The title of this chapter shall be "Regulating Expanded Polystyrene Food Containers and Products."
(Ord. 5844, 2018)
The purpose of these provisions is to promote:
A. 
The protection of the City's unique waterways and coastal resources including beaches, tidelands, creeks and riparian habitat.
B. 
To protect the public health, safety and general welfare.
C. 
Compliance with federal, state, and local laws regarding water quality and waste diversion.
D. 
A reduction in the amount of waste/debris in City parks, public open spaces, creeks, tidelands and the ocean, and the amount of material going to landfills.
(Ord. 5844, 2018)
The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:
ASTM Standard.
The standards of the American Society for Testing and Materials (ASTM) international standard D6400 or D6868 for biodegradable and compostable plastics, as those standards may be amended.
Biodegradable.
A material that is compostable (separately defined) or the ability of organic matter to break down from a complex to a more simple form through the action of bacteria or to undergo this process.
City Facility.
Any building, structure or vehicle owned and operated by the City, its agents, agencies, and departments.
City Contractor.
Any person or entity that enters into an agreement with the City to furnish products or services to or for the City.
Compostable.
Materials that have the ability to break down, or otherwise become part of usable compost (e.g., soil-conditioning material, mulch). Compostable disposable food containers must meet ASTM standards for compostable materials.
Disposable Food Container.
A term interchangeable with "to go" packaging and "food packaging material" and means all containers that are used to hold prepared food or drinks. Disposable food containers include clamshells, bowls, plates, trays, cartons, and cups that are intended for single use, including, without limitation, food containers for takeout foods and/or leftovers from partially consumed meals prepared by food providers. This does not include single-use disposable items such as straws, cup lids, or utensils, nor does it include single-use disposable packaging for unprepared foods.
Events Promoter.
An applicant for any event permit issued by the City or any City employee(s) responsible for any City-organized event.
Expanded Polystyrene (EPS).
Blown expanded and extruded polystyrene or other plastic foams which are processed by any number of techniques including, but not limited to, fusion of monomer spheres (expanded bead plastic), injection molding, foam molding, and extrusion-blown molding (extruded foam plastic). Expanded polystyrene and other plastic foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays, ice chests, shipping boxes and packing peanuts.
Expanded Polystyrene Products.
Any item such as coolers, ice chests, cups, bowls, plates, clamshell containers, shipping boxes, or any other merchandise made from expanded polystyrene that is not wholly encapsulated or encased by a more durable material.
Food Provider.
Any person located within the City that is a retailer of prepared food or beverages for public consumption including, but not limited to, any store, supermarket, delicatessen, restaurant, shop, caterer or mobile food vendor.
Person.
An individual, business, event promoter, trust, firm, joint stock company, corporation, nonprofit, including a government corporation, partnership, or association.
Prepared Food.
Food or beverages, which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared within the City. Prepared food does not include raw, butchered meats, fish and/or poultry sold from a butcher case or similar food establishment.
Recyclable.
Materials that can be recycled consistent with the requirements of Chapter 7.16, including, but not limited to, aluminum, tin and bi-metal cans, clear and colored glass containers, high density polyethylene (HDPE), polyethylene terephthalate (PET), clear or rigid polystyrene, corrugated cardboard and mixed paper.
Vendor.
Any store or business which sells or offers goods or merchandise, located or operating within the City, including those referenced in the definition of "food provider."
(Ord. 5844, 2018)
A. 
It is unlawful for any food provider within the City to provide prepared food in or provide separately any disposable food container made from expanded polystyrene, except as exempted in Section 9.160.070.
B. 
Disposable food containers made from expanded polystyrene are prohibited from use in all City facilities.
C. 
City contractors in the performance of City contracts and events promoters may not provide prepared food in disposable food containers made from expanded polystyrene.
(Ord. 5844, 2018)
A. 
All food providers within the City utilizing disposable food containers shall use biodegradable, compostable or recyclable products.
B. 
All City facilities utilizing disposable food containers shall use biodegradable, compostable or recyclable products.
C. 
City contractors and events promoters utilizing disposable food containers shall use biodegradable, compostable, or recyclable products while performing under a City contract or permit.
(Ord. 5844, 2018)
It is unlawful for any vendor or events promoter in the City to sell or otherwise provide any expanded polystyrene product which is not wholly encapsulated or encased within a more durable material, except as exempted in Section 9.160.070. This specifically includes, but is not limited to, cups, plates, bowls, trays, clamshells and other products intended primarily for food service use, as well as coolers, containers, ice chests, shipping boxes, packing peanuts, or other packaging materials.
(Ord. 5844, 2018)
A. 
A food provider or other vendor may apply for an exemption from the requirements set forth in Section 9.160.040(A) under the following circumstances:
1. 
Food Provider - Financial Hardship or Practical Difficulty. The City Finance Director or designee may exempt a food provider from the requirements set forth in Section 9.160.040(A) for up to one-year if the food provider applies for an exemption from the City Finance Director showing, in writing, that this chapter would create an undue hardship or practical difficulty as evidenced by no alternatives being available or such alternatives are not affordable to the food provider.
2. 
Public Health and Safety. Exemptions to allow for the sale or provision of expanded polystyrene products may be granted by the Finance Director or designee, if the food provider or vendor can demonstrate, in writing, a public health and safety requirement or medical necessity to use the product.
B. 
Procedures for Applying for an Exemption.
1. 
Application Materials. An exemption application shall include all information necessary for the Finance Director or designee to make a decision, including, but not limited to, documentation showing factual support for the claimed exemption. The Finance Director or designee may require the applicant to provide additional information.
2. 
The Finance Director or designee may approve the exemption application in whole or in part, with or without conditions.
3. 
The Finance Director or designee shall put the decision to grant or deny the exemption in writing and the decision shall be final.
4. 
An exemption granted under subsection A shall not be renewed.
C. 
The following foods or products are exempt from the provisions of this chapter:
1. 
Foods prepared or packaged outside the City and sold inside the City.
2. 
Raw meat, fish and other raw food trays.
3. 
Products made from expanded polystyrene which are wholly encapsulated or encased by a more durable material. Examples include surfboards, life preservers, and craft supplies which are wholly encapsulated or encased by a more durable material, and coolers encased in hard plastic.
4. 
Construction products made from expanded polystyrene are exempted from this chapter if the products are used in compliance with Title 22, Environmental Policy and Construction, and Chapter 22.87, Stormwater Management, for development and redevelopment projects, and used in a manner preventing the expanded polystyrene from being released into the environment.
5. 
During a locally declared emergency, the City, emergency response agencies operating within the City, users of City facilities, and food providers shall be exempt from the provisions of this chapter.
6. 
Expanded polystyrene packaging products which have been received from sources outside the City may be reused in order to keep the products out of the waste stream.
(Ord. 5844, 2018)
A. 
The presence of non-recyclable plastic food containers on the premises of a food provider shall constitute a rebuttable presumption that such packaging is being dispensed.
B. 
Violations of this chapter shall be enforced as follows:
1. 
For the first violation, upon a determination that a violation of this chapter has occurred, the City shall issue a written warning notice to the food provider which will specify the violation and the appropriate penalties in the event of future violations.
2. 
Thereafter, any person violating or failing to comply with any of the requirements of this chapter shall be subject to remedies specified pursuant to Chapters 1.25 and 1.28 of this code.
3. 
Each and every sale or other transfer of non-recyclable plastic food packaging shall constitute a separate violation of this chapter.
4. 
The City Attorney may seek legal, injunctive, or other equitable relief to enforce this chapter.
C. 
The remedies and penalties provided in this chapter are cumulative and not exclusive of other remedies and penalties available under other provisions of applicable law.
(Ord. 5844, 2018)