HomeMy WebLinkAboutProvisional Adoption of Ordinance No. 1764
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COMMISSION MEMORANDUM
REPORT TO: Honorable Mayor and City Commission
FROM: Lieutenant Rich McLane, Bozeman Police Department
SUBJECT: Provisional adoption of Ordinance 1764, revision to Bozeman
Municipal Code (BMC) Chapter 6.04 Animal Control
MEETING DATE: Monday, August 10, 2009
RECOMMENDATION:
Conduct a public hearing and suggest changes to Ordinance 1764. Consider a
motion provisionally adopting Ordinance 1764, including Commission amendments and
conditions, and direct staff to return to the Commission for the second reading of
Ordinance 1764 on August 24, 2009.
BACKGROUND:
At the April 9, 2009 policy meeting, staff presented a number of options for consideration
by the City Commission related to possible adjustments to the City’s approach regarding the
necessary balance between the health and safety of our citizens, meeting the needs of responsible
animal owners, and shared use of City parks and trails. The primary focus of this meeting, was
on leash-free dogs. The purpose of the meeting was to;: (1) assist the Commission in identifying
if an issue exists concerning leash-free dogs in Bozeman; (2) offer suggestions and possibilities
for resolution; and (3) to aid the Commission in identifying and considering the impacts on
parks, neighborhoods, staff and financial resources if the Commission determines that policy
changes are necessary.
At the conclusion of the discussion, it was clear to staff that a number of adjustments or
improvements to existing operations was necessary to provide more effective animal control
enforcement in Bozeman. These adjustments include any, all or any combination of the
following:
¾ OPTION 1. Increased enforcement of existing leash laws in the City’s parks using
existing city resources.
¾ OPTION 2. Improved public education program identifying rules, off-leash
opportunities, and penalties for non-compliance.
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¾ OPTION 3. Explore the possibility of identifying certain parks as either leash-free,
or leash-free at selected hours during the day.
¾ OPTION 4. Review existing laws and provide recommendations for change, to
include the possibility of implementing the ability to issue civil and/or criminal
citations.
While the primary purpose of this ordinance is to establish changes that reflect a
combination of OPTION 4 (legal changes) and OPTION 3 (off-leash park clarification), it
provides an opportunity for a timely update on OPTION 1 (increased enforcement of existing
laws) and OPTION 2 (increased education).
OPTIONS 1 AND 2: INCREASED ENFORCEMENT OF EXISTING LEASH LAWS
AND INCREASED PUBLIC EDUCATION.
The Police Department has taken measures to increase public education, outreach, and
enforcement beyond that of the Animal Control Officer. Shift-briefing training sessions have
been conducted with all patrol officers of the Bozeman Police Department, providing updates on
existing laws, problem areas and methods of approach to educate and inform the public and
enforce animal violations. A patrol officer not responding to an emergency call is encouraged to
approach dog owners walking a dog off-leash or allowing a dog to defecate without the proper
clean up. During these encounters, officers use individual discretion on whether or not to issue a
citation. All officers have been provided with basic leashes and leash-free literature to ensure the
leash-less dog owner never departs from an encounter with a Bozeman Police Officer without a
leash, animal regulations and information on where a dog owner can find a leash-free area in
Bozeman. If the dog owner does not have a City license or proof of rabies, the officer forwards
the dog owner information to the Animal Control Officer who then ensures rabies inoculations
and City licenses are obtained by the dog owner.
Our one, full-time Animal Control Officer currently works on Tuesday through Saturday.
Additionally, another ¼ FTE (10 hours/week) Animal Control Officer has been hired to ensure
the Police Department provides animal control coverage for a variety of locations and times,
including some evening hours. All parks and trails have been entered into our Computer Aided
Dispatch system to allow for better tracking of complaints and responses, and a PARK/TRAIL
patrol schedule has been devised to provide more focused enforcement at these locations (see
attached). The Animal Control Officer takes opportunities to pair up with a patrol officer to visit
problematic locations, providing for a combination of security, concurrence by the patrol officer
on the importance of enforcement and a visible demonstration to the public that these regulations
are taken seriously by law enforcement. Parks and Recreation employees are providing direct
contact to Animal Control Officers when they see violations.
Agreements are in place with the Heart of the Valley, Inc. to ensure no dog or cat is
adopted from the shelter without vaccinations and the purchase of a City license, when required.
Additionally, our Animal Control Officer attends spay/neuter clinics and related events to
provide education and outreach regarding City policies and regulations. While veterinarian
offices have resisted selling City pet licenses to their customers, they have agreed to provide City
license applications to owners living in the City.
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Staff members have greatly improved the City of Bozeman website. The City website
now clearly identifies off-leash park locations, City ordinances and regulations and benefits of
having dogs on leash in Bozeman. A map identifying off-leash parks within the boundaries of
the City as well as individual off-leash dog park maps have been posted for easy access and
identification: WEBSITE EXAMPLES
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Options 1 and 2 involve on-going changes and improvements being addressed by staff separately
from this ordinance change.
OPTION 3: IDENTIFICATION OF NEW OFF-LEASH PARK AREAS AND/OR
ALLOWANCE FOR SELECTED HOURS OF USE AS RESTRAINT-
FREE.
In the Commission Memorandum dated April 9, 2009, a considerable amount of
information was provided describing the current climate in regards to restraint-free parks, to
include staff impacts, financial impacts, safety concerns and direct impact to the park itself.
During this policy meeting, staff did not recommend declaring any park restraint-free without
careful consideration to these impacts listed. Given that view, a recommendation for adding an
additional restraint-free location is part of this ordinance change and will be discussed later in
this Memorandum.
Meanwhile, discussion during the April 9, 2009 policy meeting regarding allowing
certain hours for leash-free status at some parks or trails came with mixed response. Staff is not
recommending this course of action at this time, as the addition of another leash-free park and
use of a civil citation for enforcement mitigate many of these concerns. Additionally,
establishment of varied hours for restraint-free use presented a number of challenges, to include
financial impacts for signage, difficulty in enforcement, increased likelihood of animal/animal or
animal/human bites and a mixed message being sent to the community in regards to what is and
is not allowed.
OPTION 4: REVIEW EXISTING LAWS AND PROVIDE
RECOMMENDATIONS FOR CHANGE, TO INCLUDE THE
POSSIBILITY OF IMPLEMENTING THE ABILITY TO ISSUE
CIVIL AND/OR CRIMINAL CITATIONS.
Previously described steps to increase enforcement, education, outreach and the potential
creation of additional leash-free parks are attempts to address, in a balanced manner, citizen
concerns related to dogs in Bozeman. Staff suggests additional reasonable modifications to Title
6 regarding animal control and the classification of Title 6 violations.
While many citizens have expressed concerns that Title 6 regulations should be strictly
enforced, an important consideration in the development and application of any law is to ensure
that no legislation, or enforcement of that legislation, over-reaches. Many citizens may agree
that a dog owner who permits their dog to bite people or other animals, neglects or abuses their
animal, or habitually fails to keep the dog secured should be charged with a criminal offense.
However, many of the same reasonable people may also agree that failure to walk a dog on a
leash, failure to clean up after the dog or failure to obtain a City license are examples where a
non-criminal violation and approach to enforcement may be more appropriate.
Ordinance 1764 introduces a new approach to Title 6 enforcement by distinguishing
between a civil or criminal citation, thus effectively “decriminalizing” many Title 6 animal
violations, and simultaneously providing a criminal citation for those offenses which more
seriously affect the safety of our citizens and their animals. Several minor grammatical changes
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or operational changes are noted on the attached ordinance, but not discussed in this
memorandum. (For the remainder of this Memorandum, “Animal Control Officer” also
includes other law enforcement officers providing enforcement of animal regulations, to include
patrol officers, detectives or police administrators when applicable)
Chapter 6.04 REVISIONS (with explanations as necessary)
Introduction of intent with additions or changes to existing BMC.
WHEREAS, it is the intent of the City Commission to provide for and protect the health, safety
and welfare of the citizens of Bozeman, promote residential harmony and ensure the well-being
of cats, dogs and other animals through effective animal regulations and;
WHEREAS, it is the intent of the City Commission to allow for animal control officers and
police officers to provide necessary enforcement through the use of criminal citations and related
prosecution for more egregious, habitual or serious offenses and the use of civil citations and
related civil penalties for less serious offenses, but allow for the exercise of such discretion to be
held at the time of the offense and;
WHEREAS, it is the intent of the City Commission to establish fines and penalties
commensurate with the nature of the offense and which serve to recognize the efforts of
responsible citizens to take proper care, and;
WHEREAS, it is the intent of the City Commission to provide adequate, safe, and identifiable
locations for citizens to allow accompanied dogs to exercise without restraint without infringing
on the rights of other community residents and visitors.
Specifically identifying areas where dogs are not allowed.
In a previous Commission decision, the East Gallatin Recreation Area was declared dog-
free. Staff is recommending both Bronken Fields and the Softball Complex also be designated
dog-free, as the amount level of maintenance demands demanded on these fields and the need to
protect recreational users of the fields and spectators from potential conflicts with dogs is high.
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Additionally, while most parks and trails allow dog presence on leash, playground areas,
beaches, ice rinks and specific recreation fields are not conducive to the presence of dogs and
increase the likelihood for conflict and injuries to people and/or other dogs.
Codification of previous Commission decisions regarding restraint-free parks, as well as
addition of Gallatin County Regional Park as a restraint-free park.
It is important to clarify that “restraint-free” does not mean without control of your dog,
hence the introduction of the first paragraph. The first four listed locations were declared
“restraint-free” through previous Commission decisions, but until this ordinance were not
codified as such.
Annexed into the City of Bozeman in 2001, the regional park is owned and operated by
Gallatin County. Due to the annexation, animal regulations in this park are governed primarily
by Title 6 in the Bozeman Municipal Code. The regional park area is considered by many
citizens as a “restraint-free” park since its inception and in discussions with Gallatin County
officials, the direction of park use is to sign and contain specific areas for continued “restraint-
free” use. The language introduced into this Chapter of Title 6 allows both current and future
designated use to continue, but also protects specifically the area of the Dinosaur pPark and
playground located in the eastern edge of the park. The regional park provides a much needed
“restraint-free” location on the northwest side of Bozeman, complimenting the four additional
locations thus providing a more even spread of leash-free areas across Bozeman.
Preserves the right of the Commission to declare other leash-free areas.
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Repeal of existing Section for Cruelty to animals.
Chapter 6.08 contains a separate section that addresses cruelty to animals. Chapter 6.08
is not being considered for any civil citations and therefore cruelty to animal enforcement is
already adequately addressed.
Clarification of hearing procedures for release of dangerous or abused animals.
Prior to these recommended changes, several instances occurred whereby an abused,
neglected or even vicious dog was released to its owner without a full hearing and/or input from
the Animal Control Officer. By providing clearer language for these circumstances, both dogs
and citizens are better protected.
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Clarification of Animal Control Officer inspection and impound authority, including lawful
ability to issue a civil citation.
Introduction of discretion to issue either Criminal or Civil Citation with guidelines.
Each of the violations listed in this revised Chapter carry with them examples where
enforcement or prosecution is more appropriately criminal, and conversely examples where civil
enforcement is more apropos. The use of existing criminal enforcement methods may be more
applicable when a dog owner allows their dog to run free at all times, continually attacks or bites
people or other dogs, or owns a dog that is allowed to bark incessantly at all hours of the night.
On the other hand, a non-criminal enforcement method may be more appropriate for instances
where an owner fails to license their dog, fails to use a leash or fails to properly contain their dog
properly, but not repeatedly. Furthermore, some basic parameters should exist to provide
guidance for our Animal Control Officers and Patrol Officers to determine whether a criminal or
civil violation is more appropriate. It is difficult to define with exacting detail. Every violation
has a number of different aggravating or mitigating circumstances. Language was added to this
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section which reads in part, “this decision can be based on the individual and unique factors
associated with each incident, to include, but not limited to, impacts on risk to public safety,
severity of violations and history or knowledge of previous violations.” This provides some
reasonable guidance for a trained Animal Control Officer to use to avoid making arbitrary
decisions.
Clarification of Criminal Procedures and establishment of fines.
Historically, fines are set with a range from minimum to maximum, with little
differentiation on fines paid for those admitting guilt and paying immediately or those that wait
for weeks to pay or appear in Municipal Court on charges. The establishment of set criminal
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fines, with an automatic reduction if paid within 10 business days, provides an incentive for
prompt attention and payment, rather than a punishment for paying fines late. However, the right
of the Municipal Court Judge to suspend a portion of any fine assessed is preserved, so as not to
improperly discourage a person who feels they are innocent and wish to contest the charge(s)
through a trial. Furthermore, by establishing the same fines for all offenses within this Chapter,
the ability for an Animal Control Officer and/or Court Official to readily know the fine amount is
also preserved.
Introduction of municipal infraction for violations, with established timelines for payment or
appeal, and default judgment established.
B. Municipal Infractions. If the violation has been deemed to be a municipal infraction,
pursuant to 6.04.020, procedures and penalties shall be followed in accordance with
Bozeman Municipal Code Chapter 1.24 “Municipal Infractions”, unless otherwise
specified differently in this section.
Failure to either pay the penalty provided within ten (10) business days or request a
civil hearing within ten (10) business days from the date the civil citation was served
shall be deemed to be an admittance that the violation occurred and shall authorize
the Municipal Court Judge, or their designee, to enter judgment against the person
served.
One of the major decisions in determining whether to pursue the option of allowing a
municipal infraction as an option for enforcement, was the fairness to the citizen and the impacts
to staff. By establishing reasonable, set dates to respond to an infraction, with a reduced fine as
part of a fine structure, encouragement is given to the responsible citizen to pay the fine, learn
from the encounter and improve their behavior in regards to animal issues. By establishing a 10
business day period to pay or appeal, with an automated provision for entry of a default
judgment, there is a definite conclusion to the proceeding which avoids numerous violations
being left open and outstanding and waiting for action. Irresponsible animal owners that fail to
pay or request a hearing will find a judgment entered against them and a more immediate attempt
to collect related fines and costs.
Requirements listed for civil citation of municipal infraction for violations, with established
timelines for payment or appeal, and default judgment established.
1. Civil Citation. A civil citation or notice of municipal infraction shall contain
the following information:
a. Name and address of the defendant, including any identifying
information;
b. Description and section number of the infraction attested to by the
Animal Control Officer issuing the civil citation;
c. Location and time of the infraction;
d. Amount of the civil penalty to be assessed or the alternative relief
sought, or both;
e. The manner, location and time in which the penalty may be paid if
admitting to the infraction;
f. The manner, location and time in which a civil hearing may be
requested if denying the infraction;
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g. A notice that a failure to either pay the penalty or request a civil hearing
within ten (10) business days shall be deemed to be an admittance that
the violation occurred and shall authorize the Municipal Court Judge, or
their designee, to enter judgment against the person served.
Specific information that is required in accordance with related State law and other City
ordinances is defined in this section. Special attention has been given to ensure that the person
receiving the civil citation has received clear instructions regarding the manner in which to
handle the citation.
Identification of Service requirements for civil citations.
The majority of civil citations issued pursuant to this Chapter will be issued by an Animal
Control Officer directly to the citizen at the time of commission of the violation. Other methods
of service are identified and listed in this section.
Establishment of Court Procedures for civil citations.
3. Court Proceedings. The following procedures shall be followed upon a timely
request for a civil hearing to contest a civil citation.
a. Upon receipt of a written request for a civil hearing, the Department
shall within 10 days notify the person of the date, time and location of
the civil hearing.
b. The civil hearing shall be held before a City of Bozeman Municipal
Court Judge, or their designee.
c. The Court shall ensure the defendant has received a copy of the
complaint and that the defendant understands the complaint. The
defendant may question all witnesses who appear for the municipality
and produce evidence or witnesses on the defendant’s behalf.
d. The defendant may be represented by counsel of the defendant’s own
choosing and at the defendant’s expense.
e. The civil penalty shall not be assessed if, after a hearing, the Municipal
Court Judge, or their designee, enters a finding of no liability. The
Municipal Court Judge, or their designee, at any civil hearing
under this chapter shall issue an order of judgment stating whether the
person charged with the Municipal Infraction is liable for the Municipal
Infraction; and if liable, the amount of any civil penalty, late penalty, and
actual civil action hearing costs assessed against the person. Upon full
satisfaction of penalties and costs, the department shall file a notice of
full satisfaction with the Municipal Court. A copy of the order of
judgment issued shall be maintained by the City.
f. In a civil hearing the standard of proof must be by clear and convincing
evidence.
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g. If the defendant is found to have committed a violation after a civil
hearing or who requests a civil hearing and thereafter fails to appear at
the time and place of the hearing may be held liable for actual hearing
costs in accordance with Montana Code Annotated 25-10-201 together
with all actual costs of service of the notice of the Municipal Infraction
either by mail or personal service. The defendant must pay the civil
penalty, hearing costs and service costs within 15 days from when
judgment is entered.
h. Upon a finding that the defendant committed the violation by the
Municipal Court Judge, or their designee, the decision shall be final,
without right of appeal, in accordance with 25-30-108 Montana Code
Annotated.
Court rules listed for these civil violations are in accordance with existing state law and
Bozeman Municipal Code. Specific language providing for the defendant to pay for reasonable
court fees has been established. Additionally, because the fine amount for an infraction is set at
less than $200, there is no appeal provision after the Municipal Court Judge has rendered a
finding.
Establishment of fine amount for civil citations.
As previously indicated regarding fines for criminal offenses, establishing an initial fine
with an automatic reduction if paid within 10 business days, serves as and incentive to
expediently pay the associated fines. By setting all violations defined as a civil violation at the
same rate, the ability for an Animal Control Officer and other staff to know the fine amount and
immediately provide information of a reduced amount demonstrates to the citizen a fair approach
to enforcement. Additionally, providing for the allocation of court costs and collection fees
encourages violators who choose to forgo fine payments to consider the costs associated with
collecting their delinquent fines in another manner when making such a choice.
In summary, this Ordinance 1764 provides clear identification of dog-free and restraint-
free locations in Bozeman, allows increased Animal Control Officer discretion to issue criminal
or civil citations as appropriate, and provides necessary overall improvements to Title 6, Animal
Control in Bozeman.
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FISCAL EFFECTS:
It is anticipated that the creation of new manual citations will be necessary, with an
estimated cost of $3,000 for citations for the department. Future costs for related software to
allow for the issuance of electronic citations will be delayed until at least FY11 and are estimated
to cost approximately $6,000. Other costs related to the introduction of civil citation processing
have not been determined.
ALTERNATIVES:
As suggested by the City Commission.
Respectfully submitted,
______________________________
Lieutenant Rich McLane, Police Department
Attachments: (1) Ordinance 1764 with changes marked from previous Chapter 6.04
(2) Animal Control Parks/Trails Patrol Plan
(3) Draft example of civil citation
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Overall Area Common Name General Location Times/Month patrol
Baxter Meadows Baxter & Flanders Mill 2 X/MONTH
Regional Park Oak and Davis 4 X/MONTH
Valley Unit Park Durston & Yellowstone 2 X/WEEK
Valley West Park Clifden & Cascade 2 X/WEEK
Bronken Fields Durston & Cottonwood 4 X/WEEK
Laurel Glen Park W. Annie Street 4 X/MONTH
Catttail Creek Trail Catron & Blackbird 2 X/MONTH
Westwinds Trail N of Oak & Hunters Way 2 X/MONTH
Harvest Creek Trail Hunters Way & Annie 2 X/MONTH
Glenwood Meadows Hunters Way & Mendenhall 2 X/MONTH
Asheim Fields Babcock & Fowler 4 X/WEEK
Bozeman Pond Fowler Lane 4 X/WEEK
Kirk Park Beall & 20th 8 X/WEEK
Brentwood Trail Annie & Emily 2 X/MONTH
Rose Park Oak and 25th 2 X/MONTH
Westlake N. 5th and Tamarack 2 X/WEEK
Centenial Aspen & Willson 2 X/WEEK
Beall Art Park Black & Villard 2 X/WEEK
Lindley Park E. Main & Buttonwood 8 X/WEEK
Sports Complex E. Haggerty Lane 8 X/WEEK
Cooper Park Koch & 8th 8 X/WEEK
Southside Park 4th and College 4 X/WEEK
E. Gallatin Rec Area Manley & Griffin 8 X/WEEK
Legends Park E. Boylan Road 2 X/MONTH
N. Gallagator Trail N. of Garfield 8 X/WEEK
S. Gallagator Trail S. of Garfield 8 X/WEEK
Burke Park Church and Story 4 X/MONTH
Langohr Park S. Tracy 2 X/WEEK
Christie Fields Mason & Rouse 4 X/WEEK
Fairway Drive Trail Kagy & Fairway Drive 2 X/MONTH
Spring Meadows Graf Street 4 X/MONTH
Alder Creek Alder Creek Drive 4 X/MONTH
Lerner Park Graf & Parkway 2 X/MONTH
Ainsworth Park 31st & Ainsworth 2 X/MONTHWEST SIDECENTRALSOUTHSIDEANIMAL CONTROL PARKS AND TRAILS ENFORCEMENT PLAN
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Advertise for SaleAlley EncroachmentBlocking DrivewayBlocking SidewalkBlocking Crosswalk or within 20'Boulevard or Curb ParkingFire Hydrant, within 15'Loading ZonePrivate PropertyRestricted Zone / Other ViolRestricted 2AM-7AMRestricted Street MaintWrong SideMSU Residential DistrictHS Residential District$20Park over 48 hrs or 5 days $30 Location of Animal Offense Time of Offense Date of OffenseFire Lane $50Handicap Zone $100Name DOB6.04.020 No City Dog/Cat License6.04.040 No license/rabies affixedStreet Address6.04.050 No Kennel license6.04.070 Fail to restrainCity State, Zip Code6.04.080 No proof of rabies6.04.110 Nuisance animalOfficer's Signature __________________________________ Badge # ________6.04.150 Fail to dispose fecesColor/BreedDO NOT IGNORE THIS CITATION. Payment must be made. Mail Check or Money Order (NO CASH), payable to City of Bozeman; Parking Section, P.O. Box 1230, Bozeman, MT 59771-1230. Include citation with payment. To contest this ticket, you must file a written appeal at City Hall at 121 N. Rouse Ave. FAILURE TO ACT WITHIN 7 DAYS MAY RESULT IN VEHICLE IMPOUND AND INCREASE IN FINES OF UP TO $300.00. IF YOU HAVE QUESTIONS, CALL (406) 582-2337 You have been alleged to have committed a civil municipal infraction. You have ten (10) business days to either admit liability and pay the fine, or contest the allegation. You may pay by mailing a Check or Money Order (NO CASH) payable to City of Bozeman, P.O. Box 1230, Bozeman, MT 59771-1230. You may also pay in person or contest the allegation at 121 N. Rouse, Bozeman, MT 59771-1230. Failure to pay fine or contest allegation within ten (10) business days shall be deemed an admittance the violation occurred and authorize the City to enter a civil judgment against you, without appeal or reduction in fine and you shall be liable for other applicable costs. $100 FINE, REDUCED TO $50 IF PAID WITHIN 10 BUSINESS DAYS. If you have questions, call us at 406-582-2300.City License #Impound #BOZEMAN POLICE DEPT --- MUNICIPAL INFRACTION (CIVIL CITATION)A 99999Date-Park Offense Time-Park OffenseLocation (Street, Block, Direction)Plate ST LIC YR LIC Type (PC,TK,CL,etc)Make Color VIN (if plate unavailable)Comments DRAFT ONLYParking TicketAnimal TicketDogCatMFUnk79