Chapter 5.75 — DISTRIBUTION, SALE, AND USE OF SINGLE USE PLASTIC FOOD SERVICE WARE AND…

The purpose of this chapter is to establish standards and procedures for the protection of the City's environment, its economy, and the health of its residents and visitors by promoting environmentally sustainable practices throughout the City by controlling the use and distribution and disposal of certain non-recyclable single use plastic products by City departments, City contractors, food servicers, and grocery stores within the City of San Marcos.

(Ord. No. 2021-1507, § 2, 10-26-2021)

For the purposes of this chapter only, the terms below shall be defined as follows:

Condiment means relishes, spices, sauces, confections, or seasonings, that requires no additional preparation, and that is used on a food item, including, but not limited to, chutney, dressings, ketchup, mustard, mayonnaise, sauerkraut, salsa, syrup, jam, jelly, salt, spreads, sugar, sugar substitutes, pepper, or chili pepper.

City means the City of San Marcos.

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 Contractor means any person that enters into an agreement with the City to furnish products or services to or for the City, the restrictions placed herein being operative on such entities when they are engaged providing goods or services to or for the City only.

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.

Compostable means materials in the product or package are fiber-based and will break down into, or otherwise become a part of, usable compost (e.g., soil conditioning material, mulch) in a safe and timely manner. Products or packages made with plastics, either petroleum based or biological based, or made with fluorinated chemicals shall not be considered compostable. Any product that cannot be composted by the City's franchise waste hauler shall not be considered compostable. Inversely, any product that can be composted by the City's franchise waste hauler shall be considered compostable.

Customer means any person obtaining Prepared Food from a Restaurant or Food Provider or Food Service Provider, as defined.

Disposable Food Service Ware or Disposables means single-use, disposable products used for serving or transporting Prepared Food (see definition below), 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.

Disposable Food Service Ware Accessory means all types of single-use, disposable products used in accessory to Disposable Food Service Ware, including but not limited to straws, condiment cups, cup lids, stirrers, splash sticks, cocktail sticks, toothpicks, 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.

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 or Food Service 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 or Food Service 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.

Non-recyclable means products that cannot be processed by the City's franchise waste hauler at its recycling facility.

Non-Recyclable Disposable Food Service Ware means Disposable Food Service Ware that is Non-Recyclable.

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 means made predominately of plastic derived from either petroleum or a biologically based polymer.

Plastic Alternative means non-plastic materials that are either recyclable or compostable.

Plastic Disposable Food Service Ware Accessories means Disposable Food Service Ware Accessories made of plastic that are not recyclable nor compostable.

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 ordinance, 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.

(Ord. No. 2021-1507, § 2, 10-26-2021)

(a)

City Facilities, City departments, City-managed concessions, City-sponsored or co-sponsored events, City permitted events and all franchises, contractors, organizations, non-profits, and vendors acting directly with or on behalf of the City are prohibited from selling, distributing, or using Disposable Food Service Ware made of EPS within the City. This section shall only apply to City franchises, contractors, organizations, non-profits, and vendors when they are actively providing goods or services to or for the City.

(b)

Food Service Providers are prohibited from selling, distributing, or using Disposable Food Service Ware made of EPS within the City.

(c)

The effective date of the prohibition under this section 5.75.030(b) is January 1, 2024.

(Ord. No. 2021-1507, § 2, 10-26-2021)

(a)

City Facilities, City departments, City-managed concessions, City-sponsored or co-sponsored events, City permitted events and all franchises, contractors, organizations, non-profits, and vendors acting directly with or on behalf of the City are prohibited from selling, distributing, or using Plastic Disposable Food Service Ware Accessories. This section shall only apply to City franchises, contractors, organizations, non-profits, and vendors when they are actively providing goods or services to or for the City.

(b)

Food Providers are prohibited from the distribution of Plastic Disposable Food Service Ware Accessory products.

(c)

A Food Provider may only provide Plastic Alternative Disposable Food Service Ware Accessory products upon request by the customer, or upon offer to the customer, or at self-serve stations, except that cups for drive-thru, takeout, or delivery by a Food Provider may include tops, spill plugs, and sleeves without request. This provision shall apply to all orders including but not limited to delivery, takeout, and drive-thru orders. Cups for drive-thru, takeout or delivery may include plastic lids, spill plugs and sleeves with or without request, for safety purposes.

(d)

The effective date of the prohibition under this section 5.75.040(b), (c) is July 1, 2022.

(Ord. No. 2021-1507, § 2, 10-26-2021)

(a)

City Facilities, City departments, City-managed concessions, City-sponsored or co-sponsored events, City permitted events and all franchises, contractors, organizations, non-profits, and vendors acting directly with or on behalf of the City are prohibited from selling, distributing, or using Disposable Food Service Ware that is not either Recyclable or Compostable. This section shall only apply to City franchises, contractors, organizations, non-profits, and vendors when they are actively providing goods or services to or for the City.

(b)

Food providers and food service providers are prohibited from selling, distributing, or using Disposable Food Service Ware products that are not either Recyclable or Compostable.

(c)

The effective date of the prohibition under this section 5.75.050(b) is July 1, 2023.

(Ord. No. 2021-1507, § 2, 10-26-2021)

(a)

The following are exempt from the provisions of this chapter:

(1)

Prepared 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)

Prepared Food provided by San Marcos Unified School District under its official food service program.

(3)

Prepared Food, Disposable Food Service Ware, or Disposable Food Service Accessories brought by individuals for personal consumption or use to City facilities, including, but not limited to, City parks, 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 plastic straws, utensils, and other plastic accessories may provide basic accommodation for persons with disabilities or medical conditions to eat or drink, food or beverage establishments in the City of San Marcos must provide Disposable Food Service Ware or Disposable Food Service Accessory 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 or designee 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 may be exempt from the provisions of this chapter.

(b)

The City Manager or designee may exempt any Person from any or all of the requirements of this chapter for a period of time consistent with the provisions of section 5.75.060(b)(2), below, if the conditions of the chapter would cause an undue hardship following the operative date of any of the prohibitions codified in this chapter, as follows:

(1)

An application for an exemption detailing why the requirement constitutes an undue hardship shall be filed in writing with the City Manager or his/her designee. 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 reach a determination on the exemption request.

(2)

The City Manager or his/her designee may approve the exemption for a maximum of two years, with or without conditions, upon finding that compliance would create an undue hardship. Undue hardship shall be construed to include the following circumstances:

a)

There are no reasonable alternatives to food service ware and food service ware accessories designated in sections 5.75.030, 5.75.40, and 5.75.050 for reasons that are unique or cost prohibitive 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. No. 2021-1507, § 2, 10-26-2021)

(a)

The City Manager is authorized to promulgate regulations and to take any and all other actions reasonable and necessary to enforce this chapter, including, but not limited to, investigating violations, issuing fines, and entering the premises of any food provider during business hours.

(b)

Enforcement of this chapter shall initially be pursuant to Section 1.14.030 of this Code (Administrative Citations and Fines).

(c)

Each violation of this chapter shall be considered a separate offense.

(d)

The remedies and penalties provided in this chapter are cumulative and not exclusive, and shall not 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 to effectuate the same.

(e)

The City shall provide information about this chapter to new businesses and existing businesses during the business license application or business license renewal process.

(Ord. No. 2021-1507, § 2, 10-26-2021)

(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 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 Chapter 1.14, Administrative Citations and Fines, 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. No. 2021-1507, § 2, 10-26-2021)