HomeMy WebLinkAboutORD 02 (1993)ORDINANCE NO. 02 (1993)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DIAMOND
BAR RELATING TO THE PREVENTION AND REMOVAL OF GRAFFITI
AND OTHER INSCRIBED MATERIAL AND ESTABLISHING THE PAYMENT
OF A REWARD FOR INFORMATION LEADING TO THE CONVICTION OF
GRAFFITI INSCRIBERS.
A. Recitals.
(i) The City Council finds and declares that graffiti on
public and private property is a blighting factor which not only
depreciates the value of the property which has been the target of
such malicious vandalism, but which also depreciates the value of
the adjacent and surrounding properties and thereby negatively
impacts the entire community.
(ii) The City Council further finds and determines that
the inscription of graffiti may be associated with criminal
activity and delinquency and unless graffiti and other inscribed
material is removed from property it tends to remain and other
properties are then the target of graffiti with the result that
entire neighborhoods, and the City in general, are made a less
desirable place to be.
(iii) Section 53069.3 of the California Government Code
authorizes the City to enact ordinances to provide for the use of
City funds to remove graffiti from public places and privately
owned structures located within the City.
(iv) In the past, the City of Diamond Bar has provided
unlimited, free, graffiti removal services. While this public
service benefits the entire community, it provides no incentive to
~i private property owners to deal directly with the problem and
formulate their own ideas, solutions, and mitigation measures to
avoid being victimized time and time again.
(v) With the current economic recession and resulting
reduction in public resources, the perpetual provision of free and
unlimited graffiti removal services, as the City's sole response to
this kind of malicious behavior, is no longer an effective
deterrent to the escalation in graffiti vandalism and is not a cost
effective use of public funds.
(vi) The Council finds and determines that the adoption
of an ordinance making the presence of graffiti unlawful on any
property will: (1) assist and encourage property owners to
cooperatively engage in measures to prevent graffiti, as well as to
remove graffiti from their property in a timely and beneficial
manner; (2) alert parents and legal guardians to their involvement
,,in, and responsibility for, payment of civil damages, in an amount
of to exceed Ten Thousand Dollars ($10,000), resulting from the
willful misconduct of a minor in their charge; (3) notify any
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person who willfully damages property by inscribing graffiti that
their acts will have direct personal consequences which may include
fines, imprisonment, court mandated community service, suspension
and/or delay of driving privileges; (4) notify retailers within the
City that it is unlawful to sell or give to any individual under
the age of eighteen (18) years a graffiti implement as defined by
this Ordinance and that they must keep, store and maintain any
implement capable of being used to deface property in a secure
location, and otherwise inaccessible except by special request; (5)
advise any person, firm or corporation engaged in the retail sale
of any graffiti implement of their responsibilities under this
Ordinance and to the potential consequences, including the
imposition of a fine, imprisonment or both, for failure to take
proper precautions to keep, store and maintain in an inaccessible
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location any implement regulated by this Ordinance; and (6) secure
the cooperation of residents, businesses, and contractors of
services in the arrest of individuals responsible for inscribing
graffiti on property by providing for the payment of a reward for
information leading to the apprehension and conviction of any
person who willfully places graffiti or other inscribed material
upon public or privately owned property within the City.
(vii) All legal prerequisites to the adoption of this
Ordinance have occurred.
B. Ordinance.
NOW THEREFORE, the City Council of the City of Diamond Bar
does ordain as follows:
Section 1. In all respects as set forth in the Recitals,
Fart A, of this Ordinance.
Section 2. Definitions. For the purpose of this
Ordinance, the following words and phrases are defined and shall be
construed as hereinafter set out, unless it is apparent from the
context that a different meaning was intended:
"A. 'Aerosol Container' means any aerosol based container,
bottle, spray device or other mechanism, six (6) ounces or less,
which is adapted or made for the purpose of spraying paint, ink,
dye or other similar substance.
"B. 'Bona fide evidence of majority and identity' means any
document evidencing the age and identity of an individual which has
been issues by a federal, state or local government entity, and
includes, but is not limited to, a motor vehicle operator's
license, a registration certificate issued under the Federal
Selective Service Act, or an identification card issued by a member
of the armed forces.
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"C. 'City' means the City of Diamond Bar, California.
"D. 'City Manager' means the City Manager of the City of
Diamond Bar or his or her designee.
"E. 'Felt Tip Marker' means any indelible marker, pen or
similar implement which contains a fluid which is not soluble in
water and has a flat, pointed or angled tip which at its broadest
width is greater than one-eighth (1/8th) inch.
"F. 'Graffiti' means the unauthorized application of paint,
ink, chalk, dye or the use of any other instrument capable of
defacing, damaging or destroying public and private buildings,
structures, or any portion thereof.
"G. 'Graffiti Implement' means an aerosol container, a felt
trip marker, nail polish, shoe polish, paint stick, etching
instrument, or any other device containing paint, ink, chalk, dye
or similar substance which when used or applied is capable of --
defacing glass, metal, concrete or wood.
"H. 'Obnoxious Graffiti' means graffiti which, in the
determination of the City Manager, has any of the following
characteristics:
(1) Insults or incites hatred or contempt of any
racial, religious or ethnic group;
(2) Refers to the name of a gang or includes words or
symbols associated with a gang or individual;
(3) Insults or threatens any identifiable individual or
group;
(4) Includes obscene or indecent language or
depictions;
(5) Constitutes an aesthetic blight or eyesore to a
neighborhood;
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(6) Tends to attract more graffiti; and
(7) Promotes criminal activity or promotes retaliatory
action by an individual(s).
"I. 'Paint Stick or Graffiti Stick' means any device
containing a solid form of paint, chalk, wax, epoxy, or other
similar substance that is not water soluble and is capable of being
applied to a surface by pressure, and upon application, leaving a
mark at least one-eighth (1/8th) inch in width.
Section 3. Graffiti Prohibited.
A. It is unlawful for any person to apply graffiti to any public
or privately owned structure located on public or privately owned
real property within the City.
B. It shall be unlawful for any owner, lessee, occupant or other
person having present possession of a lot or parcel of land within
the City to (1) permit graffiti to remain upon such lot or parcel
of land or (2) to maintain any structure affixed to such lot or
parcel or land with graffiti on such structure or any portion
thereof, for a period in excess of seven (7) calendar days
following service by the City of a notice to abate graffiti. Each
day the graffiti is maintained beyond the initial seven (7) day
period hereby constitutes a separate offense and is subject to the
penalties set forth in Section 9.
Section 4. Possession of Graffiti Implement. No person
under the age of eighteen (18) years and not in the presence of a
parent or legal guardian shall have in his or her possession a
graffiti implement, as defined by this Ordinance, while in any
public park, playground, swimming pool, public recreational
facility or any public right-of-way in the City unless necessary in
order to participate in any City sponsored function. This section
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shall not apply to authorized employees of the City of Diamond Bar
nor shall it apply to the authorized agents or contractors under
contract with the City.
Section 5. Removal Policy. The City Manager or his
designee shall develop a graffiti removal program to assist
property owners in the expeditious removal of graffiti from their
property. Notwithstanding any other provision of this Ordinance,
the City shall be authorized to recover its costs incurred in the
removal of graffiti from private property if:
(a) The removal of graffiti or other inscribed material from
privately owned real property exceeds four (4) requests or a
maximum of 600 square feet per privately owned real property during
One (1) calendar year.
(b) Where the removal of graffiti has been mandated pursuant
to Section 6 of this Ordinance, the owner of the affected property --
shall be required to reimburse the City for such services.
(c) Nothing in this Ordinance shall prohibit the City Manager
or his designee from waiving the provisions of this section if it
can be determined that the affected property owner has demonstrated
a conscientious effort to prevent graffiti from occurring on their
property as exhibited by, but not limited to, the installation of
security devices such as surveillance cameras, security lighting,
sprinklers linked to motion sensors; protective or covering
landscaping; graffiti resistant building materials; or the
application of graffiti -resilient paint.
Section 6. Authorization to Remove. Graffiti may be
removed by any of the following methods:
(1) Wherever the City Manager determines that graffiti or
other inscribed material constitutes "obnoxious graffiti" as
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defined in this Ordinance and is so located on public or privately
owned property within the City so as to be capable of being viewed
by a person utilizing any public right-of-way in the City, the City
Manager is authorized to provide for the removal of the graffiti or
other inscribed material upon the following conditions:
(a) In removing the graffiti or other inscribed
material, the painting or repair of a more extensive area shall not
be authorized.
(b) Where a structure is owned by a public entity other
than this City, the removal of the graffiti or other inscribed
material may be authorized only after securing the consent of the
public entity having jurisdiction over the structure and such
entity executes a release and waiver, approved as to form by the
City Attorney, and agrees to an assumption of costs incurred by the
—. City for the removal of the graffiti or other inscribed material.
(c) Where a structure is privately owned, the removal of
the graffiti or other inscribed material may be authorized only
after securing the consent of the owner and the owner having
executed a release and waiver approved as to form by the City
Attorney.
(2) Graffiti which is located on privately owned structures
on privately owned real property within the City and which can be
viewed by a person utilizing any public right-of-way within the
City may be removed by the City at the owners expense as a public
nuisance pursuant to Section 7. This Section shall apply under the
following circumstances:
(a) The private property owner has persuaded, allowed or
encouraged the graffiti problem;
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(b) The private property owner's consent cannot be
obtained;
(c) The City Manager determines that the removal of
graffiti or other inscribed material from a privately owned
property has exceeded four (4) requests or a maximum of 600 square
feet per privately owned real property during one (1) calendar
year.
Section 7. Notice to Abate Graffiti. Whenever the City
Manager determines that graffiti is being maintained upon the
premises within the City in violation of Section 3 of this
Ordinance, the City Manager shall send, by registered or certified
mail, or post, at a conspicuous place on the premises where the
graffiti is located, written notice to the owner, and to any
lessee, occupant or other person having present possession of a lot
or parcel of land within the City that the graffiti must be removed
within seven (7) days from the date of service of the notice. The
notice shall be entitled "Notice to Abate Graffiti," in letters
not less than one inch in height, and shall cite this Ordinance as
authority for such abatement. The notice shall contain a general
description of the property on which the graffiti is located,
(a) The notice shall be on City letterhead in substantially
the following form:
"NOTICE TO ABATE GRAFFITI
NOTICE IS HEREBY GIVEN that under the provisions of
Section 3 of Ordinance you are required at your
expense to remove or paint over the graffiti located on
the property commonly known as
Diamond Bar,
California, which is visible to public view, within seven
(7) days after the date of service of this notice. The
graffiti is visible to public view and therefore
constitutes a public nuisance. If you fail to comply
with this order the City or its contractor will enter
upon your property and abate the public nuisance. The
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cost of the abatement by the City or its contractor will
be assessed upon your property and such costs will
constitute a lien upon the land until paid.
All persons having any objection to, or interest in said
matter are hereby notified to submit an appeal to the
Office of the City Manager within seven ( 7 ) days from the
date of this notice.
At the conclusion of this seven (7) day period the City
may proceed with the abatement of the graffiti on your
property at your expense without further notice."
(b) If an appeal has been made to the Office of the City
Manager within seven (7) days from the date of the Notice to Abate
Graffiti, the City Manager, or his designee, shall hold an
administrative hearing on the appeal. The decision of the City
Manager or his designee shall be final and conclusive.
(c) If an appeal has not been submitted as set forth in
Section 7(b) above, or if the appeal has been denied following an
-- administrative hearing, and if the private property owner fails to
remove or fails to cause the graffiti to be removed by the
designated date, or such continued date thereafter as approved by
the City Manager, then the City Manager shall cause the graffiti to
be abated as a public nuisance by the City or its contractor, and
the City or its contractor is expressly authorized to enter upon
the premises for such purpose.
Section 8. Recovery of Costs. Should the City Manager be
required to abate the graffiti as a public nuisance, as set forth
in Section 7(c), the City may recover, pursuant to California
Government Code Section 38773, the costs of abatement through the
assessment of a lien against the property on which the nuisance is
maintained.
(a) Prior to the recordation of a lien against property for
the recovery of abatement and related administrative costs, the
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City, in accordance with Section 38773.1 or 38773.5 of the
California Government Code, shall provide written notification, by
registered or certified mail, to the property owner that a lien
will be assessed against their property and such costs will
constitute a lien upon the land until paid. The notice of lien
shall for purposes of this Ordinance be in form substantially as
follows:
"NOTICE OF LIEN"
Pursuant to California Government Code Section 38773 and
the authority of Ordinance of the City of Diamond
Bar, the City Manager of the City of Diamond Bar did on
or about the day of , 199_ cause the
removal of graffiti at the premises hereinafter described
in order to abate a public nuisance on said real
property; and the City Council of the City of Diamond Bar
did on the day of . 199_ assess the cost
of such abatement upon the real property hereinafter
described; and the same has not been paid nor any part
thereof; and that said City of Diamond Bar does hereby
claim a lien for such costs of abatement in the amount of
said assessment to wit: the sum of
dollars; and the same shall be a lien upon said real
property until the same has been paid in full and
discharged of record.
The real property hereinabove mentioned, and upon which
a lien is claimed, is that certain parcel of land lying
and being in the City of Diamond Bar, County of Los
Angeles, State of California, and particularly described
as follows:
DATED this day of , 199_
City Clerk, City of Diamond Bar
(b) Between the first and the fifteenth day of July of each
year, the City Manager shall cause to be published in the official
newspaper of the City a notice that any person affected or
aggrieved by any act or determination of the City or the City's
City Manager in connection with the provisions of this Ordinance
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may appeal to the City Council. An appeal shall be in writing and
shall be filed with the office of the City Clerk prior to the
fifteenth day of July. At the next regular scheduled meeting of
the City Council after the fifteenth day of July, or from time to
time thereafter as may be determined by the Council, the City
Council shall hear and render a decision upon each appeal, and the
determination of the Council shall be final and conclusive. In the
event any determination of the City Manager is modified by
determination of the City Council or any assessment changed or
corrected, the City Manager shall cause the correction to be made
upon the record showing the assessment.
(c) At the expiration of the time for appeal, or upon the
determination by the City Council of all appeals so filed, and in
compliance with the requirements of any determination so made, the
City Manager shall deliver to the County Auditor of the County of
Los Angeles an abstract of each lot or parcel of land within the
City affected by this Section and the amount of each such charge to
be placed upon the assessment roll against the respective parcel.
Thereafter, the charges shall be of the same character and effect,
subject to the same penalties, and shall be collected in the same
manner and at the same time as City taxes. The provision of this
Section shall not apply to any lot or parcel of land if the charge
against it has been paid prior to the delivery of the abstract to
the County Auditor.
Section 9. Failure to Remove Graffiti Upon Notice. In
addition to any costs incurred by the City for the abatement of
graffiti from private property, failure to voluntarily abate
graffiti after notification shall result in the following
penalties:
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(a) The failure of any person, firm, partnership, or
corporation, failing to remove graffiti within the prescribed seven
(7) day period as set forth in Section 3(b) hereby constitutes an
infraction and is punishable by a fine of One Hundred ($100-00)
Dollars upon first conviction thereof.
(b) Any person, firm, partnership, or corporation convicted
of violating Section 3(b) of this Ordinance for a second time shall
be guilty of an infraction and shall be punished by a fine of Two
Hundred and Fifty ($250.00) Dollars.
(c) Any person, firm, partnership, or corporation convicted
of violating Section 3 (b) of this Ordinance for a third time or any
subsequent number of times shall be deemed guilty of an infraction
and shall be punished by a fine not exceeding Five Hundred
0$500.00) Dollars.
(d) Any person, firm, partnership, or corporation previously
convicted three (3) times under this Section 9, violating the
provisions of Section 3(b) hereof, shall be deemed guilty of a
misdemeanor and upon conviction thereof shall be punished as
provided in Section 14(a), hereof.
Section 10. Alternative Actions. The violation of any of
the provisions of this Ordinance or any State law pertaining to
vandalism of property with a graffiti implement shall constitute a
nuisance and may be abated by the City through a civil process by
means of a restraining order, preliminary or permanent injunction
or in any other manner available to the City under provisions of
applicable ordinances or State law.
Section 11. Sale of Graffiti Implements.
(a) It shall be unlawful for any person, firm or corporation
to sell or give any graffiti implement, as defined by this
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Ordinance, to any individual under the age of eighteen (18) years,
who is not accompanied by a parent or legal guardian, without first
obtaining bona fide evidence of majority and identity.
(b) Any person, firm or corporation offering for sale to the
public any graffiti implement, as defined by this Ordinance, shall
keep, store and maintain such material in a place that is locked
and secure, or otherwise inaccessible except by special request.
(c) Any person, firm or corporation engaged in the retail
sale of any graffiti implement, as defined by this Ordinance, must
display at a conspicuous location a legible sign measuring not less
than twelve (12) inches by twelve (12) inches with letters at least
1/2 inch in height which states:
"It is unlawful for any person to sell or give to any
individual under the age of eighteen years, who is not
accompanied by a parent or legal guardian, any implement
or other device capable of being used to deface property.
Any person who maliciously defaces real property is
guilty of vandalism which is punishable by a fine,
imprisonment, or both."
(d) Notwithstanding the provisions of this Ordinance, it
shall be unlawful, pursuant to Section 594.1 of the California
Penal Code, for any person, firm, or corporation, except a parent
or legal guardian, to sell or give or in any way furnish to another
person, who is under the age of 18 years, any aerosol container
containing six (6) ounces or more of paint, without first obtaining
bona fide evidence of majority and identity.
(e) Any person, firm or corporation that violates any
provision of this section shall be guilty of a misdemeanor as set
forth in Section 14 below.
Section 12. Reward for Information. The City Council may,
by resolution, offer and pay a reward for information leading to
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the apprehension and conviction of any person who places graffiti
or other inscribed material as defined herein upon public or
privately owned structures within the City. In addition to any
fines levied by the City for violation of this Ordinance, any
person who has damaged property by inscribing graffiti on public or
private property shall be liable for the amount of any reward paid
pursuant to this Ordinance and Section 53069.5 of the California
Government Code.
Section 13. Parental Responsibility. Pursuant to Section
1714.1(b) of the California Civil Code, where graffiti is applied
by an unemancipated minor, the parents or legal guardian of said
minor shall be jointly and severally liable for payment of civil
damages resulting from the misconduct of the minor in an amount not
to exceed Ten Thousand Dollars ($10,000.00) for each such offense.
Section 14. Penalty for violation of Ordinance. It shall
be unlawful for any person, firm, partnership, or corporation to
violate any provision or fail to comply with any of the
requirements of this Ordinance.
(a) Except as provided in Section 9, any person, firm,
partnership, or corporation violating any provision of this
Ordinance, or failing to comply with any of its requirements, shall
be deemed guilty of a misdemeanor and upon conviction thereof shall
be punished by a fine not exceeding One Thousand Dollars
($1,000.00), or by imprisonment not exceeding six ( 6 ) months, or by
both such fine and imprisonment. Each such person, firm,
partnership, or corporations shall be deemed guilty of a separate
offense for each and every day or any portion thereof during which
any violation of this Ordinance is committed, continued, or
permitted by such person, firm, partnership, or corporation, and
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shall be deemed punishable therefore as provided in this Ordinance.
(b) Notwithstanding the penalties set forth in Section 14(a)
above, any person who maliciously defaces, damages or destroys
property with a graffiti implement is guilty of vandalism, pursuant
to Section 594 of the California Penal Code, and upon conviction
thereof shall be punished by imprisonment in the state prison or in
a county jail for a period not to exceed one (1) year, or by a fine
of Five Thousand Dollars ($5,000.00), but no more than Fifty
Thousand Dollars ($50,000.00) depending upon the severity and the
amount of defacement, damage or destruction to property, or by both
such fine and imprisonment.
Section 15. Community Service.
(a) Upon conviction of any person for violation of Section 3
of this Ordinance, or any State law pertaining to vandalism of
property with a graffiti implement, the City shall petition the
sentencing court to impose community service time, pursuant to
Section 640.6 of the California Penal Code. The sentencing court
may require the performance of community service within the City in
addition to any monetary penalties imposed. In the event the
sentencing court approves community service, the City shall request
any adult or emancipated minor convicted of vandalism, as defined
by Section 594 (a) (1) of the California Penal Code, to: (1) complete
a minimum of 24 hours, but no more than 48 hours of community
services cleaning up, removing, and repairing property damaged by
graffiti for the first conviction; and (2) complete 48 hours, but
no more than 96 hours of community services cleaning up, removing,
and repairing property damaged by graffiti for each subsequent
conviction.
(b) Any person who is under the age of 18 when he or she
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violates any provision of this Ordinance or any State law
pertaining to vandalism of property with a graffiti implement, and
is found to be a person described in Section 602 of the California
Welfare and Institutions Code by reason of the commission of
vandalism, may be required to perform community service time
pursuant to Section 728 of the California Welfare and Institutions
Code. For any minor adjudicated guilty of vandalism, the City will
petition the juvenile court and the court may, in addition to any
other penalties imposed by the City, require the unemancipated
minor to provide the necessary labor to clean up, repair, or
replace defaced, damaged or destroyed property, or otherwise make
restitution to the property owner.
(c) If a minor is personally unable to pay any fine levied
for violating any provision of this Ordinance or is otherwise
unable to make restitution for damages, the minor's parent or legal
guardian shall be liable for payment of the fine or restitution.
If the parent or legal guardian cannot make restitution, the
sentencing court may waive payment of the fine or community service
time by the parent or legal guardian upon finding of good cause.
If the sentencing court waives payment of the fine by the parent or
legal guardian, the City shall petition the sentencing court, and
the court, at the court's option, may order the parent or legal
guardian to provide the necessary labor, equal to the number of
hours assigned to the minor adjudicated guilty of violating any
provision of this Ordinance, to clean up, repair, or replace
property damaged by the unemancipated minor.
Section 16. Suspension or Delay of DrivinciPrivileaes. For
each conviction of a person aged 13 to 21 for violation of Section
3 of this Ordinance, or any State law pertaining to vandalism of
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property with a graffiti implement, the City shall petition the
sentencing court to suspend existing driving privileges or delay
the issuance of driving privileges in accordance to California
Vehicle Code Section 13202.6.
Section 17. Severability. The City Council declares that,
should any provision, section, paragraph, sentence, or word of this
Ordinance be rendered or declared invalid by any final court action
in a court of competent jurisdiction, or by reason of any
preemptive legislation, the remaining provisions, section,
paragraphs, sentences, and words of this Ordinance shall remain in
full force and effect.
Section 18. Remedies Cumulative. The remedies provided
in this Ordinance are in addition to other remedies and penalties
available under provisions of applicable ordinance of the City and
the laws of the State of California.
Section 19. All provisions of the Los Angeles County Code,
as heretofore adopted by the City of Diamond Bar, which are in
conflict with the provisions of this Ordinance hereby are repealed.
Section 20. The City Clerk shall certify to the passage of
this Ordinance and shall cause the same to be posted in three (3)
public places within the city of Diamond Bar within fifteen (15)
days after its passage in the manner prescribed by Resolution No.
89-6.
ADOPTED AND APPROVED this nth _ day of April , 1993.
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Mayor
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I, LYNDA BURGESS, the City Clerk of the City of Diamond
Bar, do hereby certify that the foregoing Ordinance was introduced
at a regular meeting of the Council of the City of Diamond Bar held
on the 16th day of March, 1993, and was finally passed at a regular
meeting of the Council of the City of Diamond Bar held on the 6th ,
day of April , 1993, by the following Roll Call vote:
AYES: COUNCILMEMBERS:Mayor Pro Tem Papen, MacBride,
Forbing, Mayor Miller
NOES: COUNCILMEMBERS:None
ABSENT: COUNCILMEMBERS:Werner
ABSTAINED: COUNCILMEMBERS:None
ATTEST:
Lynda Burgess, -tai Clerk
City of Diamond -Bar