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:
"Beverage straw"
means any straw or tube used for transferring a beverage
from its container to the mouth of the drinker.
"City"
means the City of Encinitas.
"City contractor"
means any person that enters into an agreement with the City
to furnish products or services to or for the City.
"City facility"
means any building, structure, property, park, open space,
or vehicle, owned, leased or operated by the City, its agents, agencies,
departments or franchisees.
"City-sponsored event"
means any event, activity or meeting organized or sponsored,
in whole or in part, by the City or any department of the City.
"Customer"
means any person obtaining prepared food from a restaurant
or food provider.
"Disposable food service ware" or "disposables"
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.
"Distribute"
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.
"Egg carton"
means a container commonly used to package eggs sold to a
customer.
"Event"
means an organized recreational activity that includes 25
or more participants.
"Expanded polystyrene" or "EPS"
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.
"Food provider"
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.
"Food tray"
means a tray commonly used for packaging food for retail
sale to a customer.
"Person"
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.
"Plastic utensil"
means fork, spoon, knife or stirrer, or other eating implement
made predominately of plastic derived from either petroleum or a biologically
based polymer.
"Polystyrene"
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.
"Prepared food"
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.
"Restaurant"
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)
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.
D. In addition to any other applicable civil or criminal penalty, any person convicted of a violation of this chapter is guilty of an infraction, which is punishable pursuant to the penalty provisions set forth in Chapter
1.08 of this code.
(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)