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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JAMES F. PENMAN
City Attorney
Dept: CITY ATTORNEY
Subject: An Ordinance of the City of San Bernardino
Amending Section 5.04.360 of the San Bernardino
Municipal Code and Adding Chapter 9.60 to the San
Bernardino Municipal Code to Prohibit Aggressive
Soliciting.
Date: September 16.2004
ORlGlNAl
Synopsis of Previous Council Action:
None.
Recommended motion:
That said ordinance be laid over for final adoption.
~9~
S' gnature
Contact person: James F. Penman
Phone:
5255
Supporting data attached: Staff Reoort
Ward:
All
FUNDlNG REQUIREMENTS: Amount: None at this time
Source:
Finance:
Council Notes:
Agenda lte
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IO/~! 01
STAFF REPORT
Council Meeting Date: September 20, 2004
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
September 16,2004
An Ordinance of the City of San Bernardino amending Section 5.04.360 of the
San Bernardino Municipal Code and adding Chapter 9.60 to the San
Bernardino Municipal Code to prohibit aggressive soliciting (Agenda Item #27).
There has been an ever increasing number of incidents wherein residents and visitors of this
City find themselves approached and subjected to aggressive soliciting. This form of aggression
includes, but is not limited to, abusive language, unwanted physical contact, or the intentional
blocking of pedestrian and vehicular traffic. It is carried out at numerous locations, including, but
not limited to, at or near banks or automated teller machines, parking lots and parking structures, bus
stops, and while people are sitting in traffic in their vehicles. This form of aggressive solicitation
in manner and location often carries with it an implicit threat to both person and property.
The current City ordinance addressing this subject matter is located in Chapter 5 of the San
Bernardino Municipal Code, entitled Business Registration And Regulations, specifically, Section
5.04.360, entitled "Soliciting, selling, advertising and begging." The current City ordinance is
insufficient to address the problems enumerated herein and as set forth in the proposed ordinance.
Accordingly, it is proposed that the current ordinance be amended to strengthen its provisions, but
that said ordinance become inoperative upon the effective date of the new, proposed ordinance,
which is to be set forth in Chapter 9 of the San Bernardino Municipal Code, entitled Public Peace,
Morals And Welfare. Specifically, a new Chapter 9.60 is proposed to address this growing problem.
The proposed new Chapter 9.60 is modeled after the current ordinance in the City of Los
Angeles, which was implemented after litigation challenging its prior (and defective) version. Los
Angeles' current subject ordinance has not been challenged. The restrictions contained in the
proposed ordinance to address this growing problem of aggressive solicitation are neither overbroad
nor vague, and are narrowly tailored to serve a substantial governmental interest.
As long as Chapter 9.60 is in effect, Section 5.04.360 would remain inoperative. If Chapter
9.60 is stricken, enjoined, or suspended by any court oflaw, then the provisions of Section 5.04.360
(with the amendments proposed herein) will be automatically reenacted. In this way, the City can
more effectively address the current growing problem through the provisions of Chapter 9.60, while
having a "safety net" for enforcement purposes should Chapter 9.60 be some day successfully
challenged in court.
The Legislative Review Committee recommended approval of the subject ordinance to the
Mayor and Common Council. It is requested that the ordinance be laid over for final adoption.
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ORDINA~~n
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60
TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE
SOLICITING.
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5 WHEREAS, it is the intent of the Mayor and Common Council in enacting this
6 Ordinance to improve the quality oflife and economic vitality ofthe City, and to protect the safety
7 of the general public against certain abusive conduct of persons engaged in solicitation, by
8 imposing reasonable manner and place restrictions on solicitation while respecting the
9 constitutional rights of free speech for all citizens; and,
10 WHEREAS, the Mayor and Common Council find that an increase in aggressive
II solicitation throughout the City has become extremely disturbing and disruptive to residents and
12 businesses, and has contributed not only to the loss of access to and enjoyment of public places,
13 but also to an enhanced sense of fear, intimidation, and disorder; and,
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WHEREAS, the Mayor and Common Council find that aggressive panhandling usually
IS includes approaching or following pedestrians, the use of abusive language, unwanted physical
16 contact, or the intentional blocking of pedestrian and vehicular traffic; and,
17 WHEREAS, the Mayor and Common Council further find that the presence of
18 individuals who solicit money from persons at or near banks or automated teller machines is
19 especially threatening and dangerous; and,
20 WHEREAS, the Mayor and Common Council further find that motorists also find
21 themselves confronted by persons who, without permission, wash their automobile windows,
22 despite explicit indications by drivers not to do so. Such activity often carries with it an implicit
23 threat to both person and property; and,
24 WHEREAS, the Mayor and Common Council further find that people driving or parking
25 on City streets, in parking lots, and in parking structures frequently find themselves faced with
26 panhandlers seeking money. Such activity also often carries with it an implicit threat to both
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person and property; and,
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BGR/bgr [Aggressive Soliciting.Ord)
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August 27, 2004
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60
2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE
SOLICITING.
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4 WHEREAS, the Mayor and Common Council further find as abusive the solicitation of
5 people in places where they are a "captive audience" in which it is difficult or impossible for them
6 to exercise their own right to decline to listen to or to avoid solicitation from others. Such places
7 include buses, parking lots, and parking structures. Restricting solicitation in such places will
8 provide a balance between the rights of solicitors and the rights of persons who wish to decline or
9 avoid such solicitations, and will help avoid or diminish the threat of violence in such unwarranted
10 and unavoidable confrontations; and,
II WHEREAS, this law is timely and appropriate because current laws and City regulations
12 are insufficient to address the aforementioned problems. The restrictions contained herein are
13 neither overbroad nor vague and are narrowly tailored to serve a substantial governmental interest.
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Furthermore, in enacting this legislation, the Mayor and Common Council recognize the
15 availability of community service and other sentencing alternatives, which may be appropriate
16 remedies for violations of this law. The goal of this law is to protect citizens from the fear and
17 intimidation accompanying certain kinds of solicitation that have become an unwelcome and
18 overwhelming presence in the City.
19 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY
20 OF SAN BERNARDINO DO ORDAIN AS FOLLOWS:
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SECTION 1. Section 5.04.360 of the San Bernardino Municipal Code is hereby
22 amended to read as follows:
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5.04.360
Soliciting, Selling, Advertising, and Begging.
[This Section shall become inoperative as of the date this Ordinance
becomes operative and shall remain inoperative so long as Chapter 9.60
prohibiting aggressive solicitation remains in full force and effect. Should
Chapter 9.60 be stricken, enjoined, or suspended by any court of law, this
Section will automatically be reenacted to read as follows:]
A.
It is unlawful for any person to solicit to street or sidewalk traffic, by any means, the sale
of any tangible personal property or the employment of any services or facilities upon any
BGR/bgr [Aggressive Soliciting,Ord)
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August 27, 2004
C I AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60
2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE
SOLICITING.
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4 sidewalk or parkway adjacent to a part of the congested streets as defined in Subsection
E of this Section.
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B. It is unlawful for any person to sell to street or sidewalk traffic any tangible personal
6 property or any services or facilities upon any sidewalk or parkway adjacent to or a part
of any of the congested streets as defined in Subsection E of this Section.
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C. It is unlawful for any person to have, bear, wear, or carry upon any sidewalk or parkway
8 adjacent to or part of any of the congested streets as defined in Subsection E of this
Section.any advertising banner, flag, board, sign, transparency, wearing apparel or other
9 device, any of which has an area greater than fourteen square inches, commanding,
publishing, announcing, or calling attention to any goods, wares, merchandise, or
10 commodities, or to any place of business, occupation, show, exhibition, entertainment, or
event.
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O. It is unlawful for any person(s) to beg, ask for, solicit, or receive alms for his or her own
12 benefit:
13 1. In any building or facility owned or leased by the City when such action disrupts
the normal conduct of activities of such building or facility; or,
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2. Upon any sidewalk or parkway adjacent to or part of any congested street as
15 defined in Subsection E of this Section.
16 E. "Congested streets" within the meaning ofthis Article are described as follows:
17 1. Base Line Street between "0" Street and "G" Street;
18 2. "E" Street between Rialto Avenue and Thirteenth Street;
19 3. "0" Street between Second Street and Sixth Street;
20 4. Highland Avenue between Waterman Avenue and "G" Street;
21 5. Mt. Vernon Avenue between Rialto Avenue and Eighth Street;
22 6. Second Street between Arrowhead Avenue and "G" Street;
23 7. Third Street, Fourth Street, Fifth Street, and Court Street between Arrowhead
Avenue and "G" Street;
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8. Waterman Avenue from Second Street north to the City limits; and,
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9. Any street or highway within the City of San Bernardino where the property
26 adjacent thereto is zoned for commercial use, or where an adjacent business has
a current business registration certificate issued by the City of San Bernardino.
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BGRJbgr [Aggressive Soliciting.Ord) 3 August 27, 2004
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60
2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE
SOLICITING.
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F.
Exemptions. The provisions of this law shall not be applicable to veterans who are
physically unable to obtain a livelihood by manual labor and are entitled to the exemption
of Section 16001 or Section 16001.5 of the Business and Professions Code, bona fide
nonprofit religious and charitable organizations engaging in lawful and authorized
religious and charitable activities, persons and organizations engaging in lawful
distribution or dissemination of literature or otherwise engaging in their exercise of
freedom of speech or press and persons or organizations exempted here from by Section
5.04.630 or other provision oflaw.
9 SECTION 2. Chapter 9.60 is hereby added to the San Bernardino Municipal Code as
10 follows:
II Chapter 9.60
12 PROHIBITION AGAINST CERTAIN FORMS OF AGGRESSIVE SOLICITATION.
Sections:
9.60.010
9.60.020
9.60.030
9.60.040
9.60.050
9.60.060
9.60.070
Definitions.
Aggressive Solicitation Prohibited.
All Solicitation Probibited at Specified Locations.
Penalty.
Severability.
Saving Clause.
Non-Exclusivity.
9.60.010 Definitions. For purposes of this Section:
A. "Solicit, ask, or beg" shall include using the spoken, written, or printed word, or bodily
gestures, signs or other means with the purpose of obtaining an immediate donation of
money or other thing of value or soliciting the sale of goods or services.
B. "Public place" shall mean a place to which the public or a substantial group of persons
has access, and includes, but is not limited to, any street, highway, sidewalk, parking lot,
plaza, transportation facility, school, place of amusement, park, playground, and any
doorway, entrance, hallway, lobby, and other portion of any business establislunent, an
apartment house or hotel not constituting a room or apartment designed for actual
residence.
25 9.60.020 Aggressive Solicitation Prohibited.
26 A. No person shall solicit, ask, or beg in an aggressive manner in any public place.
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B.
"Aggressive manner" shall mean any of the following:
BGRlbgr {Aggressive Soliciting.Ord]
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August 27, 2004
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I AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60
2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE
SOLICITING.
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(I)
Approaching or speaking to a person, or following a person before, during, or after
soliciting, asking, or begging, if that conduct is intended or is likely to cause a
reasonable person to:
(a)
(b)
fear bodily harm to oneself or to another, damage to or loss of property, or
otherwise be intimidated into giving money or other thing of value;
(2)
Intentionally touching or causing physical contact with another person or an
occupied vehicle without that person's consent in the course of soliciting, asking,
or begging;
Intentionally blocking or interfering with the safe or free passage of a pedestrian
or vehicle by any means, including unreasonably causing a pedestrian or vehicle
operator to take evasive action to avoid physical contact;
(3)
II
(4)
Using violent or threatening gestures toward a person solicited either before,
during, or after soliciting, asking, or begging;
(5)
Persisting in closely following or approaching a person, after the person solicited
has been solicited and informed the solicitor by words or conduct that such person
does not want to be solicited or does not want to give money or any other thing of
value to the solicitor; or,
(6)
Using profane, offensive, or abusive language which is inherently likely to
provoke an immediate violent reaction, either before, during, or after solicitation.
9.60.030 All Solicitation Prohibited at Specified Locations.
A. Banks and A TMs. No person shall solicit, ask, or beg within 15 feet of any entrance or
exit of any bank, savings and loan association, credit union, or check cashing business
during its business hours or within 15 feet of any automated teller machine during the time
it is available for customers' use. Provided, however, that when an automated teller
machine is located within an automated teller machine facility, such distance shall be
measured from the entrance or exit of the automated teller machine facility. Provided
further that no person shall solicit, ask, or beg within an automated teller machine facility
where a reasonable person would or should know that he or she does not have the
permission to do so from the owner or other person lawfully in possession of such facility.
Nothing in this paragraph shall be construed to prohibit the lawful vending of goods and
services within such areas.
(I)
Definitions. For purposes of this section:
(a)
"Bank" means any member bank of the Federal Reserve System, and any
bank, banking association, trust company, savings bank, or other banking
institution organized or operated under the laws of the United States, and
any bank the deposits of which are insured by the Federal Deposit
Insurance Corporation.
BGRfbgr (Aggressive Soliciting,Ord)
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August 27, 2004
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60
2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE
SOLICITING.
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B.
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(b)
"Savings and loan association" means any federal savings and loan
association and any "insured institution" as defined in Section 40 I of the
National Housing Act, as amended, and any federal credit union as
defined in Section 2 of the Federal Credit Union Act.
(c)
"Credit union" means any federal credit union and any state-chartered
credit union the accounts of which are insured by the Administrator of the
National Credit Union Administration.
(d)
"Check cashing business" means any person duly licensed as a check
seller, bill payer, or prorater pursuant to Division 3 of the California
Financial Code, commencing with Section 12000.
(e)
"Automated teller machine" shall mean any electronic information
processing device which accepts or dispenses cash in connection with a
credit, deposit, or convenience account.
(f)
(2)
"Automated teller machine facility" shall mean the area comprised of
one or more automated teller machines, and any adjacent space which is
made available to banking customers after regular banking hours.
Exemptions. The provisions of Subdivision A shall not apply to any unenclosed
automated teller machine located within any building, structure, or space whose
primary purpose or function is unrelated to banking activities, including, but not
limited to, supermarkets, airports, and school buildings, provided that such
automated teller machine shall be available for use only during the regular hours
of operation of the building, structure, or space in which such machine is located.
Motor Vehicles and Parking Lots.
(I)
Motor Vehicles. No person shall approach an operator or occupant ofa motor
vehicle for the purpose of soliciting, asking, or begging while such vehicle is
located in any public place.
Parking Lots. No person shall solicit, ask, or beg in any public parking lot or
structure any time after dark. "After dark" means any time from one-half hour
after sunset to one-half hour before sunrise.
(2)
(3)
Exemptions. Subdivision B shall not apply to any of the following:
(a)
to solicitations related to business which is being conducted on the subject
premises by the owner or lawful tenants;
(b) to solicitations related to the lawful towing of a vehicle; or,
(c)
to solicitations related to emergency repairs requested by the operator or
other occupant of a vehicle.
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BGR/bgr {Aggressive Soliciting.Ord]
August 27, 2004
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I AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.360 OFTHE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60
2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE
SOLICITING.
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c.
Public Transportation Vehicles.
(I)
"Public transportation vehicle" shall mean any vehicle, including a trailer bus,
designed, used, or maintained for carrying 10 or more persons, including the
driver; or a passenger vehicle designed for carrying fewer than 10 persons,
including the driver, and used to carry passengers for hire.
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(2)
Any person who solicits, asks, or begs in any public transportation vehicle is
guilty of a violation of this Section.
9.60.040
Penalty.
lOA violation of this Section is punishable as a misdemeanor or infraction, chargeable at the
City Attorney's discretion.
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9.60.050
Severability.
The provisions of this Ordinance are declared to be separate and severable. The invalidity
of any clause, sentence, paragraph, subdivision, section, or portion of this Ordinance, or the
invalidity of the application thereof to any person or circumstance shall not affect the validity of
the remainder of this Ordinance, or the validity of its application to other persons or circumstances.
9.60.060
Saving Clause.
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Should this Chapter be stricken, enjoined, or suspended by any court oflaw, the provisions
of Section 5.04.360 of the San Bernardino Municipal Code, which were made inoperable by this
Ordinance, will be automatically reenacted as of the date this Chapter was stricken, enjoined, or
suspended.
9.60.070
Non-Exclusivity.
2 I Nothing in this Chapter shall limit or preclude the enforcement of other applicable laws.
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BGR/bgr {Aggressive Soliciting.Ord}
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August 21, 2004
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.04.360 OF THE SAN BERNARDINO MUNICIPAL CODE AND ADDING CHAPTER 9.60
2 TO THE SAN BERNARDINO MUNICIPAL CODE TO PROHIBIT AGGRESSIVE
SOLICITING.
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I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a
meeting thereof, held on the
6 _ day of
7 COUNCIL MEMBERS:
8 ESTRADA
9 LIEN
10 MCGINNIS
II DERRY
12 KELLEY
13 JOHNSON
14 McCAMMACK
, 2004, by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
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City Clerk
The foregoing Ordinance is hereby approved this _ day of
,2004.
Judith Valles, Mayor
City of San Bernardino
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Approved as to form
and legal content:
JAMES F. PENMAN,
25 City Attorney
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By:L9.~
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BGR/bgr {Aggressive Soliciting.Ord]
August 27, 2004
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'. . ''''c' ' RECORDS & INFORMATION MJ\NAGEMENT PROGRAM
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Meeting Date/Date Adopted:
Resolution/Ordinance No,
Effective Date:
Vote: Ayes: / - 7
Abstain: -9-
Date Sentto Mayor: II) -5:-0 'f
Date of Mayor's Signature: 10- s: -0,/
Date Summary Sent to Attorney: fO -.s; -() i
Date ,published: J:;~
Meeting Type:~__
Continued Fro~ & Item No,
Item No.
Nays:
Absent:
CJ
-e-
Date of Clerk's Signature:
Date Summary Returned from Attorney:
ItJ-S'-o,/
/() -S-OY'
Date Returned from Mayor:
/t!-S'~y
,
Date Seal Impressed:
10-5 -tN
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To Whom:
Date Retumed:
)(~gI1X' f/d;, if-r' j?~,
'l.u- ~'-'v"..-'
Date Sent for Signature:
Expiration Date:
Copies Distributed To:
Exhibits Complete & Attached to Resolution/Ordinance:
Reminder letter Sent:
Reminder Letter Sent:
Reminder Letter Sent:
Request for Council Action & Staff Report Attached:
N.,... if..l..%-t" /' ~- ~ 6 Iii; ~
( _V
Yes
No
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Ready to File: ;:;( ~~
DOC'UMfNT lOCATlON:
FORMSIApIda 11Im TraddItc Fonn..CCFomt No. 111.laM l,IJIdIIId: Ilt04I1996
Date:
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