South Pasadena Municipal Code Art. IV Expanded Polystyrene Disposable Food Service Ware Ban

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 sale of expanded polystyrene food service ware by food providers within the city and in 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. (Ord. No. 2305, § 1, 2016.)

As used in this article, the following terms and phrases shall have the following meanings:

City Facilities. The term “city facilities” means any building, structure, or vehicle owned or operated by the city of South Pasadena, its agents, agencies, departments, and franchisees.

Customer. The word “customer” means anyone purchasing food or beverages from a restaurant or food provider.

Disposable Food Service Ware. The term “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. This does not include single-use disposable items such as straws, cup lids, or utensils, nor does it include single-use disposable packaging for unprepared foods.

Expanded Polystyrene. The term “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. trademarked form of polystyrene foam insulation.

Food Packager. The term “food packager” means any person or entity, located within the city of South Pasadena, who places meat, eggs, baked products, or other food in disposable food service ware for the purpose of retail sale of those products.

Food Provider. The term “food provider” means any person or place that provides or sells prepared food within the city of South Pasadena 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, restaurant, drive-through, cafe, 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 to the general public as a part of its activities or services.

Nonprofit Food Provider. The term “nonprofit food provider” means a recognized tax exempt organization which provides food or beverage as a part of its services.

Polystyrene. The word “polystyrene” means and include expanded polystyrene, which is a thermoplastic petrochemical material utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).

Polystyrene Food Packaging. The term “polystyrene food packaging” means any food packaging which contains polystyrene foam or oriented polystyrene.

Prepared Food. The term “prepared food” means any food or beverages which are served, packaged or are prepared on the retail vendor’s premises by cooking, chopping, baking, roasting, slicing, mixing, brewing, freezing, or squeezing. Prepared food may be eaten either on or off the retail vendor’s premises. For the purpose of this article, “prepared food” does not include raw, butchered, ground, chopped, or sliced meats, fish, and/or poultry sold from a butcher case or similar retail appliance for subsequent preparation.

Restaurant. The word “restaurant” means any establishment located within the city selling prepared food to be eaten on or about its premises by customers. “Restaurant” includes a sidewalk food vendor.

Retail Vendor. The term “retail vendor” means any store, shop, sales outlet, or other establishment which sells food packaging. (Ord. No. 2305, § 1, 2016.)

(a) No restaurant, retail vendor, food packager, retail food vendor, or nonprofit food provider shall provide prepared food to its customers in disposable food service ware made of expanded polystyrene; or purchase, obtain, keep, distribute, sell for home or personal use, or give, serve, or otherwise provide to customers any disposable food service ware made of expanded polystyrene.

(b) No food provider shall distribute or sell prepared food in any disposable food service ware made of EPS at any location within the city, unless it is wholly encapsulated or encased within a more durable material, as exempted in SPMC 16.43. This specifically includes, but is not limited to, cups, plates, bowls, clamshells and other products intended primarily for food service use, as well as coolers, containers and ice chests.

(c) No person shall distribute or sell prepared food in any disposable food service ware made of EPS at city facilities. This subsection is limited to use of city facilities for which a person has entered into an agreement with the city to rent, lease or otherwise occupy a city facility. All facility rental agreements for any city facility shall include a provision requiring contracting parties to assume responsibility for preventing the utilization and/or distribution of disposable food service made of EPS while using city facilities. The facility rental agreement shall indicate that a violating contractor's security deposit will be forfeited if the city manager or his/her designee determines that disposable food service ware made of EPS was used in violation of the rental agreement.

(d) No person shall use or distribute disposable food service ware made of EPS at city-sponsored events, city-managed concessions or city meetings. This subsection shall apply to the function organizers, agents of the organizers, city contractors, food providers and any other person that enters into an agreement with one or more of the function sponsors to sell or distribute prepared food or otherwise provide a service related to the function.

(e) The city, its departments, and its city contractors, agents, and employees acting in their official capacity, shall not purchase or acquire disposable food service ware made of EPS, or distribute it for public use.

(f) All food providers required by this code to have a business license shall certify compliance with this chapter on the annual business license renewal application. (Ord. No. 2305, § 1, 2016.)

(a) Food items which are packaged outside the boundaries of the city; provided, that such food is not altered, packaged or repackaged within the city limits, are exempt from the provisions of this chapter.

(b) The city manager or his/her designee may exempt any person from SPMC 16.42 following the operative date of the ordinance codified in this article, 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 requested exemption and any other information necessary for the city to make its decision. The city may require the applicant to provide additional information as necessary to make the required determinations. The city manager or his/her designee may approve an exemption request 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 there are no reasonable alternatives to disposable food service ware made of EPS for reasons that are unique to the applicant.

(2) The city manager’s written decision on the exemption is effective within 10 days of the decision. Decisions of the city manager may be appealed by the person applying for the exemption to the city council. Appeals shall be filed in writing with the city clerk within

10 days of the decision and shall be accompanied by a fee set by resolution of the city council. Notice of hearing shall be given to the applicant at least 10 days prior to the hearing. The city council shall make its decision within 60 days of receiving the appeal.

(c) Food packaging required to be purchased under a contract entered into one year prior to the effective date of this chapter is exempt from the provisions of this chapter. This exemption will apply up to one year from the effective date of this chapter.

(d) Food brought by individuals for personal consumption to city facilities, including but not limited to city parks, and centers; provided, that the city facility is being used for individual recreation or similar purposes and such facility use is not part of a larger organized event that is otherwise governed by SPMC 16.42(b) through (e).

(e) EPS coolers and ice chests that are intended for reuse are exempt from the provisions of this chapter.

(f) The city manager or his/her designee may also determine to exempt from the requirements of this chapter the procurement of supplies or services in the event of a proclaimed emergency or when otherwise deemed necessary by the city manager for the immediate preservation of the public health, safety, or general welfare. (Ord. No. 2305, § 1, 2016.)

(a) The city manager or his/her designee shall have primary responsibility for enforcement of this chapter. The city manager or his/her designee is authorized to establish regulations and administrative procedures and to take any and all other actions reasonable and necessary to obtain compliance with this chapter, including, but not limited to, inspecting any food provider’s premises to verify compliance in accordance with applicable law.

(b) Any person violating or failing to comply with any of the requirements of this chapter or of any regulation or administrative procedure authorized by it shall be guilty of an infraction.

(c) The city attorney may seek legal, injunctive, or other equitable relief to enforce this chapter and any regulation or administrative procedure authorized by it. The city may also enforce this chapter through the administrative citation procedure set forth in Chapter 1A SPMC.

(d) The remedies and penalties provided in this section and in Chapter 1A SPMC are cumulative and not exclusive of one another. (Ord. No. 2305, § 1, 2016.)

Violations of this chapter shall be punishable as follows:

(a) For the first violation, the city manager or his/her designee, upon determination that a violation of this chapter has occurred, shall issue a written warning notice to the person or food provider which will specify the violation and the appropriate penalties in the event of future violations.

• (b) Thereafter, the following schedule shall apply:

(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 the third and any subsequent violation that occurs following the issuance of a warning notice. Any violation of this chapter shall constitute sufficient grounds for the revocation, suspension, denial or nonrenewal of a business license issued by the city, held by the violator for the location at which the violation occurs. (Ord. No. 2305, § 1, 2016.)

(a) No food provider shall distribute or utilize disposable food service containers containing expanded polystyrene on or after one year following the November 16, 2016, date of adoption of the ordinance codified in this article by the city council.

(b) No city facilities, city-managed concessions, city-sponsored events or city-permitted events shall distribute or utilize disposable food service containers containing expanded polystyrene on or after the effective date of the ordinance codified in this article. (Ord. No. 2305, § 1, 2016.)

(a) Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty in conflict with any federal or state law.

(b) If any sentence, clause, or phrase of this article is for any reason held to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining provisions of this article. The city council hereby declares that it would have adopted this

article and each sentence, clause or phrase thereof irrespective of the fact that any one or more sentences, clauses or phrases be declared unconstitutional or otherwise invalid. (Ord. No. 2305, § 1, 2016.)