also be guilty of a misdemeanor and upon conviction shall be punished as provided in FWCC 1-13. (Ord. No. 90-37, § 1(D), 2-20-90; Ord. No. 99-342, § 7, 5-4-99)

10-30 – 10-50 Reserved.

Article III.
GRAFFITI

Sections:

10-51 Purpose.

10-52 Definitions.

10-53 Graffiti deemed a public nuisance.

10-54 Notice to correct graffiti.

10-55 Civil infraction.

10-56 Appeals to the hearing examiner.

10-57 Abatement by the city.

10-58 Warrants authorized if needed.

10-59 Provisions not exclusive.

10-51 Purpose.

The purpose of this article is to establish an efficient enforcement system to regulate and eradicate graffiti within the city, to provide an opportunity for an appeal of determinations of violations and prompt hearings and decisions on any such appeals, to establish monetary penalties for violations, to provide for the collection of said penalties, and to provide a quick and efficient abatement process.

It is the express and specific purpose and intent of this article to provide for and promote the health, safety and welfare of the general public and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this article.

It is also the express and specific purpose and intent of this article that no provision nor any term used in this article, nor any action taken pursuant to this article, is intended to impose any duty whatsoever upon the city or any of its officers or employees.

Nothing contained in this article is intended nor shall be construed to create or form the basis of any liability on the part of the city, its officers, employees or agents, for any injury or damage resulting from any action or inaction on the part of the city, its officers, employees or agents. (Ord. No. 07-550, § 2, 3-20-07)

10-52 Definitions.

(a) Abate means to remove or conceal graffiti by such means as is reasonably necessary and to otherwise bring a property into compliance with the city code.

(b) Defacement means any marring and includes but is not limited to any unauthorized writing, painting, coloring, carving, disfigurement, damaging, breaking, drawing, inscription, figure, or mark of any type that has been placed upon any property, through the use of means including but not limited to paint, ink, chalk, dye, markers, objects, adhesive material, or any other substance capable of marking or damaging property.

(c) Enforcement officer or enforcement official means any city code enforcement officer or other city officials designated by ordinance or by the city manager for purposes of enforcing the provisions of this article or provisions of other sections of the city code or other laws of the city.

(d) Graffiti means any defacement of property.

(e) Hearing examiner means the Federal Way hearing examiner and the office thereof.

(f) Property means real or personal property, both public and private, and includes but is not limited to vehicles, artwork, decorations, sidewalks, pavement, poles, rocks, trees, bridges, buildings, barriers, walls, fences, gates, signage, installations, improvements, and structures within the city.

(g) Responsible party means an owner, a person acting as an agent for an owner, a person who has authority over the property, or a person responsible for the property’s maintenance or management. Irrespective of any arrangement to the contrary with any other party, an owner shall always be a responsible party for the purposes of this chapter. There may be more than one responsible party for a particular private property. Where there is more than one responsible party, notice to any responsible party shall be deemed to be notice to all. Where there is more than one responsible party, permission from any responsible party shall be deemed to be permission from all unless a specific objection is made by a nonconsenting responsible party.

(h) Unauthorized means without the prior express permission or consent of a responsible party. (Ord. No. 07-550, § 2, 3-20-07)

10-53 Graffiti deemed a public nuisance.

Graffiti within the city constitutes and is deemed a public nuisance. Where graffiti exists on property within the city and is visible from public property, from a location open to the public, or from a public right-of-way, it is a violation of the city code and this section. (Ord. No. 07-550, § 2, 3-20-07)

10-54 Notice to correct graffiti.

(a) Issuance. Whenever an enforcement officer determines that graffiti exists on property within the city, and the graffiti is visible from public property, from a location open to the public, or from a public right-of-way, he or she may issue a notice to correct graffiti to the responsible party.

(b) Content. The notice to correct graffiti shall include the following:

(1) The name and address of the property owner and/or other responsible party to whom the notice to correct graffiti is directed;

(2) The street address or other description sufficient for identification of the property, building, structure, premises, or land upon or within which the graffiti has occurred or is occurring;

(3) A description of the graffiti, including a reference to this article;

(4) A statement that within three days of service of the notice to correct graffiti, the responsible party must either abate the graffiti or contact the enforcement officer and enter an abatement plan. An abatement plan shall mean a plan or series of steps agreed to between a responsible party and an enforcement officer in order to abate graffiti;

(5) A statement that an appeal of the notice to correct graffiti may be filed pursuant to FWCC 10-56 within 10 days of service of the notice to correct graffiti;

(6) A statement that if the notice to correct graffiti is not appealed, the graffiti is not abated, an abatement plan is not entered, an abatement plan is not complied with, or a hearing examiner so orders that the graffiti may be summarily abated by the city with costs being assessed against the responsible party.

(c) Service of notice to correct graffiti. The enforcement officer shall serve the notice to correct graffiti upon the responsible party, either by delivering it personally, or by mailing a copy by registered or certified mail to the responsible party at his/her last known address. If service is not accomplished by personal service and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice to correct graffiti conspicuously on the affected property or structure. If service is by personal service, service shall be deemed complete immediately. If service is made by mail, service shall be deemed complete upon the third day following the day upon which they are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday, in which event service shall be deemed complete on the first day other than a Saturday, Sunday or legal holiday following the third day. If service is made by posting, service shall be deemed complete on the third day following the day the notice of graffiti is posted. (Ord. No. 07-550, § 2, 3-20-07)

10-55 Civil infraction.

It is a civil infraction to fail to pay costs of abatement pursuant to FWCC 10-57. Infractions issued under this section shall be governed by FWCC 1-24 except that the maximum penalty and the default amount shall be $1.00 not including fees, costs, and assessments. In addition to any fine, fee, costs, or assessments imposed for an infraction under this section, a court may also impose restitution for any costs for abatement under FWCC 10-57 as part of the monetary obligations for an infraction under this section. The provisions of this section are not exclusive, and may be used in addition to other enforcement provisions authorized by this article, the Federal Way City Code in general, or other applicable law, except as specifically precluded by law. (Ord. No. 07-550, § 2, 3-20-07)

10-56 Appeals to the hearing examiner.

(a) General. A responsible party to whom a notice to correct graffiti is directed may appeal to the hearing examiner. The person appealing may appeal either the determination that graffiti exists on property within the city, and the graffiti is visible from public property, from a location open to the public, or from a public right-of-way; the amount of any costs imposed; the corrective action ordered; or any combination thereof. The city may also request a hearing before the hearing examiner to assess costs, modify previous orders, or to enter other orders as needed. If no appeal is filed within 10 days of issuance, the notice to correct graffiti shall be final and conclusive and not subject to appeal or review in any forum.

(b) How to appeal. In order to appeal, a person must file a written notice of appeal with the city clerk within 10 calendar days from the date of issuance of the notice to correct graffiti, specifying what issue is being appealed. The appeal must be accompanied by a filing fee in the amount of $100.00, payable by cash or a check to the city of Federal Way, which is refundable in the event the appellant fully prevails on the appeal. The filing fee is waived in cases where the city requests the hearing.

(c) Effect of appeal. The timely filing of an appeal in compliance with this section shall stay any requirement for abatement.

(d) Hearing.

(1) Date of hearing. Within 10 days of the clerk’s receipt of the appeal, the hearing examiner shall set a public hearing for a date within 30 days of the clerk’s receipt of the appeal.

(2) Notice of hearing. The notice shall contain the following:

a. The file number and a brief description of the matter being appealed.

b. A statement of the scope of the appeal, including a summary of the errors alleged and the findings and/or legal conclusions disputed in the appeal.

c. The date, term, and place of the hearing on the appeal.

(3) Distribution of notice. The notice shall be mailed to the city, the responsible party, and/or the appellant at least 10 calendar days before the hearing on the appeal.

(4) Participation in the appeal. The city and the appellant may participate as parties in the hearing and each may call witnesses. Any person may participate in the hearing in either or both of the following ways:

a. By submitting written comments to the hearing examiner, either by delivering these comments to the clerk prior to the hearing or by giving these directly to the hearing examiner at the hearing.

b. By appearing in person, or through a representative, at the hearing and making oral comments directly to the hearing. The hearing examiner may reasonably limit the extent of oral comments to facilitate the orderly and timely conduct of the hearing.

(5) Conduct of hearing. The hearing examiner shall conduct the hearing on the appeal pursuant to the rules of procedure of the hearing examiner. The city shall have the burden of proof by a preponderance of the evidence that graffiti exists on the property within the city, and the graffiti is visible from public property, from a location open to the public, or from a public right-of-way, or that abatement is needed to cure the violation. The hearing examiner shall make a complete electronic sound recording of the public hearing.

(6) Continuation of the hearing. The hearing examiner may continue the hearing if the hearing examiner determines that he or she needs more information on the matter. The hearing examiner may continue the hearing by stating the time and place of the next hearing during the hearing, without need of providing any further notice.

(e) Decision of hearing examiner.

(1) Issuance. The hearing examiner shall issue an oral decision at the time of the hearing unless good cause exists to delay the decision. The hearing examiner shall issue a written decision, including findings, conclusions, and orders, within 14 days of the hearing. The appellant is required to comply with any decision of the hearing examiner whether oral or written upon issuance.

(2) Vacation of notice to correct graffiti. If the hearing examiner determines that there is insufficient evidence that a violation substantially as stated in the notice to correct graffiti exists, the hearing examiner shall vacate the notice to correct graffiti, and order the appeal fee refunded.

(3) Affirmance. If the hearing examiner determines that there is sufficient evidence that graffiti exists on property within the city, and the graffiti is visible from public property, from a location open to the public, or from a public right-of-way, the hearing examiner shall affirm the notice to correct graffiti and shall order the violation be abated by the responsible party and set a date for compliance no later than three days from the date and time of the hearing. If the graffiti is not abated by the date set for compliance by the hearing examiner, the city may abate the graffiti. The hearing examiner shall set a new hearing date to verify compliance or assess costs for any abatement by the city.

(4) Modification. The hearing examiner may order a compliance date for abatement later than three days from the date of the hearing or modify the assessment of costs of abatement if good cause is found. In so ordering, the hearing examiner shall consider the following:

a. Whether the intent of the appeal was to delay compliance;

b. Whether the appeal was frivolous;

c. Whether the applicant exercised reasonable, timely, and good faith effort to comply with the notice to correct graffiti; and/or

d. Any other relevant factors.

(5) Effect of decision. Failure to comply with the decision of the hearing examiner shall constitute a gross misdemeanor punishable by a fine of not more than $5,000 or up to 365 days imprisonment, or both. In addition to criminal punishment pursuant to this subsection, the city may pursue any other enforcement authorized by law.

(f) Judicial review. Judicial review of a decision by the hearing examiner may be sought by any party aggrieved or adversely affected by the decision, if the written petition seeking review is filed and served on all parties within 21 days of the date of the decision. Filing of a petition for review does not stay any required action without further order of the hearing examiner or a court having jurisdiction over the matter. (Ord. No. 07-550, § 2, 3-20-07)

10-57 Abatement by the city.

(a) Authority to abate. The city may abate graffiti when any responsible party fails to abate a violation within 10 days of an unappealed notice to correct graffiti where either no abatement plan has been entered or an abatement plan has not been complied with, or as ordered by the hearing examiner. The city may use agents, contractors, or volunteers under its direction, who may act pursuant to this article.

(b) Authorized action by the city. Using any lawful means, the city is expressly authorized to enter upon the premises to abate graffiti during regular business hours or at times mutually agreeable with the responsible party. All reasonable efforts to minimize damage from such entry shall be taken by the city. The city shall not authorize nor undertake to provide for the painting or repair of any more extensive area than the area where the graffiti is located. The city may seek such judicial process as it deems necessary to effect the abatement.

(c) Recovery of costs. The responsible party and/or the owner shall be jointly and severally liable for the costs, including incidental expenses, of any abatement by the city and such costs shall constitute a personal obligation and a debt owed to the city and shall be enforceable as a lien against the property upon which such nuisance existed, in addition to the other legal remedies available for enforcement of debts. The costs shall become due and payable to the city within 14 calendar days from the date of notice from the city that costs are due. The term “incidental expenses” includes but is not limited to personnel costs (both direct and indirect); attorney’s fees; costs incurred in documenting the violation; hauling, storage and disposal expenses; expenses of the city in preparing notices, specifications and contracts; the costs of accomplishing and inspecting the work; collection costs whether direct or indirect; the costs of any contractors for any portion of the abatement process; and the costs of any required printing and mailing. The director of the community development department or designee, or the hearing examiner, may in his or her discretion waive in whole or part the assessment of any costs of abatement upon a showing that abatement has occurred or is no longer necessary, or that the costs would cause a financial hardship for the responsible party. The city may authorize the use of collection agencies to recover costs. The city attorney is authorized to collect the costs by use of appropriate legal remedies.

(d) Interference. No person shall obstruct, impede, or interfere with the city or its agents, or with any person who owns, or holds any interest or estate in any property, in performing any tasks necessary to correct the violation. (Ord. No. 07-550, § 2, 3-20-07)

10-58 Warrants authorized if needed.

(a) A warrant to enter the property to inspect or abate under this article shall not be required for graffiti visible from outside of the property and accessible from normal access routes from the public right-of-way.

(b) A judge or commissioner of the municipal court of the city of Federal Way or other court with jurisdiction, upon a proper oath or affirmation showing compliance with this article and probable cause that a violation is present on a property, shall have power to issue a warrant directed to a state or local official authorizing the official to enter the property to inspect or abate.

(c) A warrant shall issue only upon application of an enforcement officer or employee of a prosecuting or regulatory authority supported by declaration or affidavit made under oath or upon sworn testimony before the judge and establishing probable cause for the issuance of the warrant and particularly describing the property and the violation. For purposes of this section, probable cause exists if there is reasonable cause to believe that a violation is present upon the particular property to be entered.

(d) If the judge or commissioner is satisfied that the standard for issuing a warrant has been met, the judge or commissioner shall issue the warrant. The warrant must particularly describe the property, the violation, and the action to be taken.

(e) A warrant issued pursuant to this section must be executed and returned within 10 days unless, upon a showing of a need for additional time, the period is extended or renewed by a judge or commissioner upon a finding that such extension or renewal is in the public interest. A copy of the warrant and a receipt for abatement taken pursuant to the warrant shall be given to the person whose property is entered, or if the person is not at the property, the copy shall be left in or on the property that was entered or from which property was taken. The return of the warrant shall be promptly made accompanied by a written inventory of any property taken. A copy of the return shall be attached to the warrant and filed with the clerk of the court. (Ord. No. 07-550, § 2, 3-20-07)

10-59 Provisions not exclusive.

The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the Federal Way City Code or other applicable law, except as specifically precluded by law. (Ord. No. 07-550, § 2, 3-20-07)