Chapter 6.05
USE OF EXPANDED POLYSTYRENE DISPOSABLE FOOD SERVICE WARE

Sections:

6.05.010    Definitions.

6.05.020    Prohibited Food Service Ware.

6.05.030    Exemptions.

6.05.040    Undue Hardship.

6.05.050    Enforcement.

6.05.010 Definitions.

A.    “Biodegradable” refers to the ability of a material to decompose into elements normally found in nature within a reasonably short period of time after disposal.

B.    “City facilities” means any building, structure or vehicles owned or operated by the City of Newport Beach, its agent, agencies, departments and franchisees.

C.    “Customer” means any person obtaining prepared food from a restaurant or retail food vendor.

D.    “Disposable food service ware” means all containers, bowls, plates, trays, cartons, cups, and other items that are designed for one-time use and on, or in, which any restaurant or retail food vendor directly places or packages prepared foods or which are used to consume foods. This includes, but is not limited to, service ware for takeout foods and/or leftovers from partially consumed meals prepared at restaurants or retail food vendors.

E.    “Expanded polystyrene” (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.

F.    “Food vendor” means any restaurant or retail food vendor located or operating within the City of Newport Beach.

G.    “Polystyrene” means and includes 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).

H.    “Prepared food” means food or beverages, which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the food vendor’ s premises and within the City of Newport Beach with the intent of consumption on or off the premises, as the balance of an unfinished meal or as “takeout food.” For the purposes of this ordinance, “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.

I.    “Restaurant” means any establishment located within the City of Newport Beach that sells prepared food for consumption on, near, or off its premises by customers. “Restaurant,” for purposes of this chapter, includes mobile food preparation units as defined in Sections 6.08.120 and 6.08.130 of the City of Newport Beach Municipal Code.

J.    “Retail food vendor” means any store, shop, sales outlet, or other establishment, including a grocery store or a delicatessen, other than a restaurant, located within the City of Newport Beach that sells prepared food. (Ord. No. 2008-17, § 1, 10-28-2008)

6.05.020 Prohibited Food Service Ware.

A.    Except as provided in Section 6.05.030 of this chapter, food vendors are prohibited from providing prepared food to customers in disposable food service ware made from expanded polystyrene.

B.    All City facilities, City-managed concessions, City-sponsored events, and City-permitted events are prohibited from using disposable food service containers made from expanded polystyrene. (Ord. No. 2008-17, § 1, 10-28-2008)

6.05.030 Exemptions.

A.    Prepared foods prepared or packaged outside the City of Newport Beach are exempt from the provisions of this chapter.

B.    Emergency Supply and Services Procurement. In a situation deemed by the City Manager to be an emergency for the immediate preservation of the public peace, health or safety, City facilities, food vendors, City franchises, contractors and vendors doing business with the City shall be exempt from the provisions of this chapter. (Ord. No. 2008-17, § 1, 10-28-2008)

6.05.040 Undue Hardship.

A.    The City Manager or his/her designee may exempt a food provider from the requirements of this ordinance for up to a one-year period, based upon a written request from the applicant containing sufficient information to determine that the conditions of this ordinance would cause undue hardship. An “undue hardship” shall be found in the following situations:

1.    Situations unique to the food provider where there are no reasonable alternatives to expanded polystyrene disposable food service ware and compliance with this chapter would cause significant economic hardship to that food provider;

2.    Situations where no reasonably feasible available alternatives exist to a specific and necessary expanded polystyrene food service ware.

A food vendor granted an exemption by the City must reapply prior to the end of the exemption period and demonstrate continued undue hardship, if it wishes to have the exemption extended. Extensions may only be granted for intervals not to exceed one year.

B.    An exemption application shall include all information necessary for the Assistant City Manager or his/her designee to make his/her decision, including but not limited to documentation showing the factual support for the claimed exemption. The Assistant City Manager or his/her designee may require the applicant to provide additional information to permit the Director to determine facts regarding the exemption application.

C.    The Assistant City Manager or his/her designee may approve the exemption application, in whole or in part, with or without conditions.

D.    Exemption decisions are effective within thirty (30) days, unless appealed to the City Manager within fifteen (15) days. The City Manager’s decision shall be final. (Ord. No. 2008-17, § 1, 10-28-2008)

6.05.050 Enforcement.

A.    Any person violating or failing to comply with any of the requirements of this Chapter shall be guilty of an infraction pursuant to Section 1.04.010, and shall be subject to citation and fines pursuant to Chapter 1.05, Newport Beach Municipal Code.

B.    The City Attorney may seek legal, injunctive, or other equitable relief to enforce this Chapter. (Ord. No. 2008-17, § 1, 10-28-2008)