Part 18 — EDIBLE FOOD RECOVERY

A.

Pursuant to SB 1383, the Short-lived Climate Pollutant Reduction Act of 2016, CalRecycle developed regulations to reduce organics in landfills as a source of methane. The regulations place new requirements on cities, counties, residential households, businesses, waste haulers, and Food Recovery Organizations to support achievement of statewide Organic Material disposal reduction targets.

B.

CalRecycle's regulations direct cities and counties to develop Edible Food Recovery programs and require that certain businesses to arrange for the donation of Edible Food that would otherwise go to waste. In addition to targeting methane emissions, these new programs and requirements will help reduce food insecurity in California.

C.

Pursuant to 14 CCR Section 18981.2, jurisdictions may delegate certain responsibilities for implementing, monitoring, and enforcing their Edible Food Recovery programs to public or private entities.

D.

The City Manager is authorized to enter into an agreement on behalf of the City with another entity, as permitted under 14 CCR Section 18981.2, for the inspection and enforcement of this Part.

(Ord. 30684.)

The definitions set forth in this Section shall govern the application and interpretation of this Part.

A.

"Department" means any department of the City or department of the entity designated by the City to enforce or administer this Part, as authorized in 14 CCR Section 18981.2.

B.

"Designee" means any private entity that the City or City designated agency contracts with or otherwise arranges to carry out any responsibilities of this Part, as authorized in 14 CCR Section 18981.2.

C.

"Edible Food" means food intended for human consumption, or as otherwise defined in 14 CCR Section 18982(a)(18). For the purposes of this Part, "Edible Food" is not Solid Waste if it is recovered and not discarded. Nothing in this Part requires or authorizes the recovery of Edible Food that does not meet the food safety requirements of the California Retail Food Code.

D.

"Food Distributor" means a company that distributes food to entities including, but not limited to, Supermarkets and Grocery Stores, or as otherwise defined in 14 CCR Section 18982(a)(22).

E.

"Food Facility" has the same meaning as in Section 113789 of the Health and Safety Code.

F.

"Food Recovery" means actions to collect and distribute food for human consumption which otherwise would be disposed, or as otherwise defined in 14 CCR Section 18982(a)(24).

G.

"Food Recovery Organization" means an entity that engages in the collection or receipt of Edible Food from commercial Edible Food Generators and distributes that Edible Food to the public for Food Recovery either directly or through other entities. "Food Recovery Organization" includes, but is not limited to:

A food bank as defined in Section 113783 of the Health and Safety Code;

A nonprofit charitable organization as defined in Section 113841 of the Health and Safety Code; and

A nonprofit charitable temporary Food Facility as defined in Section 113842 of the Health and Safety Code.

A Food Recovery Organization is not a Commercial Edible Food Generator for the purposes of this Part pursuant to 14 CCR Section 18982(a)(7).

If the definition in 14 CCR Section 18982(a)(25) for Food Recovery Organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this Part.

H.

"Food Recovery Service" means a person or entity that collects and transports Edible Food from a commercial Edible Food Generator to a Food Recovery Organization or other entities for Food Recovery, or as otherwise defined in 14 CCR Section 18982(a)(26). A Food Recovery Service is not a Commercial Edible Food Generator.

I.

"Food Service Provider" means an entity primarily engaged in providing food services to institutional, governmental, commercial, or industrial locations of others based on contractual arrangements with these types of organizations, or as otherwise defined in 14 CCR Section 18982(a)(27).

J.

"Grocery Store" means a store primarily engaged in the retail sale of canned food; dry goods; fresh fruits and vegetables; fresh meats, fish, and poultry; and any area that is not separately owned within the store where the food is prepared and served, including a bakery, deli, and meat and seafood departments, or as otherwise defined in 14 CCR Section 18982(a)(30).

K.

"Health Facility" has the same meaning as in Section 1250 of the Health and Safety Code.

L.

"Hotel" has the same meaning as in Section 17210 of the Business and Professions Code.

M.

"Inspection" means a Department or Designee's electronic or onsite review of reviews records, containers, and an entity's collection, Handling, Recycling, or landfill disposal of Organic Material or Edible Food Handling to determine if the entity is complying with requirements set forth in this Part, or as otherwise defined in 14 CCR Section 18982(a)(35).

N.

"Large Event" means an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than two thousand (2,000) individuals per day of operation of the event, at a location that includes, but is not limited to, a

public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definition in 14 CCR Section 18982(a)(38) differs from this definition, the definition in 14 CCR Section 18982(a)(38) shall apply to this Part.

O.

"Large Venue" means a permanent venue facility that annually seats or serves an average of more than 2,000 individuals within the grounds of the facility per day of operation of the venue facility. A venue facility includes, but is not limited to, a public, non-profit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. A site under common ownership or control that includes more than one Large Venue that is contiguous with other Large Venues in the site, is a single Large Venue. If the definition in 14 CCR Section 18982(a)(39) differs from this definition, the definition in 14 CCR Section 18982(a)(39) shall apply to this Part.

P.

"Local Education Agency" means a school district, charter school, or county office of education that is not subject to the control of city or county regulations related to Solid Waste, or as otherwise defined in 14 CCR Section 18982(a)(40).

Q.

"Non-Local Entity" means an entity that is an Organic Material Generator but is not subject to the control of a jurisdiction's regulations related to Solid Waste. These entities may include, but are not limited to, special districts, federal facilities, prisons, facilities operated by the state parks system, public universities, including community colleges, county fairgrounds, and state agencies.

R.

"Restaurant" means an establishment primarily engaged in the retail sale of food and drinks for on- Premises or immediate consumption, or as otherwise defined in 14 CCR Section 18982(a)(64).

S.

"Share Table" has the same meaning as in Section 114079 of the Health and Safety Code.

T.

"Supermarket" means a full-line, self-service retail store with gross annual sales of two million dollars ($2,000,000), or more, and which sells a line of dry grocery, canned goods, or nonfood items and some perishable items, or as otherwise defined in 14 CCR Section 18982(a)(71).

U.

"Tier One Commercial Edible Food Generator" means the following:

Supermarkets.

Grocery Stores with a total facility size equal to or greater than 10,000 square feet.

Food Service Providers.

Food Distributors.

Wholesale Food Vendors.

If the definition in 14 CCR Section 18982(a)(73) of Tier One Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(73) shall apply to this Part.

For the purposes of this Part, Food Recovery Organizations and Food Recovery Services are not commercial Edible Food Generators.

V.

"Tier Two Commercial Edible Food Generator" means the following:

Restaurants with two hundred fifty (250) or more seats or a total facility size equal to or greater than five thousand (5,000) square feet.

Hotels with an on-site Food Facility and two hundred (200) or more rooms.

Health Facilities with an on-site Food Facility and one hundred (100) or more beds.

Large Venues.

Large Events.

If the definition in 14 CCR Section 18982(a)(74) of Tier Two Commercial Edible Food Generator differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall apply to this Part. Non-Local Entities that operate a facility that meets this definition are Tier Two Commercial Edible Food Generators.

For the purposes of this Part, Food Recovery Organizations and Food Recovery Services are not commercial Edible Food Generators.

W.

"Wholesale Food Vendor" means a business or establishment engaged in the merchant wholesale distribution of food, where food (including fruits and vegetables) is received, shipped, stored, prepared for distribution to a retailer, warehouse, distributor, or other destination, or as otherwise defined in 14 CCR Section 189852(a)(76).

(Ord. 30684.)

A.

Tier One Commercial Edible Food Generators must comply with the requirements of this Section commencing January 1, 2022, and Tier Two Commercial Edible Food Generators must comply commencing January 1, 2024, pursuant to 14 CCR Section 18991.3.

B.

Large Venue or Large Event operators not providing food services, but allowing for food to be provided by others, shall require Food Facilities operating at the Large Venue or Large Event to comply with the requirements of this Section, commencing January 1, 2024.

C.

Tier One and Tier Two Commercial Edible Food Generators shall comply with the following requirements:

Arrange to recover the maximum amount of Edible Food that would otherwise be disposed.

Contract with, or enter into a written agreement with, Food Recovery Organizations or Food Recovery Services for: (i) the collection of Edible Food for Food Recovery; or (ii) acceptance of the Edible Food that the Commercial Edible Food Generator self-hauls to the Food Recovery Organization for Food Recovery.

Shall not intentionally spoil Edible Food that is capable of being recovered by a Food Recovery Organization or a Food Recovery Service.

Allow the Department or Designee to access the Premises, conduct Inspections, and review electronic and hard copy records pursuant to 14 CCR Section 18991.4.

Keep records that include the following information, or as otherwise specified in 14 CCR Section 18991.4:

a.

A list of each Food Recovery Service or Organization that collects or receives its Edible Food pursuant to a contract or written agreement established under 14 CCR Section 18991.3(b).

b.

A copy of all contracts or written agreements established under 14 CCR Section 18991.3(b).

c.

A record of the following information for each of those Food Recovery Services or Food Recovery Organizations:

(i)

The name, address and contact information of the Food Recovery Service or Food Recovery Organization.

(ii)

The types of food that will be collected by or self-hauled to the Food Recovery Service or Food Recovery Organization.

(iii)

The established frequency that food will be collected or self-hauled.

(iv)

The quantity of food, measured in pounds recovered per month, collected or self-hauled to a Food Recovery Service or Food Recovery Organization for Food Recovery.

D.

Tier One Commercial Edible Food Generators shall submit Food Recovery reports, as defined below, to the Department or Designee according to the following schedule:

On or before August 1, 2022, Tier One Commercial Edible Food Generators shall submit a Food Recovery report for the period of January 1, 2022 through June 30, 2022.

On or before May 1, 2023, and on or before May 1st each year thereafter, Tier One Commercial Edible Food Generators shall submit a Food Recovery report for the period covering the entire previous calendar year.

E.

Tier Two Commercial Edible Food Generators shall submit Food Recovery reports, as defined below, to the Department or Designee according to the following schedule:

On or before May 1, 2025, and on or before May 1st each year thereafter, Tier Two Commercial Edible Food Generators shall submit a Food Recovery report for the period covering the entire previous calendar year.

F.

Food Recovery Reports submitted by Tier One and Tier Two Commercial Edible Food Generators shall include the following information:

The name and address of the Commercial Edible Food Generator;

The name of the person responsible for the Commercial Edible Food Generator's Edible Food Recovery program;

A list of all contracted Food Recovery Services or Food Recovery Organizations that collect Edible Food from the Commercial Edible Food Generator; and

The total number of pounds of Edible Food, per year, donated through a contracted Food Recovery Organization or Food Recovery Service.

G.

Nothing in this Part shall be construed to limit or conflict with the protections provided by the California Good Samaritan Food Donation Act of 2017, the Federal Good Samaritan Act, or Share Table and school food donation guidance pursuant to Senate Bill 557 of 2017 (approved by the Governor of the State of California on September 25, 2017, which added Article 13 [commencing with Section 49580] to Chapter 9 of Part 27 of Division 4 of Title 2 of the Education Code, and to amend Section 114079 of the Health and Safety Code, relating to food safety, as amended, supplemented, superseded and replaced from time to time).

(Ord. 30684.)

A.

Food Recovery Services collecting, receiving, or coordinating the collection of Edible Food directly from Tier One or Tier Two Commercial Edible Food Generators, via a contract or written agreement established

under 14 CCR Section 18991.3(b), shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(1):

The name, address, and contact information for each Commercial Edible Food Generator from which the service collects Edible Food.

The quantity in pounds of Edible Food collected from each Commercial Edible Food Generator per month.

The quantity in pounds of Edible Food transported to each Food Recovery Organization per month.

The name, address, and contact information for each Food Recovery Organization that the Food Recovery Service transports Edible Food to for Food Recovery.

B.

Food Recovery Organizations collecting, receiving, or coordinating the collection of Edible Food directly from Tier One or Tier Two Commercial Edible Food Generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records, or as otherwise specified by 14 CCR Section 18991.5(a)(2):

The name, address, and contact information for each Commercial Edible Food Generator from which the organization receives Edible Food.

The quantity in pounds of Edible Food received from each Commercial Edible Food Generator per month.

The name, address, and contact information for each Food Recovery Service that the organization receives Edible Food from for Food Recovery.

C.

Food Recovery Organizations and Food Recovery Services that have their primary address physically located in the City and contract with or have written agreements with one or more Tier One or Tier Two Commercial Edible Food Generators pursuant to 14 CCR Section 18991.3(b) shall submit Food Recovery Reports, as defined below, to the Department or Designee according to the following schedule:

On or before August 1, 2022, Food Recovery Organizations and Food Recovery Services shall submit a Food Recovery Report for the period of January 1, 2022 through June 30, 2022; and

On or before May 1, 2023, and on or before May 1st each year thereafter, Food Recovery Organizations and Food Recovery Services shall submit a Food Recovery Report for the period covering the entire previous calendar year.

D.

Food Recovery reports submitted by Food Recovery Services or Organizations shall include the following information:

Total pounds of Edible Food recovered in the previous calendar year from Tier One and Tier Two Edible Food Generators with whom the reporting entity has a contract or written agreement pursuant to 14 CCR Section 18991.3(b).

Total pounds of Edible Food recovered in the previous calendar year from Tier One and Tier Two Edible Food Generators within Santa Clara County with whom the reporting entity has a contract or written agreement pursuant to 14 CCR Section 18991.3(b).

E.

In order to support Edible Food Recovery capacity planning assessments or other studies conducted by the County of Santa Clara, the City, or Designee(s), Food Recovery Services and Food Recovery Organizations operating in the City shall provide information and consultation to the City, Designee, or Department, upon request, regarding existing, or proposed new or expanded, Food Recovery capacity that could be accessed by the City and its Commercial Edible Food Generators. A Food Recovery Service or Food Recovery Organization contacted by the Department or its Designee shall respond to such request for information within sixty (60) days, unless a shorter timeframe is otherwise specified by the Department or Designee.

(Ord. 30684.)

A.

The Department and/or Designee are authorized to conduct Inspections and investigations, at random or otherwise, of any collection container, collection vehicle loads, or transfer, Processing, or disposal facility for materials collected from Generators to confirm compliance with this Part by Tier One and Tier Two Commercial Edible Food Generators, Food Recovery Services, and Food Recovery Organizations, subject to applicable laws. This Section does not allow the Department or Designee to enter the interior of a private residential property for Inspection.

B.

Regulated entities shall provide or arrange for access during all Inspections (with the exception of residential property interiors) and shall cooperate with the Department's or Designee's employees during such Inspections and investigations. Such Inspections and investigations may include in-person or electronic review of Edible Food Recovery activities, records, or any other requirement of this Part described herein. Failure to provide or arrange for access to an entity's Premises or access to records for any Inspection or investigation is a violation of this Part and may result in penalties described.

C.

Any records obtained by the Department or Designee during its Inspections, and other reviews shall be subject to the requirements and applicable disclosure exemptions of the Public Records Act as set forth in Government Code Section 6250 et seq.

D.

Representatives of the Department and/or Designee are authorized to conduct any Inspections, or other investigations as reasonably necessary to further the goals of this Part, subject to applicable laws.

E.

City will provide a procedure for the submission of written complaints, including anonymous complaints, regarding entities that may be in violation of this Part. Complaints shall include the name and contact information of the complainant, if the complainant is not anonymous; the identity of the alleged violator, if known; a description of the alleged violation including location(s) and all other relevant facts known to the complainant; any relevant photographic or documentary evidence to support the allegations in the complaint; and the identity of any witnesses, if known.

(Ord. 30684.)

A.

Enforcement of this Part may be undertaken by the City or an entity designated by the City.

B.

Administrative Fine. Violation of any provision of this Part shall constitute grounds for issuance of a Notice of Violation and assessment of an administrative fine by the Department. Absent compliance by the respondent within the deadline set forth in the Notice of Violation, the Department shall commence an action to impose penalties through an administrative citation and fine.

C.

Notice of Violation. Before assessing an administrative citation and fine, the Department shall issue a Notice of Violation requiring compliance within sixty (60) days of issuance of the Notice. The Notice shall include: (1) the name(s) of each person or entity to whom it is directed, (2) a factual description of the

violations, including the regulatory section(s) being violated, (3) a compliance date by which the respondent is to take specified action(s), and (4) the penalty for not complying before the specified deadline. For repeat and/or willful violations, the Department may require compliance within fewer than sixty (60) days or may immediately issue an administrative citation and fine.

D.

Extensions to Compliance Deadlines. The Department may extend the compliance deadlines set forth in a Notice of Violation if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:

Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters;

Delays in obtaining discretionary permits or other government agency approvals;

Deficiencies in Edible Food Recovery capacity and the existence of a corrective action plan imposed by CalRecycle pursuant to 14 CCR Section 18996.2 due to those deficiencies; or

Any other circumstance in which the Director, in their sole discretion, finds good cause to extend the compliance deadlines.

E.

Administrative Citations. If the respondent fails to correct the violation by the compliance date or as otherwise provided in subsection B. above, the Department shall issue an administrative citation and fine.

If the administrative citation was issued by the City, it shall be issued in accordance with Chapter 1.15.

If the administrative citation was issued by an agency designated by the City, it shall be issued in accordance with the agency's regulations and procedures for issuing such citations and fines.

F.

Amount of Fine. At the discretion of the Director of the Department, administrative fines for each violation of this Part may automatically accrue each day that the cited violation persists, including during the correction period (if any) specified in the Notice of Violation. If the respondent corrects the violation on or before the specified compliance date, they shall not be liable for any accrued fines for that violation. The Notice of

Violation shall specify whether administrative fines will accrue daily. The amount of the administrative fine for each violation of this Part shall be as follows:

For a first violation, the amount of the base penalty shall be fifty dollars ($50) to one hundred dollars ($100) per violation and, if applicable, per day.

For a second violation, the amount of the base penalty shall be one hundred dollars ($100) to two hundred dollars ($200) per violation and, if applicable, per day.

For a third or subsequent violation, the amount of the base penalty shall be two hundred fifty dollars ($250) to five hundred dollars ($500) per violation and, if applicable, per day.

G.

Factors Considered in Determining Penalty Amount. The following factors shall be used to determine the amount of the penalty for each violation within the appropriate penalty amount range:

The nature, circumstances, and severity of the violation(s).

The violator's ability to pay.

The willfulness of the violator's misconduct.

Whether the violator took measures to avoid or mitigate violations of this Part.

Evidence of any economic benefit resulting from the violation(s).

The deterrent effect of the penalty on the violator.

Whether the violation(s) were due to conditions outside the control of the violator.

H.

Appeals. Persons receiving an administrative citation for an uncorrected violation may request a hearing to appeal the citation.

If the citation was issued by the City, the appeal shall be conducted in accordance with the appeal process in Chapter 1.15.

If the citation was issued by an agency, the appeal shall be conducted in accordance with the citing agency's regulations and procedures.

I.

Other remedies. Other remedies allowed by law may be used to enforce this Part, including civil action or prosecution as misdemeanor or infraction. The Department and/or City may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. The Department and/or City may choose to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations exist such that court action is a reasonable use of Department staff and resources.

(Ord. 30684.)