Fremont Municipal Code Art. VIII Expanded Polystyrene Disposable Food Service Ware Prohibited –…

These definitions apply to this article only.

“ASTM-standard” means meeting the standards of the American Society for Testing and Materials (ASTM) International Standard D6400 or D6868 for compostable plastics, as those standards may be amended.

“City facility” means any building, structure, land or park owned or operated by the city of Fremont and its agents and departments and includes city buildings, structures, parks, recreation facilities or property.

“City facility users” means all persons, societies, associations or organizations or special events promoters that require a permit to use a city facility as defined in Chapter 12.20, Parks and Recreation Areas; or that require a special events permit for events which require city services, involve city-owned property such as streets and plazas, closure of public right-of-way or impair emergency vehicle access, and parades, as defined in Chapter 12.25, Special Events and Parades, and including permits to reserve or rent a city facility, including concession contracts with the city and city-managed concessions, city-sponsored events, and food services provided at city expense. These city facility permits also include but are not limited to picnic area reservations, park use application permits, field reservations, rental facilities, historic buildings and senior center rentals, and permits for gatherings and meetings in all parks and recreation areas which include group picnics and organized gatherings, educational, entertainment or recreation for 25 or more persons.

“Compostable” means that all materials in the product or package will biodegrade or otherwise become part of usable compost (e.g., soil conditioning material, mulch) in an appropriate composting program or facility. Compostable disposable food service ware includes ASTM-standard bioplastics (plastic-like) products that are clearly labeled.

“Concession” means any agreement, authorization, license or contract to sell, barter, trade or otherwise to exchange goods or services in the parks and recreation areas of the city of Fremont.

“Disposable food service ware” means single-use disposable product used by food vendors for serving or transporting prepared and ready-to-consume food or beverages. This includes but is not limited to plates, cups, bowls, lids, trays and hinged or lidded containers. This definition does not include single-use disposable straws, utensils or hot cup lids.

“Expanded polystyrene” means a thermoplastic petrochemical material utilizing the styrene monomer, marked with recycling symbol No. 6, processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, form molding, and extrusion-blow molding (extruded foam polystyrene), sometimes referred to as Styrofoam, a Dow Chemical Company trademarked form of polystyrene foam insulation. In food service, expanded polystyrene is generally used to make cups, bowls, plates, trays, and clamshell containers.

“Food vendor” means any establishment located within the city of Fremont, or any establishment which provides prepared food or beverages for public consumption within the city of Fremont, including but not limited to any store, supermarket, delicatessen, restaurant, retail food vendor, sales outlet, shop, cafeteria, catering truck or vehicle, sidewalk or other outdoor vendor, or caterer.

“Prepared food” means any food or beverage prepared for consumption using any cooking, packaging, or food preparation technique by food vendor. Prepared food does not include uncooked meat, fish, poultry, or eggs unless provided for consumption without further food preparation.

“Recyclable” means any material that is accepted by the city recycling program, including, but not limited to, paper, glass, metal, cardboard, and plastic that can be recycled, salvaged, processed, or marketed by any means other than land-filling or burning, whether as fuel or otherwise, so that they are returned to use by society. Recyclable plastics include any plastic which can be feasibly recycled by the city’s municipal recycling program and presently is limited to those plastics with the following recycling symbols: No. 1 – polyethylene terephthalate (PET or PETE); No. 2 – high density polyethylene (HDPE); No. 3 – polyvinyl chloride (PVC); No. 4 – low density polyethylene (LDPE); No. 5 – polypropylene (PP); No. 6 – polystyrene, (except for expanded polystyrene); and No. 7 – other plastics. For purposes of this chapter, recyclable plastic does not include expanded polystyrene labeled with recycling symbol No. 6.

“Special events promoter” means an applicant for any special events permit issued by the city or any city employee(s) responsible for any organized special event within the city of Fremont. (Ord. 11-2021 § 1, 11-16-21.)

(a) Except as provided by Section 8.40.680, Exemptions, all food vendors are prohibited from providing prepared food in disposable food service wares made from expanded polystyrene.

(b) Except as provided by Section 8.40.680, Exemptions, all city facility users are prohibited from using disposable food service wares made from expanded polystyrene. (Ord. 11-2021 § 1, 11-16-21.)

(a) All food vendors using any disposable food service wares shall use a suitable recyclable or compostable product.

(b) All city facility users shall use a suitable recyclable or compostable product for disposable food service wares. (Ord. 11-2021 § 1, 11-16-21.)

(a) Foods prepackaged outside the limits of the city of Fremont are exempt from the provisions of this article, but the purveyors of foods prepackaged outside of the limits of the city of Fremont are encouraged to follow these provisions as it is a policy goal to eliminate the use of expanded polystyrene for disposable food services wares. The exemption under this subsection does not apply to food vendors as defined, including but not limited to caterers which provide prepared food for public consumption within the city of Fremont.

(b) Coolers and ice chests that are intended for reuse are exempt from the provisions of this article.

(c) The city manager may exempt a food vendor or city facility user from the requirements set forth in Section 8.40.660 or 8.40.670 for a period of time to be determined by the city manager on a case-by-case basis for undue hardship. Undue hardship includes, but is not limited to, situations unique to the food vendor or city facility user not generally applicable to other persons in similar circumstances.

(d) Food vendors and city facility users seeking an exemption shall include all information on the exemption application for the city to make its decision, including but not limited to documentation showing factual support for the claimed exemption. The city manager shall confirm the decision to grant or deny each exemption in writing and may approve an exemption request in whole or in part. The decision of the city manager shall be final.

(e) Emergency Supplies or Services Procurement. City facility users and food vendors shall be exempt from the provisions of this article in a situation deemed by the city manager to be an emergency for the immediate preservation of the public peace, health or safety. (Ord. 11-2021 § 1, 11-16-21.)

The city manager may make such rules and regulations, consistent with the provisions of this article, as may be necessary or desirable to supplement or clarify such provisions or aid in their enforcement. (Ord. 11-2021 § 1, 11-16-21.)

(a) The city manager or designee shall issue a written warning to any food vendor or city facility user for a violation of Section 8.40.660 or 8.40.670. If, after issuing a written warning of violation, the city manager finds that the food vendor or city facility user continues to violate the provisions of Section 8.40.660 or 8.40.670, the city manager may impose the various sanctions provided in this section and in Chapter 1.20, Administrative Remedies.

(b) Enforcement and penalties for violations of this article shall be in accordance with Chapter 1.20, Administrative Remedies.

(c) In accordance with Section 1.20.030, Administrative citation, each provision that is violated constitutes a separate offense, and each and every day a violation exists constitutes a separate and distinct offense. All civil penalties assessed by an administrative citation shall be payable to the city of Fremont.

(d) In accordance with Section 1.20.080, Penalties assessed, the civil penalty assessed by administrative citation for violations of this article shall be as follows:

(1) First administrative citation: a fine not exceeding $100.00;

(2) Second administrative citation within one year for violation of the same code section: a fine not exceeding $200.00;

(3) Third or subsequent administrative citation within one year for violation of the same code section: a fine not exceeding $500.00.

(e) Payment of the penalty shall not excuse the violation nor shall it bar further enforcement by the city. The failure of any person to pay a penalty assessed by administrative citation within the time specified on the citation shall result in the assessment of an additional late fee to be charged. The amount of the late fee shall be 100 percent of the total amount of the administrative penalty owed. The combined penalty and late fee shall not exceed $1,000. (Ord. 11-2021 § 1, 11-16-21.)

This article and any of its provisions shall be null and void upon the adoption of any state or federal law or regulation imposing the same, or essentially the same, limits on the use of prohibited products as set forth in this article. This article is intended to be a proper exercise of the city’s police power, to operate only upon its own officers, agents, employees and facilities and other persons acting within its boundaries, and not to regulate inter-city or interstate commerce. (Ord. 11-2021 § 1, 11-16-21.)