Ordinance No. 984444
ORDINANCE NO. 984
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CYPRESS, CALIFORNIA, AMENDING CHAPTER 9 OF THE
CYPRESS MUNICIPAL CODE RELATING TO LIVE ENTER-
TAINMENT.
WHEREAS, the City Council of the City of Cypress wishes to promote the City's
interest in protecting and preserving the quality of the residential, commercial, and industrial
areas of the City, and the quality of life within the City through the adoption of effective land
use planning and business licensing regulations; and
WHEREAS, the presentation of live entertainment within the City has previously
caused significant pernicious secondary effects which include, but are not limited to, the
following: incidents of increased and intolerable noise in and around businesses providing live
entertainment; incidents of violence in and around businesses providing live entertainment;
incidents of erratic and dangerous driving in the parking lots of businesses providing live
entertainment; higher levels of police service calls to, in, and around the premises of businesses
providing live entertainment; increased trash and debris in and around the premises of businesses
providing live entertainment; and increased incidents of the illegal consumption of alcoholic
beverages in and around the premises of businesses providing live entertainment; and
WHEREAS, the City incorporates by reference the recitals contained in Cypress
Ordinance Nos. 918, 950, and 951; and
WHEREAS, while the City Council desires to protect the rights of those persons
who desire to participate in and enjoy live entertainment, it desires to do so in a manner which
decreases, to the greatest extent feasible, the pernicious secondary effects associated with such
live entertainment; and
WHEREAS, the City Council has determined that the implementation of the
regulations imposed by this ordinance will reduce these pernicious secondary effects created by
establishments which provide live entertainment; and
WHEREAS, it is not the intent of the City in adopting this ordinance to suppress
any activities protected by the First Amendment, but rather to enact a content neutral ordinance
which addresses the secondary effects businesses providing live entertainment have on the City;
and
WHEREAS, the City has received an increase in inquiries regarding the addition
of live entertainment to existing facilities and the creation of new live entertainment
establishments within the City; and
WHEREAS, although on more than one occasion, the City has, in writing,
solicited the comments of all existing holders of live entertainment permits on the changes
proposed to the City's Live Entertainment Permit Ordinance, the Permit holders either failed to
respond, or in the case of one establishment, responded by refusing to comment.
WHEREAS, on September 10, 1998, the Ninth Circuit issued its opinion in Baby
Tam & Co., Inc. v. City of Las Vegas, 98 Daily Journal D.A.R. 9789, holding that Sexually
Oriented Businesses' licensing ordinances were required to note the provision of prompt judicial
review for persons whose license or permit applications had been denied; and
WHEREAS, the City Council declares that it would have adopted the locational
and operational provisions of Chapter 9 even in the absence of the permit issuance provisions
of that Chapter; and
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WHEREAS, as provided in the severability clause of this ordinance, in the event
of invalidation, any person desiring to provide Live entertainment in the City will be deemed
to be operating under a de facto permit subject to requirements of this Chapter 9, including
but not limited to the locational and operational requirements and the revocation, violation
and penalty provisions, which would have been adopted independent of the permit issuance
provisions inasmuch as the City provides a de facto permit allowing operation of Live
Entertainment in the event of judicial invalidation of its permit issuance provisions; and
WHEREAS the provision of a de facto permit is necessary in order to protect the
public health, safety and welfare by providing a mechanism to address the pernicious secondary
effects associated with the provision of unregulated or underregulated Live Entertainment in the
event the City's permit issuance procedures are invalidated by a court of competent jurisdiction;
and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CYPRESS,
CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 9 -1 of the Cypress Municipal Code is hereby amended to
read in its entirety as follows:
"Unless the particular provision or the context otherwise requires, the
definitions and provisions contained in this section shall govern the construction,
meaning, and application of words and phrases used in this Chapter 9.
(a) "Amateur" means any person who has never been an
entertainer for financial benefit.
(b)
"Audience" means one or more persons, present as
listeners or viewers, but not as entertainers, during any live
entertainment.
(c) "Audition" means any test of the quality of live
entertainment not in the presence of a public audience.
(d) "Live Entertainment" means any act, performance,
exhibition, demonstration, concert, dialogue, pantomime,
or display upon, or by, any person, or any sound, word,
speech, song, or other utterance, or any dance, posture, act
or other movement, or any music or other sound manually
produced from an instrument or article, including the use
of an electronic playback device by any announcer or "disc
jockey" who, at the time, provides any form of vocal
entertainment, including the announcing of song titles or
artists' names, in the presence of any audience under the
auspices of, or with the consent of the owner, lessor,
lessee, or manager of a public place, which agreeably
occupies the mind, or pleasantly attracts, diverts, or holds
the attention, or is for the amusement of any person in such
audience.
(e) "Permit Holder" and "Permittee" mean the person who has
applied for a live entertainment or special entertainment
permit which has been granted.
"Person" means any individual, partnership, association, or
corporation, including any firm, company, society, or
league who files an application for a new or renewal live
entertainment or special entertainment permit as provided
herein.
(f)
(g) "Public Place" shall include any business or property
regularly opened to the public and shall include, but not be
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limited to, stores, shops, restaurants, bars, night clubs,
coffee shops, hotels, recreational (both passive and active)
areas, horse racing tracks, and shall also include any
private club. Public Place shall also include events,
concerts, and performances conduct out -of -doors done in
conjunction with or as a promotion."
SECTION 2. Subsection (a) of Section 9 -2 of the Cypress Municipal Code is
hereby amended to read in its entirety as follows:
"Except as provided in Section 9 -3, it shall be unlawful for any person to
operate, conduct, or manage any public place where any form of live
entertainment is conducted for more than five (5) days per calendar year without
a valid live entertainment permit from the City. The City shall be the applicant
for a Live Entertainment Permit for all City owned property upon which there is
to be conducted live entertainment for more than five (5) days per calendar year.
Live entertainment conducted for five (5) or fewer calendar days per year shall
be subject to the special entertainment permit requirements set forth in Article III
of this Chapter 9."
SECTION 3. Subsection (a)(3) of Section 9 -3 of the Cypress Municipal Code is
hereby repealed and is of no further force or effect.
SECTION 4. Section 9 -3 of the Cypress Municipal Code is hereby amended to
add the following subsections thereof:
"(a) The provisions of this chapter shall not apply to any of the following:
(1) Any live entertainment consisting solely of auditions;
(2) Any amateur who sings while in, and a part of, any
audience;
(3) Anything emanating from a radio, record or CD player,
jukebox, or television receiver;
SECTION 5. The introductory paragraph to Subsection (a) of Section 9 -4 of the
Cypress Municipal Code is hereby amended to read in its entirety as follows:
"Any person required by this chapter to have a live entertainment or a
special entertinament permit shall, prior to providing any live entertainment on
the property, file a written, signed, and acknowledged application in duplicate
with the City Clerk containing the following information:"
SECTION 6. Subsection (a)(1) of Section 9 -4 of the Cypress Municipal Code is
hereby amended to read in its entirety as follows:
"The full name and address of the applicant. If the applicant is a
corporation, the names and addresses of its President, Vice President, Treasurer,
Secretary, Chief Financial Officer, Chief Executive Officer, or equivalents and
those persons who will have day to day managerial control of the business. If the
applicant is a partnership or association, the name of those partners or association
members owning more than thirty percent (30%) of the business, as well as the
names of all persons who will have day to day managerial control of the
business."
SECTION 7. Subsection (a)(2) of Section 9 -4 of the Cypress Municipal Code is
hereby amended to read in its entirety as follows:
"A detailed description of the live entertainment, including the type of
entertainment; number of persons engaged in the entertainment; purpose of the
entertainment; the estimated number of persons who would attend each event or
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performance; and the proximity of the live entertainment to the nearest residential
uses on the north, south, east and west sides of the establishment."
SECTION 8. Subsection (a)(9) of Section 9 -4 of the Cypress Municipal Code is
hereby amended to read in its entirety as follows:
"Whether or not the persons referenced in Subsection (a)(1) and (4) of this
section have had an adult oriented business permit, massage establishment permit,
live entertainment permit, or similar permit suspended, revoked, or cancelled
anywhere within the last five (5) years and the circumstances surrounding the
same. Suspension or cancellation of liquor licenses shall be considered within the
purposes of this section."
SECTION 9. Subsection (a)(10) of Section 9 -4 of the Cypress Municipal Code
is hereby amended to read in its entirety as follows:
"Whether or not the persons referenced in Subsection (a)(1) and (4) of this
section have, within the last five (5) years, been convicted of a felony or of any
crime involving theft, embezzlement, or moral turpitude; have been convicted of
violating any municipal or county ordinance relating to the conduct of live
entertainment, including noise violations; or operated or conducted a place of
business in a manner constituting a public nuisance. "
SECTION 10. Subsection (a)(11) of Section 9 -4 of the Cypress Municipal Code
is hereby amended to read in its entirety as follows:
"A professionally prepared floor plan drawn to one - quarter inch (1 /4 ")
scale whose dimensions are no smaller than 24" x 36" showing the entire interior
of the establishment including but not limited to the proposed plan for tables,
seating, stages, dance floors, and all elements applicable to the presentation of
live entertainment. The plan shall include notations establishing the maximum
legal occupancy of the premises."
SECTION 11. Subsection (a)(12) of Section 9 -4 of the Cypress Municipal Code
is hereby amended to read in its entirety as follows:
"The time period for which the permit is required and the time period
during which the performances are to occur (i.e. live entertainment permit
is desired for a year and the performances are to occur from 7:00 p.m. to
11:30 p.m.)."
SECTION 12. Subsection (a)(13) of Section 9 -4 of the Cypress Municipal Code
is hereby amended to read in its entirety as follows:
"A security plan for the control of pedestrian and vehicle traffic and
prevention of unlawful conduct by employees and patrons, such as assaults,
vandalism, littering, theft, sale or use of controlled or regulated substances,
and consumption of alcohol by persons under the age of 21, within and surround-
ing the live entertainment venue. The plan shall include the requirements of
Section 9- 8(e)."
SECTION 13. A new Subsection (a)(15) is hereby added to the Cypress
Municipal Code to read in its entirety as follows:
"(15) A statement under oath that the applicant has personal knowledge
of the information contained in the application, that the information contained in
the application is true and correct, and that the applicant has read and understands
the provisions of Chapter 9."
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SECTION 14. Section 9 -4 of the Cypress Municipal Code is further amended to
add the following subsection:
"(c) The submission of an application for a live or special entertainment
permit does not authorize the performing of live entertainment until such permit
has been granted as provided herein."
SECTION 15. Section 9 -6 of the Cypress Municipal Code is hereby amended to
read in its entirety as follows:
"Sec. 9 -6 Submission of Application, Determination of Completeness,
Investigation.
(a) Submission of Application. All applications for live entertainment
permits shall be filed with the City Clerk on the form provided by the City which
shall then be forwarded to the City's Chief of Police and Director of Community
Development.
(b) Determination of Completeness. Within ten (10) business days
following the receipt of an application pursuant to this section, the Director of
Community Development or his or her designee shall determine whether the
application contains all the information required by the provisions of this Chapter
9. If it is determined that the application is not complete, the applicant shall be
notified in writing within five (5) business days of the date such determination is
made that the application is not complete and the reasons therefor, including any
additional information necessary to render the application complete. The
applicant shall have thirty (30) calendar days to submit additional information to
render the application complete. Failure to do so within the thirty (30) day
period shall render the application void. Within five (5) business days following
the receipt of an amended application or supplemental information, the Director
of Community Development or his or her designee shall again determine whether
the application is complete in accordance with the procedures set forth in this
subsection. Evaluation and notification shall occur as provided above until such
time as the application is found to be complete. The applicant shall be notified
within five (5) business days of the date the application is found to be complete.
All notices required by this chapter shall be deemed given upon the date they are
either deposited in the United States mail or the date upon which personal service
of such notice is provided.
(c) Investigation of Permit. Upon determining that an application for
a live entertainment permit is complete, the Director of Community Development
or his or her designee shall, within fifteen (15) business days of receipt of the
application, conduct an investigation of the information contained in the
application to determine if the proposed live entertainment and the business in
which it is to be offered is in compliance with the provisions of this chapter.
Such investigation may include providing copies of the application to the Director
of Public Works /City Engineering, the Police Chief, or other officials for their
investigation and report thereon. "
SECTION 16. The first paragraph of Section 9 -7 of the Cypress Municipal Code
is hereby amended to read in its entirety as follows:
"Sec. 9 -7 Issuance of Permit. Prompt Judicial Review.
Upon the expiration of the fifteen (15) day investigatory period, the
Director of Community Development or his or her designee, or his or her
designee, shall submit his or her report and recommendation to the City Clerk for
presentation to the City Council at the next City Council meeting at which the
matter could be properly agendized in accordance with the Ralph M. Brown Act
and public hearing notice requirements. At the City Council Meeting, the City
Council shall conduct a public hearing, take the testimony of proponents and /or
opponents, examine the matter, and approve the issuance of a live entertainment
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permit if a majority of the members present determines that all of the
requirements of this chapter have been met, including, but not limited to, the
requirements contained in Section 9 -8, and that the investigative report by the
chief of police, the director of public works /city engineer, planning director and
other officials fails to identify any of the items listed in section 9 -4 (9) and (10).
If the above fmdings cannot be made, the application shall be denied. The
decision of the City Council shall be final. Any applicant whose permit has been
denied pursuant to this chapter shall be afforded prompt judicial review of that
decision as provided by law. Notwithstanding the provisions of Code of Civil
Procedure Section 1094.6, or any other provision of law, in the event that a
complete record of the proceedings is necessary for the judicial review of the
decision, City shall provide the record to the person seeking judicial review and
the court within 14 days of receiving a request to do so. "
SECTION 17. Section 9 -8 of the Cypress Municipal Code is hereby amended to
read in its entirety as follows:
"Sec. 9 -8 Locational and Operational Requirements.
(a) The land use and live entertainment contemplated is in compliance
with the requirements of the zone in which the property is located.
(b) The proposed live entertainment shall not be held in any building,
structure or other location within 300 feet of any approved residential property.
For the purposes of this section, all distances shall be measured in a straight line,
without regard to intervening structures or objects, from the nearest point of the
building, structure or other location in which the live entertainment will be
provided to the nearest property line of the residential property.
(c) The operation of the proposed live entertainment will be carried on
in a building, structure or location which meets and complies with all of the
applicable federal, state, and City health, safety, zoning, building, and fire
regulations and requirements.
(d) Noise from the live entertainment shall not exceed the City noise
standards.
(e) At least one (1) security guard shall be on duty outside the
premises, patrolling the grounds and parking lot at all times live entertainment is
offered. The security guard shall be charged with preventing violations of law
and enforcing the provisions of this chapter. All security guards shall be
uniformed so as to be readily identifiable as a security guard by the public. No
person acting as a security guard shall act as a doorman, ticket taker or seller,
flyer distributor, or similar functionary while acting as a security guard. In
addition to the above, if at any time, there are in excess of one hundred (100)
patrons at the establishment, at least one (1) security guard shall be on duty inside
the premises patrolling the interior. An additional security guard shall be added
for every increase in 50 additional patrons. All security guards (both inside and
outside patrolling security guards) shall be licensed pursuant to the Private
Security Services Act, Business and professions Code Section 7580 et. seq.
(f) The entire exterior grounds, including the parking lots, shall be
lighted to 3 foot candles, minimally maintained and evenly distributed, as
measured at ground level to permit the security personal to observe activity on
the grounds and within automobiles.
(g) No exterior door or window of the premises shall be propped or
kept open at any time while the business is providing live entertainment.
(h) There shall be no drinking of alcoholic beverages on any portion
of the premises not licensed for the consumption of alcohol, including, but not
limited to the parking lot of the establishment.
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(i) There has not been created an excessive need for police services
attributable to the establishment or that the police service calls are in response
to activity involving the brandishing or use of a firearm, knife, or other deadly
weapon at the establishment, or activity involving any crime chargeable as a
felony which has resulted in bodily injury. For the purposes of this section, the
phrase "excessive need for police services" shall mean that the establishment
providing live entertainment has generated a need for police services which is
greater than the police service needs of similar businesses which do not provide
live entertainment, as measured by the number of police responses to the
property."
SECTION 18. Section 9 -9 of the Cypress Municipal Code is hereby amended to
read in its entirety as follows:
"Sec. 9 -9 Revocation of Permit.
The City Council may, after notice and hearing, as described below,
revoke a live entertainment permit of any person, firm, partnership, corporation,
or any other entity holding a live entertainment permit, upon a preponderance of
the evidence presented at the hearing that any provision of this chapter has been
violated. Prior to revocation, the Director of Community Development or his or
her designee shall provide the permittee with written notice of the proposed
revocation by certified mail addressed to the street address of the business as
shown on the live entertainment permit application. The notice of revocation
shall specify grounds for the proposed revocation. The City Council shall hold
a revocation hearing as provided below."
SECTION 19. Section 9 -10 of the Cypress Municipal Code is hereby amended
to read in its entirety as follows:
"Sec. 9 -10 Revocation Hearing Procedure: Judicial Review.
(a) The City Council shall hold a hearing on a proposed permit
revocation pursuant to Section 9 -9 not later than thirty (30) days of the issuance
of the notice of revocation or direct the City Manager to appoint a hearing officer
who will hold a hearing on a proposed permit revocation pursuant to Section 9 -9
not later than thirty (30) days of the notice of revocation. The Director of
Community Development or his or her designee, shall provide the permittee with
written notice of the date, time, and place of the hearing. The notice of hearing
shall be sent by certified mail to the permittee at an address listed on the live
entertainment permit application. This notice requirement shall be satisfied if the
notice of revocation contains the date, time and place of the hearing. At the
hearing, the Director of Community Development or his or her designee, shall
present evidence and witnesses, as necessary, to establish the cause of the
revocation of the permit. The permittee, at the hearing, may be represented by
legal counsel, may present evidence and witnesses, and may cross - examine City
witnesses. The Director of Community Development or his or her designee, shall
be permitted to cross - examine any witnesses presented by the permittee.
(b) After a hearing held pursuant to Subsection (a) above, the City
Council shall render its decision on the proposed revocation within twenty (20)
business days from the hearing date or, if heard by a hearing officer, the hearing
officer shall render a written recommendation within twenty (20) business days
from the hearing date. A copy of the written recommendation shall be mailed by
certified mail to the permittee at the address listed in the live entertainment permit
application and delivered to the City Clerk to be presented to the City Council at
the next regular meeting at which the matter can be agendized in compliance with
the Ralph M. Brown Act. The record of the proceeding before the hearing
officer shall also be made available to the City Council. The City Council shall
either adopt, modify or reject the recommendation of the hearing officer. The
City Council's decision shall be mailed by certified mail to the permittee at the
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address listed in the live entertainment permit application. The decision of the
City Council shall be final and conclusive."
SECTION 20. Subsection 9 -25 of the Code of the City of Cypress is hereby
amended to read in its entirety as follows:
Sec. 9 -25 Special Entertainment Required.
"It shall be unlawful for any person to operate, conduct, or manage any public
place where any form of live entertainment is provided for five (5) or fewer days
per year without being in possession of a valid Special Entertainment Permit
issued by the City. Live entertainment conducted for more than five (5) days per
year shall be subject to the requirements set forth in Article I of this chapter."
SECTION 21. Section 9 -29 of the Cypress Municipal Code is hereby amended
to read in its entirety as follows:
Sec 9 -29. Submission of Application. Determination of Completeness. Investigation.
(a) Referral of Application. Upon receipt, the City Clerk shall refer an application
for a Special Entertainment Permit to the Chief of Police.
(b) Determination of Completeness. Within ten (10) business days following
the receipt of an application pursuant to this section, the Chief of Police or his
or her designee shall determine whether the application contains all the
information required by the provisions of this Chapter 9. If it is determined that
the application is not complete, the applicant shall be notified in writing within
five (5) business days of the date such determination is made that the application
is not complete and the reasons therefor, including any additional information
necessary to render the application complete. The applicant shall have thirty (30)
calendar days to submit additional information to render the application complete.
Failure to do so within the thirty (30) day period shall render the application
void. Within five (5) business days following the receipt of an amended
application or supplemental information, the Chief of Police or his or her
designee shall again determine whether the application is complete in accordance
with the procedures set forth in this subsection. Evaluation and notification shall
occur as provided above until such time as the application is found to be
complete. The applicant shall be notified within five (5) business days of the date
the application is found to be complete. All notices required by this chapter shall
be deemed given upon the date they are either deposited in the United States mail
or the date upon which personal service of such notice is provided.
(c) Investigation of Permit. Upon determining that an application for
a special entertainment permit is complete, the Chief of Police or his or her
designee shall, within fifteen (15) business days of receipt of the application,
conduct an investigation of the information contained in the application to
determine if the proposed live entertainment and the business in which it is to be
offered is in compliance with the provisions of this chapter. Such investigation
may include providing copies of the application to the Director of Public
Works /City Engineering, the Police Chief, or other officials for their investigation
and report thereon."
SECTION 22. Section 9 -30 of the Cypress Municipal Code is hereby deleted in
its entirety and is of no further force or effect.
SECTION 23. Section 9 -31 of the Cypress Municipal Code is hereby amended
to read in its entirety as follows:
Sec. 9 -31. Issuance of permit.
No later than the end of the investigation period referenced in Section 9 -29 above,
the Chief of Police shall approve the application for a Special Entertainment
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452
Permit and issue the permit if he or she determines that the following locational
and operational requirements are satisfied: Section 9 -8, Subsections (c) through
(i). If the aforementioned sections cannot be satisfied, the permit shall be denied.
SECTION 24. Section 9 -32 of the Cypress Municipal Code is hereby amended
to read in its entirety as follows:
Sec. 9 -32. Revocation of Permit.
Any Special Entertainment Permit issued hereunder may be revoked in accordance with the
provisions of Section 9 -9 of this Chapter, except that all actions of the Director of Community
Development shall be undertaken by the chief of Police.
SECTION 25. Section 9 -33 of the Cypress Municipal Code is hereby deleted and
of no further force or effect.
SECTION 26. Should any section, subsection, clause or provision of this
ordinance for any reason be held to be invalid or unconstitutional, such invalidity or
unconstitutionality shall not affect the validity or constitutionality of the remaining portions of
this ordinance; it being hereby expressly declared that this ordinance, and each section,
subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved,
adopted and /or ratified respective of the fact that any one or more sections, subsections,
sentences, clauses or phrases be declared invalid or unconstitutional including, but not limited
to, the locational and operational requirements contained in Section 9 -8. In the event a court
of competent jurisdiction renders a decision invalidating the permit issuance process contained
in this Chapter, any Sexually Oriented Business which operates in the City shall be deemed to
be operating under a de facto permit subject to the locational and operational requirements
contained in Section 9 -8. The de facto permit shall remain subject to the remaining provisions
of the ordinance which have not been invalidated including but not limited to Sections 9 -9 and
9 -10 (Enforcement and Revocation).
SECTION 27. The City Clerk shall certify to the passage and adoption of this
Ordinance and shall cause the same to be published in the manner prescribed by law.
FIRST READ at a regular meeting of the City Council of said City held on the
23rd day of November 1998, and finally adopted and ordered posted at a regular meeting held
on the 11th day of January 1999.
ATTEST:
I C ERK
C O F
THE CITY OF CYPRESS
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
MAYOR, CITY OF CYPRESS
I, LILLIAN HAINA, City Clerk of the City of Cypress, DO HEREBY CERTIFY that
the foregoing Ordinance was duly adopted at a regular meeting of the said City Council held on
the 11th day of January 1999; by the following roll call vote:
AYES: 5 COUNCIL MEMBERS: McCoy, McGill, Piercy, Sondhi
NOES: 0 COUNCIL MEMBERS: None and Keenan
ABSENT: 0 COUNCIL MEMBERS: None
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CITY CLERK OF THE CITY OF CYPRESS
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