San Mateo Municipal Code Ch. 5.89 Polystyrene-Based Disposable Food Service Ware

For the purposes of this chapter, the following terms have the following meanings:

(a) "Disposable food service ware" means single-use disposable products used in the restaurant and food service industry for serving or transporting prepared, ready-to-consume food or beverages. This includes, but is not limited to, plates, cups, bowls, trays and hinged or lidded containers, also known as clamshells. This does not include straws, utensils, or cup lids nor does it include disposable packaging for unprepared foods.

(b) "Food vendor" means any vendor, business, organization, entity, group or individual, including a licensed retail food establishment that provides prepared food at a retail level.

(c) "Polystyrene-based" means and includes expanded polystyrene, which is a thermoplastic petrochemical material utilizing a styrene monomer and process 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). The term "polystyrene" also includes polystyrene that has been expanded or blown using a gaseous blowing agent into a solid foam (expanded polystyrene (EPS)), and clear or solid polystyrene known as oriented polystyrene.

(d) "Prepackaged food" means any properly labeled processed food, prepackaged to prevent any direct human contact with the food product upon distribution from the manufacturer, and prepared at an approved source.

(e) "Prepared food" means food or beverages, which are serviced, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared. Prepared food does not include eggs, fish, meat, poultry, and foods containing these raw animal foods requiring cooking by the consumer as recommended by the Food and Drug Administration.

No vendor shall use polystyrene-based disposable food service ware when providing prepared food.

(a) Automatic Exemptions. The following uses are exempt from the provisions of this chapter:

(1) Prepackaged food; and

(2) Polystyrene coolers and ice chests intended for reuse.

(b) Special Requests for an Exemption. Any food vendor may seek an exemption from the requirements of this chapter upon demonstrating that strict application of the requirements would cause undue hardship.

(1) An "undue hardship" shall be found in:

(A) Situations unique to the food vendor where a suitable alternative does not exist for a specific application; or

(B) Situations where no reasonable feasible available alternative exists to a specific and necessary container prohibited by this chapter.

(2) The application process for exemption shall be as follows:

(A) The food vendor seeking an exemption shall submit a written exemption request to the San Mateo County Director of Environmental Health.

(B) A written exemption request shall include all information and documentation necessary for the San Mateo County Director of Environmental Health to make a finding that imposition of this chapter would cause an undue hardship as described above.

(C) The San Mateo County Director of Environmental Health may require the applicant to provide additional information in order to make a determination regarding the exemption application.

(D) Exemption decisions are effective immediately and are final and not subject to appeal.

(E) The San Mateo County Director of Environmental Health may grant an exemption for a period of up to one year upon a finding that the food vendor seeking the exemption has demonstrated that strict application of the specific requirement would cause undue hardship as defined above.

(3) If a food vendor granted an exemption wishes to have the exemption extended, it must re-apply for the exemption prior to the expiration of the one-year exemption period and demonstrate continued undue hardship. Extensions may be granted for intervals not to exceed one year.

Any violation of this chapter is unlawful.

In addition to the City's enforcement mechanisms set forth in Title 1 of this code, the City of San Mateo authorizes the County of San Mateo's Environmental Health Division to enforce this chapter of the municipal code, including, without limitation, the authority to act on requests for undue hardship exemptions, hold hearings, issue administrative fines and retain collected fines.

In the event that the County enforces this chapter on the City's behalf within the City limits, the following administrative fine provisions apply:

(a) Grounds for Fine. A fine may be imposed upon findings made by the Director of the Environmental Health Division, that any food vendor has used polystyrene-based disposable food service ware in violation of this chapter.

(b) Amount of Fine. Upon a finding of violation, the food vendor shall be subject to an administrative fine as follows:

(1) A fine not exceeding $100.00 for a first violation;

(2) A fine not exceeding $200.00 for a second violation; and

(3) A fine not exceeding $500.00 for the third and subsequent violations.

(c) Each day that a food vendor uses polystyrene-based disposable food service ware when providing prepared food shall constitute a separate violation.

(d) Fine Procedures. Notice of the fine shall be served on the food vendor. The notice shall contain an advisement of the right to request a hearing before the Director of the Environmental Health Division or designee contesting the imposition of the fine. The grounds for the contest shall be either that: (1) the food vendor did not use polystyrene-based disposable food service ware when providing prepared food; or (2) the food vendor would have been granted an exemption of this chapter if the food vendor had applied for such exemption. Said hearing must requested within 10 days of the date appearing on the notice of the fine. The decision of the Director of the Environmental Health Division shall be based upon a finding that one of the above listed grounds for a contest have been met and shall be a final administrative order, with no administrative right of appeal.

(e) Failure to Pay Fine. If said fine is not paid within 30 days from the date appearing on the notice of the fine or of the notice of determination of the Director of the Environmental Health Division or designee after the hearing, either the City or the County is authorized to bring an action to collect any unpaid administrative fine.