Chapter 7.21
EDIBLE FOOD RECOVERY1

Sections:

7.21.010    Definitions.

7.21.020    Requirements for tier one and tier two commercial edible food generators.

7.21.030    Requirements for food recovery organizations and services.

7.21.040    Inspections and investigations.

7.21.050    Enforcement.

7.21.010 Definitions.

Terms used herein are as defined in Chapter 7.20. (Ord. C-2021-04 §2(Att. A(2)), 2021).

7.21.020 Requirements for tier one and tier two commercial edible food generators.

A.    Tier one commercial edible food generators must comply with the requirements of this chapter 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 chapter, commencing January 1, 2024.

C.    Tier one and tier two commercial edible food generators shall comply with the following requirements:

1.    Arrange to recover the maximum amount of edible food that would otherwise be disposed of.

2.    Use the CalRecycle Model Food Recovery Agreement or the contractual elements contained in the requirements for food recovery organizations and food recovery services section of this chapter to contract with, or otherwise enter into a written agreement with, food recovery organizations or food recovery services for:

a.    The collection of edible food for edible food recovery from the tier one or tier two commercial edible food generator’s premises; or

b.    The acceptance of edible food that the tier one or tier two commercial edible food generator self-hauls to the food recovery organization.

3.    Contract with food recovery organizations and food recovery services able to demonstrate a positive reduction in greenhouse gas emissions from their edible food recovery activity. A list of food recovery organizations and food recovery services is available on the San Mateo County office of sustainability website.

4.    Shall not intentionally spoil edible food that is capable of being recovered by a food recovery organization or a food recovery service.

5.    Allow the city or their designee for edible food recovery to access the premises and inspect procedures and review records related to edible food recovery and/or provide them electronically if requested by the city or the designee for edible food recovery.

6.    Keep records that include the following information:

a.    A list of each food recovery organization or food recovery service that collects or receives edible food from the tier one or tier two commercial edible food generator pursuant to a contract or written agreement as required by this chapter.

b.    A copy of all contracts or written agreements established under the provisions of this chapter.

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 schedule or 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.

7.    No later than June 30th of each year, commencing no later than July 1, 2022, for tier one commercial edible food generators and July 1, 2024, for tier two commercial edible food generators, they shall provide an annual edible food recovery report to the city and/or its designee for edible food recovery that includes, but is not limited to, the following information:

a.    A list of all contracts with food recovery organizations and food recovery services.

b.    The amount and type of edible food donated to food recovery organizations and food recovery services, the schedule of edible food pickup by food recovery organizations and food recovery services.

c.    A list of all types of edible food categories they generate, such as “baked goods,” that are not accepted by the food recovery organizations and food recovery services with whom they contract.

d.    The contact information for the manager and all staff responsible for edible food recovery.

e.    Certification that all staff responsible for edible food recovery have obtained a food handler card through an American National Standards Institute (ANSI) accredited training provider that meets ASTM International E2659-09 Standard Practice for Certificate Programs, such as ServSafe.

With the exception of the food safety and handling training certification, tier one and tier two commercial edible food generators may coordinate with their edible food recovery contractors to supply this information. The designee for edible food recovery will assist in the preparation of these reports by providing guidance and a template located on the San Mateo County office of sustainability website.

8.    Mandate that their edible food recovery staff learn and follow the donation guidelines and attend training conducted by food recovery organizations or food recovery services with which they contract regarding best practices and requirements for the timely identification, selection, preparation, and storage of edible food to ensure the maximum amount of edible food is recovered and to avoid supplying food for collection that is moldy, has been improperly stored, or is otherwise unfit for human consumption.

9.    Tier one and tier two commercial edible food generators who self-haul edible food shall require those transporting edible food for recovery to obtain a food handler card through an American National Standards Institute (ANSI) accredited training provider that meets ASTM International E2659-09 Standard Practice for Certificate Programs, such as ServSafe, and follow the best practices and standards for proper temperature control, methods, and procedures for the safe handling and transport of food.

D.    Nothing in this chapter 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. C-2021-04 §2(Att. A(2)), 2021).

7.21.030 Requirements for food recovery organizations and services.

A.    Food recovery services operating in the city and collecting or receiving edible food directly from tier one and/or tier two commercial edible food generators via a contract or written agreement established under the requirements of this chapter shall maintain the following records:

1.    The name, address, and contact information for each tier one and tier two commercial edible food generator from which the service collects edible food.

2.    The quantity in pounds of edible food by type collected from each tier one and tier two commercial edible food generator per month.

3.    The quantity in pounds of edible food by type transported to each food recovery organization or redistribution site per month.

4.    The name, address, and contact information for each food recovery organization or redistribution site that the food recovery service transports edible food to for edible food recovery.

B.    Food recovery organizations operating in the city and collecting or receiving edible food directly from tier one and/or tier two commercial edible food generators via a contract or written agreement established under the requirements of this chapter, or receiving edible food from food recovery services or from other food recovery organizations, shall maintain the following records:

1.    The name, address, and contact information for each tier one and tier two commercial edible food generator, food recovery service, or other food recovery organization from which the organization collects or receives edible food.

2.    The quantity in pounds of edible food by type collected or received from each tier one or tier two commercial edible food generator, food recovery service, or other food recovery organization per month.

3.    The name, address, and contact information for other food recovery organizations or redistribution sites that the food recovery organization transports edible food to for edible food recovery.

C.    Food recovery organizations and food recovery services operating in the city shall inform tier one and tier two commercial edible food generators from which they collect or receive edible food about California and Federal Good Samaritan Food Donation Act protection in written communications, such as in their contract or agreement established as required by this chapter.

D.    Commencing no later than July 1, 2022, food recovery organizations and food recovery services operating in the city and collecting or receiving edible food from tier one and tier two commercial edible food generators or any other source shall report to the city and/or its designee for edible food recovery the following:

1.    A detailed edible food activity report of the information collected as required under this chapter, including weight in pounds by type and source of edible food.

2.    The schedule/frequency of pickups/drop-offs of edible food from/to each edible food source or redistribution site.

3.    A brief analysis of any necessary process improvements or additional infrastructure needed to support edible food recovery efforts, such as training, staffing, refrigeration, vehicles, etc.

4.    An up-to-date list of tier one and tier two commercial edible food generators with whom they have contracts or agreements established as required under this chapter.

The designee for edible food recovery will assist in the preparation of these reports by providing guidance and a template located on the San Mateo County office of sustainability website. This edible food activity report shall be submitted quarterly or, at the discretion of the city and/or its designee for edible food recovery, less frequently, and shall cover the activity that occurred since the period of the last submission.

E.    Food recovery organizations and food recovery services operating in the city shall contact the designee for edible food recovery to discuss the requirements of this chapter before establishing new contracts or agreements with tier one or tier two commercial edible food generators and in order to maintain existing contracts or agreements for the recovery of edible food with tier one and tier two commercial edible food generators.

F.    In order to provide the required records to the state, the city, or the designee for edible food recovery, and tier one or tier two commercial edible food generators, contracts between food recovery organizations and food recovery services operating in the city and tier one and tier two commercial edible food generators shall either:

1.    Use the Model Food Recovery Agreement developed by the state of California’s Department of Resources Recycling and Recovery (CalRecycle) and include a clause requiring the food recovery organization or food recovery service to report to the tier one and tier two commercial edible food generators with whom they have contracts the annual amount of edible food recovered and to inform them of the tax benefits available to those who donate edible food to nonprofits; or

2.    Include in their contracts the following elements:

a.    List/description of allowable foods the food recovery organization/food recovery service will receive.

b.    List/description of foods not accepted by the food recovery organization/food recovery service.

c.    Conditions for refusal of food.

d.    Food safety requirements, training, and protocols.

e.    Transportation and storage requirements and training.

f.    A protocol for informing the tier one or tier two commercial edible food generators of a missed or delayed pickup.

g.    Notice that donation dumping is prohibited.

h.    Provisions to collect sufficient information to meet the recordkeeping requirements of this chapter.

i.    Fees/financial contributions/acknowledgment of terms for the pickup and redistribution of edible food.

j.    Terms and conditions consistent with the CalRecycle Model Food Recovery Agreement.

k.    Information supplying the tier one or tier two commercial edible food generators with the annual amount of edible food recovered and informing them of the tax benefits that may be available to those who donate edible food to nonprofits.

l.    Contact name, address, phone number, and email for both responsible parties, including the current on-site staff responsible for edible food recovery.

m.    Food recovery organizations accepting self-hauling of edible food from tier one and tier two commercial edible food generators must provide a schedule, including days of the week and acceptable times for drop-offs, and information about any limitation on the amount of food accepted, and/or the packaging requirements or other conditions of transport, such as, but not limited to, maintaining proper temperature control, and other requirements for the safe handling and transport of food, the self-hauler must follow for the edible food to be accepted.

G.    Food recovery organizations and food recovery services operating in the city shall demonstrate that all persons, including volunteers and contracted workers using their own vehicle, involved in the handling or transport of edible food have obtained a food handler card through an American National Standards Institute (ANSI) accredited training provider that meets ASTM International E2659-09 Standard Practice for Certificate Programs, such as ServSafe.

H.    Food recovery organizations and food recovery services operating in the city shall use the appropriate temperature control equipment and methods and maintain the required temperatures for the safe handling of edible food recovered from tier one and tier two commercial edible food generators for the duration of the transportation of the edible food for redistribution, including edible food transported by private vehicles.

I.    In order to ensure recovered edible food is eaten and to prevent donation dumping, food recovery organizations and food recovery services operating in the city shall provide documentation that all redistribution sites which are not themselves and food recovery organizations to which they deliver edible food have a feeding or redistribution program in place to distribute, within a reasonable time, all the edible food they receive. Such documentation may include a website address which explains the program or pamphlets/brochures prepared by the redistribution site.

J.    Food recovery organizations and food recovery services operating in the city unable to demonstrate a positive reduction in GHG emissions for their edible food recovery operational model cannot contract with tier one and tier two commercial edible food generators in the city for the purpose of recovering edible food. Food recovery organizations and food recovery services contracting to recover edible food from tier one and tier two commercial edible food generators for redistribution shall consult with the city and/or its designee for edible food recovery to document that their overall operational model will achieve a greenhouse gas emissions reduction. Such review may analyze route review, miles traveled for pickup and redistribution, amount of food rescued, and the likelihood of consumption after redistribution.

K.    Food recovery organizations and food recovery services operating in the city shall visually inspect all edible food recovered or received from tier one and tier two commercial edible food generators. If significant spoilage is found, or if the food is otherwise found to be unfit for redistribution for human consumption, food recovery organizations and food recovery services shall immediately notify the designee for edible food recovery using the process found on the San Mateo County office of sustainability website. The notice shall include:

1.    The type and amount, in pounds, of spoiled food or food unfit for redistribution for human consumption, or provide a photographic record of the food, or both.

2.    The date and time such food was identified.

3.    The name, address and contact information for the tier one or tier two commercial edible food generator which provided the food.

4.    The date and time the food was picked up or received.

5.    A brief explanation of why the food was rejected or refused.

L.    Contracts between tier one or tier two commercial edible food generators and food recovery organizations or food recovery services shall not include any language prohibiting tier one or tier two commercial edible food generators from contracting or holding agreements with multiple food recovery organizations or food recovery services listed on the San Mateo County office of sustainability website.

M.    Food recovery organizations and food recovery services operating in the city shall conduct training and develop educational material such as donation guidelines and handouts to provide instruction and direction to tier one and tier two commercial edible food generators with whom they contract regarding best practices and requirements for the timely identification, selection, preparation, and storage of edible food to ensure the maximum amount of edible food is recovered and to avoid the collection of food that is moldy, has been improperly stored, or is otherwise unfit for human consumption.

N.    Edible Food Recovery Capacity Planning.

1.    Food Recovery Services and Food Recovery Organizations. In order to support edible food recovery capacity planning assessments or other such studies, food recovery services and food recovery organizations operating in the city shall provide information and consultation to the city and/or its designee for edible food recovery, upon request, regarding existing, proposed, new, or expanded edible food recovery capacity that could be accessed by the city and its tier one and tier two commercial edible food generators. A food recovery service or food recovery organization contacted by the city and/or its designee for edible food recovery shall respond to such requests for information within sixty calendar days.

O.    Allow the city and/or their designee for edible food recovery to access the premises and inspect procedures and review records related to edible food recovery and/or provide them electronically if requested by the city or the designee for edible food recovery. (Ord. C-2021-04 §2(Att. A(2)), 2021).

7.21.040 Inspections and investigations.

A.    The city and/or its designee for edible food recovery 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, or source separated materials to confirm compliance with this chapter by organic waste generators, commercial businesses (including multifamily residential dwellings), property owners, tier one and tier two commercial edible food generators, haulers, self-haulers, food recovery services, and food recovery organizations, subject to applicable laws. This chapter does not allow the city or its designee for edible food recovery to enter the interior of a private residential property for inspection.

B.    Regulated entity shall provide or arrange for access during all inspections (with the exception of residential property interiors) and shall cooperate with the city and/or its designee for edible food recovery during such inspections and investigations. Such inspections and investigations may include confirmation of proper placement of materials in collection containers, edible food recovery activities, records, or any other requirement of this chapter described herein.

1.    Failure to provide or arrange for: (a) access to an entity’s premises; (b) installation and operation of remote monitoring equipment; or (c) access to records for any inspection or investigation is a violation of this chapter and may result in penalties described.

C.    Any records obtained by the city during its inspections, remote monitoring, 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.    The city and/or its designee for edible food recovery are authorized to conduct any inspections, remote monitoring, or other investigations as reasonably necessary to further the goals of this chapter, subject to applicable laws.

E.    The city shall receive written complaints from persons regarding an entity that may be potentially noncompliant with SB 1383 regulations, including receipt of anonymous complaints. (Ord. C-2021-04 §2(Att. A(2)), 2021).

7.21.050 Enforcement.

A.    Violation of any provision of this chapter shall constitute grounds for issuance of a notice of violation and assessment of a fine by the city or its designee for edible food recovery. Enforcement actions under this chapter are issuance of an administrative citation and assessment of a fine. The city’s procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this chapter and any rule or regulation adopted pursuant to this chapter, except as otherwise indicated in this chapter.

B.    Other remedies allowed by law may be used, including civil action or prosecution as misdemeanor or infraction. The city and/or its designee for edible food recovery may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. The city and/or its designee for edible food recovery 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 the city’s and/or its designee for edible food recovery’s staff and resources.

C.    Responsible Entity for Enforcement.

1.    Enforcement pursuant to this chapter may be undertaken by the city, which may be the city manager or their designated entity, legal counsel, designee for edible food recovery, or combination thereof.

2.    Enforcement may also be undertaken by a regional agency enforcement official or designee for edible food recovery, designated by the jurisdiction, in consultation with the city.

a.    The city (and regional agency or designee for edible food recovery, if using) will interpret this chapter; determine the applicability of waivers, if violation(s) have occurred; implement enforcement actions; and determine if compliance standards are met.

b.    The city (and regional agency or designee for edible food recovery, if using) may issue notices of violation(s).

D.    Process for Enforcement.

1.    The city and/or their designee for edible food recovery will monitor compliance with this chapter randomly and through compliance reviews, route reviews, investigation of complaints, and an inspection program (that may include remote monitoring). This chapter establishes the city’s and designee for edible food recovery’s right to conduct inspections and investigations.

2.    The city and/or their designee for edible food recovery may issue an official notification to notify regulated entities of its obligations under this chapter.

3.    For incidences of prohibited container contaminants found in collection containers, the city and/or its designee for edible food recovery will issue a notice of violation to any tier one or tier two commercial edible food generator found to have prohibited container contaminants, such as edible food, in a collection container, or to any food recovery organization or food recovery service found to have prohibited container contaminants, such as edible food recovered from a tier one or tier two edible food generator, in a collection container, which has not been documented by a notice of significant spoilage as required in this chapter.

a.    Such notice will be provided by email communication immediately upon identification of the prohibited container contaminants or within three days after determining that a violation has occurred. If the city and/or its designee for edible food recovery observes prohibited container contaminants, such as edible food, in a tier one or tier two commercial edible food generator, or food recovery organization, or food recovery service collection container on more than two consecutive occasions, the city and/or its designee for edible food recovery may assess contamination processing fees or contamination penalties on the tier one or tier two commercial edible food generator, food recovery organization, or food recovery service.

4.    The city and/or its designee for edible food recovery may issue a notice of violation requiring compliance within seven days of issuance of the notice. Notices shall be sent to “owner” at the official address of the owner maintained by the tax collector for the city or, if no such address is available, to the owner at the address of the dwelling or commercial property or to the party responsible for paying for the collection services, depending upon available information.

5.    Absent compliance by the respondent within the deadline set forth in the notice of violation, the city and/or its designee for edible food recovery shall commence an action to impose penalties, via an administrative citation and fine, pursuant to the provisions contained in this chapter.

E.    Penalty Amounts for Types of Violations. The penalty levels for edible food recovery violations are as follows:

1.    For a first violation, the amount of the base penalty shall be one hundred dollars per violation.

2.    For a second violation, the amount of the base penalty shall be two hundred dollars per violation.

3.    For a third or subsequent violation, the amount of the base penalty shall be five hundred dollars per violation.

F.    Compliance Deadline Extension Considerations. The city and/or its designee for edible food recovery may extend the compliance deadlines set forth in a notice of violation issued in accordance with this chapter if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:

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

2.    Delays in obtaining discretionary permits or other government agency approvals; or

3.    Deficiencies in organic waste recycling infrastructure or edible food recovery capacity and the city is under a corrective action plan with CalRecycle pursuant to 14 CCR Section 18996.2 due to those deficiencies.

G.    Appeals Process. Persons receiving an administrative citation containing a penalty for an uncorrected violation may request a hearing to appeal the citation. A hearing will be held only if it is requested within the time prescribed and consistent with the city’s and/or its designee for edible food recovery’s procedures in the city’s and/or the designee for edible food recovery’s codes for appeals of administrative citations. Evidence may be presented at the hearing. The city and/or its designee for edible food recovery will appoint a hearing officer who shall conduct the hearing and issue a final written order.

H.    Education Period for Noncompliance. Beginning January 1, 2022, and through December 31, 2023, the city and/or its designee for edible food recovery will conduct inspections, remote monitoring, route reviews or waste evaluations, and compliance reviews, depending upon the type of regulated entity, to determine compliance, and if the city and/or its designee for edible food recovery determines that an organic waste generator, self-hauler, hauler, tier one commercial edible food generator, food recovery organization, food recovery service, or other entity is not in compliance, it shall provide educational materials and/or training to the entity describing its obligations under this chapter and a notice that compliance is required by January 1, 2022, and that violations may be subject to administrative civil penalties starting on January 1, 2024.

I.    Civil Penalties for Noncompliance. Beginning January 1, 2024, if the city and/or its designee for edible food recovery determines that an organic waste generator, self-hauler, hauler, tier one or tier two commercial edible food generator, food recovery organization, food recovery service, or other entity is not in compliance with this chapter, it shall document the noncompliance or violation, issue a notice of violation, and take enforcement action pursuant to this chapter, as needed. (Ord. C-2021-04 §2(Att. A(2)), 2021).


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    Section 6 of Ord. C-2021-04 provides: “This ordinance shall take effect thirty (30) days after adoption, with the exception of Section 7.21.030(G) as shown in Attachment A, which shall be effective commencing on January 1, 2023.”