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ACTION: '%c _ AGENDA REPORT
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CITY OF MOORPARK
1ACTION: 61.-
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9- s93
TO: Honorable City Council 1 U �oe4
-- - -FROM: Mary_K.-Lindley_,_ Assistant .to the_City._Manager-._.
DATE: August 30, 1993
SUBJECT: Consider Adoption of Ordinance No. 93_, Control
and Abatement of Graffiti
Background
As part of a regional effort to eradicate graffiti, the Council
considered a draft graffiti ordinance distributed by VCOG on July
7, 1993. The Council expressed its interest in adopting such an
ordinance and referred it to the Public Works, Facilities, and
Solid Waste Committee (Councilmembers Montgomery and Wozniak) for
further development.
The Committee meet on July 19 to discuss various graffiti
strategies and provide staff with direction. The purpose of the
ordinance, as drafted, is to: 1) significantly reduce incidents of
graffiti by targeting the segment of the population which commits
the most graffiti offenses, 2) restrict the possession of graffiti
implements by minors, 3 ) recover graffiti abatement costs, and 4)
facilitate the abatement of graffiti on private property. The
significant provisions of the proposed ordinance that speak to its
purpose are as follows:
• Definition of Graffiti Implement - Graffiti implements
include aerosol paint containers and glass etching tools.
The inclusion of broad-tipped markers in the definition
was seen as too restrictive by the Committee since they
are widely used by minors at home and in school.
• Possession by Minors - This ordinance makes it unlawful
for any minor who is not accompanied by a responsible
adult, to possess a graffiti implement on public property
or on private property without the consent to the owner.
School Exception - It is lawful for any person to possess
a graffiti implement while the person is attending or
traveling to or from school if the person is required to
have the implement for a class.
• Restriction on Sale of Graffiti Iiplement - Retail
establishments may not store graffiti implements in an
area that is accessible to the public and which does not
require the assistance of an employee.
Graffiti Ordinance
August 23 , 1993
Page 2
• Summary Nuisance Abatement - This._.section outlines the
process for abating graffiti on public property. The
City Manager shall give 72 hours notice to the property
owner that unless the graffiti is removed, the City will
enter the property for the purpose of abating the
graffiti. In addition, all costs incurred with the
abatement may be assessed against the property owner.
Upon review of the draft ordinance, the City Attorney cautioned
that much of what is in draft is either fully or partially
addressed in state law. Preemption of a local ordinance occurs
when state law is either duplicated or when a local agencies tries
to legislate in an area already occupied by the State. The
sections of the draft ordinance where preemption may occur are as
follows:
Possession of Graffiti Implements by Minors - This section
partially contradicts Penal Code Section 594.1(e) which
addresses the "possession" rather than the "sale" of graffiti
implements, and would only be considered non-preemptive if the
courts were willing to give an expansive interpretation to the
word "sale" as in Penal Code Section 594. 5. Penal Code
Section 594.5 reads "Nothing in this code shall invalidate an
ordinance by a city, city and county, or county, if such
ordinance regulates the sale of aerosol containers of paint or
other liquid substances capable of defacing property. "
Civil Debt - This section is occupied by state law. Civil
Code section 1714 imposes responsibility for willful and
negligent acts and Civil Code section 3281 et sea. governs the
extent to which damages may be recovered. The City Attorney
also pointed out that Government Code section 53069. 6 imposes
a duty upon the City to "take all practical and responsible
steps to recover civil damages for the negligent, willful, or
unlawful damaging" of its property, including "appropriate
legal action".
Unlawful to Apply Graffiti - The second paragraph contradicts
Penal Code Sections 594 , 640.5, and 640.6 which limit
restitution to clean-up of the damage and then only at the
option of the victim.
Parental Civil Liability - This section duplicates Civil Code
Section 1714.1 which states that any willful act of misconduct
of a minor which results in injury to the property of another
shall be imputed to the parent or guardian having custody and
control of the minor for all purposes of civil damages. The
Graffiti Ordinance
August 23, 1993
Page 3
joint_and_several_.iabilityof_ the parent or guardian having__
custody and control of a minor under this subdivision shall
not exceed $10,000 for each tort act of the minor.
Possession of Graffiti Implements in Public Places - This
section in part duplicates Penal Code Section 594 . 1 which
addresses the "carrying" of an aerosol container of paint
larger than six ounces while in a public place.
Nuisance/Summary Nuisance Abatement - Abating graffiti on
private property without the owner's consent, as proposed in
the ordinance, may invite litigation. With the jurisdictional
limit for small claims court set at $5,000 , the City Attorney
believes that it would be simpler to make it unlawful for the
owner to fail to abate graffiti on their property. After
notification, the owner would then have the option of
performing self-abatement, consenting to let the City abate,
or being prosecuted.
Both the City Attorney and Lt. Dean commented on the definition of
araffiti implement and recommended the inclusion of broad-tipped
markers. As defined in the draft ordinance . a araffiti implement
includes aerosol paint containers and class etching tools. The
City of Los Anaeles included broad-tipped markers in their
ordinance which was unsuccessfully challenged by Sherwin-Williams.
Many other cities have added broad-tipped markers to their
definitions of araffiti implements.
The City currently has the ability to arrest and seek a conviction
for affixing araffiti to any form of real and personal property and
minors "Carrying" and "possessing" aerosol pain} containers pn
nrnnerti, without consent . under state l a..>_ Whether nor not
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Af+achwctrt A
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF MOORPARK, CALIFORNIA,
ADDING CHAPTER 8. 14 PERTAINING TO
THE CONTROL AND ABATEMENT OF
GRAFFITI TO TITLE 8 OF THE MOORPARK
MUNICIPAL CODE.
THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, DOES
ORDAIN AS FOLLOWS:
SECTION 1. Chapter 8. 14 of Title 8 of the Moorpark Code is
hereby added to read as follows:
CHAPTER 8 . 14 - GRAFFITI
8.14.010 Purpose
The purpose of this Chapter is to provide for the prompt
abatement of graffiti from public and private properties in the
City and to regulate the sale and possession of materials used in
acts of graffiti.
The City Council finds that graffiti is inconsistent with the
City's aesthetic standards, and unless it is quickly removed from
public and private properties, other properties soon become the
target of graffiti. Graffiti on public and private properties
encourages other acts of malicious vandalism, and depreciates the
value of the adjacent and surrounding properties. Further, the
City finds and determines that graffiti is obnoxious and a public
nuisance. The existence of graffiti tends to breed community
discontentment and criminal activity. The unlawful placement of
graffiti on public and private properties is often committed by
persons twenty-one (21) years of age and under using aerosol and
pressurized containers of paint, broad-tipped markers and pens, and
glass etching tools. The public's interest, convenience and
necessity require the adoption and implementation of the provisions
of this Chapter.
8.14.020 Definitions
Unless the context otherwise requires, the definitions in this
section shall govern the construction of this Chapter.
"Aerosol paint container" means any aerosol or pressurized
container, regardless of the material from which it is made,
which is adapted or made for the purpose of spraying paint, or
other substance capable of defacing property.
"Glass etching tool" means any etching tool or glass cutter.
"Graffiti" means any unauthorized inscription, word, figure,
character or design that is marked, etched, scratched, drawn,
or painted.
"Graffiti Implement" means an aerosol paint container,
indelible marker, or a glass etching tool.
"Indelible Marker Pen" shall mean any indelible marker, felt
tip marker or similar implement containing non-water soluble
fluid and has a flat, pointed or angled writing surface of 1/8
inch or greater.
"Minor" means a person under 18 years of age.
"Responsible Adult" means a parent or legal guardian of a
minor or school teacher of a minor.
8.14.030 Unlawful to Apply Graffiti
It shall be unlawful for any person to apply graffiti to any
trees or structures including, but not limited to, buildings,
walls, fences, poles, signs, sidewalks, and other personal property
or paved surfaces located within the City.
Any individual who is found guilty of violating this section
shall pay restitution to the property owner or other person who is
entitled to possession of the property upon which the graffiti was
placed, in addition to other authorized penalties. If the violator
is a minor, the minor's responsible adult shall be responsible for
payment of such restitution in the discretion of the court in a
criminal proceeding involving the minor. "Restitution" as used
herein shall mean the recovery, in accordance with State law, of
all damages resulting from the placement of graffiti contrary to
the provisions of this Chapter, including, but not limited to,
direct and indirect costs of the removal thereof.
8. 14.040 Civil Debt
Any person who defaces private or public property with
graffiti shall be responsible to the property owner or person who
is entitled to possession of the property for all damages occurring
as a result of the placement of said graffiti, including, but not
limited to, direct and indirect costs for the removal thereof. If
graffiti is removed by the City, all costs of such removal, direct
and indirect, shall be recoverable from the person who caused the
graffiti. The obligations imposed pursuant to this Section shall
be enforceable as a civil debt.
8.14.050 Furnishing Graffiti Implement to Minors Prohibited
It shall be unlawful for any person, other than a responsible
adult, or a school teacher for purposes of instruction, to
knowingly sell, exchange, give, loan or in any way furnish to any
minor a graffiti implement.
8.14 . 060 Possession of Graffiti Implement by Minors
It shall be unlawful for any minor to have in his or her
possession a graffiti implement while upon public or private
property without the consent of the owner, lessee or operator of
such property.
8. 14.070 Parental Civil Liability
Any act of willful misconduct of a minor which results in the
placement of graffiti shall be imputed to the minor's responsible
adult for all purposes of civil damages, including all attorneys'
fees and court costs incurred in connection with the civil
prosecution of any such claim for damages. The responsible adult
shall be jointly and severally liable with the minor for all
damage, not to exceed Ten Thousand Dollars ($10, 000) for each
chargeable act of the minor.
This section in no way limits or narrows the liability of a
responsible adult for acts of a minor pursuant to Civil Code
Section 1714 . 1, Government Code Section 53069. 5, Penal Code Section
640. 5 or any other applicable provision of law.
8.14.080 Possession of Graffiti Implements in Public Places
It shall be unlawful for any person twenty-one (21) years of
age or younger to have in his or her possession a graffiti
implement while in any public street, park, playground, swimming
pool, recreational facility or other public place. The provision
of this Section shall not apply to an authorized employee of the
City, a public agency, or private utility, or an authorized
employee of a person under contract with the City, a public agency,
or private utility in the performance of official duties that
necessitate of a person under contract with the City, an authorized
employee of a public agency, or an authorized employee of a private
utility company if such employee is performing official duties that
require the use of a graffiti implement .
8.14 .090 School Exception for Graffiti Implements
Notwithstanding any other provision of this Chapter, it shall
be lawful for any person to possess a graffiti implement while the
person is attending, or traveling to or from a school at which such
person is enrolled, if the person is participating in a class at
such school, which has, as a class requirement, the need to use
such a graffiti implement.
8.14.100 Restriction on Storage of Graffiti Implement
Every person who owns, conducts, operates or manages a retail
commercial establishment selling aerosol containers graffiti
implements shall store or cause such aerosol containers graffiti
implements to be stored in an area viewable by, but not accessible
to the public in the regular course of business without employee
assistance, pending legal sale of such aerosol container graffiti
implements.
8.14.110 Sign Required
Any person who owns, conducts, operates or manages a retail
commercial establishment which offers for sale or sells graffiti
implement shall display at the location of retail sale of such
graffiti implements a sign, in letters at least three-eighths (3/8)
of an inch high, clearly visible and legible to customers which
states as follows:
"IT IS UNLAWFUL FOR THIS BUSINESS TO ANY PERSON TO SELL OR
GIVE TO ANY INDIVIDUAL UNDER THE AGE OF EIGHTEEN YEARS ANY
AEROSOL PAINT CONTAINER, INDELIBLE MARKER PEN, OR GLASS
ETCHING TOOL. "
8.14.120 Reward
The City Council may authorize the offer of rewards for
information leading to the arrest and conviction of any person for
a violation of any provision of this Chapter. The amount of any
such reward and the procedures for claiming said reward shall be
established, from time to time, by the City Council.
8.14.130 Nuisance
It is hereby declared that the existence of graffiti on any
building, structure, fence or landscaping is a public nuisance, and
shall be abated as such as provided in this Code.
8.14.140 Prohibition Against Maintaining Graffiti on Private
Property
It shall be unlawful for the owners and/or persons in
possession of property to permit graffiti or other inscribed
material capable of being viewed from any public right-of-way
within the city to remain on such property for more than seventy-
two hours after notice from the city to remove the same.
8.14.140 Summary Nuisance Abatement
This City Council has determined that the continued existence
of graffiti on buildings, structure, fence, or landscaping within
the City is obnoxious and a nuisance, and has the effect of
encouraging the placement of more graffiti at the same location as
well as on adjacent buildings, structures, fences, landscaping or
other surfaces. The prompt removal of graffiti is necessary to
prevent the proliferation of graffiti. Accordingly, it shall
unlawful for the owners and/or persons in possession of the
property to fail to abate graffiti on their property. Where the
City Manager finds that graffiti has been placed on privately owned
buildings, structures, fences, landscaping and the consent of the
owner, or other person entitled to possession thereof, cannot, for
any reason, be obtained for the entry by the City of its agents
upon the property where such building, structure, fence or
landscaping is located for the purpose of removing the same, the
City Manager may cause the owner or persons in possession of the
property to be notified to abatement of the graffiti in the
following manner:
Notice. The City Manager shall give the owner or other person
entitled to possession of the building, fence, landscaping or
structure not less than seventy-two (72) hours written notice
to either self-abate the graffiti on the property, provide
consent to allow the City to abate the graffiti at the owners
expense, or face prosecution.that, unless the graffiti to
which the notice relates is removed within the period of time
set forth in said notice, the City will enter upon the
property for the purpose of abating the public nuisance by
removal of the graffiti. The notice shall also contain a
statement that if the graffiti is not timely removed by such
owner or person entitled to possession and the removal is done
by the City or its agent that all cost incurred therein will
be assessed against the property upon which said nuisance is
located, in the time and manner set forth in this Code.
Notice. The notice shall be given by personal service on the
person to be notified, or by first class mail , addressed to
the person to be notified at his/her last known address.
Assessment of Costs. Where graffiti nuisance abatement costs
are to be assessed against the property pursuant to the
provisions of this Section, the same shall be accomplished in
the time manner set forth in this Code.
8.14.150 Expenditure of Public Funds
This City Council has determined that the continued existence
of graffiti on buildings, structures, fences, or landscaping within
the City is obnoxious and a nuisance, and has the effect of
encouraging the placement of more graffiti at the same location as
well as on adjacent buildings, structures, fences, landscaping or
other surfaces. The prompt removal of graffiti is necessary to
prevent the proliferation of graffiti. Accordingly, the City may
is authorized to expend City funds to remove graffiti from publicly
or privately owned real property within the City. At the City's
discretion, such removal shall be performed by the City only after
a finding by the city Manager that the graffiti is located on
public or privately owned permanent structures located on public or
privately owned real property within the City and after securing
the consent of the owner or other person entitled to possession of
the property pursuant to Section 8 . 14 . 140.
8.14.160 Penalties for Violation
A violation of any provision of this Chapter, is a misdemeanor
and shall be punishable by a fine not to exceed One Thousand
Dollars ($1, 000) , or by imprisonment for a period not to exceed six
(6) months, or by both such fine and imprisonment.
SECTION 2. Severability. If any section, subsection,
clause or phrase (hereinafter collectively referred to as
provision) of this ordinance or the application thereof to any
person or circumstance is held invalid, it is the intent of the
City Council in adopting this ordinance that such invalidity shall
not affect the remaining provisions or applications which can be
given effect without the invalid provision or application, and to
this end the provisions of this ordinance are severable.
SECTION 3. That this ordinance shall take effect 30 days
after final passage and adoption.
SECTION 4. The City Clerk shall certify to the passage of
this ordinance and shall cause the same to published as required by
law.
PASSED AND ADOPTED this 3rd day of November , 1993 .
Mayor of the City of Mokbrpark
ATTEST:
City Clerk
♦' P}}E-c A rPnn-1 b RECEIVED
AUG 2 4 1993
LAW OFFICES L1.y of uorp3rk
BURKE, WILLIAJS 8c SORENSEN 7
VENTURA COUNTY OFFICE 611 WEST SIXTH STREET. SUITE 2500 RURKE,WILLIAMS.SORENSEN A GAAR
2310 PONDEROSA ORIVELIGI4TON PLAZA
SUITE I LOS ANGELES, CALIFORNIA 90017
7300 COLLEGE BOULEVARD
CAMARILLO. CALIFORNIA 93010 12131 236-0600 SUITE 220
16051 987-3465 OVERLAND PARK, KANSAS 66210
19131 339-6200
T£LECOPI ER: 12131 236-2700
ORANGE COUNTY OFFICE
WRITER'S bIRECT DIAL
3200 BRISTOL STREET ---
- SUITE 640 213-236-2721
COSTA MESA,CALIFORNIA 92926
17141545-5559 OUR FILE NO. 01359-001
August 23 , 1993
Mary K. Lindley
Assistant to the City Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Graffiti Ordinance
Dear Mary:
By letter dated August 9, 1993 , you have requested
review of the above-described ordinance. Please find enclosed a
copy of the ordinance on which I have corrected typographical
errors and have made other revisions for the sake of internal
consistency as well as consistency with the remainder of Title 8.
My substantive comments regarding the ordinance are
noted below. As a preface to those comments, I do want to call
your attention to the doctrine of preemption since, as your
letter recognizes, much of the ordinance is already contained in
state codes.
A. Preemption.
Local legislation that the courts find has been
preempted by state law is void and 1i.ence is unenforceable.
Preemption exists if the local legislation duplicates state law,
contradicts state law (e.g. , is more or less restrictive than a
state statute) or enters an area fully occupied by state law,
either expressly (i.e. , the statute contains a Legislative
declaration that by the enactment of the statute the state
intends to preempt local legislation) or by implication (i.e. ,
the subject matter (i) is so fully and completely covered by
state law as to clearly indicate that it has become a matter of
LAX:66303.2
Mary K. Lindley
August 23, 1993
Page 2
exclusive state concern; (ii) has been partially covered by a
statute that is couched in terms that indicate clearly that the
state will not tolerate further or additional local legislation;
or (iii) has been partially covered by a statute and the subject
is of such a nature that the adverse effect of local legislation
on transient citizens outweighs the possible benefits to the
locality. (Sherwin-Williams v. City of Los Angeles (1993) 16
Cal. Rptr. 2d 215, 217-218 . )
Even when the state has not preempted local regulation,
the City should consider whether existing state law adequately
addresses its concern. The District Attorney, at no direct
expense to the City, prosecutes the violattron of state statutes;
he does not prosecute the violation of municipal ordinances. The
cost of taking just one violator of this proposed ordinance to
trial would almost surely cost the City many times more than the
fines that it could expect to collect in a year from violators
who plead guilty.
B. The Ordinance.
1. Definitions. I call your attention to the fact
that, at least in the experience of the City of Los Angeles, a
broad-tipped marker pen (one exceeding four millimeters in
diameter) is just as destructive a "graffiti implement" as
aerosol paint containers. (Sherwin-Williams v. City of Los
Angeles supra, at 220. )
2 . Unlawful to Apply Graffiti. The first paragraph
of this section contradicts state law. Penal Code sections 594,
640.5 and 640. 6, collectively, make it unlawful to affix graffiti
to any form of real property, not just structures, as well as to
any form of personal property (e.g. , vehicles) , not just trees.
The second paragraph also contradicts state law. Penal
Code sections 594, 640. 5 and 640. 6 lipit restitution to clean-up
of the damage and then only at the option of the victim.
Aside from the preemption issue, the restitution
paragraph would be subject to challenge for being overly broad --
it makes teachers responsible per se for the actions of their
minor students. (See Definitions section. )
AX:66303.2
•
Mary K. Lindley
August 23, 1993
Page 3
3 . Civil Debt. This section enters an area that, at
least by implication, appears to be fully occupied by state law.
Civil Code section 1714 imposes responsibility for willful and
negligent acts and Civil Code section 3281 et seq. governs the
extent to which damages may be recovered.
I also call your attention to Government Code section
53069.6. This section imposes a duty upon the City to "take all
practical and reasonable steps to recover civil damages for the
negligent, willful, or unlawful damaging" of its property,
including "appropriate legal action".
4 . Furnishing to Minors Prohibited. This section, in
-,t(Ark some ways duplicative of, and in other ways contrary to, Penal
Code Section 594. 1(a) , is not preempted. Penal Code section
t 9419'. 5 expressly renders state legislation regarding the sale of
aerosol paint containers and "other liquid substances capable of
defacing property" non-preemptive.
Although not void, this section right be subject to a
successful challenge on the basis of overbreadth or unreasonable-
ness. As written, selling to a minor is illegal per se, even
though the minor may have produced evidence, albeit forged, of
majority.
5. Possession by Minors. This section, at least in
part, contradicts Penal Code section 594. 1 (e) . That subdivision,
unlike Penal Code section 594 . 1(a) , addresses the "possession"
rather than the "sale" of graffiti implements, and so it would
only be deemed non-preemptive if the courts were willing to give
an expansive interpretation to the word "sale" as used in Penal
Code section 594 . 5 .
6 . Parental Civil Liability. This section is
essentially duplicative of Civil Code section 1714. 1.
Aside from the matter of preemption, this section would
be subject to challenge for being overly broad -- it makes school
teachers liable per se for the actions of their minor students.
(See Definitions section. ) It also confuses civil liability with
criminal activity by its use of the term "chargeable action"
instead of "tort" .
AX:66303.2
Mary K. Lindley
August 23 , 1993
Page 4
7. Possession of Graffiti Implements in Public
Places. This section, in part, duplicates and in part contra-
dicts Penal Code section 594. 1(d) . That subdivision, unlike
Penal Code section 594. 1(a) , addresses the "carrying" rather than
the "sale" of graffiti implements, and so it would only be deemed
non-preemptive if the courts were willing to give an expansive
interpretation to the word "sale" as used in Penal Code section
594 . 5.
Aside from the matter of preemption, the section could
be subject to challenge for being overly broad -- it does not
exempt employees of private utility companies in the performance
of their official duties; they arguably haeme as much of a need to •
mark property with graffiti implements as do City employees or
agents.
8 . Restriction On Sale of Graffiti Implement. A
provision similar to this section has been upheld by the Califor-
nia Supreme Court in Sherwin-Williams v. City of Los Angeles,
{
supra, on the basis that it regulates the non-preemptive subject
matter of the sale of graffiti implements. This section does
not, however, exactly duplicate the Los Angeles regulation.
Whenever a court, particularly the Supreme Court, has upheld an
ordinance, it is prudent to adopt that ordinance verbatim, making
only changes that are necessary to conform to the City's termino-
logy. (For your information, I am enclosing a copy of the Los
Angeles regulation. )
9. Sign Required. This section is not preempted by
any subdivision of Penal Code section 594. 1, since it pertains to
the sale of graffiti implements. However, the text that is
required to be displayed on the sign is misleading; there is
nothing in this ordinance that makes it illegal to sell to a
minor only when the minor is not accompanied by a responsible
adult. (See Furnishing To Minors Prohibited above. )
10. Nuisance/Summary Nuisance Abatement. Abating
graffiti on private property without the consent of the owner or
person in possession will almost surely invite litigation, in
particular because the paint used to remove graffiti seldom
matches the existing paint. With the jurisdictional limit of
small claims courts set at $5, 000. 00, it would be a simple matter
for a property owner to sue the City to recover the costs of
repainting the entire building.
AX:66303.2
Mary K. Lindley
August 23, 1993
Page 5
In light of the liability to which the Summary Nuisance
Abatement section exposes the City, you may want to consider
making it unlawful for the owners/persons in possession to fail
to abate graffiti on their property. The owner/person would then
have the option of performing self-abatement (or consenting to
pro-offered City abatement) or of being prosecuted. Such an
approach would also make unnecessary the Nuisance section. (See
M.M.C. § 1.12 .070. )
11. Expenditure of Public Funds. The second paragraph
contradicts state law. Government Code section 53069. 3 enables
the City to adopt an ordinance authorizing expenditure of City
funds for graffiti removal, but the funds *can only be used to
remove graffiti from "permanent structures" and the City must
find that the graffiti is obnoxious.
If you have any questions regarding my comments, please
do not hesitate to contact me.
Very truly yours,
CH
ci. _
KANE
CI ORNEY, MOORPARK; and
BURKE, WILLIAMS & SORENSEN
CJK:hsk
cc: Steven Kueny, City Manager
LAX:66303.2