HomeMy WebLinkAbout28-City Attorney
CITY-OF'SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: CITY ATTORNEY
Date: May 13, 1999
ORIGINAL
Subject: AN ORDINANCE OF THE CITY OF SAN
BERNARDINO ADDING SECTION
5.04.378 TO TITLE 5 OF THE SAN BERNARDINO
MUNICIPAL CODE RELATING TO PEDESTRIAN
VENDORS.
From: HUSTON T. CARLYLE, JR.
SR. ASSISTANT CITY ATTORNEY
Synopsis of Previous Council action:
This Ordinance initially dealt with Pedestrian Food Vendors. It was laid over for final adoption, but
then was removed from the Consent Calendar because of concerns from the business community
relative to its potential affect on such businesses.
The matter was then referred back to the Legislative Review Committee which subsequently met and
proposed modifications so that the current version of the Ordinance does not exclusively deal with
food. The Ordinance was returned for full Council consideration for the March 15, 1999 meeting;
however, it was once again referred back to the Legislative Review Committee to resolve additional
concerns raised by the business community. The Ordinance now submitted to you has addressed the
previous concerns raised by all parties.
Recommended motion:
That said Ordinance be laid over for final adoption.
Contact person: . HUSTON T. CARLYLE. JR.
Supporting data attached: Staff Re.p<>rt
FUNDING REQUIREMENTS: Amount:
Phone:
Ward:
None at this time
5355
All
Source:
/1Uf}r'4 /18)5 j999 ~!nI:ce:
Council Notes: ,tJ/UAJi4 /J'If,,:J999 ~;(5
75-0262
Agenda Item No.
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tJ 5 j/719r7
HTC/ea[PedOrd.RCA]
STAFF REPORT
Council Meeting Date: MAY 17,1999
TO:
FROM:
DATE:
AGENDA:
Mayor and Common Council
City Attorney's Office
May 13, 1999
May 17, 1999
At the meeting of the Mayor and Common Council held on September 21, 1998, the City
Attorney was directed to prepare a vendor cart ordinance for the downtown area.
The process to establish a vendor cart ordinance for the City of San Bernardino began in
Legislative Review Committee (LRC) for the purpose of providing the public in the downtown
business district with convenient access to vendor cart food and beverage products and to establish
enforceable regulations to prevent illegal vendor cart activity. On September 14, 1998, the LRC
recommended that the Mayor and Common Council request that a vendor cart ordinance be drafted
patterned after the City of Riverside's vendor cart ordinance.
The proposed ordinance was referred to the full Council on November 16, 1998. The
ordinance was then referred back to LRC so that the concerns of the business community could be
considered.
The proposed ordinance was referred to the full Council once again on March 15, 1999;
however, it was then referred back to LRC so that additional concerns of the business community
could be considered.
The ordinance has since been revised a number of times to take into consideration a number
of concerns by LRC, City Attorney's Office, the City Clerk's Office and the business community.
The ordinance submitted herewith is the culmination of that effort.
The City Clerk's Office will conduct a review of the vendor cart operation after one year. The
review will take into consideration all positive and negative aspects of operation and whether the use
of vendor carts in the central business district should be continued.
The Mayor and Common Council should be advised that there is pending in the State
Legislature Senate Bill 617 (copy attached) which would preempt the ability of local government to
regulate vendor carts to the extent it currently can. The Mayor and Common Council may wish to
defer action on this item until it is better known whether or not such legislation will pass and, if so,
in what form the final version of such legislation will be; or, it may wish to pass the proposed
ordinance, realizing that it may be necessary to revisit this issue later on this year. This is a policy
decision to be determined by the Mayor and Common Council.
IITC/ea[PedOrd.srp ]
Legi~.lation,
Subscribe
Bill/lito
Pas' 5;essiolls
('ode.\'
Statutes
COltS/;lll/ioll
Page lof3
"California State Senate
_lIo_ Se_tom Legislation Committees Scheclules omcesJCau_Audio/TV ,F.
~Current Session Legislation~
SB 617 Local government regulation: vendors.
BILL NUMBER: SB 617 AMENDED 05/10/99
AMENDED IN SENATE MAY 10,1999
AMENDED IN SENATE MAY 6, 1999
INTRODUCED BY Senator Haynes
FEBRUARY 24, 1999
An act to add Section 53083 to the Government Code, relating to business regulations.
LEGISLATIVE COUNSEL'S DIGEST
SB 617, as amended, Haynes. Local government regulation: vendors.
The California Constitution allows counties and cities to make and enforce within their
limits all local, police, sanitary, and other ordinances not in conflict with general laws
and allows city charters to provide that cities may make and enforce all ordinances and
regulations in respect to municipal affairs. Judicial decisions have characterized
vending from vehicles on public streets as a matter of statewide concern as to which
local regulation is preempted. Existing statutes require a local permit for a food
establishment, vehicle, vending machine, or other food facility and allow local
governments to adopt laws relating to facility grading, employee certification,
prohibiting of types of food facilities, and regulating toilet and handwashing facilities.
Existing law also contains provisions to encourage vending by blind persons.
This bill would prohibit any city __, county, or city and county from adopting
any ordinance or imposing any regulation that discriminates against, or is more
stringent with respect to, any vendor or type of vendor on the basis that the vendor
sells his or her products at a particular type of dispensing facility such as a rack, kiosk,
stand, cart, vehicle, or other structure or sidewalk or street dispensing facility.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local
program: no.
SEGTIGU 1. Bastien ~39B3 is aaaea Be the
SECTION 1. Section 53083 is added to the Government Code, to read:
53083. (a) No city, county, or city and county shall adopt any ordinance or impose any
regulation that discriminates against, or is more stringent than those imposed on a
similar stationary business with respect to, any vendor or type of vendor on the basis
that the vendor sells his or her products at a particular type of dispensing facility such
http://www.sen.ca.gov/htbin/testbin/ca-html?GOPHER_ ROOT2: [BILL.CURRENT.S.. ./SB61 5/11/99
Legis.lation.
Page 2 of3
as a rack, kiosk, stand, cart, vehicle, or other structure or sidewalk or street
dispensing facility.
(b) It has been found by the Legislature that protection of the economic freedom of
vendors and small business entrepreneurs is a statewide interest. The state does not
condone discriminatory actions taken by cities and counties towards vendors.
Therefore, this section applies to every city, county, and city and county, including any
charter city.
(c) Any business permit fee imposed on a vendor described in subdivision (a) shall not
exceed the fee imposed on any restaurant or other like business.
(d) Any background check on vendor owners and employees shall be consistent with
policies governing restaurants or other like businesses.
(e) There shall be no maximum limit on the number of licenses for street vendors.
(f) No vendor shall be held responsible for litter disposed of inappropriately by
vending customers.
(g) Any appearance regulations placed on vendors shall not be more stringent than
those placed on restaurants or other like businesses. C8. 8Fnm8flt Geee, te Esaa.
S3982. (a) Ue sit) BE E!61=l.Flt) shall aa6~t 81'1 8EainaI.sc BE in.(!!8a6. an}
J?c~~lati6fl that etis8Eimiflatea a~ainat, BE is maEE atEifl~eflt \.ith
ESS(!!6eB Be, an] .SH8SJ? SE t~e af .cRaSE en the sasia that the .enasI
8ella hia BE heE ~J?6a~ete at a ~aJ?ti8~laJ? tj~e af aia~eRain~ faeilit:r
Bt!sh as Ii yeah, lties]l, atana, a8Et, . ct.iele, SE ett.eE atEl1stl1E6 SE
aiae..alh SF atEeet aia~eF.ain~ faeilit:r.
(e) TLiEl llB.E!tli3L a15~liea te all eitiea ana 6el1ntics, iI.eltiaiI.~
ehaItsE eitiea.
(e) :~.} Bl1sinsaa ~eEmit fee sRall B6 im~66ea en the same sasis feE
an) ]?I:iSheaEt as it is fSE 5.I.J EeStaelEant.
(8) ."'.f.) 8aeh~ESId.F.8 e:hee:h sn . E.fl8SE e..I.eES aI.a eR43-1e) ssa ethsE than
Ecstald.Eanta shall lee E!sI.sistef.t .Iitfi !3s1ieiea !jB. eEniR~ Esatald.Eanta.
(6) The-Ec shall 8e ne maniHlIMI1. limit 6fl. the Yll::1meeE sf li.~eLses fel?
atE6st .ERaSES.
(f) ILia SleetieR ae6a Let !3Eeslld.ae a sit} BE 8Sld.flt) fEsm 5aFl.flin~ all
street .eRaSES.
(~) Ue S1tEeet . eF.aSE s}<1.all 5e helei E6S138fiai131e feE litteE eiiSl!3saea ef
ina!3~Ea~Ei5.tel) 8) .eflainlj Sld.stsffieEa.
(h) :~.} ~elateaEt a1313saEanss Eeljld.latisna shall Ret BS meES stl?in~sflt
thaR theSe 131aSe8 en EE-stald.yant a1313eaEaRse.
HODle Senators l..ec:islation Committees Scht'dulrs Offices/Caucuses AadjorrV FaQslLinks
Please send any questions or comments about this site to \VchMasterriDs('n.ca.gov
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Legi~.lation.
Page 3 of3
http://www.sen.ca.gov/htbin/testbin/ca-html?GOPHER _ ROOT2:[BILL.CURRENT.S.../SB61 5/11/99
ORDINANCE NO.
I AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 5.04.378
TO TITLE 5 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
2 PEDESTRIAN VENDORS.
3 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
4 DO ORDAIN AS FOLLOWS:
5 SECTION 1. Section 5.04.378 is hereby added to Title 5 of the San Bernardino
6 Municipal Code to read as follows:
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5.04.378
PEDESTRIAN VENDORS
A.
Definitions .
For the purposes of this section, the following terms have the following
respective meanings:
"Pushcart" means any wagon, cart or similar wheeled container, not a
B.
"vehicle" as defined in the Vehicle Code of the State of California, from
which food, beverage or non-consumption items are offered for sale to the
public.
"Downtown Business District" means that area of the City of San
Bernardino bounded on the west by the I 215 freeway, on the east by
Arrowhead Ave. on the north by Sixth Street and on the south by Rialto
A venue and includes both sides of each street.
General Prohibitions.
1.
No person shall sell or offer for sale any food, beverage or non-
consumption items from any portable box, stand, bag, bucket or similar
container, on any public street, including parkways or sidewalks, within the
City.
2.
No person shall sell or offer for sale any food, beverage or non-
consumption items from any pushcart on any street, including parkways or
sidewalks, within the City; provided, however, that notwithstanding
Municipal Code Section 5.04.360 and/or Section 5.04.375, sales from
pushcarts may be made on sidewalks within the downtown business district
HTC:ea[Vend.Ord]
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 5.04.378
TO TITLE 5 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
PEDESTRIAN VENDORS.
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3.
subject to the provisions and conditions of this section.
No person shall employ, direct or otherwise cause any other pe~n
to sell or offer for sale any food, beverage or non-cons~tion
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items in violation of subsection A or B of this section. /1
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No pushcart from which food or beverage is disP5pSed shall be
located for the purpose of conducting sales within otie hundred fifty
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feet of a business selling food or beverage for phsite consumption.
No pushcart from which non-consumption ~t~ms are dispensed shall
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be located for the purpose of conducting/sales within one hundred
fifty feet of a business which sells sulistantially similar non-consumption
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nems. /
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6. No pushcart vendor shall ~/ issued a Business Registration
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Certificate andlor a Pede~ian Vendor Permit without first
obtaining a valid permit fr6m the Department of Environmental
Health Services of the County of San Bernardino, if so required.
Business Registration Certificate.
No person shall sell or offer for sale any food, beverage or non-consumption
item from a pushcart, nor employ, direct or otherwise cause any other person
to do so, without having first applied for and obtained a business registration
certificate for the pushcart from the City Clerk's Office. Each business registration
application shall be accompanied by payment of a non-refundable fee pursuant to
either Municipal Code Section 5.04.525 B or Section 5.04.525 C, depending upon
whether the applji:ant seeks to sell food, beverages, andlor non-consumption
items from the rushcart.
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 5.04.378
TO TITLE 5 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
PEDESTRIAN VENDORS.
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D. Pedestrian Vendor Permit.
Every applicant for a pedestrian vendor permit shall file With,e City Clerk a
written application on a form provided by the City Clerk, whfch shall contain the
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following: . i
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1. The name, address, telephone number and social security number
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of the applicant and of each person, if ~4, to be employed or
retained by the applicant to sell food, bev ages or non-consumption
items from pushcarts.
2. The design of each pushcart, inc1
3. The character, location, hours d routing of pushcart operations.
4. Plans for independent toilet f ilities for pushcart operators
during hours of operatio
plication shall be accompanied by
payment of a non-refundable ee pursuant to applicable resolution
and/or Municipal Code.
E. Indemnity Agreement.
As a condition to
a business registration certificate and a
it, every permittee shall execute an agreement
it's employees and agents harmless from any liability
arising from the pperation of the food vendor's business.
pedestrian vendor
F.
Insurance.
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Every applicau't, at his or her sole cost and expense, and during the term of
his/or her registration or any renewal thereof, shall obtain and maintain
liability insurance in an amount of not less than One Million Dollars
($1,000,000). Prior to the issuance of any registration, the applicant shall
file and maintain with the City Clerk or her designee a valid and current
HTC:ea[Vend,Ord]
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 5.04.378
TO TITLE 5 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
PEDESTRIAN VENDORS.
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policy or sufficient certificate or certificates evidencing the policy or
policies of liability insurance, covering all operations of the applicant and
his agents, and employees. The policy or policies shall contain ,
endorsement naming the City as additional insured, shall provide tha~the
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City will be given thirty days' written notice prior to cance1~,'~n or
material change, and shall be in such minimum limits as set ~ herein.
Permit Issuance. .
G.
The City Clerk shall issue the pedestrian vendor pe
conforms to the regulations set forth in Section 5.
City Clerk shall deny the application. One pedes an vendor permit shall
if the applicant
be issued for each pushcart to be operated. Ho ver, in no event shall the
total number of pedestrian vendor permits e ed ten (10) at anyone time.
H. Transfer Prohibited.
Pedestrian vendor permits issued un
assigned, or transferred and shall ver only the named applicant and
pushcart to whomlwhich they are' sued.
I. Pedestrian Vendor Permit Term' imits; Restrictions.
Each pedestrian vendor permi issued pursuant to this section shall be for
a term of twelve months. S Id permits shall be issued, by the drawing of
lots for all qualified apPlirts during the last week of July of each year, to
be effective August 1 of each year through July 31 of the following year.
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No pedestrian vendor~;Shall be allowed to operate their pushcarts during the
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days encompassing the Route 66 festivities, or any other City sponsored
special events. Such prohibited days shall be designated by the City Clerk
on the issued permit. No pedestrian vendors approved for the downtown
business district shall be permitted to operate on Carousel Mall property.
HTC:ea[Vend,Ord]
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 5.04.378
TO TITLE 5 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
PEDESTRIAN VENDORS.
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HTC:ea(Vend.Ord]
Should the number of potential pedestrian vendor permits be less than ten
(10) in number at the time of the drawing of lots, then subsequent permits
shall be issued to qualified applicants on a first come first serve basis, but
only for the number of months remaining until next July 31, and in no event
shall the total number of permits exceed ten (10) in numbe1
Permit Revocation. l/
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The City Clerk shall revoke any pedestrian vendor pe~t for any of the
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following reasons: /
.Of>'
Falsehood of any information supplied by,the applicant upon which
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issuance of the permit was based. I
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Failure of the applicant to promptj# notify the City Clerk of any
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change occurring subsequent tpi the issuance of the pedestrian
vendor permit in the inform;l(ion supplied by the applicant upon
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which issuance of the pelll}1t was based.
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F,;I= of"" 'Wlio""I" of m, _10'= oc ,""""""""". of
the applicant, to COrlY with the regulations set forth in this
section. I
Violation by the 1Plicant, or any employee or subcontractor of the
applicant, of ant State, County or municipal law in the course of
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conducting fogH vending operations pursuant to the registration.
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Revocation c/ County of San Bernardino Health Department Permit.
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Failure of t)ie applicant to attempt to sell food, beverage or non-consumption
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items for a continuous period of twenty (20) calendar days.
No person whose Pedestrian Vendor Permit is revoked shall be eligible to
apply for a new permit for a period of twelve months following such
revocation.
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 5.04.378
TO TITLE 5 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
PEDESTRIAN VENDORS.
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K. Permit Appeal.
Any person who is aggrieved or dissatisfied with the conditions imposed on
his or her application for a pedestrian vendor permit, or whose application
is denied or whose permit is suspended or revoked by the City Clerk may
appeal such decision to the Common Council pursuant to Chap~r 2.64 of
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this Code. .
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Pushcart Regulation. j
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1. Each pushcart shall have affixed to it in plain,.~iew the business
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registration certificate and the pedestrian ve~r permit required by
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this section.
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2.
Pushcarts shall not be stationed in anY location which creates an
obstruction to the normal flow of v<<6i'cular or pedestrian access to
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the public streets and sidewa~ or within ten feet of any
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intersection, driveway or b~i1ding entrance, or in any space
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designed for vehicular par
3.
of any pushcart shall be six feet in
length, four feet in wid and seven feet in height.
The only signs used n conjunction with a pushcart shall be signs
4.
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affixed to or paintep on the pushcart or its canopy.
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5.
A refuse container of at least four cubic feet capacity shall be
provided in or on the pushcart. No debris shall be deposited on the
ground.
No loudspeakers, public address system, bells, chimes or other
sound making device shall be affixed to or used in conjunction with
a pushcart.
No artificial lighting of or on any pushcart is permitted.
6.
7.
HTC:ea[Vend,Ord]
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 5.04.378
TO TITLE 5 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
PEDESTRIAN VENDORS.
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HTC:ea[Vend.Ord]
8. No sale is permitted to any person who is in a motor vehicle at the
time of sale.
9.
Pushcarts will be permitted to operate between the hours of 8:00
a.m. and 6:00 p.m. only during any day.
10.
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Pushcarts must be moved to a different locatiownot less than
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one hundred fifty feet from the prior locati every ninety minutes,
and cannot be at the same location wi
Violation of this section is a misdemeanor a . is punishable in accordance
with Section 1.12.010 subsection A.
Permit shall not be a defense against
Severability .
If any subsection, sentence, cla e or phrase of this section is for any
reason held to be invalid or un onstitutional by decision of any court of
competent jurisdiction, such cision shall not affect the validity of the
remaining portions of the c ter. The City Council hereby declares that
it would have passed this c; apter and each section, subsection, clause or
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phrase thereof irrespecti~e of the fact that anyone or more other sections,
subsections, clauses or phrases may be declared invalid or unconstitutional.
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SECTION 5.04.378
TO TITLE 5 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO
PEDESTRIAN VENDORS.
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I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
4 Common Council of the City of San Bernardino at a meeting th7re f, held
on the _ day of , 1999, by the following vote, to wit: ,,1"
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Council Members: AYES NAYS ABSTAIN f'ABSENT
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ESTRADA
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LIEN
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MCGINNIS
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SCHNETZ
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DEVLIN
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ANDERSON
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MILLER
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CITY CLERK
The foregoing Ordinance is herejPproved this _ day of
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,1999
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JUDITH VALLES, Mayor
City of San Bernardino
Approved as to form
21 and legal content:
22 JAMES F. PENMAN
City Attorney
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HTC:ea[Vend.Ord]
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