WHEREAS, graffiti has become more and more prevalent in public places over time; and

WHEREAS, the presence of graffiti is a valid public nuisance and causes property damage; and

WHEREAS, minors conduct a large portion of such property damage.

NOW THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 11, Title 11 of the Delaware Code by adding thereto a new Subpart C, which new Subpart shall read as follows:

“Subpart C. Sale and distribution of spray paint products.

§ 1128. Definitions.

(1) ‘Distribute’ means give, deliver or sell, offer to give, deliver or sell, or cause or hire any person to give, deliver or sell, or offer to deliver or sell.

(2) ‘Proof of age’ means a driver’s license or other identification with a photograph of the individual affixed thereon that indicates that the individual is 18 years of age or older.

(3) ‘Spray paint’ means any paint product that is exerted from an aerosol can for the purpose of painting surfaces.

§ 1129. Sale or Distribution of spray paint products to minors.

(a) It shall be unlawful for any person to sell or distribute spray paint products to another person who has not attained the age of 18 years or to purchase any spray paint product on behalf of another such person, except that this Section shall not apply to the parent or guardian of another such person.

(b) A person engaged in the sale or distribution of spray paint products shall have the right to demand proof of age from a prospective purchaser or recipient of such products.

§ 1130. Notice.

A person engaged in the sale or distribution of spray paint products shall post conspicuously at each point of purchase a notice stating that selling spray paint products to anyone under the age of 18 years of age is illegal, that the purchase of spray paint products by anyone under the age of 18 years of age is illegal and that a violator is subject to fines. The notice shall also state that all persons selling spray paint products have the right, under law, to check the proof of age of any purchaser of spray paint products. The notice shall include a toll-free number to the Department of Safety and Homeland Security for persons to report unlawful sales of spray paint products. The owner of an establishment who fails to post a notice in compliance with this Section shall have a fine of $250.

§ 1131. Penalties.

Notwithstanding any other provision of Delaware law, a person who violates § 1129 and/or § 1130 of this Title shall be guilty of a violation and shall be fined $250 for the first offense, $500 for the second offense and $1,000 for the third and all subsequent offenses.

§ 1132. Affirmative defense.

In any prosecution for an offense under this Subpart, it shall be an affirmative defense that the purchaser or recipient of spray paint products who had not reached the age of 18 years had presented to the accused proof of age which set forth information that would lead a reasonable person to believe that such individual was 18 years of age or older.

§ 1133. Liability of employer.

(a) If a sale or distribution of any spray paint product is made in violation of § 1129 and/or § 1130 of this Title, the owner, proprietor, franchisee, store manager or other person in charge of the establishment where the violation occurred shall be guilty of the violation and shall be subject to the fine only if such person has received written notice of the provisions of §§ 1128 through 1130 of this Title by the Department of Safety and Homeland Security. For purposes of determining the liability of a person who owns or controls franchises or business operations in several locations, for a second or third violation, each individual franchise or business location shall be deemed a separate establishment.

(b) Notwithstanding any other provision of this Subpart, in any violation for a violation of § 1129 and/or §1130, the owner, proprietor, franchisee, store manager or other person in charge of the establishment where the violation occurred shall have an affirmative defense if such person or entity can establish that prior to the date of the violation:

(1) had adopted and enforced a written policy against selling spray paint products to persons under 18 years of age;

(2) had informed its employee of the applicable laws regarding the sale of spray paint products to persons under 18 years of age.

(3) required employees to sign a form indicating that they have been informed of and understand the written policy required herein;

(4) required employees to verify the age of spray paint product customers by means of photographic representation; and

(5) had established and enforced disciplinary sanctions for noncompliance.

(c) The affirmative defense established in Subsection (b) of this Section may be used by an owner, proprietor, franchisee, store manager or other person in charge of the establishment no more than twice at each location within any 12-month period.

§ 1134. Purchase or receipt of spray paint products by minors.

(a) It shall be unlawful for any person who has not attained the age of 18 years to purchase a spray paint product or to present or offer to another person a purported proof of age which is false, fraudulent or not actually his or her own proof of age for the purpose of purchasing or receiving any spray paint product.

(b) A person who violates Subsection (a) of this Section shall be adjudged delinquent and shall for a first adjudication be fined $100 or ordered to perform 40 hours of community service work, and for a second adjudication and for all other adjudications be fined $100 and ordered to perform 80 hours of community service work. A subsequent adjudication is one that occurs within 12 months of a prior like offense. Violations of this Section will be issued in addition to any fines incurred pursuant to § 812 of this Title.

§ 1135. Enforcement.

(a) The Department of Safety and Homeland Security may enter into an agreement with any local law enforcement agency for delegation of the enforcement activities of this Section within the local law enforcement’s jurisdiction. The contract shall require the enforcement activities of the local law enforcement agency to comply with this Subpart and all applicable laws.

(b) In cases where enforcement activities have been delegated to a local law enforcement agency pursuant to this Section, any enforcement by the Department of Safely and Homeland Security in the jurisdiction of the local law enforcement agency shall be coordinated with the local law enforcement agency.

§ 1136. Jurisdiction.

The Justices of the Peace Court shall have jurisdiction over violations of this Subpart, except in the instance of violations by a person who has not attained the age of 18, in which case the Family Court shall have jurisdiction.”.

SPONSOR:	Rep. Miro & Rep. Valihura & Sen. Blevins
	Rep. Maier; Sen. Amick