This chapter shall be known as the "City of Encinitas Expanded Polystyrene Disposable Food Service Ware, Plastic Utensil, and Beverage Straw Ordinance."
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
The purpose of this chapter is to establish standards and procedures for environmental waste and litter reduction measures, and promote environmentally sustainable practices throughout the City by prohibiting the use and distribution of Expanded Polystyrene Disposable Food Service Ware, Plastic Utensils, and Beverage Straws by food providers within the City of Encinitas.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
For purposes of this chapter only, the terms below have the following meaning:
means any straw or tube used for transferring a beverage from its container to the mouth of the drinker.
means the City of Encinitas.
means any person that enters into an agreement with the City to furnish products or services to or for the City.
means any building, structure, property, park, open space, or vehicle, owned, leased or operated by the City, its agents, agencies, departments or franchisees.
means any event, activity or meeting organized or sponsored, in whole or in part, by the City or any department of the City.
means any person obtaining prepared food from a restaurant or food provider.
means single-use, disposable products used for serving or transporting prepared food, including, but not limited to, plates, bowls, trays, wrappers or wrapping, platters, cartons, condiment containers, cups or drink ware, or any other container in or on which prepared foods are placed or packaged for consumption. This definition excludes single use disposable straws, cup lids, and utensils.
means to provide or offer to provide an item, either as a separate transaction or as part of a transaction for another item, regardless of whether compensation is received.
means a container commonly used to package eggs sold to a customer.
means an organized recreational activity that includes 25 or more participants.
means polystyrene that has been expanded or "blown" using a gaseous blowing agent into a solid foam. EPS is sometimes called "Styrofoam", a Dow Chemical Co. trademark form of polystyrene foam insulation.
means any person or establishment that provides or sells prepared food within the City to the general public to be consumed on the premises or for take-away consumption. Food provider includes, but is not limited to: (1) a grocery store, supermarket, delicatessen, restaurant, drive-thru, café, cafeteria, coffee shop, snack shop, public food market, farmers' market, convenience store, or similar fixed place where prepared food is available for sale on the premises or for take-away consumption; and (2) any mobile store, food vendor, caterer, food truck, vending machine or similar mobile outlet. Food provider also includes any organization, group or individual that regularly provides prepared food to its members or the general public as a part of its activities or services.
means a tray commonly used for packaging food for retail sale to a customer.
means any person, business, corporation, or event organizer or promoter; public, nonprofit or private entity, agency or institution; or partnership, association or other organization or group, however organized.
means fork, spoon, knife or stirrer, or other eating implement made predominately of plastic derived from either petroleum or a biologically based polymer.
means a thermoplastic petrochemical material utilizing the styrene monomer, including, but not limited to, polystyrene foam or expanded polystyrene, processed by any number of techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, or extrusion-blow molding (extruded foam polystyrene), and clear or solid polystyrene (oriented polystyrene). The Recycle Code for polystyrene is '6' or 'PS,' either alone or in combination with other letters. This definition applies to all polystyrene food service ware, regardless of whether it exhibits a Recycle Code.
means any food or beverage that is: (1) ready to consume without any further food preparation, alteration or repackaging; and (2) prepared, provided, sold or served by a food provider using any cooking, packaging or food preparation technique. Prepared food may be eaten either on or off the food provider's premises. For purposes of this chapter, prepared food does not include: (1) any raw uncooked meat, poultry, fish or eggs, unless provided for consumption without further food preparation; and (2) fresh produce provided for consumption without food preparation or repackaging, including fruits, vegetables, and herbs, sold by grocery stores, supermarkets, food markets, farmers' markets and other food vendors.
means any person or establishment doing business within the City of Encinitas that provides prepared food or beverages for consumption on or off its premises such as a restaurant, café, bakery, grocery or convenience store counter or delicatessen, or catering truck vehicle. "Restaurant" for the purposes of this chapter, includes mobile food preparation units.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
A.
Food providers are prohibited from providing prepared food in disposable food service ware made of EPS.
B.
City facilities, City-managed concessions, City-sponsored or co-sponsored events, City permitted events and all franchisees, contractors, and vendors doing business with the City are prohibited from using disposable food service ware made of EPS within the City.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
A.
A food provider may only distribute plastic utensils upon request by the customer or upon offer to the customer by the food provider. This provision shall apply to takeout and drive-thru orders.
B.
A food provider may have plastic utensils available for customers at locations within the restaurant.
C.
City facilities, City-managed concessions, City-sponsored or co-sponsored events, and all franchisees, contractors, and vendors doing business with the City are prohibited from distributing plastic utensils.
D.
Effective August 1, 2020, City permitted special events on City property are prohibited from distributing plastic utensils.
(Ord. 2019-30; Ord. 2020-05)
A.
A food provider may only distribute beverage straws upon request by the customer or upon offer to the customer by the food provider. This provision shall apply to takeout and drive-thru orders.
B.
Effective August 1, 2020, food providers are prohibited from the distribution of beverage straws made of plastic.
C.
City facilities, City-managed concessions, City-sponsored or co-sponsored events, and all franchisees, contractors, and vendors doing business with the City are prohibited from the distribution of beverage straws made of plastic.
D.
Effective August 1, 2020, City permitted special events on City property are prohibited from the distribution of beverage straws made of plastic.
(Ord. 2019-30; Ord. 2020-05)
Effective October 1, 2020 no person may distribute, within the City:
1.
Any disposable food service ware made, in whole or in part, from EPS.
2.
Egg cartons or food trays made, in whole or in part, from EPS.
3.
Coolers, ice chests, or similar containers made in whole or in part, from expanded polystyrene that is not wholly encapsulated or encased within a non-polystyrene material.
(Ord. 2020-05)
No person shall use expanded polystyrene loose fill packaging and cushioning material, such as foam peanuts, packing peanuts, foam popcorn or packing noodles, in the packaging of products, equipment, or other items.
(Ord. 2020-05)
Notwithstanding the requirements contained in Sections 11.27.040, 11.27.050, 11.27.060 and 11.27.070,
A.
The following are exempt from the provisions of this chapter:
1.
Food and/or products prepared or packaged outside of the City, provided such food is not altered, packaged or repackaged within the City limits.
2.
Food provided by school districts under its official food service program.
3.
Food, plastic utensils, or beverage straws brought by individuals for personal consumption or use to City facilities, including, but not limited to, City parks and the beach, provided the City facility is being used for individual recreation or similar purposes and such facility use is not part of an event.
4.
Notwithstanding any other provision of this chapter, and in recognition that straws and other utensils may provide basic accommodation for persons with disabilities or medical conditions to eat or drink, food or beverage establishments in the City of Encinitas must provide a single-use plastic straw upon request to any consumer who requires the use of same due to a disability or medical condition. Nothing in this chapter shall conflict, or be construed to conflict, with the Americans with Disabilities Act, the Unruh Act, the Disabled Persons Act, or other applicable laws concerning the rights of individuals with disabilities. In particular, nothing in this chapter shall restrict, or be construed to restrict, the availability of single-use plastic straws to individuals who may require and request the use of single-use plastic straws.
5.
Public Health and Safety. The City Manager may exempt a food provider or beverage provider when there is a public health and safety requirement or medical necessity to use the product.
6.
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.
B.
The City Manager or his/her designee may exempt any food provider or person from the requirements of this chapter for a one-year period, upon written request by applicant that the conditions of the chapter would cause an undue hardship following the operative date of the ordinance codified in this chapter, as follows:
1.
A request for an exemption shall be filed in writing with the City Manager or his/her designee and shall include documentation of the reason for the claimed exemption and any other information necessary for the City to make its decision. An exemption application shall include all information necessary for the City to make its decision, including, but not limited to documentation showing the factual support for the claimed exemption. The City may require the applicant to provide additional information as necessary to make the required determinations.
2.
The City Manager or his/her designee may approve the exemption for a maximum of one year, with or without conditions, upon finding that compliance would create an undue hardship. Undue hardship shall be construed to include but not be limited to situations where:
a.
There are no reasonable alternatives to expanded polystyrene food service ware for reasons that are unique to the applicant; or
b.
Compliance with the requirements of this chapter would deprive a person of a legally protected right. The exemption may be extended for additional terms of up to one year each, upon a showing of the continuation of the legal right.
3.
The City Council may by resolution establish a fee for exemption applications. The application fee shall be an amount sufficient to cover the costs of processing the exemption application.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
A.
Any violation of this chapter shall be enforced through the Administrative Citation Program set forth in Chapter 1.08 of the Encinitas Municipal Code.
B.
Each violation of this chapter shall be considered a separate offense.
C.
The remedies and penalties provided in this chapter are cumulative and not exclusive and nothing in this shall preclude the City from pursuing any other remedies. The City Attorney may seek legal, injunctive, or any other relief to enforce the provisions of this chapter and any regulations or administrative procedure developed pursuant hereto.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
A.
Any person violating, causing or maintaining a violation of any provision of this chapter may be issued an administrative citation assessing a civil fine as provided in this section. The procedures for the imposition, enforcement, collection, and administrative review of civil fines shall be in addition to, and not in lieu of, any criminal, civil or other legal remedy established by law and available to the City to address violations of this chapter.
B.
Upon a first violation of any provision of this chapter, the City Manager or his/her designee shall issue a written warning notice of violation to the offending retail establishment. The warning notice of violation shall specify the violation(s), a date by which the violation(s) must be ceased and abated, and the penalties in the event of future violations. If, after the specified correction period following the written warning, the violation is not ceased or abated, the City Manager or his/her designee may issue an administrative citation assessing fines in accordance with this section.
C.
Each separate violation following the issuance of a warning notice of violation shall be subject to the following administrative fines which shall be cumulative with each day that a violation occurs constituting a separate violation:
1.
A fine not exceeding $100.00 for the first violation following the issuance of a warning notice.
2.
A fine not exceeding $200.00 for the second violation following the issuance of a warning notice.
3.
A fine not exceeding $500.00 for each additional violation that occurs following the issuance of a warning notice.
D.
Each administrative citation issued for a violation of this chapter shall at a minimum contain the information specified in Section 1.08.080 of the Encinitas Municipal Code, Administrative Citations, and any person receiving an administrative citation may contest the citation, and shall be entitled to an administrative hearing, pursuant to the procedures set forth in that chapter.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
Nothing in this chapter is intended to or shall be interpreted as conflicting with any federal or state law or regulation.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
A.
This chapter shall become operative upon the effective date of the ordinance codified in this chapter.
B.
Within 15 days of the date of adoption of the ordinance codified in this chapter, the City Clerk shall post a copy of said ordinance in places designated for such posting and shall certify to the same. The City Clerk shall certify the passage of the ordinance codified in this chapter and shall cause the same to be published as required by law.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)
If any section, subsection, subdivision, paragraph, sentence, clause, phrase or portion of this chapter is, for any reason, held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of the ordinance codified in this chapter. The City Council hereby declares that it would have adopted the ordinance codified in this chapter and each section, subsection, subdivision, paragraph, sentence, clause, phrase and portion of this chapter irrespective of the fact that one or more, sections, subsections, subdivisions, paragraphs, sentences, clauses, phrases or portions thereof may be declared invalid or unconstitutional to this end, the provisions of this chapter are declared severable.
(Ord. 2016-12; Ord. 2019-30; Ord. 2020-05)