Adopt Ordinance for Polystyrene Foam�awx F MEETING DATE: 12/16/14
ITEM NO: 3
WU
® u�� COUNCIL AGENDA REPORT
DATE: DECEMBER 4, 2014
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER
SUBJECT: ADOPT ORDINANCE OF THE TOWN OF LOS GATOS ADDING ARTICLE
III TO CHAPTER 10 TO THE TOWN OF LOS GATOS MUNICIPAL CODE
ENTITLED REGULATION OF EXPANDED POLYSTYRENE FOAM
(STYROFOAM) FOOD SERVICE CONTAINER -WARE
RECOMMENDATION:
Adopt an ordinance adding Article III to Chapter 10 related to the regulation of Expanded
Polystyrene Foam Food Service Container -Ware that was introduced at the Town Council
meeting of December 2, 2014.
BACKGROUND:
On December 2, 2014, Council introduced an ordinance, adding Article III to Chapter 10 to the
Town of Los Gatos Municipal Code entitled Regulation of Expanded Polystyrene Foam
(Styrofoam) Food Service Container -ware.
DISCUSSION:
At its meeting of December 2, 2014, the Town Council held a public hearing to consider an
ordinance that would regulate the distribution of Expanded Polystyrene (EPS) Foam Food
Service Ware. The ordinance would prohibit the use of disposable polystyrene foam food and
beverage containers for serving (dine -in) or transporting (take -out) prepared foods by food
vendors and prohibit the sale of polystyrene foam ice chests or coolers which are not wholly
encapsulated or encased within a more durable material.
The proposed ordinance would not restrict the use of EPS foam for pre - packaged food that
arrives at the premises of a food vendor in a container or wrapper and is not removed from the
PREPARED BY: CHRISTINA GILMOREC#(
Assistant to the Town Manager
Reviewed by: Vt Assistant Town Manager jb5fownAttomey Finance
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PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: ADOPT ORDINANCE OF THE TOWN OF LOS GATOS ADDING ARTICLE III
TO CHAPTER 10 TO THE TOWN OF LOS GATOS MUNICIPAL CODE
ENTITLED REGULATION OF EXPANDED POLYSTYRENE FOAM
(STYROFOAM) FOOD SERVICE CONTAINER -WARE
DECEMBER 4, 2014
DISCUSSION (cont'd):
container or wrapper before its sale or prepared food that includes uncooked eggs, fish, meat or
poultry unless provided for consumption without further food preparation (e.g., sushi).
CONCLUSION:
Adoption and implementation of the ordinance is expected to reduce harmful litter, improve
water quality, reduce negative impacts to aquatic life, reduce waste, and conserve natural
resources. Per Council direction on December 2, staff will return in six months with a draft
ordinance proposing to ban the sale of (empty) polystyrene foam food service ware by any
vendor in the Town of Los Gatos.
ENVIRONMENTAL ASSESSMENT:
The Council adopted a Negative Declaration for the ordinance on December 2, 2014.
FISCAL IMPACT:
There is minimal fiscal impact with the approval of the recommendations as described above.
Costs for business outreach and education efforts to implement the proposed ordinance are
estimated between $1,800 and $2,700.
Attachments:
1. Redline Ordinance Adding a New Section 10.10.050 to the Los Gatos Municipal Code
2. Ordinance Adding a New Section 10.10.050 to the Los Gatos Municipal Code
11 "t -0 \7_�\L�T�I
ORDINANCE OF THE TOWN OF LOS GATOS ADDING ARTICLE III TO CHAPTER
10 OF THE TOWN OF LOS GATOS MUNICIPAL CODE TO PROHIBIT THE USE OF
POLYSTYRENE FOAM DISPOSABLE FOOD SERVICE CONTAINER -WARE BY FOOD
PROVIDERS
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS:
SECTION I
Chapter 10 of the Los Gatos Town Code is amended to add Article III, Section (10.30.010-
10.30.040) shall read as fully set forth in Exhibit A.
SECTION II
In the event that any part of this ordinance is held to be invalid, the invalid part or parts shall be
severed from the remaining portion of the ordinance which shall remain in full force and effect.
SECTION III
It is the intent of the Town Council of the Town of Los Gatos to supplement State and Federal
law and to not duplicate or contradict such law, and this ordinance shall be construed consistently with
that intention. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason
held to be unconstitutional, such decision shall not affect the validity of the other remaining portions of
this ordinance. The Town Council hereby declares that it would have passed this ordinance and each
section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more
sections, subsection, sentences, clauses, or phrases be declared unconstitutional.
SECTION IV
On August 27, 2013, the City of San Jose adopted a Negative Declaration ( "ND ") based on a
Program Initial Study ( "IS ") that analyzed the impacts of this expanded polystyrene foam food service
container -ware ordinance if adopted in cities throughout the County of Santa Clara as well as neighboring
jurisdictions. The ND was adopted pursuant to the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. ( "CEQA ") and the CEQA Guidelines, California Code of
Regulations, Title 14, Section 15000 et seq. It is incorporated by reference herein.
Pursuant to Section 15096 of the CEQA Guidelines, the Town of Los Gatos acts as a responsible
agency for adoption of this ordinance within the Town of Los Gatos. Upon independent review of the
IS/ND and all evidence before it, the Town Council makes the following findings:
1. The Program Initial Study and Negative Declaration ( "Initial Study/Negative
Declaration ") is complete, correct, adequate, and prepared in accordance with CEQA, 14 California
Code of Regulations, Section 15000 et seq. ( "CEQA Guidelines "), and the public comment period;
and
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ATTACHMENT
2. On the basis of the Program Initial Study, Negative Declaration, and public comment
received by both the City of San Jose and the Town of Los Gatos, there is no substantial evidence that
the project as proposed will have a significant effect on the environment; and
3. Adoption of this ordinance and analysis of the IS/ND reflects the independent judgment
of the Town Council of the Town of Los Gatos; and
4. None of the conditions listed in CEQA Guidelines, Section 15162(a) are applicable to
adoption of this ordinance, and adoption of this ordinance is an activity that is part of the program
examined by the Program IS/ND and is within the scope of the project described in the Final Program
IS/ND; and
and 15096.
A Notice of Determination shall be filed pursuant to CEQA Guidelines, Sections 15094
SECTION V
This ordinance was introduced at a regular meeting of the Town Council of the Town of Los
Gatos on December 2, 2014 and adopted by the following vote as an ordinance of the Town of Los Gatos
at a regular meeting of the Town Council of the Town of Los Gatos on 2014. This
ordinance shall be effective on June 1, 2015.
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CHAPTER 10
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ARTICLE III
EXPANDED POLYSTYRENE FOAM FOOD SERVICE CONTAINER -WARE
Sec.
10.30.010
Findings and purpose.
Sec.
10.30.015
Definitions.
Sec.
10.30.020
Implementation Date.
Sec.
10.30.025
Polystyrene Foam Disposable Food Service Ware Prohibited.
Sec.
10.30.030
Exemptions.
Sec.
10.30.035
Administrative Penalty.
Sec.
10.30.040
Severability
Sec. 10.30.010 Findings and purpose.
The Town Council finds and determines that:
A. Plastic debris and in particular expanded polystyrene foam ( "EPS ") is a distinctive litter concern
because it is lightweight, floats, and readily travels from land to inland waterways and out to the
ocean where it breaks down into small pieces which may be mistaken for food by birds and other
marine wildlife.
B. EPS disposable food service ware comprises a majority of EPS litter observed in stone drains.
C. The proposed ban of EPS disposable food service ware would require food providers to use
alternative disposable food service ware that should result in a reduction of EPS litter, reduce the
risk of harm to aquatic wildlife, and improve water quality in the Town of Los Gatos creeks and
Southern San Francisco Bay.
-This Council does, accordingly, find and declare that it should prohibit the use of Expanded Polystyrene
Foam Food Service Container -Ware.
Sec. 10.30.015 Definitions.
Customer means any person obtaining prepared food from a food provider.
Disposable food service ware or food container means a container or single -use disposable
product that is used, or intended to be used, to hold prepared food. Disposable food service ware or food
container includes, but is not limited to, plates, trays, cups, bowls, and hinged or lidded containers
(clamshells),- and includes polystyrene foam coolers or ice chests which are not wholly encapsulated or
encased within a more durable material. Disposable food service ware does not include straws, utensils or
drink lids.
Food provider means any establishment, vendor, business, organization, entity, group or
individual located or operating in the Town of Los Gatos that offers prepared food or beverages,
regardless of whether there is a charge for the food or beverage; (1) to the public for consumption on or
off its premises; (2) as a catered event; and/or (3) at cafeterias,of private schools and places of
employment, whether or not such establishments are open to the general public. Food provider includes,
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but is not limited to, Town - sponsored events, Town - permitted events, restaurants, retail food
establishments, caterers, cafeterias, stores, shops, sales outlets, grocery stores, pubs, coffee shops,
convenience stores, liquor stores, supermarkets, delicatessens, fraternal clubs serving the public, itinerant
restaurants, mobile food vendors, vehicles or carts, or roadside stands.
Vendor means any store or business, organization, or entity that sells or offers oog ds or
merchandise, located or operating within the Town of Los Gatos.
Vendei, means any store or business vAish sells or- offers goods of inerehandise, !seated a
operating within the Town of Les Gates,
Polystyrene foam means the thermoplastic petrochemical material made from a styrene monomer
and expanded or blown using a gaseous agent (expanded polystyrene) including, but not limited to, fusion
of polymer spheres (expandable bead polystyrene), injection molding, form molding, and extrusion -blow
molding (extruded foam polystyrene). Polystyrene foam is commonly made into disposable food service
ware products. Polystyrene foam does not include clear or solid polystyrene (oriented polystyrene).
Prepared food means food or beverages that are packaged, cooked, chopped, sliced, mixed,
brewed, frozen, squeezed or otherwise prepared on the premises. Prepared food does not include (1) any
raw, uncooked meat products or fruits or vegetables unless it can be consumed without further
preparation; or (2) prepackaged food that is delivered to the food vendor wholly encased, contained or
packaged in a container or wrapper, and sold or otherwise provided by the food vendor in the same
container or packaging.
Sec. 10.30.020 Polystyrene Foam Disposable Food Service Ware Prohibited.
On or after June 1, 2015, a€ood provider any food provider or vendor shall not dispense prepared food to
a customer in a polystyrene foam food container or sell polystyrene foam coolers or ice chests which are
not wholly encapsulated or encased within a more durable material.
Sec. 10.30.025 Exemption to the Polystyrene Foam Disposable Food Service Ware
Prohibition.
A. Raw eggs and raw, butchered meat, fish, or poultry that is sold from a butcher case or a similar
retail appliance.
B. A food provider may seek an exemption from the prohibition under Section 10.10.30.025 due to a
"unique packaging hardship" under Subsection B of this Section or a "financial hardship" under
Subsection C of this Section.
C. The food provider must demonstrate that no reasonably feasible alternative exists to a specific
and unique polystyrene foam disposable food service ware in order to qualify for a "unique
packaging hardship" exemption.
D. The food provider must demonstrate both of the following to qualify for a "financial hardship"
exemption: (1) a gross income under $300,000 on its annual income tax filing for the most recent
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tax year, and (2) with respect to each specific and necessary polystyrene foam disposable food
service ware, that there is no feasible alternative that would cost the same or less than the
polystyrene foam disposable food service ware.
E. The food provider may submit a written application for an exemption on a form provided by the
Department of Parks and Public Works. The Director of Parks and Public Works ( "Director ")
may require the applicant to submit additional information or documentation to make a
determination regarding the exemption requested. A request for exemption shall be reviewed on
a case by case basis, and may be granted in whole or in part, with or without conditions, for a
period of up to twelve (12) months. The national food vendor or food vendor must apply for a
new exemption period no later than sixty (60) days prior to the expiration of the then current
exemption period to preserve a continuous exemption status. Each application shall be reviewed
anew and will be based on the most current information available. The determination of the
Director shall be final and is not subject to appeal.
Sec. 10.30.030 Administrative Penalty.
A penalty may be imposed upon findings made by the Town's code compliance officer that any food
provider has provided a "disposable food service ware" or "food container" in violation of this Chapter.
The amount of penalty and the penalty procedures applicable to any violation of this Chapter are
contained in the Los Gatos Municipal Code, Article III, Section 1.30, entitled "Administrative Citations."
Sec. 10.30.040 Severability.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held
invalid or unconstitutional, such portion shall be deemed to be a separate, distinct and independent
provision and such decision shall not affect the validity of the remaining portion thereof.
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ORDINANCE
ORDINANCE OF THE TOWN OF LOS GATOS ADDING ARTICLE III TO CHAPTER
10 OF THE TOWN OF LOS GATOS MUNICIPAL CODE TO PROHIBIT THE USE OF
POLYSTYRENE FOAM DISPOSABLE FOOD SERVICE CONTAINER -WARE BY FOOD
PROVIDERS
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS:
SECTION I
Chapter 10 of the Los Gatos Town Code is amended to add Article III, Section (10.30.010-
10.30.040) shall read as fully set forth in Exhibit A.
SECTION II
In the event that any part of this ordinance is held to be invalid, the invalid part or parts shall be
severed from the remaining portion of the ordinance which shall remain in full force and effect.
SECTION III
It is the intent of the Town Council of the Town of Los Gatos to supplement State and Federal
law and to not duplicate or contradict such law, and this ordinance shall be construed consistently with
that intention. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason
held to be unconstitutional, such decision shall not affect the validity of the other remaining portions of
this ordinance. The Town Council hereby declares that it would have passed this ordinance and each
section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more
sections, subsection, sentences, clauses, or phrases be declared unconstitutional.
SECTION IV
On August 27, 2013, the City of San Jose adopted a Negative Declaration ( "ND ") based on a
Program Initial Study ( "IS ") that analyzed the impacts of this expanded polystyrene foam food service
container -ware ordinance if adopted in cities throughout the County of Santa Clara as well as neighboring
jurisdictions. The ND was adopted pursuant to the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. ( "CEQA ") and the CEQA Guidelines, California Code of
Regulations, Title 14, Section 15000 et seq. It is incorporated by reference herein.
Pursuant to Section 15096 of the CEQA Guidelines, the Town of Los Gatos acts as a responsible
agency for adoption of this ordinance within the Town of Los Gatos. Upon independent review of the
IS/ND and all evidence before it, the Town Council makes the following findings:
1. The Program Initial Study and Negative Declaration ( "Initial Study/Negative
Declaration ") is complete, correct, adequate, and prepared in accordance with CEQA, 14 California
Code of Regulations, Section 15000 et seq. ( "CEQA Guidelines "), and the public comment period;
and
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ATTACHMENT 2
2. On the basis of the Program Initial Study, Negative Declaration, and public comment
received by both the City of San Jose and the Town of Los Gatos, there is no substantial evidence that
the project as proposed will have a significant effect on the environment; and
3. Adoption of this ordinance and analysis of the IS/ND reflects the independent judgment
of the Town Council of the Town of Los Gatos; and
4. None of the conditions listed in CEQA Guidelines, Section 15162(a) are applicable to
adoption of this ordinance, and adoption of this ordinance is an activity that is part of the program
examined by the Program IS/ND and is within the scope of the project described in the Final Program
IS/ND; and
5. A Notice of Determination shall be filed pursuant to CEQA Guidelines, Sections 15094
and 15096.
SECTION V
This ordinance was introduced at a regular meeting of the Town Council of the Town of Los
Gatos on December 2, 2014 and adopted by the following vote as an ordinance of the Town of Los Gatos
at a regular meeting of the Town Council of the Town of Los Gatos on 2014. This
ordinance shall be effective on June 1, 2015.
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
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CHAPTER 10
ARTICLE III
EXPANDED POLYSTYRENE FOAM FOOD SERVICE CONTAINER -WARE
Sec.
10.30.010
Findings and purpose.
Sec.
10.30.015
Definitions.
Sec.
10.30.020
Implementation Date.
Sec.
10.30.025
Polystyrene Foam Disposable Food Service Ware Prohibited.
Sec.
10.30.030
Exemptions.
Sec.
10.30.035
Administrative Penalty.
Sec.
10.30.040
Severability
See. 10.30.010 Findings and purpose.
The Town Council finds and determines that:
A. Plastic debris and in particular expanded polystyrene foam ( "EPS ") is a distinctive litter concern
because it is lightweight, floats, and readily travels from land to inland waterways and out to the
ocean where it breaks down into small pieces which may be mistaken for food by birds and other
marine wildlife.
B. EPS disposable food service ware comprises a majority of EPS litter observed in storm drains.
C. The proposed ban of EPS disposable food service ware would require food providers to use
alternative disposable food service ware that should result in a reduction of EPS litter, reduce the
risk of harm to aquatic wildlife, and improve water quality in the Town of Los Gatos creeks and
Southern San Francisco Bay.
This Council does, accordingly, find and declare that it should prohibit the use of Expanded Polystyrene
Foam Food Service Container -Ware.
Sec. 10.30.015 Definitions.
Customer means any person obtaining prepared food from a food provider.
Disposable food service ware or food container means a container or single -use disposable
product that is used, or intended to be used, to hold prepared food. Disposable food service ware or food
container includes, but is not limited to, plates, trays, cups, bowls, and hinged or lidded containers
(clamshells), and includes polystyrene foam coolers or ice chests which are not wholly encapsulated or
encased within a more durable material. Disposable food service ware does not include straws, utensils or
drink lids.
Food provider means any establishment, vendor, business, organization, entity, group or
individual located or operating in the Town of Los Gatos that offers prepared food or beverages,
regardless of whether there is a charge for the food or beverage; (1) to the public for consumption on or
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off its premises; (2) as a catered event; and/or (3) at cafeterias of private schools and places of
employment, whether or not such establishments are open to the general public. Food provider includes,
but is not limited to, Town- sponsored events, Town - permitted events, restaurants, retail food
establishments, caterers, cafeterias, stores, shops, sales outlets, grocery stores, pubs, coffee shops,
convenience stores, liquor stores, supermarkets, delicatessens, fraternal clubs serving the public, itinerant
restaurants, mobile food vendors, vehicles or carts, or roadside stands.
Vendor means any store or business organization or entity that sells or offers goods or
merchandise, located or operating within the Town of Los Gatos
Polystyrene foam means the thermoplastic petrochemical material made from a styrene monomer
and expanded or blown using a gaseous agent (expanded polystyrene) including, but not limited to, fusion
of polymer spheres (expandable bead polystyrene), injection molding, form molding, and extrusion -blow
molding (extruded foam polystyrene). Polystyrene foam is commonly made into disposable food service
ware products. Polystyrene foam does not include clear or solid polystyrene (oriented polystyrene).
Prepared food means food or beverages that are packaged, cooked, chopped, sliced, mixed,
brewed, frozen, squeezed or otherwise prepared on the premises. Prepared food does not include (1) any
raw, uncooked meat products or fruits or vegetables unless it can be consumed without further
preparation; or (2) prepackaged food that is delivered to the food vendor wholly encased, contained or
packaged in a container or wrapper, and sold or otherwise provided by the food vendor in the same
container or packaging.
Sec. 10.30.020 Polystyrene Foam Disposable Food Service Ware Prohibited.
On or after June 1, 2015, any food provider or vendor shall not dispense prepared food to a customer in a
polystyrene foam food container or sell polystyrene foam coolers or ice chests which are not wholly
encapsulated or encased within a more durable material.
Sec. 10.30.025 Exemption to the Polystyrene Foam Disposable Food Service Ware
Prohibition.
A. Raw eggs and raw, butchered meat, fish, or poultry that is sold from a butcher case or a similar
retail appliance.
B. A food provider may seek an exemption from the prohibition under Section 10.10.30.025 due to a
"unique packaging hardship" under Subsection B of this Section or a "financial hardship" under
Subsection C of this Section.
C. The food provider must demonstrate that no reasonably feasible alternative exists to a specific
and unique polystyrene foam disposable food service ware in order to qualify for a "unique
packaging hardship" exemption.
D. The food provider must demonstrate both of the following to qualify for a "financial hardship"
exemption: (1) a gross income under $300,000 on its annual income tax filing for the most recent
tax year; and (2) with respect to each specific and necessary polystyrene foam disposable food
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service ware, that there is no feasible alternative that would cost the same or less than the
polystyrene foam disposable food service ware.
E. The food provider may submit a written application for an exemption on a form provided by the
Department of Parks and Public Works. The Director of Parks and Public Works ( "Director ")
may require the applicant to submit additional information or documentation to make a
determination regarding the exemption requested. A request for exemption shall be reviewed on
a case by case basis, and may be granted in whole or in part, with or without conditions, for a
period of up to twelve (12) months. The national food vendor or food vendor must apply for a
new exemption period no later than sixty (60) days prior to the expiration of the then current
exemption period to preserve a continuous exemption status. Each application shall be reviewed
anew and will be based on the most current information available. The determination of the
Director shall be final and is not subject to appeal.
Sec. 10.30.030 Administrative Penalty.
A penalty may be imposed upon findings made by the Town's code compliance officer that any food
provider has provided a "disposable food service ware" or "food container" in violation of this Chapter.
The amount of penalty and the penalty procedures applicable to any violation of this Chapter are
contained in the Los Gatos Municipal Code, Article III, Section 1.30, entitled "Administrative Citations."
See. 10.30.040 Severability.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held
invalid or unconstitutional, such portion shall be deemed to be a separate, distinct and independent
provision and such decision shall not affect the validity of the remaining portion thereof.
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