Chapter 8.60


8.60.010    Findings and declaration of intent.

8.60.012    Definitions.

8.60.014    Prohibited disposable food service ware.

8.60.016    Required biodegradable, compostable, or recyclable disposable food service ware.

8.60.018    Exemptions for biodegradable, compostable or recyclable food service ware.

8.60.020    Enforcement and notice of violation.

8.60.022    Penalties and fines for violations.

8.60.010 Findings and declaration of intent.

The city finds and declares that:

A. The city borders the Monterey Bay National Marine Sanctuary, a federal preserve that supports one of the most diverse and delicate ecosystems in the world. This sanctuary provides habitat for at least thirty-three mammals, ninety-four species of seabirds, three hundred forty-five species of fish, and contains the largest kelp forest in the nation. The impact of an environmentally damaged Monterey Bay or the pollution of our rivers and lakes would be felt area wide.

B. Food and beverage packaging constitutes a significant and growing portion of the waste in the city. Laws, policies and regulations pertaining to disposable food service ware is a component in the city’s efforts to reduce the amount of disposed waste.

C. Food service ware made from polystyrene foam is not biodegradable, returnable, or practically recyclable. Polystyrene foam breaks into smaller pieces and, because it is lightweight, may be picked up by the wind even when it has been placed in a waste receptacle.

D. A prevalence of polystyrene foam packaging, which is highly durable and persists longer than any other type of refuse, litters parks and public places, streets and roads, waterways, storm drains and beaches. This litter ultimately floats or is blown into the Monterey Bay, adversely impacting our environment.

E. Mistaking it for food, marine animals and birds often ingest polystyrene foam, which can damage their digestive tracts, often leading to death.

F. Polystyrene foam is manufactured from petroleum, a nonrenewable resource.

G. Scientific evidence indicates that styrene leaches from polystyrene foam containers into food and drink. The Environmental Protection Agency (EPA) has found that there are short- and long-term adverse health effects associated with exposure to styrene.

H. It is not economically feasible at this time to recycle polystyrene foam in or near the city. When products are recycled, natural resources are conserved, less energy is used for the production of new products, and valuable landfill space is preserved. When biodegradable products are turned into compost they can reduce water use and reduce the need for chemical fertilizer. Takeout food packaging that is biodegradable, compostable, or recyclable is the most responsible and sustainable choice for the tourist economy, the citizenry and the environment.

I. Biodegradable takeout packaging (such as cups, plates, clamshell containers and cutlery) made from paper, sugarcane, corn byproducts and potato starch is available locally. As these products degrade, they do not harm the environment and are not a permanent blight on the landscape.

J. Eliminating the use of polystyrene foam and other nonbiodegradable, noncompostable, nonreturnable and nonrecyclable food packaging material from all establishments within the city will help protect the local environment, including the Monterey Bay National Marine Sanctuary, from contamination and degradation, helping to safeguard this area as a tourist destination and a safe and healthy living community. It will also support the city’s goal of reducing waste and protecting the environment for generations to come.

K. Taking the aforementioned action also will be cost-effective, helping to maximize the operating life of landfills and reducing the economic and environmental expense of managing waste and litter. (Ord. 985 (Exh. A), 2010)

8.60.012 Definitions.

Unless otherwise expressly stated, whenever used in this chapter the following terms shall have the meanings set forth below:

“Affordable” means that a biodegradable, compostable or recyclable product may cost up to fifteen percent more than the purchase cost of the nonbiodegradable, noncompostable or nonrecyclable alternative(s).

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

“Biodegradable” means the ability of organic matter to break down from a complex to a more simple form.

“City contractor” means any person or entity that has a contract with the city for work or improvement to be performed, for a franchise, concession, for grant monies, goods and services, or supplies to be donated or to be purchased at the expense of the city.

“City facility” means any building, structure or vehicle owned and operated by the city, its agents, agencies, and departments.

“Compostable” means all the materials in the product or package will break down, or otherwise become part of usable compost (e.g., soil-conditioning material, mulch) in a safe and timely manner. Compostable disposable food service ware must meet ASTM Standards for compostability and any bio-plastic or plastic-like product must be clearly labeled, preferably with a color symbol, to allow proper identification such that the collector and processor can easily distinguish the ASTM Standard compostable plastic from non-ASTM Standard compostable plastic.

“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 plastic straws, cup lids, or utensils.

“Food provider” means any vendor located or providing food within the city which provides prepared food for public consumption on or off its premises and includes without limitation any store, shop, sales outlet, restaurant, grocery store, supermarket, delicatessen, catering truck or vehicle, or any other person who provides prepared food; and any organization, group or individual which regularly provides food as a part of its services.

“Person” means an individual, business, event promoter, trust, firm, joint stock company, corporation, nonprofit, including a government corporation, partnership, or association.

“Polystyrene foam” means and includes expanded polystyrene that 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, form molding, and extrusion-blow molding (extruded foam polystyrene).

“Prepared food” means food or beverage prepared for consumption on the food provider’s premises, using any cooking or food preparation technique. This does not include any raw uncooked meat, poultry, fish or eggs unless provided for consumption without further food preparation. It is a policy goal of this city to encourage supermarkets and other vendors to eliminate the use of polystyrene foam for packaging unprepared food.

“Recyclable” means any material that is accepted by the city or special district recycling program, including, but not limited to, paper, glass, aluminum, cardboard and plastic bottles, jars and tubs. Recyclable plastics comprise those plastics coded with the recycling symbols No. 1 through No. 5.

“Retail food establishment” shall include, but is not limited to, any place where food is prepared to include any fixed or mobile restaurant, drive-in, coffee shop, public food market, produce stand, or similar place in which food or drink is prepared for sale or for service on the premises or elsewhere.

“Special events promoter” means an applicant for any special events permit issued by the city or any city employee(s) responsible for any city/county-organized special event. (Ord. 985 (Exh. A), 2010)

8.60.014 Prohibited disposable food service ware.

A. Food providers within the city may not provide prepared food in any disposable food service ware that contains polystyrene foam.

B. Disposable food service ware that contains polystyrene foam is prohibited from use in all city facilities.

C. City contractors in the performance of city contracts and special events promoters may not provide prepared food in disposable food service ware that contains polystyrene foam.

D. It shall also be a policy goal of the city that business establishments located outside the city shall not package any nonfood product in any package which utilizes polystyrene foam both block polystyrene or packaging peanuts, or purchase, obtain, keep, distribute or sell for home or personal use, or give or otherwise provide to customers any packaging which utilizes polystyrene foam. The city shall promote and encourage, on a voluntary basis, the elimination of all polystyrene foam packaging. (Ord. 985 (Exh. A), 2010)

8.60.016 Required biodegradable, compostable, or recyclable disposable food service ware.

A. All food providers within the city utilizing disposable food service ware shall use biodegradable, compostable or recyclable products, unless there is no affordable alternative available as determined by the designated official (see definition of “Affordable” and SMC 8.60.018, exemptions). Food providers may charge a “takeout fee” to cover the difference in cost.

B. All city facilities utilizing disposable food service ware shall use products that are biodegradable, compostable or recyclable.

C. City contractors and special events promoters utilizing disposable food service ware shall use biodegradable, compostable, or recyclable products while performing under a city contract or permit. (Ord. 985 (Exh. A), 2010)

8.60.018 Exemptions for biodegradable, compostable or recyclable food service ware.

A. There are no exemptions that allow for the use of polystyrene foam disposable food service ware.

B. The city may exempt a food provider from the requirement set forth in SMC 8.60.016 for a nonrenewable, one-year period upon the food provider showing, in writing, that this chapter would create an undue hardship or practical difficulty not generally applicable to other persons in similar circumstances. The city officer shall put the decision to grant or deny a one-year exemption in writing, and his or her decision shall be final.

C. An exemption application shall include all information necessary for the city officer to make a decision, including but not limited to documentation showing factual support for the claimed exemption. The officer may require the applicant to provide additional information.

D. The city officer may approve the exemption application in whole or in part, with or without conditions.

E. Foods prepared or packaged outside the city and sold inside the city are exempt from the provisions of this chapter. Purveyors of food prepared or packaged outside the city are encouraged to follow the provisions of this chapter as it is a policy goal of this city to eliminate the use of polystyrene foam for packaging unprepared food. (Ord. 985 (Exh. A), 2010)

8.60.020 Enforcement and notice of violation.

A. Violations of this chapter may be enforced in accordance with this section.

B. The city code enforcement officer shall be responsible for enforcing this chapter and shall have authority to issue citations for violations.

C. Anyone violating or failing to comply with any of the requirements of this chapter shall be guilty of an infraction.

D. The city attorney may seek legal, injunctive, or any other relief to enforce the provisions of this chapter.

E. The remedies and penalties provided in this chapter are cumulative and not exclusive of one another.

F. The city, in accordance with applicable law, may inspect any vendor or food provider’s premises to verify compliance.

G. Food vendors shall state that they are in compliance with this chapter on their annual business license renewal forms. (Ord. 985 (Exh. A), 2010)

8.60.022 Penalties and fines for violations.

Violations of this chapter shall be enforced as follows:

A. For the first violation, city code enforcement officer shall issue a written warning to the food provider specifying that a violation of this chapter has occurred and which further notified the food provider of the appropriate penalties to be assessed in the event of future violations. The food provider will have thirty days to comply.

B. The following penalties will apply for subsequent violations of this chapter:

1. A fine not exceeding one hundred dollars for the first violation thirty days after the first warning. The city official may allow the violator, in lieu of payment of the fine, to submit receipts demonstrating the purchase after the citation date of at least one hundred dollars worth of biodegradable, compostable, or recyclable products appropriate as an alternative disposable food service ware for the items which led to the violation.

2. A fine not exceeding two hundred dollars for the second violation sixty days after the first warning.

3. A fine not exceeding five hundred dollars for the third violation ninety days after the first warning and for each additional thirty-day period during which the food provider is not in compliance.

C. Food providers who violate this chapter in connection with commercial or noncommercial special events authorized by SMC 8.60.014 shall be assessed fines as follows:

1. A fine not to exceed two hundred dollars for an event of one to two hundred persons.

2. A fine not to exceed four hundred dollars for an event of two hundred one to four hundred persons.

3. A fine not to exceed six hundred dollars for an event of four hundred one to six hundred persons.

4. A fine not to exceed one thousand dollars for an event of six hundred one or more persons. (Ord. 985 (Exh. A), 2010)