(a) In this section:
(1) AEROSOL PAINT CONTAINER means any container that is adapted or made for the purpose of applying aerosolized paint, or any other aerosolized substance capable of defacing property.
(2) CONSENT means assent in fact, whether express or apparent, by a person legally authorized to act for an owner of property.
(3) ETCHING OR ENGRAVING DEVICE means a device that is capable of making a delineation or impression on tangible property, regardless of the manufacturer’s intended use for that device.
(4) FELT TIP MARKER means any marker or similar implement that:
(A) contains ink; and
(B) has a flat or angled writing surface that, at its broadest width, exceeds one-eighth inch.
(5) GRAFFITI means any temporary or permanent marking, including, but not limited to, any inscription, slogan, drawing, painting, symbol, logo, name, character, or figure, that is made in any manner on tangible property without the consent of the property owner.
(6) GRAFFITI IMPLEMENT means any aerosol paint container, paint gun, paint ball gun, paint ball gun pellets or capsules, felt tip marker, paint stick, graffiti stick, brush, or etching or engraving device that is capable of scarring, marking, or otherwise defacing stone, glass, metal, concrete, wood, or any surface of tangible property.
(7) MINOR means any person under 17 years of age.
(8) OWNER means any person with the legal right of possession to tangible property.
(9) PAINT STICK or GRAFFITI STICK means any device containing a solid or liquid form of paint, chalk, wax, epoxy, or other similar substance that leaves a visible mark upon application to a surface.
(10) PARENT means a person who is the natural parent, adoptive parent, or step-parent of a person.
(11) GUARDIAN means:
(A) a person who, under court order, is the guardian of the person of a minor; or
(B) a public or private agency with whom a minor has been placed by a court.
(b) A person commits an offense if, with the intent to make graffiti, he possesses any graffiti implement:
(1) in or on any part of a publicly-owned or privately-owned building, facility, park, school ground, library, playground, swimming pool, recreational facility, right-of-way, or other property when that property or that part of the property is closed to the public; or
(2) within 10 feet of any underpass, overpass, bridge abutment, storm drain, or similar type of infrastructure.
(c) A person is presumed to possess the graffiti implement with the intent to make graffiti on such property under Subsection (b)(1) or on such infrastructure under Subsection (b)(2) if while on the property or within 10 feet of the infrastructure, whichever applies, he possesses on or about his person at least:
(1) one aerosol paint container; or
(2) two graffiti implements other than an aerosol paint container.
(d) A person commits an offense if he is the parent or guardian of a minor and knowingly permits, or by insufficient control allows, the minor to violate:
(1) Subsection (b)(1); or
(2) Subsection (b)(2).
(e) It is a defense to prosecution under Subsections (b)(1) and (d)(1) that the graffiti implement was possessed on the property with consent.
(f) It is a defense to prosecution under Subsections (b)(2) and (d)(2) that the graffiti implement was:
(1) possessed on the property with consent; or
(2) possessed in a place where the implement was going to be used for a non-graffiti activity, including but not limited to an employment, school, home, church, art, or similar activity, or possessed while enroute to or from such a place and activity.
(g) For purposes of applying the defenses set forth in Subsections (e) and (f)(1) of this section, consent is presumed to exist if the person possessing the graffiti implement is an employee or relative of the property owner.
(h) Before taking any enforcement action under Subsection (b)(2) or (d)(2) of this section, a police officer shall ask the apparent offender’s reason for being within 10 feet of the underpass, overpass, bridge abutment, storm drain, or other similar type of infrastructure with a graffiti implement and whether the apparent offender has the consent of the property owner to be on the property and to possess the graffiti implement. The officer shall not issue a citation or make an arrest under Subsection (b)(2) or (d)(2) of this section unless the officer reasonably believes that an offense has occurred and that, based on any response and other circumstances, no defense described in Subsection (f) is present.
(i) An offense under this section is punishable by a fine of not less than $200 or more than $500. (Ord. 26342)