2020-05 Prohibiting Use of Expanded Polystyrene Food Service Ware ORDINANCE 2020-05
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ENCINITAS AMENDING
CHAPTER 11.27 OF THE ENCINITAS MUNICIPAL CODE PROHIBITING THE USE,
DISTRIBUTION, AND SALE OF EXPANDED POLYSTYRENE FOOD SERVICE WARE,
PLASTIC UTENSILS, AND BEVERAGE STRAWS
WHEREAS, the City of Encinitas has engaged in ongoing efforts to reduce or limit products
that are harmful to the environment;
WHEREAS, the City of Encinitas has a long history of environmental stewardship and
planning for a sustainable future;
WHEREAS, this ordinance aims to support the City of Encinitas' Climate Action Plan since
single-use plastics contribute to greenhouse gas (GHG) emissions via materials
extractions, product production and waste disposal, and without action, global production
is projected to triple and GHG emissions from plastics would reach fifteen percent (15%)
of the global carbon budget by 2050;
WHEREAS, the purpose of this ordinance is to encourage the use of ocean-friendly
products that do not have a detrimental effect on the natural environment or character of
the community;
WHEREAS, plastics break down into ever smaller pieces through photo-, physical, and
biological degradation processes, and these smaller pieces persist in the environment for
hundreds of years and can enter into the food chain when animals ingest these pieces
believing they are food, and harmful chemicals associated with plastics can also leach into
soils and water;
WHEREAS, approximately eighty percent (80%) of all refuse that ends up in the oceans
comes from the land;
WHEREAS, refuse found and collected along San Diego County coasts is primarily
composed of plastics. The San Diego Coastkeeper reports that in 2018, fifty-three percent
(53%) of debris collected was plastic. Many of the plastics collected were pieces less than
one inch in diameter, and much of it was polystyrene foam;
WHEREAS, there are few facilities in the State of California that recycle polystyrene or are
able to do so only if there is a demand and the product is wiped clean of all food debris;
WHEREAS, many local environmental groups are encouraging local government to limit
or ban the use of polystyrene and single-use plastics in their jurisdictions;
WHEREAS, the California Coastal Commission has developed "A Plan of Action from The
Plastic Debris Project" in 2006, which was funded by the State Water Resources Control
Board, and that Plan recommends that local government impose limits, bans, and
prohibitions on materials that more commonly become litter and marine debris;
WHEREAS, both houses of the California State Legislature have acknowledged the
worldwide environmental devastation and health problems wrought by plastic and non-
recycled trash and are considering Senate Bill 54 and Assembly Bill 1080, together known
as the California Circular Economy and Plastic Pollution Reduction Act in an attempt to
dramatically reduce plastic and packaging waste and jump start the in-state clean recycling
economy;
WHEREAS, the California Circular Economy and Plastic Pollution Reduction Act sets a
goal of an overall reduction of single-use plastic containers by seventy-five percent (75%)
by the year 2030;
WHEREAS, the City Council finds that because the City of Encinitas is a coastal
community, the City has the opportunity to reduce the amount of plastics that end up in the
ocean and has its police powers to assist with that goal;
WHEREAS, the regulation of single-use disposable items within the City is an action that
reduces the amount of anthropogenic debris that ends up on the beach;
WHEREAS, the City of Encinitas previously took action to prohibit single-use carry-out
bags and food providers from dispensing prepared food to customers in disposable food
service ware made from expanded polystyrene; and
WHEREAS, this Ordinance amends Chapter 11.27 of the Encinitas Municipal Code to
provide for expanded prohibitions on the use and distribution of single-use materials that
pollute the environment and ocean.
NOW, THEREFORE, the City Council of the City of Encinitas, California, does ordain as
follows:
SECTION 1. All of the above statements are true; and
SECTION 2. Chapter 11.27 of Title 11 of the Encinitas Municipal Code is hereby amended
to read as follows (the strikethrough text represents deleted language and the underlined
text represents new language):
i
CHAPTER 11.27
PROHIBITION ON THE USE, DISTRIBUTION, AND SALE OF
EXPANDED POLYSTYRENE FOOD SERVICE WARE, PLASTIC UTENSILS, AND
BEVERAGE STRAWS MADE OF PLASTIC
11.27.010 Title, This Chapter shall be known as the "City of Encinitas Expanded
Polystyrene Disposable Food Service Ware, Plastic Utensil, and Beverage Straw Ordinance".
11.27.020 Purpose and Intent. The purpose of this Chapter is to establish standards
and procedures for environmental waste and litter reduction measures, and promote
environmentally sustainable practices throughout the City by prohibiting the use and
distribution of Expanded Polystyrene Disposable Food Service Ware, Plastic Utensils, and
Beverage Straws by Food Providers within the City of Encinitas.
11.27.030 Definitions. For purposes of this Chapter only, the terms below have the
following meaning:
"Beverage Straw" means any straw or tube used for transferring a beverage from its
container to the mouth of the drinker.
"City" means the City of Encinitas.
"City Facility" means any building, structure, property, park, open space, or vehicle,
owned, leased or operated by the City, its agents, agencies, departments or franchisees.
"City Contractor" means any person that enters into an agreement with the City to
furnish products or services to or for the City.
"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.
"Customer" means any person obtaining Prepared Food from a Restaurant or Food
Provider.
"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,
or any other container in or on which Prepared Foods are placed or packaged for
consumption. This definition excludes single use disposable straws, cup lids, and
utensils.
"Distribute" means to provide or offer to provide an item, either as a separate transaction
or as part of a transaction for another item, regardless of whether compensation is
received.
"Egg Carton" means a container commonly used to package eggs sold to a Customer.
"Event" means an organized recreational activity that includes 25 or more participants.
"Expanded Polystyrene" or"EPS" means polystyrene that has been expanded or"blown"
using a gaseous blowing agent into a solid foam. EPS is sometimes called "Styrofoam",
a Dow Chemical Co. trademark form of polystyrene foam insulation.
"Food Provider" means any Person or establishment 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,
delicatessen, restaurant, drive-thru, cafe, cafeteria, coffee shop, snack shop, 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. Food Provider
also includes any organization, group or individual that regularly provides Prepared Food
to its members or the general public as a part of its activities or services.
"Food Tray" means a tray commonly used for packaging food for retail sale to a Customer.
"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.
"Plastic Utensil" means fork, spoon, knife or stirrer, or other eating implement made
predominately of plastic derived from either petroleum or a biologically based polymer.
"Polystyrene" means a thermoplastic petrochemical material utilizing the styrene
monomer, including but not limited to polystyrene foam or expanded polystyrene,
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, regardless
of whether it exhibits a Recycle Code.
"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. For purposes
of this ordinance, 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.
"Restaurant" means any person or establishment doing business within the City of
Encinitas that provides prepared food or beverages for consumption on or off its premises
such as a restaurant, cafe, bakery, grocery or convenience store counter or delicatessen,
or catering truck vehicle. "Restaurant" for the purposes of this Chapter, includes mobile
food preparation units.
11.27.040 Prohibition of Expanded Polystyrene Food Service Wares.
A. Food Providers are prohibited from providing Prepared Food in Disposable Food
Service Ware made of EPS.
B. City Facilities, City-managed concessions, City-sponsored or co-sponsored
events, City permitted events and all franchisees, contractors, and vendors doing business with
the City are prohibited from using Disposable Food Service Ware made of EPS within the City.
11.27.050 Distribution of Plastic Utensils.
A. A Food Provider may only Distribute Plastic Utensils upon request by the Customer
or upon offer to the Customer by the Food Provider. This provision shall apply to takeout and drive-
thru orders.
B. A Food Provider may have Plastic Utensils available for customers at locations
within the Restaurant.
C. City Facilities, City-managed concessions, City-sponsored or co-sponsored
events, and all franchisees, contractors, and vendors doing business with the City are prohibited
from Distributing Plastic Utensils.
D. Effective August 1, 2020, City permitted special events on City property are
prohibited from Distributing Plastic Utensils.
11.27.060 Distribution of Beverage Straws.
A. A Food Provider may only Distribute Beverage Straws upon request by the
Customer or upon offer to the Customer by the Food Provider. This provision shall apply to takeout
and drive-thru orders.
B. Effective August 1, 2020, Food Providers are prohibited from the Distribution of
Beverage Straws made of plastic.
C. City Facilities, City-managed concessions, City-sponsored or co-sponsored
events, and all franchisees, contractors, and vendors doing business with the City are prohibited
from the Distribution of Beverage Straws made of plastic.
D. Effective August 1, 2020, City permitted special events on City property are
prohibited from the Distribution of Beverage Straws made of plastic.
11 27 070 Prohibition on the Distribution of Disposable Food Service Ware made from
EPS.
A. Effective October 1 2020 no Person may Distribute, within the City:
1. Any Disposable Food Service Ware made in whole or in part, from EPS.
2. Egg Cartons or Food Trays made in whole or in oart from EPS
3. Coolers, ice chests, or similar containers made in whole or in part from
Expanded Polystyrene that is not wholly encapsulated or encased within a
non-Polystyrene material.
� this rhapteF is intended te OF Shall be anteFpF6ted as Genffirting Mh any fedeFal OF state
.
11.27.080 Prohibition on Expanded Polystyrene Packaging Materials
A No Person shall use Expanded Polystyrene loose fill packaging and cushioning
material such as foam peanuts packing peanuts foam popcorn or packing noodles in the
packaging of products, equipment, or other items.
11.27.090 Exemptions.
Notwithstanding the requirements contained in Section 11.27.040, 11.27.050 11 27.060
and 11.27.070.
A. The following are exempt from the provisions of this chapter.
1. Food and/or products prepared or packaged outside of the City, provided
such food is not altered, packaged or repackaged within the City limits.
2. Food provided by School Districts under its official food service program.
3. Food, Plastic Utensils. or Beverage Straws brought by individuals for
Personal consumption or use to City Facilities, including but not limited to
City parks and the beach. provided the City Facility is being used for
individual recreation or similar purposes and such facility use is not part of
an Event.
4. Notwithstanding any other provision of this Article, and in recognition that
straws and other utensils may provide basic accommodation for persons
with disabilities or medical conditions to eat or drink. Food or Beverage
Establishments in the City of Encinitas must provide a Single-Use Plastic
Straw upon request to any consumer who requires the use of same due to
a disability or medical condition. Nothing in this Chapter shall conflict, or be
construed to conflict, with the Americans with Disabilities Act. the Unruh
Act, the Disabled Persons Act, or other applicable laws concerning the
rights of individuals with disabilities. In particular, nothing in this Chapter
shall restrict, or be construed to restrict, the availability of single use plastic
straws to individuals who may require and request the use of single-use
plastic straws.
5. Public Health and Safety. The City Manager may exempt a food provider
or beverage provider when there is a public health and safety requirement
or medical necessity to use the product.
6. During a locally declared emergency, the City, emergency response
agencies operating within the City, users of City facilities. and food
providers shall be exempt from the orovisions of this Chapter.
B. The City Manager or his/her designee may exempt any Food Provider or Person from
the requirements of this Chapter for a one-year period. upon written request by applicant that the
conditions of the Chapter would cause an Undue Hardship following the operative date of this
ordinance, 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. An exemption application shall include all information
necessary for the City to make ks decision, including, but not limited to
documentation showing the factual support for the claimed exemption. 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 (1) year, with or without conditions, upon finding that
compliance would create an undue hardship. Undue hardship shall be
construed to include but not be limited to situations where:
a. There are no reasonable alternatives to Expanded Polystyrene Food
Service Ware for reasons that are unique to the applicant: or
b. Compliance with the requirements of this chapter would deprive a person
of a legally protected right. The exemption may be extended for
additional terms of up to one year each, upon a showing of the
continuation of the legal right.
3. The City Council may by resolution establish a fee for exemption
applications. The application fee shall be an amount sufficient to cover the
costs of processing the exemption application.
11.27.100 Enforcement.
A. Any violation of this Chapter shall be enforced through the Administrative Citation
Program set forth in Chapter 1.08 of the Encinitas Municipal Code.
B. Each violation of this chapter shall be considered a separate offense.
C. The remedies and penalties provided in this chapter are cumulative and not
exclusive and nothing in this shall preclude the City from pursuing any other remedies. The Citv
Attomey may seek legal, injunctive, or any other relief to enforce the provisions of this chapter
and any regulations or administrative procedure developed pursuant hereto
D. In addition to any other applicable civil or criminal penalty, any person convicted of a
violation of this chapter is guilty of an infraction. which is punishable pursuant to the penalty
provisions set forth in Chapter 1.08 of this Code
11.27.110 Administrative Remedies.
A. Any person violating causing or maintaining a violation of any provision of this
chapter may be issued an administrative citation assessing a civil fine as provided in this section
The procedures for the imposition, enforcement, collection. and administrative review of civil fines
shall be in addition to, and not in lieu of. any criminal civil or other legal remedy established by
law and available to the City to address violations of this chapter.
B. _Upon a first violation of any provision of this chapter, the City Manager or his/her
designee shall issue a written warning Notice of Violation to the offending retail establishment
The warning Notice of Violation shall specify the violation(s) a date by which the violation(s) must
be ceased and abated, and the penalties in the event of future violations. If, after the specified
correction period following the written warning the violation is not ceased or abated the City
Manager or his/her designee may issue an administrative citation assessing fines in accordance
with this section.
C. Each separate violation following the issuance of a warning Notice of Violation shall
be subject to the following administrative fines which shall be cumulative with each day that a
violation occurs constituting a separate violation
1. A fine not exceeding one hundred dollars ($100) for the first violation
following the issuance of a warning notice.
2. A fine not exceeding two hundred dollars ($200) for the second violation
following the issuance of a wamina notice.
3. A fine not exceeding five hundred ($500)for each additional violation that
occurs following the issuance of a warning notice.
D. Each administrative citation issued for a violation of this chapter shall at a minimum
contain the information specified in chapter 1.08.080 of the Encinitas Municipal Code,
Administrative Citations, and any person receiving an administrative citation may contest the
citation, and shall be entitled to an administrative hearing, pursuant to the procedures set forth in
that chapter.
11.27.120 No Conflict with Federal or State Law.
Nothing in this chapter is intended to or shall be interpreted as conflicting with any federal or state
law or regulation.
11.27.130 Operative Date.
A. This Ordinance shall become operative upon the effective date.
B. Within fifteen (15) days of the date of adoption of this Ordinance the City Clerk shall
post a copy of said Ordinance in Places designated for such posting and shall certify to the same
The City Clerk shall certify the passage of this Ordinance and shall cause the same to be published
as required by law.
11.27.140 Severability.
If any section. subsection subdivision paragraph sentence clause Phrase or Portion of this
Ordinance is, for any reason, held to be invalid or unconstitutional by any court of competent
jurisdiction. such decision shall not affect the validity or effectiveness of the remaining portions of
this Ordinance. The City Council hereby declares that it would have adopted this Ordinance and
each section, subsection subdivision paragraph sentence clause phrase and Portion of this
Ordinance irrespective of the fact that one or more sections subsections subdivisions
paragraphs. sentences. clauses. Phrases or Portions thereof may be declared invalid or
unconstitutional to this end, the provisions of this Ordinance are declared severable
SECTION 3. The City Council finds that this Ordinance is exempt from the provisions of the
California Environmental Quality Act("CEQK) pursuant to Section 15308 of the CEQA Guidelines
because it is an activity undertaken "to assure the maintenance, restoration, enhancement and
protection of the environment'and pursuant to Section 15061 (b)(3) because there is no possibility
that the activity in question may have a significant effect on the environment. Section 5.
Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this
Chapter, or its application to any person or circumstance, is for any reason held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the
remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this
Chapter, or its application to any other person or circumstance. The City Council declares that it
would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase
hereof, irrespective of the fact that anyone or more other sections, subsections, subdivisions,
paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.
SECTION 4. Effective Date. This Ordinance shall take effect thirty (30) days after its adoption.
Within fifteen (15) days after its adoption, the City Clerk of the City of Encinitas shall cause this
Ordinance to be published pursuant to the provisions of Government Code Section 36933.
INTRODUCED at a regular meeting of the City Council of the City of Encinitas, California
held on the 22nd day of April, 2020, and thereafter,
PASSED, APPROVED,AND ADOPTED at a regular meeting of the City Council of the City
of Encinitas, California, on the 20th day of May, 2020, by the following vote:
Catherine S. Blakespear, Mayor
ATTEST:
Kathy Holly ood, C y Clerk
APPROVED AS TO FORM
I
Le 'e E. Devaney, City A ney
CERTIFICATION: I, Kathy Hollywood, City Clerk of the City of Encinitas, California, do
hereby certify under penalty of perjury that the foregoing ordinance was duly and regularly
introduced at a meeting of the City Council on the 22 n day of April, 2020 and that thereafter
the said ordinance was duly and regularly adopted at a meeting of the City Council on the
20th day of May, 2020 by the following vote, to wit:
Ayes: Blakespear, Hinze, Hubbard, Kranz, Mosca
Nays: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto set me hand and affixed the official seal of the
City of Encinitas, California, thisch day of May, 2020.
Kathy Holly nod, y Clerk erk