Chapter 8.08
SUSTAINABLE FOOD PACKAGING – POLYSTYRENE PRODUCTS REGULATION

Sections:

8.08.010    Purpose.

8.08.020    Definitions.

8.08.030    Permitted and prohibited food service ware.

8.08.040    Prohibition of sale of polystyrene food service ware and polystyrene coolers.

8.08.050    Exemptions.

8.08.060    Certification of compliance.

8.08.070    Enforcement and violation – Penalty.

8.08.010 Purpose.

The purposes of this chapter are to eliminate and regulate the use of polystyrene products in order to protect the health of Pittsburg citizens and promote environmentally sustainable practices in the city. [Ord. 18-1445 § 4, 2018.]

8.08.020 Definitions.

As used in this chapter, unless the context otherwise clearly indicates, the words and phrases are defined as follows:

“ASTM standard” means meeting the standards of the American Society for Testing and Materials (ASTM) International standards D6400 or D6868 for compostable materials, as those standards may be amended.

“City contractor” means any person that enters into an agreement with the city to furnish products or services to or for the city.

“City facility” means any building, structure, property, park, open space, or vehicle, owned or leased by the city, its agents, agencies, departments or franchisees.

“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 the product is capable of composting and is labeled in accordance with California law, or is consistent with the timeline and specifications of ASTM D6400 and D6868, without regard to material type.

“Disposable food service ware” or “disposables” means single-use, disposable products used for serving or transporting prepared food, including but not limited to plates, bowls, trays, wrappers or wrapping, platters, cartons, condiment containers, cups or drink ware, lids, or any other container in or on which prepared foods are placed or packaged for consumption, and other items that are designed for one-time use for prepared foods including service ware for take-out foods and/or leftovers from partially consumed meals prepared by food providers.

“Establishment” means a place of business of a food provider or other person subject to the requirements of this chapter.

“Food provider” means any person or place 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 includes but is not limited to: (1) a grocery store, supermarket, restaurant, drive-through, cafe, coffee shop, snack shop, sandwich shop, hotel, motel, movie house, theatre, bar, 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 where prepared food is available for sale on the premises or for take-away consumption. Food provider also includes any organization, group or other person that regularly provides prepared food to its members or the general public as a part of its activities or services.

“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.

“Polystyrene” means a thermoplastic petrochemical material utilizing the styrene monomer, including but not limited to polystyrene foam or expanded polystyrene, (sometimes incorrectly called Styrofoam™, a Dow Chemical Co. trademarked form of expanded polystyrene foam insulation) 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 and other products, regardless of whether it exhibits a recycle code. Expanded polystyrene (EPS) is generally used to make such items as cups, bowls, plates, trays, clamshell containers, meat trays and egg cartons.

“Polystyrene cooler” means any cooler or ice chest made of polystyrene foam, where such foam is not fully encased in another material by its original manufacturer.

“Polystyrene food service ware” means disposable food service ware that contains or utilizes polystyrene.

“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. 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.

“Recycle code” means a resin identification code placed on certain goods to identify the material composition for separation of different types of goods for recycling. [Ord. 18-1445 § 4, 2018.]

8.08.030 Permitted and prohibited food service ware.

A. No food provider shall distribute or sell any polystyrene food service ware in conjunction with the sale or distribution of prepared food at any location within the city.

B. Food providers that distribute prepared food in disposable food service ware shall: (1) distribute only disposables that exhibit a recycle code other than No. 6 or PS or which are reusable or compostable, and (2) maintain documentation about the composition of the disposable food service ware. Documentation may include information from the supplier, manufacturer, or bulk packaging of the disposables, and any other relevant information demonstrating that the disposable material is not polystyrene.

C. No person shall distribute or sell prepared food in any polystyrene food service ware at city facilities that have been rented, leased or are otherwise being used with permission of the city. 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 polystyrene food service ware 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 designee determines that polystyrene food service ware was used in violation of the rental agreement.

D. No person shall use or distribute polystyrene food service ware at city-sponsored events, city-managed concessions, or city meetings open to the public. 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 organizers to sell or distribute prepared food or otherwise provide a service related to the function. For the purpose of this section, a “function organizer” means the person(s) principally responsible for making decisions about a function’s date, time, location, program, choice of vendors, or similar decisions.

E. The city, its departments, and its city contractors, agents, and employees acting in their official capacity, shall not purchase or acquire polystyrene food service ware, or distribute it for public use.

F. All food providers using any disposable food ware for providing prepared food to customers will use compostable or recyclable disposable food ware which is accepted by the local franchise hauler.

G. A food provider may charge a “take-out fee” to customers to cover the cost difference. [Ord. 18-1445 § 4, 2018.]

8.08.040 Prohibition of sale of polystyrene food service ware and polystyrene coolers.

No person shall sell any polystyrene food service ware or polystyrene cooler at any location within the city. [Ord. 18-1445 § 4, 2018.]

8.08.050 Exemptions.

A. The following are exempt from the provisions of this chapter:

1. Food prepared or packaged outside of the city, provided such food is not altered, packaged or repackaged within the city limits.

2. Coolers and ice chests, other than those defined as polystyrene coolers in this chapter.

3. Disposable food service ware composed entirely of aluminum.

4. Food brought by individuals for personal consumption to city facilities, including but not limited to city parks and facilities, provided the city facility is being used for individual recreation or similar purposes.

5. The city manager or his/her designee may temporarily suspend the provisions of this chapter for the immediate preservation of the public health, safety, or welfare in the event of an emergency or disaster as determined in his or her sole discretion.

B. Food providers that are obligated to purchase or have purchased polystyrene food service ware under a contract entered into within the year prior to the effective date of the ordinance codified in this chapter are exempt from the provisions of this chapter for six months following its effective date.

C. The city manager or his/her designee may temporarily exempt any person from PMC 8.08.030 following the operative date of the ordinance codified in this chapter, 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 claimed 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.

2. The city manager or his/her designee may approve the exemption for a maximum of one year, with or without conditions, upon finding that compliance would create an undue hardship. If the applicant requests to use or sell specific items or types of disposable food service ware, the city manager or his/her designee shall find that a suitable compostable, reusable or recyclable alternative does not exist for a specific application and/or that imposing the requirements of this chapter on that item or type of disposable food service ware would cause undue hardship.

3. An applicant granted an exemption shall reapply prior to the end of the one-year exemption period and demonstrate continued undue hardship if the applicant wishes to have the exemption extended. The city manager’s or his or her designee’s decision to grant or deny an exemption or to grant or deny an extension of a previously issued exemption shall be in writing and shall be final. [Ord. 18-1445 § 4, 2018.]

8.08.060 Certification of compliance.

A. All food providers subject to PMC 8.08.030 shall certify compliance with this chapter on an annual basis. Such reporting must be done on a form prescribed by the city manager, and must be signed by a responsible agent or officer of the food provider confirming that the information provided on the form is accurate and complete. All reporting must be submitted no later than 45 days after the end of each calendar year.

B. If the reporting form covering the food provider’s first year is submitted on time and is compliant with this chapter, then the food provider shall participate in self-recertification reporting each subsequent year by completing and keeping the annual report on site and available to the city manager and/or his designee. Each food provider shall also keep records that verify data in each year’s on-site report. A food provider that participates in self-recertification may destroy the completed reports and related records after five years have elapsed since the date of the report.

C. If the reports required by this section are not timely submitted by a food provider, or not maintained in compliance with subsection (B) of this section, such food provider shall be subject to the fines set forth in PMC 8.08.070 and or be required to submit annual reporting to the city as provided in subsection (A) of this section, in addition to on-site inspections. [Ord. 18-1445 § 4, 2018.]

8.08.070 Enforcement and violation – Penalty.

A. Violation of this chapter is hereby declared a public nuisance; this chapter shall be enforced in accordance with PMC 1.20.030, except as modified below or by any other applicable law.

B. No person owning, leasing, occupying or having charge or possession of any property in the city shall maintain a public nuisance under PMC 1.20.020, which includes, but is not limited to, leaving or storing any polystyrene packaging materials, polystyrene coolers, or polystyrene food service ware outside an enclosed building or structure.

C. The city manager and code enforcement officer have primary responsibility for enforcement of this chapter. The city manager’s office 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 citations, assessing fines and entering the premises of any establishment subject to this chapter during business hours. Other city staff may assist with this enforcement responsibility by entering the premises of an establishment as part of their regular inspection functions and reporting any alleged violations to the city manager.

D. If the city manager or code enforcement officer determines that a violation of this chapter has occurred, he/she shall issue a written citation to the operator of a subject establishment that a violation has occurred and the potential penalties that will apply for future violations.

E. Any person that violates or fails to comply with any of the requirements of this chapter after a written citation has been issued for that violation shall be guilty of an infraction.

F. If a person has subsequent violations of this chapter that are similar in kind to the violation addressed in a written citation, the following penalties shall be imposed and shall be payable by the operator of the establishment to the city of Pittsburg:

1. A fine not exceeding $100.00 for the first violation after the written citation is given;

2. A fine not exceeding $200.00 for a second violation of the same section within 12 months; or

3. A fine not exceeding $500.00 for a third and any subsequent violations of the same section within 12 months.

a. A fine shall be imposed for each day a violation occurs or is allowed to continue.

b. All fines collected pursuant to this chapter shall be deposited in the police support services – administrative citations account to assist code enforcement with its costs of implementing and enforcing the requirements of this chapter.

c. Any operator of an establishment that receives a written citation or is assessed a fine may request an administrative review of the accuracy of the determination or the propriety of any fine assessed, by filing a citation of appeal with the city manager no later than 30 days after receipt of a written citation or fine, as applicable. The notice of appeal must include all facts supporting the appeal and any statements and evidence, including copies of all written documentation and a list of any witnesses that the appellant wishes to be considered in connection with the appeal, and an appeal fee in the amount set by resolution of the city council. Failure to timely request a hearing or to pay the appeals processing fee constitutes a waiver of the right to appeal and a failure to exhaust administrative remedies. The appeal will be heard by a hearing officer designated by the city manager.

d. The hearing officer shall conduct a hearing concerning the appeal within 45 days from the date that the notice of appeal is filed, or on a later date if agreed upon by the appellant and the city of Pittsburg, and shall give the appellant 10 business days’ prior citation of the date of the hearing. The hearing officer may sustain, rescind, or modify the written citation or fine, as applicable, by written decision. The written decision shall be served on the appellant. The hearing officer shall have the power to waive any portion of the fine in a manner consistent with the decision. The decision of the hearing officer is final and effective on the date of service of the written decision, is not subject to further administrative review, and constitutes the final administrative decision. [Ord. 18-1445 § 4, 2018.]