HomeMy WebLinkAboutOrdinance 2027 (Resuable Foodware Ordinance)CLERK’S CERTIFICATE
I, LINDSAY LARA, City Clerk of the City of San Rafael, and Ex-Officio Clerk of
the Council of said City, do hereby certify that the foregoing
ORDINANCE NO. 2027
AN ORDINANCE OF THE CITY OF SAN RAFAEL CITY COUNCIL AMENDING
THE SAN RAFAEL MUNICIPAL CODE TO REPEAL AND REPLACE
CHAPTER 10.92 - PROHIBITION ON USE OF POLYSTYRENE FOAM
DISPOSABLE FOOD PACKAGING WITH NEW CHAPTER 10.92 -
REGULATION OF FOODWARE FOR RETAIL FOOD VENDORS
is a true and correct copy of an Ordinance of said City, and was introduced at a REGULAR
meeting of the City Council of the City of San Rafael, held on the 1st day of May 2023; a
SUMMARY of Ordinance No. 2027 was published as required by City Charter in the
MARIN INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael,
and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City
Council of said City, held on the 15th day of May 2023, by the following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Kertz, Llorens Gulati & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Hill
WITNESS my hand and the official
Seal of the City of San Rafael this
16th day of May 2023
______________
LINDSAY LARA, City Clerk
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ORDINANCE NO. 2027
AN ORDINANCE OF THE CITY OF SAN RAFAEL CITY
COUNCIL AMENDING THE SAN RAFAEL MUNICIPAL CODE
TO REPEAL AND REPLACE CHAPTER 10.92 -
PROHIBITION ON USE OF POLYSTYRENE FOAM
DISPOSABLE FOOD PACKAGING WITH NEW CHAPTER
10.92 - REGULATION OF FOODWARE FOR RETAIL FOOD
VENDORS
SECTION 1. FINDINGS
WHEREAS, the City of San Rafael has a desire and responsibility to protect the health, welfare,
and safety of its residents and economy. The proliferation of non-reusable (or disposable)
foodware, packaging, and plastics has contributed to street litter, ocean pollution, marine, and
other wildlife harm.
WHEREAS, using reusable dishware significantly reduces the generation of unnecessary waste,
and in most applications saves money, reduces disposal costs, and improves customer
experience.
WHEREAS, reducing the generation of non-reusable foodware including plastic utensils, plastic
cups, plastic clamshells, and plastic straws maximizes the operating life of landfills, reduces litter,
and helps to lessen the economic and environmental costs of managing waste. This will also help
protect San Rafael’s environment from contamination and degradation making it cleaner,
healthier, and safer for all residents, businesses, and visitors.
WHEREAS, non-reusable foodware threatens public health because many types contain
fluorinated chemical additives are known or suspected carcinogens or endocrine disruptors.
These additives are known to leach from foodware into food and beverages and into compost,
soil, and water.
WHEREAS, numerous jurisdictions in the San Francisco Bay Area and the State of California
have adopted legislation reducing the use of non-reusable food packaging, with local and national
businesses successfully replacing single-use food packaging with affordable durable and
reusable foodware or, when needed, compliant compostable fiber foodware products.
WHEREAS, on May 10, 2022, the County of Marin adopted a local Reusable Foodware
Ordinance which includes language offering enforcement services via the Environmental Health
Services Food Program for cities/towns adopting the same ordinance for the food vendors in their
jurisdictions.
WHEREAS, the City of San Rafael wishes to utilize the enforcement services offered by the
County of Marin through the County’s Environmental Health Services Food Program.
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES
ORDAIN AS FOLLOWS:
SECTION 2. AMENDMENT OF SAN RAFAEL MUNICIPAL CODE, CHAPTER 10.92
Chapter 10.92 – Prohibition on Use of Polystyrene Foam Disposable Food Packaging of the San
Rafael Municipal Code is hereby repealed in its entirety, and replaced with a new Chapter 10.92
entitled “Regulation of Foodware for Retail Food Vendors” to read in its entirety as follows:
Chapter 10.92 – Regulation of Foodware for Retail Food Vendors
10.92.010 - Purpose.
The purpose of this chapter is to prevent actual or potential public health hazards and nuisance
within the city of San Rafael, Marin County, state of California, by regulating reusable foodware
for dine-in operations and compliant compostable foodware for take-out services. This chapter is
intended to reduce the impacts of single-use plastic takeout containers which cause forms of
pollution, including contaminating recycling and composting waste streams, clogging storm
drains, and discharging into the Bay becoming a threat to wildlife.
10.92.020 - Definitions.
(a) “BPI Certified” means those Compostable fiber Foodware products that have been
certified by the Biodegradable Products Institute (BPI) to safely and readily biodegrade in
an industrial composting facility in the typical processing time. As of January 1, 2020, BPI
ensures all certified products are Fluorinated Chemical free.
(b) “Compliant Non-Reusable Foodware” means that an item or product intended for disposal
after one use and is: (1) accepted by the County of Marin through its composting collection
program as Compostable as identified by the Deputy Director of Environmental Health
Services or their designee; (2) certified by either BPI Certified or other third party product
certification recognized by the County of Marin through its Deputy Director of
Environmental Health Services or their designee to ensure the item is free of harmful
chemicals including but not limited to Fluorinated Chemicals, that may have been used in
foodware manufacture, and (3) made entirely of Natural Fiber, as defined that term is
below, and including but not limited to paper, wood, or sugarcane fibers.
(c) “Compliant Foodware Accessory” means that an item or material is (1) accepted in Marin
County composting collection program as Compostable; and is (2) made entirely of
Natural Fiber.
(d) “Compost Facility” means compost facilities used by the city’s current waste haulers for
composting organic material.
(e) “Compostable” means an item or material (1) will break down, or otherwise become part
of usable compost in a safe and timely manner and (2) is Natural Fiber-based or made
from other materials approved by the Deputy Director of Environmental Health Services
or designee.
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(f) “Compostable Plastics or Biodegradable Plastics” means the disposable products
developed from polylactic acid (PLA), which require a specific set of conditions to compost
and/or biodegrade that do not exist in the County of Marin or the region. These products
are considered non-compliant.
(g) “City” means the City of San Rafael.
(h) “City Facility” means any building or structure owned, leased, or operated by the City of
San Rafael.
(i) “Customer” means any person obtaining Prepared Food from a Food Vendor.
(j) “Director” means the County of Marin Deputy Director of Environmental Health Services
or their designee.
(k) “Disposable (or Non-Reusable) Cup” means a beverage cup designed for single-use to
serve beverages such as water, hot and cold drinks, and alcoholic beverages.
(l) “Effective Date” means June 14, 2023.
(m) “EPS” means expanded polystyrene, also known as Polystyrene Foam.
(n) “Fluorinated Chemical” means a class of fluorinated organic compounds containing at
least one (1) fully fluorinated carbon atom, also known as perfluoroalkyl (PFOA) and
polyfluoroalkyl (PFOS) substances, or PFAS chemicals. California Prop 65 lists PFOA and
PFOS as reproductive toxicants.
(o) “Foodware” means all containers, bowls, plates, food trays, cups, lids, boxes, and other
like items that are used for Prepared Foods, including without limitation, Foodware for
takeout foods and/or leftovers from partially consumed meals prepared by Food Vendors.
(p) “Foodware Accessories” means types of items usually provided alongside Prepared Food
including but not limited to forks, spoons, knives, chopsticks, napkins, cup sleeves, food
wrappers, beverage trays, condiment containers, straws, stirrers, splash sticks, cocktail
sticks, toothpicks, tray-liners, and plate-liners.
(q) “Food Vendor” means a food facility as that term is defined in Health & Safety Code
section 113789, or its successor, including but not limited to a restaurant, bar, grocery
store, delicatessen, bakery, food service establishment (carry out, quick service, full-
service), food truck, itinerant restaurant, pushcart, farmers market, caterer,
microenterprise home kitchen operation, or cottage food operation, that sells Prepared
Food to be consumed on and/or off the premises located or operating within the city,
except that for purposes of this ordinance the term “food vendor” shall not include a
public or private school cafeteria.
(r) “Natural Fiber” means a plant-based, non-synthetic fiber, including but not limited to paper,
wood, bamboo, palm leaf, wheat straw, or sugarcane. Natural Fiber does not include
plastic of any kind.
(s) “On Request” means that only at the request of a customer shall the compliant product be
provided.
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(t) “Polystyrene Foam” means and includes blown polystyrene and expanded and extruded
foams (sometimes incorrectly called Styrofoam, a Dow Chemical Co. trademarked form
of polystyrene foam insulation) which are thermoplastic petrochemical materials 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 Foam is
generally used to make cups, bowls, plates, trays, clamshell containers, meat trays,
coolers, packing peanuts, and egg cartons.
(u) “Prepared Food” means food or beverages, which are served, packaged, cooked,
chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises
of the Food Vendor and includes Takeout Food. For the purposes of this chapter,
Prepared Food does not include raw, butchered meats, fish and/or poultry, which are sold
from a butcher case or similar appliance.
(v) “Reusable or Durable” Foodware and Foodware Accessories, including plates, bowls,
cups, jars, trays, glasses, straws, stirrers, condiment cups, utensils, etc. that are
manufactured of durable materials and specifically designed and manufactured to be
washed and sanitized and to be used repeatedly over an extended period of time, and are
safe for washing and sanitizing according to applicable regulations.
(w) “Takeout Food” means food or beverages requiring no further preparation to be consumed
and which generally are purchased to be consumed off the premises of the Food Vendor.
10.92.030 - Dine-in Foodware regulations.
Food Vendors within the city:
(a) Shall sell or provide food and beverages for consumption on the premises using Reusable
Foodware and utensils (forks, spoons, knives, chopsticks) except as otherwise provided
in section 10.92.040(b);
(b) May provide all other Compliant Foodware Accessories, which are made of Natural Fibers,
including napkins, food wrappers, straws, stirrers, cocktail sticks, toothpicks, tray-liners,
and plate-liners;
(c) Shall offer condiments in reusable containers or dispensers rather than pre-packaged
single-use condiment packets; and
(d) Food Vendors will have until November 10, 2023, before enforcement of this regulation
begins.
10.92.040 - Takeout Foodware regulations.
Food Vendors within the city selling Takeout Food for consumption off premises:
(a) Shall provide takeout food in Reusable Foodware, or compostable Natural Fiber
Compliant Foodware, or items composed entirely of glass or aluminum;
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(b) Shall provide all other Compliant Foodware Accessories, which are made from Natural
Fibers, including napkins, cup sleeves, beverage trays, condiment containers, straws,
stirrers, splash sticks, cocktail sticks, and toothpicks only On Request or at self-serve
stations;
(c) Takeout food bags shall be Reusable, paper, or comply with Chapter 10.94 (regulations
of single use carry out bags);
(d) Takeout Food delivery services shall provide the option for Compliant Foodware
Accessories (forks, spoons, knives, chopsticks) and single-use condiments only On
Request. A Food Vendor or a Takeout Food delivery service may include lids, spill plugs,
and sleeves without request for Non-Reusable Cups for delivery; and
(e) Food Vendors shall provide plastic straws only On Request, to accommodate any person's
access needs.
10.92.050 - City facilities and city-sponsored events.
The following regulations apply to Food Vendors at city facilities, and city-sponsored events:
(a) Food Vendors shall use Reusable Foodware and Compliant Foodware Accessories at city
facilities and city-sponsored events.
(b) The city shall prohibit the use of EPS/Polystyrene Foam and Non-Reusable plastic
foodware by Food Vendors at all city facilities. Prohibited products include, but are not
limited to, EPS/Polystyrene Foam and Non-Reusable plastic food containers, straws,
bowls, plates, trays, utensils, clamshells, and cups which are not intended for reuse, on
or in which any foods or beverages are placed or packaged.
(c) As of the Effective Date, all city departments that hold contracts, lease agreements,
permits, or other agreements that involve food service shall incorporate this prohibition
into all new and renewed contracts, leases, permits, agreements, etc.
(d) The use or distribution of EPS/Polystyrene Foam, and Non-Reusable plastic foodware by
Food Vendors at special events at city facilities that are sponsored or co-sponsored by the
city shall be prohibited. This prohibition shall apply to the event organizers, agents of the
event organizers, event vendors, and any other party (including non-profit organizations)
who have an agreement with one or more of the co-sponsors of the event to sell goods or
beverages at the event or otherwise provide an event-related service.
(e) Written agreements with Food Vendors, including non-profit organizations, to sell food or
beverages at an event that is sponsored or co-sponsored by the city, shall specifically
prohibit the usage and distribution of EPS/Polystyrene Foam and Non-Reusable plastic
foodware.
10.92.060 - Non-Reusable cup charge.
(a) All Food Vendors shall charge customers twenty-five cents ($0.25) at the point of sale for
every Non-Reusable cup provided unless they are exempt under this chapter.
(b) Income from the Non-Reusable cup charge shall be retained by the Food Vendor.
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(c) Charges for Non-Reusable cups shall be identified separately on any post-sale receipt
provided and, pre-sale, shall be clearly identified for the customer on media such as
menus, ordering platforms, and/or menu boards. Customers placing orders by telephone
shall be informed verbally of Non-Reusable cup charges.
(d) All customers demonstrating, at the point of sale, a payment card or voucher issued by
the California Special Supplemental Food Program for Women, Infants, and Children
(WIC) pursuant to Article 2 (commencing with section 123275) of Chapter 1 of Part 2 of
Division 106 of the California Health and Safety Code and as amended, or an electronic
benefit transfer card (EBT) issued pursuant to section 10072 of the California Welfare and
Institutions Code, and individuals with disabilities shall be exempt from the Non-Reusable
cup charge.
10.92.070 - Separate waste receptacles required.
(a) All Food Vendors who provide solid waste containers for customer use, must provide
separate receptacles for solid waste, recyclables, and organics. Receptacles shall be
colored black or grey for garbage, blue for recycling, and green for compost/organics.
(b) To the extent possible given space constraints, all receptacles for solid waste, recyclables,
and organics should be placed adjacent to one another.
(c) Graphic-rich signage must be posted on or above each receptacle following the waste
hauler’s guidelines.
10.92.080 - Exemptions.
(a) Entities packaging Prepared Foods outside Marin County are exempt from the provisions
of this chapter; provided, however, such entities are urged to follow the provisions of this
chapter.
(b) Non-Reusable Foodware and Foodware Accessories composed entirely of aluminum are
exempt from the provisions of this chapter.
(c) Should Foodware or Foodware Accessories made of Compliant compostable Natural
Fiber not be commercially available, as determined by the Director or their designee, the
County of Marin may approve temporary exemption of specific nonreusable Foodware or
Foodware Accessories items until they are made commercially available. The County of
Marin shall maintain a list, updated annually, with Foodware or Foodware Accessories
deemed not available commercially.
(d) For the immediate preservation of the public peace, health, or safety due to an emergency
or natural disaster, the city council, or designee, may exempt Food Vendors, persons
operating city facilities and agents, contractors, and vendors doing business with the city,
from the provisions of this chapter.
10.92.090 - Enforcement.
(a) Compliance with this ordinance is required as of the Effective Date.
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(b) Enforcement shall include written notice of non-compliance and a reasonable opportunity
to correct, prior to issuance of any penalty.
(c) It is found and determined to by the city council that the public interest, health, safety, and
welfare of the residents of the city require that the Marin County Environmental Health
Services Division be designated as the enforcement agency of and within city and as such
enforcement agency it is authorized with the enforcement of the provisions of this chapter
and the Marin County Environmental Health Services division is vested, for the purposes
of enforcing this chapter within city, with all of the jurisdiction and powers vested in or
available to said division by this Chapter and said health and safety code.
(d) Enforcement of this chapter will begin on November 10, 2023. Enforcement will be then
delegated to the County of Marin’s Environmental Health Services. Enforcement will
progress on the regular inspection schedule of all covered Food Vendors in the County as
described in this chapter.
10.92.100 - Violations
On behalf of the city, the County of Marin may choose to undertake the following legal actions to
correct and/or abate nuisances and violations of this ordinance. The Director of Environmental
Health Services or their designee is authorized to promulgate regulations and take any and all
other actions reasonable and necessary to enforce the provisions of this Chapter, including but
not limited to, entering the premises of any food provider during regular business hours to verify
compliance, and by the issuance of administrative citations. The remedies and penalties provided
by this Chapter are cumulative and in addition to any other remedies available at law or in equity.
(a) Administrative Citations.
Administrative citations may be issued for violations of this Chapter at the discretion of the
Director. The issuance of an administrative citation under this chapter shall not supersede
or limit the remedies provided elsewhere in this Code or California law, including other
administrative citation remedies. Issuance of an administrative citation may be exercised
in place of, but shall not be considered a waiver of, the use of any other available
enforcement remedy.
(b) Process and Service of Citation.
1. Prior to issuance of citation penalty, the County of Marin shall issue a violation
warning letter to the facility operator and provide the facility operator thirty (30)
days to correct the violation(s).
2. The violation warning letter and/or citation shall be mailed to the food facility
operator named in the facility’s permit.
3. The failure of any interested person to receive the violation warning letter and/or
citation shall not affect the validity of the proceedings.
(c) Administrative Citation Penalty Schedule.
Following the violation warning letter described in Section 10.92.100(b)(1) above and thirty
(30) day cure period, if the violations remains, the County of Marin may issue the following
administrative penalties:
1. A fine not exceeding $100.00 for the first violation;
2. A fine not exceeding $200.00 for a second violation of the same Code provision
within one year; and
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3. A fine not exceeding $500.00 for each additional violation in excess of two, of the
same Code provision within one year.
(d) Response to Citation Penalty
Following receipt of citation penalty, food facility operator shall have thirty (30) days to pay
the fine as indicated on the citation, or to request a waiver of payment of the penalty due
to unique undue hardship. This waiver may be granted by the Director upon demonstration
by a food facility operator to the satisfaction of the Director that strict application of the
requirements would cause undue hardship. An “undue hardship” includes but is not limited
to the following: 1. A situation unique to the food facility where a suitable alternative that
conforms with the requirements of this chapter does not exist for a specific application. 2.
Imposing the provisions of this Chapter would cause significant economic hardship.
“Significant economic hardship” may be based on, but not limited to, demonstrating that
suitable Foodware or Foodware Accessories made of Compliant compostable Natural
Fiber is not available at a commercially reasonable price and the additional cost
associated with providing the Compliant Foodware or Foodware is particularly
burdensome to the food facility based on the type of operation(s) affected, the overall size
of the business/operation, the number, type and location of its facilities, the impact on the
overall financial resources of the food facility, and other factors. Reasonable added cost
for a suitable item as compared to a similar item that the food facility can no longer use
shall not by itself constitute adequate grounds to support an exemption for such item. In
determining whether a significant economic hardship has been established, the Director
or designee shall consider the following information: ability of the food facility to recover
the additional expense by increasing its prices; the availability of tax credits and
deductions; outside funding; and other options.
(e) Nonpayment of Citation for More than One Year Deemed Nuisance.
Nonpayment of any assessed violation for longer than one year shall constitute a nuisance
and be subject to the nuisance abatement procedures in Marin County Code Chapter 1.05,
including payment of civil penalties of up to $2,500 per violation per day and enforcement
and other abatement costs incurred by the County of Marin.
SECTION 3. This Ordinance was assessed in accordance with the authority and criteria contained
in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the
environmental regulations of the city. The city council hereby finds that under section 15061(b)(3)
of the State CEQA Guidelines, this Ordinance is exempt from the requirements of CEQA because
it can be seen with certainty that the provisions contained herein would not have the potential for
causing a significant effect on the environment. It also finds the Ordinance is exempt from the
requirements of CEQA pursuant to CEQA Guidelines sections 15307 and 15308 as an action by
a regulatory agency taken to protect the environment and natural resources.
SECTION 4: SEVERABILITY
Every section, paragraph, clause, and phrase of this Ordinance is hereby declared to be
severable. If for any reason, any section, paragraph, clause, or phrase is held to be invalid or
unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality
of the remaining sections, paragraphs, clauses or phrases, and the remaining portions or this
ordinance shall continue in full force and effect unless amended or modified by the city.
SECTION 5: EFFECTIVE DATE AND PUBLICATION
This Ordinance shall be published once, in full or in summary form, before its final passage, in a
newspaper of general circulation, published and circulated in the City of San Rafael and shall be in
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full force and effect 30 days after its adoption. If published in summary form, the summary shall
also be published within fifteen (15) days after the adoption, together with the names of those
Council members voting for or against same, in a newspaper of general circulation published and
circulated in the City of San Rafael, County of Marin, State of California.
Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk,
a certified copy of the full text of this Ordinance along with the names of those Councilmembers
voting for and against the Ordinance.
THE FOREGOING ORDINANCE was first read and introduced at a Regular Meeting of the City
Council of the City of San Rafael, held on the 17th day of April 2023, and will come up for adoption
as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 1st
day of May 2023.
AYES: Councilmembers: Bushey, Kertz, Llorens Gulati & Mayor Kate
NOES: Councilmembers: None
ABSENT: Councilmembers: Hill
KATE COLIN, Mayor
Attest:
LINDSAY LARA, City Clerk