CC 2020-03-10_09a Adopt Ordinance_PolystyreneMEMORANDUM
TO: CITY COUNCIL
FROM: JAMES A. BERGMAN, CITY MANAGER
SUBJECT: CONSIDERATION OF ADOPTION OF AN ORDINANCE REPEALING
THE CITY’S EXPANDED POLYSTYRENE ORDINANCE AND ADOPTING
BY REFERENCE THE INTEGRATED WASTE MANAGEMENT
AUTHORITY’S ORDINANCE REGULATING POLYSTYRENE AND
EXPANDED POLYSTYRENE FOOD CONTAINERS AND PRODUCTS
DATE: MARCH 10, 2020
SUMMARY OF ACTION:
Adoption of an ordinance repealing the City’s polystyrene ordinance and adopting the
Integrated Waste Management Authority’s (IWMA) polystyrene ordinance by reference.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The fiscal impacts associated with this agenda item include the cost to prepare the item
and ordinance as well as the cost to publish the required legal notices. There will be costs
associated with enforcement of the ordinance; however, these costs should be minimal
as the City has already undertaken a robust educational community outreach and the
City’s polystyrene ordinance has been in effect since March of 2016.
RECOMMENDATION:
It is recommended that the Council: 1) Conduct the public hearing; and 2) Adopt the
ordinance repealing and replacing Chapter 8.34 of the Arroyo Grande Municipal Code
relating to expanded polystyrene and adopting by reference Ordinance No. 2019-1 of the
San Luis Obispo County Integrated Waste Management Authority regulating polystyrene
and expanded polystyrene (EPS) food containers and products.
BACKGROUND:
On February 11, 2020, the City Council introduced an ordinance, without modification,
repealing the City’s polystyrene ordinance and adopting the IWMA’s polystyrene
ordinance by reference. Pursuant to Government Code Section 50022.3, after
introduction of the ordinance, a noticed public hearing is required to be held prior to
adoption. Accordingly, the Council scheduled the public hearing for March 10, 2020 to
consider adoption of the ordinance.
Item 9.a. - Page 1
CITY COUNCIL
CONSIDERATION OF ADOPTION OF AN ORDINANCE REPEALING THE CITY’S
EXPANDED POLYSTYRENE ORDINANCE AND ADOPTING BY REFERENCE THE
INTEGRATED WASTE MANAGEMENT AUTHORITY’S ORDINANCE REGULATING
POLYSTYRENE AND EXPANDED POLYSTYRENE FOOD CONTAINERS AND
PRODUCTS
MARCH 10, 2020
PAGE 2
ANALYSIS OF ISSUES:
On October 9, 2019, the IWMA Board adopted an ordinance regulating polystyrene and
expanded polystyrene food containers and products. The IWMA is a government entity
formed through a Joint Powers Authority governed by a thirteen (13) person board of
County elected officials from San Luis Obispo County and the Cities of Arroyo Grande,
Atascadero, Grover Beach, Morro Bay, Paso Robles, Pismo Beach, San Luis Obispo and
the community service districts. These jurisdictions formed the IWMA in 1994 to plan and
implement regional solid waste and hazardous waste programs. The IWMA Board
oversees the IWMA office and its mission to manage hazardous waste, universal waste,
solid waste, green/food waste and recycling for San Luis Obispo County.
The ordinance adopted by the IWMA supersedes the City’s expanded polystyrene
ordinance. As such, staff recommends that the Council repeal the City’s ordinance and
adopt the IWMA ordinance by reference.
The IWMA ordinance is very similar to the City’s ordinance. The primary difference
between the City’s ordinance and the IWMA ordinance is that the IWMA ordinance is
more restrictive. The City exempts from its prohibition the sale of expanded polystyrene
products for foods prepared or packaged outside of the City, which are then sold within
the jurisdiction of the City. The City also exempts raw meat, fish and other raw food trays
that are made from expanded polystyrene. These same exemptions are not contained
within the IWMA ordinance.
It is staff’s understanding that these exemptions were originally included in the City’s
ordinance in order to allow grocery stores and other retailers of raw meat to continue to
sell items packaged in expanded polystyrene. As the City’s ordinance was adopted in
March of 2016, at a time when over eighty (80) cities and counties in California had
adopted regulations focused on restricting the use of food and drink containers made
from expanded polystyrene, it is anticipated that alternatives to products made of
expanded polystyrene are more readily available in the market place today.
ALTERNATIVES:
The following alternatives are provided for the Council’s consideration:
1. Adopt an ordinance repealing the City’s polystyrene ordinance and adopting
the IWMA polystyrene ordinance by reference;
2. Modify and re-introduce the ordinance and schedule another public hearing; or
3. Provide other direction to staff.
Item 9.a. - Page 2
CITY COUNCIL
CONSIDERATION OF ADOPTION OF AN ORDINANCE REPEALING THE CITY’S
EXPANDED POLYSTYRENE ORDINANCE AND ADOPTING BY REFERENCE THE
INTEGRATED WASTE MANAGEMENT AUTHORITY’S ORDINANCE REGULATING
POLYSTYRENE AND EXPANDED POLYSTYRENE FOOD CONTAINERS AND
PRODUCTS
MARCH 10, 2020
PAGE 3
ADVANTAGES:
Repealing the City’s ordinance and adopting the IWMA ordinance by reference will reduce
confusion and standardize enforcement. The ordinance will also carry on the original
intent of the City to work toward a more sustainable future by reducing dependence upon
petroleum products, reducing the amount of expanded polystyrene liter in the community,
reducing the amount of expanded polystyrene entering local landfills, and protecting fish,
birds and wildlife from expanded polystyrene ingestion.
DISADVANTAGES:
Adoption of the proposed ordinance could have a financial impact on businesses that use
expanded polystyrene products; however, because the City already had a similar
expanded polystyrene ordinance in effect for the last three plus years, the impact should
be minimal.
ENVIRONMENTAL REVIEW:
This ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant
to CEQA Guidelines Section15061 (b)(3) which is the general rule that CEQA applies
only to projects which have the potential for causing a significant effect on the
environment and CEQA does not apply where it can be seen with certainty that there is
no possibility that the activity may have a significant effect on the environment. Further,
the ordinance is exempt from CEQA on the separate and independent ground that it is an
action of a regulatory agency for the protection of the environment because, among other
things, it will regulate the use and sale of polystyrene and expanded polystyrene and
reduce the amount of polystyrene and expanded polystyrene that enter local landfills and
waterways. Therefore, this ordinance is categorically exempt from the requirements of
CEQA under Section 15308 of Title 14 of the California Code of Regulations as an action
by a regulatory agency for the protection of the environment.
PUBLIC NOTIFICATION AND COMMENTS:
A Notice of Public Hearing was published in The Tribune on Friday, February 21, 2020
and Friday, February 28, 2020, pursuant to State law. The Agenda was posted at City
Hall and on the City’s website in accordance with Government Code Section 54954.2.
ATTACHMENTS:
1. IWMA Ordinance No. 2019-1
Item 9.a. - Page 3
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO
GRANDE REPEALING AND REPLACING CHAPTER 8.34 OF THE
ARROYO GRANDE MUNICIPAL CODE RELATING TO EXPANDED
POLYSTYRENE AND ADOPTING BY REFERENCE ORDINANCE NO.
2019-1 OF THE SAN LUIS OBISPO COUNTY INTEGRATED WASTE
MANAGEMENT AUTHORITY REGULATING POLYSTYRENE AND
EXPANDED POLYSTYRENE (EPS) FOOD CONTAINERS AND
PRODUCTS
WHEREAS, the City of Arroyo Grande ("City") is a member of the San Luis Obispo County
Integrated Waste Management Authority (“IWMA”), a joint powers agency established
pursuant to Government Code Section 6500 et seq.; and
WHEREAS, the City has previously adopted Chapter 8.34 of the Arroyo Grande Municipal
Code (“AGMC”) relating to expanded polystyrene disposable food containers; and
WHEREAS, the IWMA has recently adopted Ordinance No. 2019-1, Regulating
Polystyrene and Expanded Polystyrene Food Containers and Products and the City
desires to assure that the provisions in the AGMC are in conformity with and not in conflict
with the provisions of IWMA Ordinance No. 2019-1 and therefore desires to adopt IWMA
Ordinance No. 2019-1 by reference.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE DOES
ORDAIN AS FOLLOWS:
SECTION 1. The above recitals and findings are true and correct and are incorporated
herein by this reference.
SECTION 2. Chapter 8.34 of the Arroyo Grande Municipal Code is hereby repealed in its
entirety and replaced with the following:
Chapter 8.34 – Expanded Polystyrene.
8.34.010 – Adoption of Integrated Waste Management Authority (IWMA) Ordinance
No. 2019-1 by Reference.
A. As used in this Code, “IWMA Ordinance No. 2019-1” means IWMA Ordinance No.
2019-1, Regulating Polystyrene and Expanded Polystyrene Food Containers and
Products, as the same may be amended from time to time.
B. IWMA Ordinance No. 2019-1 is adopted by reference as the City of Arroyo Grande
Polystyrene and Expanded Polystyrene Food Containers and Products Ordinance.
C. The City Clerk shall keep a true and correct copy of the current version of IWMA
Ordinance No. 2019-1 on file and available for use and examination by the public
during normal business hours.
Item 9.a. - Page 4
ORDINANCE NO.
PAGE 2
8.34.020 – Violations.
A. In addition to the provisions contained in Section 8 of IWMA Ordinance No. 2019-
1, any violation of the provisions of this chapter by any person is subject to the
penalty provisions as provided in Chapter 1.16 of this code.
B. As required by Government Code Section 50022.4, the following are the penalty
provisions contained in Section 8 of IWMA Ordinance No. 2019-1:
SECTION 8. Violations and Enforcement.
A. The IWMA may enforce the provisions of this Ordinance through a civil action for
civil penalties in the amounts established herein, and any other civil remedy,
including prohibitory and mandatory injunction relief, filed in the Superior Court of
the County of San Luis Obispo to compel and enforce the provisions herein against
any Food and Beverage provider or Vendor within San Luis Obispo County in
violation of this Ordinance. In addition to any relief available to IWMA to enforce
this Ordinance, the IWMA shall also be entitled to recover reasonable attorneys'
fees and costs incurred in enforcing this Ordinance.
B. For any violation of this Ordinance, the IWMA may sue to recover civil penalties in
the amount of $1,000.00 per day for every day on which a violation exists. For
purposes of calculating the civil penalties to be established hereunder, each day
on which the Food and Beverage provider or Vendor fails to comply with the
requirements of this Ordinance, after having received a written notice of violation
issued by the IWMA, shall constitute a separate offense.
C. In lieu of the civil penalties identified in Section 8 (B), the Executive Director may,
in his/her discretion, take the following actions with regard to a Food and Beverage
Provider or Vendor not in compliance:
1. Issue a written warning in which the violating party has ninety (90) days to
comply.
2. Issue fines as follows:
i. A fine of one hundred dollars ($100.00) for the first violation after a written
ninety (90) day warning notice is given.
ii. A fine of two hundred dollars ($200.00) for the second violation.
iii. A fine not exceeding five hundred dollars ($500.00) for the third and any
future violations.
3. For the first violation, the IWMA or designee may allow the violating Food and
Beverage Provider or Vendor, in lieu of payment of the administrative fine, to
submit receipts demonstrating the purchase after the citation date of Reusable,
Item 9.a. - Page 5
ORDINANCE NO.
PAGE 3
Biodegradable, or Recyclable products in an amount equal to the amount of
the citation.
D. In addition to the civil relief available to the IWMA set forth above, any violation of
this Ordinance shall also constitute a misdemeanor punishable under the laws of
the State of California. The District Attorney, the County Counsel, or any City
Attorney shall be authorized to enforce the provisions of this Ordinance within their
respective jurisdictions. In the event of such criminal enforcement, the following
criminal penalties apply to violations of this Ordinance:
1. Violation of Misdemeanor. Violations of the provisions of this Ordinance or
failure to comply with any of its requirements shall constitute a misdemeanor.
2. The San Luis Obispo County Sheriff’s Department and/or any other police
department or law enforcement agencies located within the IWMA's jurisdiction
may issue a Notice to Appear Citation for any misdemeanor pursuant to
California Penal Code Section 853.6 for any violation of this Ordinance.
3. Penalty for Misdemeanor. Any Food and Beverage Provider or Vendor found
to be in violation of any provision of this Ordnance, or who fails to comply with
any of its requirements shall upon conviction thereof be punished by
imprisonment in the county jail for not more than six months, or be fined not
more than one thousand dollars ($1,000.00), or both. Each day such violation
continues shall be considered a separate offense.
E. To the extent any Member Jurisdictions have adopted code enforcement
Ordinances applicable to their jurisdictions, this Ordinance may be enforceable by
said governmental entities under said Ordinances as land-use or code-
enforcement violations consistent with said Ordinances.
F. The remedies provided by this section are cumulative and in addition to any other
remedies available at law or in equity.
SECTION 3. This Ordinance is exempt from CEQA pursuant to CEQA Guidelines
Section15061 (b)(3) which is the general rule that CEQA applies only to projects which
have the potential for causing a significant effect on the environment and CEQA does not
apply where it can be seen with certainty that there is no possibility that the activity may
have a significant effect on the environment. Further, the ordinance is exempt from CEQA
on the separate and independent ground that it is an action of a regulatory agency for the
protection of the environment because, among other things, it will regulate the use and
sale of Polystyrene and Expanded Polystyrene and reduce the amount of Polystyrene
and Expanded Polystyrene that enter local landfills and waterways. Therefore, this
ordinance is categorically exempt from the requirements of CEQA under Section 15308
of Title 14 of the California Code of Regulations as an action by a regulatory agency for
the protection of the environment.
Item 9.a. - Page 6
ORDINANCE NO.
PAGE 4
SECTION 4. A summary of this Ordinance shall be published in a newspaper published
and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council
meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text
of the proposed Ordinance shall be posted in the office of the City Clerk. Within fifteen
(15) days after adoption of the Ordinance, the summary with the names of those City
Council members voting for and against the Ordinance shall be published again, and the
City Clerk shall post a certified copy of the full text of such adopted Ordinance.
SECTION 5. This Ordinance shall take effect and be in full force and effect upon the
effective date of IWMA Ordinance No. 2019-1, which is six (6) months from the date of its
passage.
SECTION 6. If any section, subsection, sentence, clause, or phrase of this Ordinance is
for any reason held to be invalid or unconstitutional by a decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions
of this Ordinance. The City Council hereby declares that it would have passed this
Ordinance and each and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
On motion by Council Member ______, seconded by Council Member _______, and by
the following roll call vote to wit:
AYES:
NOES:
ABSENT:
the foregoing Ordinance was adopted this ____ day of _______, 2020.
Item 9.a. - Page 7
ORDINANCE NO.
PAGE 5
___________________________________
CAREN RAY RUSSOM, MAYOR
ATTEST:
___________________________________
KELLY WETMORE, CITY CLERK
APPROVED AS TO CONTENT:
______________________________
JAMES A. BERGMAN, CITY MANAGER
APPROVED AS TO FORM:
___________________________________
TIMOTHY J. CARMEL, CITY ATTORNEY
Item 9.a. - Page 8
ATTACHMENT 1Item 9.a. - Page 9San Luis Obispo County Integrated Waste Management Authority ORDINANCE NO. 2019-1 AN ORDINANCE REGULATING POLYSTYRENE AND EXPANDED POLYSTYRENE (EPS) FOOD CONTAINERS AND PRODUCTS WHEREAS, the San Luis Obispo County Integrated Waste Management Authority ("IWMA") is a joint powers agency established pursuant to California Government Code Section 6500 and empowered by its member jurisdictions to exercise the members' common powers to achieve the mandates imposed by the Integrated Waste Management Act of 1989 (AB 939) on a regional basis; and WHEREAS, items made from Polystyrene and Expanded Polystyrene ("EPS") are not Biodegradable and in many cases, not Recyclable. Polystyrene and EPS break into small pieces and because they are lightweight, may be picked up by the wind even when they have been disposed of properly; and WHEREAS, Polystyrene and EPS as litter are highly durable. Both Polystyrene and EPS litter are present in parks and public places, streets and roads, waterways and storm drains and may ultimately float, or be blown, into the Pacific Ocean; and WHEREAS, take-out food and beverage packaging that is Reusable, Biodegradable, and Recyclable is the most responsible and sustainable choice for San Luis Obispo County's tourist economy, its citizenry, and its environment. When products are reusable or recyclable, natural resources are spared, and less energy and resources are used to produce new products; and WHEREAS, regulating the use of Polystyrene and EPS will help maximize the operating life of landfills and help protect the natural environment from contamination and degradation; and WHEREAS, the IWMA Board of Directors considered taking action on Polystyrene and EPS at prior IWMA Board Meetings and has directed staff to develop an ordinance to prohibit the use of Polystyrene and EPS containers, trays, cai1ons, and non-encapsulated products. NOW, THEREFORE, BE IT ORDAINED by the Board of Directors of the San Luis Obispo County Integrated Waste Management Authority as follows: SECTION 1. Recitals. The above recitals are true and correct and incorporated herein by this reference as the findings of the IWMA Board of Directors. 1
Item 9.a. - Page 10SECTION 2. Environmental Determination. The proposed ordinance is exempt from the environmental review requirements of the California Environmental Quality Act (CEQA) pursuant to Section 1506l(b)(3) of Title 14 of the California Code of Regulations because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Further, the proposed Ordinance is exempt from CEQA on the separate and independent ground that it is an action of a regulatory agency for the protection of the environment because, among other things, it will regulate the use and sale of Polystyrene and EPS and reduce the amount of Polystyrene and EPS that enter local landfills and waterways. Thus, this Ordinance is categorically exempt from the requirements of CEQA under Section 15308 of Title 14 of the California Code of Regulations as an action by a regulatory agency for the protection of the environment. SECTION 3. Definitions. A. "Affordable" means that a Biodegradable or Recyclable product may cost up to fifteen percent more than the purchase cost of comparable Polystyrene and EPS alternatives. B. "Biodegradable" means all the materials in the product or package that will break down, or otherwise become part of usable soil-conditioning material such as but not limited to uncoated paper, sugar cane, wood, or bamboo. This ordinance specifically prohibits Bioplastics and other compostable Plastics as replacements, because Bioplastics contaminate recycling systems and compostable Plastics contaminate the IWMA Regional composting system. C. "Bioplastic" is a type of biodegradable plastic derived from biological substances rather than from petroleum. D. "Disposable Food and Beverage Containers" is interchangeable with "to-go" packaging, "dine-in" packaging, "food and/or beverage packaging material", and means all containers that are used to hold Prepared Food or Beverages. Disposable Food and Beverage Containers include but are not limited to clamshells, bowls, plates, utensils, trays, wrappers or wrapping, platters, condiment containers, cations, cups, and drink ware that are made of Polystyrene or EPS. E. "Egg Cation" means a cation for eggs sold to consumers from a refrigerator case or similar appliance. F. "Events Promoter" means an applicant for any event permit issued by an IWMA Member Jurisdiction or any IWMA Member Jurisdiction employee(s) responsible for any IWMA Member Jurisdiction organized event. G. "Expanded Polystyrene" or "EPS" means blown, expanded, and extruded Polystyrene or other EPS plastic foams which are processed by any number of techniques including, but not limited to, fusion of monomer spheres (expanded bead plastic), injection molding, foam molding, 2
Item 9.a. - Page 11and extrusion-blown molding (extruded plastic foams). Expanded Polystyrene and other plastic foams are generally used to make cups, drink ware, bowls, plates, trays, clamshell containers, meat trays, ice chests, shipping boxes, and packing peanuts. The Resin Code for polystyrene is '6' or 'PS,' either alone or in combination with other letters. This definition applies to all Polystyrene or EPS food service ware, packing or shipping material, or non-encapsulated marine devices regardless of whether it exhibits a Resin Code. H. "Expanded Polystyrene Products" or "EPS Products" means any product made from Polystyrene or EPS, but is not limited to clamshells, bowls, plates, utensils, trays, wrappers or wrapping, platters, condiment containers, cartons, cups, drink ware, as well as non-encapsulated coolers, containers, ice chests, marine buoys, shipping boxes, packing peanuts, or other packaging materials. The Resin Code for polystyrene is '6' or 'PS,' either alone or in combination with other letters. This definition applies to all polystyrene food and beverage service ware and non-encapsulated products regardless of whether it exhibits a Resin Code. I. "Food and Beverage Provider" means any establishment or organization located within an IWMA Member Jurisdiction that is a provider of Prepared Food and Beverages for public consumption including, but not limited to, any store, supermarket, delicatessen, restaurant, shop, caterer, farmers market, non-profit entity, vending machine, or mobile food Vendor. J. "IWMA Member Jurisdiction" includes the County of San Luis Obispo, the Authorized District members of the IWMA, and the Cities of A1royo Grande, Atascadero, Grover Beach, M01ro Bay, Paso Robles, Pismo Beach, and San Luis Obispo. K. "IWMA Region" means the geographic area that includes the unincorporated area of San Luis Obispo County, California, and the seven incorporated cities within San Luis Obispo County. L. "Non-encapsulated Marine Devices" means any device non-encapsulated used as a floatation aid. Examples include but are not limited to marine buoys and dock floats. M. "Prepared Food and Beverage" means food or beverages that are (1) ready to consume without any fmiher food preparation, alteration, or repackaging; and (2) prepared, provided, sold, or served by a Food and Beverage Provider using any cooking, packaging, food preparation or beverage preparation technique ( e.g., cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared within an IWMA Member Jurisdiction). Prepared Food and Beverages may be eaten either "dine-in" or "take-out" from the Food and Beverage Provider's premises. N. "Polystyrene" means a thermoplastic petrochemical material utilizing the styrene monomer, including but not limited to, rigid polystyrene or Expanded Polystyrene, processed by any number of techniques, including but not limited to fusion of polymer spheres (expandable bead polystyrene), injection molding, Expanded Polystyrene molding, or extrusion-blown molding ( extruded polystyrene), and clear or solid polystyrene ( oriented polystyrene). The Resin 3
Item 9.a. - Page 12Code 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 Resin Code. 0. "Polystyrene Packing Material" means Polystyrene or EPS material used to hold, cushion, or protect items packed in a container for shipping, transp01i, or storage, including shipping boxes and packing peanuts. P. "Recyclable" means any material that is specified as recyclable in a franchise agreement within the boundaries of San Luis Obispo County including, but not limited to, aluminum, tin and bi-metal cans, clear and colored glass containers, high density polyethylene (HDPE), polyethylene terephthalate (PET), corrugated cardboard, and paper. Q. "Resin Code" means a resin identification code placed on plastics to identify the material composition for separation of different types of plastics for recycling or disposal. R. "Reusable Food Service Ware" means any product designed to be used over and over for serving, consuming, or transp01iing prepared food and raw food, including but not limited to reusable plates, bowls, trays, utensils, wrappers or wrapping, platters, caiions, condiment containers, cups or drink ware, or any container in or on which prepared foods and raw foods are placed or packaged for consumption. S. "Supplier" means anyone selling, distributing, or otherwise supplying food and beverage service ware, packaging, and Non-encapsulated Marine Devices to any business, store, supermarket, delicatessen, restaurant, shop, caterer, farmers market, vending machine, or mobile food Vendor doing business in the IWMA Region. T. "Tray" means any packaging used to contain, supp01i, or encase meat, seafoods, vegetables, and other products. U. "Vendor" means any store or business which sells or offers goods, services, or merchandise, located or operating within an IWMA Member Jurisdiction, including those referenced in the definition of "Food Provider." SECTION 4. Polystyrene and EPS Disposable Food Containers are Prohibited. A. Food and Beverage Providers within the IWMA Region may not provide Prepared Food and Beverages in or provide separately any Disposable Food and Beverage Container made from Polystyrene or EPS except as exempted in Section 7. B. Disposable Food Containers made from Polystyrene or EPS are prohibited from use in all IWMA Member Jurisdiction stores or businesses which sell or offer goods, services, or merchandise. 4
Item 9.a. - Page 13C. IWMA Member Jurisdiction contractors in the performance of IWMA Member Jurisdiction contracts and event promoters may not provide Prepared Food and Beverages in Disposable Food and Beverage Containers made from Polystyrene or EPS. D. Food and Beverage providers are prohibited from using, providing, distributing, or selling Polystyrene or EPS. SECTION 5. Required Reusable, Biodegradable, or Recyclable Disposable Food Containers. A. All Food and Beverage Providers within IWMA Member Jurisdictions utilizing "to-go" or "dine-in" Food and Beverage Containers shall use Reusable, Biodegradable, or Recyclable products. B. All IWMA Member Jurisdiction stores or businesses which sell or offer goods, services, or merchandise utilizing "to-go" or "dine-in" Food and Beverage Containers shall use Reusable, Biodegradable, or Recyclable products. C. IWMA Member Jurisdiction contractors and event promoters utilizing "to-go" or "dine-in" Food Containers shall use Reusable, Biodegradable, or Recyclable products while performing under IWMA Member Jurisdiction contract or permit. SECTION 6. Prohibited Sales. No Vendor, Supplier, or Events Promoter in the IWMA Member Jurisdiction may sell or otherwise provide any Polystyrene or EPS product which is not wholly encapsulated or encased within a more durable material, except as exempted in Section 7. This specifically includes, but is not limited to clamshells, bowls, plates, utensils, trays, wrappers or wrapping, platters, condiment containers, cartons, cups, and drink ware as well as non-encapsulated coolers, containers, ice chests, marine buoys and dock floats, shipping boxes, packing peanuts, or other packaging materials. The Resin Code for polystyrene is '6' or 'PS,' either alone or in combination with other letters. This applies to all Polystyrene and EPS Food and Beverage service ware and non-encapsulated products regardless of whether it exhibits a Resin Code. SECTION 7. Exemptions. A. The IWMA Board or designee may exempt a Food Provider from the requirements set forth in Section 4.A. of this Ordinance for a one-year period upon the Food and Beverage Provider showing, in writing, that this ordinance would create an undue hardship or practical difficulty as evidenced by no alternatives being available or if such alternatives are not Affordable. The IWMA Board or Executive Director shall put the decision to grant or deny a one-year exemption in writing, and the decision shall be final. s
Item 9.a. - Page 14B. Exemption to allow for the sale or provision of Polystyrene or EPS products may be granted by the IWMA Board or Executive Director if the Vendor can demonstrate in writing a public health and safety requirement or medical necessity to use the product. The IWMA Board or Executive Director shall put the decision to grant or deny the exemption in writing, and the decision shall be final. C. An exemption application shall include all information necessary for the IWMA Board or Executive Director to make a decision, including but not limited to documentation showing factual suppmi for the claimed exemption. The IWMA Board or Executive Director may require the applicant to provide additional information. D. The IWMA Board or Executive Director may approve the exemption application in whole or in paii, with or without conditions. E. Products made from Polystyrene or EPS which are wholly encapsulated or encased by a more durable material are exempt from the provisions of this ordinance. Examples include, but are not limited to surfboards, life preservers, coolers, and craft supplies which are wholly encapsulated or encased by a more durable material. F. Construction products made from Polystyrene or EPS are exempted from this ordinance if the products are used in compliance with an IWMA Member Jurisdiction's applicable municipal code for buildings and construction and used in a manner preventing the Polystyrene or EPS from being released into the environment. G. In a situation deemed by the IWMA Executive Director or designee to be an emergency for the immediate preservation of the public peace, health, or safety. IWMA Member Jurisdiction facilities, Food and Beverage Providers, IWMA Member Jurisdiction contractors, and Vendors doing business with the IWMA Member Jurisdictions shall be exempt from the provisions of this section. H. Polystyrene or EPS packaged products, which have been received from sources outside the IWMA Region and are home, business, or job-site delivered ( e.g. residents or businesses ordering products online or in-store and having them delivered to their home or job-site) shall be exempt from the provisions of this section. SECTION 8. Violations and Enforcement. A. The IWMA may enforce the provisions of this Ordinance through a civil action for civil penalties in the amounts established herein, and any other civil remedy, including prohibitory and mandatory injunction relief, filed in the Superior Court of the County of San Luis Obispo to compel and enforce the provisions herein against any Food and Beverage provider or Vendor within San Luis Obispo County in violation of this Ordinance. In addition to any relief available 6
Item 9.a. - Page 15to IWMA to enforce this Ordinance, the IWMA shall also be entitled to recover reasonable attorneys' fees and costs incurred in enforcing this Ordinance. B. For any violation of this Ordinance, the IWMA may sue to recover civil penalties in the amount of $1,000.00 per day for every day on which a violation exists. For purposes of · calculating the civil penalties to be established hereunder, each day on which the Food and Beverage provider or Vendor fails to comply with the requirements of this Ordinance, after having received a written notice of violation issued by the IWMA, shall constitute a separate offense. C. In lieu of the civil penalties identified in Section 8 (B), the Executive Director may, in his/her discretion, take the following actions with regard to a Food and Beverage Provider or Vendor not in compliance: 1. Issue a written warning in which the violating party has ninety (90) days to comply. 2. Issue fines as follows: 1. A fine of one hundred dollars ($100 .00) for the first violation after a written ninety (90) day warning notice is given. 11. A fine of two hundred dollars ($200.00) for the second violation. 111. A fine not exceeding five hundred dollars ($500.00) for the third and any future violations. 3. For the first violation, the IWMA or designee may allow the violating Food and Beverage Provider or Vendor, in lieu of payment of the administrative fine, to submit receipts demonstrating the purchase after the citation date of Reusable, Biodegradable, or Recyclable products in an amount equal to the amount of the citation. D. In addition to the civil relief available to the IWMA set forth above, any violation of this Ordinance shall also constitute a misdemeanor punishable under the laws of the State of California. The District Attorney, the County Counsel, or any City Attorney shall be authorized to enforce the provisions of this Ordinance within their respective jurisdictions. In the event of such criminal enforcement, the following criminal penalties apply to violations of this Ordinance: 1. Violation of Misdemeanor. Violations of the provisions of this Ordinance or failure to comply with any of its requirements shall constitute a misdemeanor. 2. The San Luis Obispo County Sheriffs Department and/or any other police depaiiment or law enforcement agencies located within the IWMA's jurisdiction may 7
Item 9.a. - Page 16issue a Notice to Appear Citation for any misdemeanor pursuant to California Penal Code Section 853.6 for any violation of this Ordinance. 3. Penalty for Misdemeanor. Any Food and Beverage provider or Vendor found to be in violation of any provision of this Ordinance, or who fails to comply with any of its requirements shall upon conviction thereof be punished by imprisonment in the county jail for not more than six months, or be fined not more than one thousand dollars ($1,000.00), or both. Each day such violation continues shall be considered a separate offense. E. To the extent any Member Jurisdictions have adopted code enforcement Ordinances applicable to their jurisdictions, this Ordinance may be enforceable by said governmental entities under said Ordinances as land-use or code-enforcement violations consistent with said Ordinances. F. The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity. SECTION 9. Severability. If any subdivision, paragraph, sentence, clause, or phrase of this ordinance is, for any reason, held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforcement of the remaining portions of this ordinance. It is the IWMA's express intent that each remaining portion would have been adopted in-espective of the fact that any one or more subdivisions, paragraphs, sentences, clauses, or phrases be declared invalid or unenforceable. SECTION 10. Effective Date. This Ordinance was introduced, and the title thereof read, at the regular meeting of the IWMA Board of Directors on September 11, 2019, and further reading was waived by a majority vote of those Directors present. This Ordinance shall take effect and be in full force on and after six ( 6) months from the date of its passage and before the expiration of fifteen (15) days from the date of its passage, it shall be published once with the names of the members of the Board of Directors voting for and against the same, said publication to be made in a newspaper of general circulation published in the County of San Luis Obispo. On a motion by Director Adam Hill, seconded by Director Brnce Gibson, the foregoing Ordinance was passed and adopted by the Board of Directors of the San Luis Obispo County Integrated Waste Management Authority, this 9th day of October 2019, by the following vote: 8
Item 9.a. - Page 17( A YES: Directors Sheila Blake, Charles Bourbeau, Brnce Gibson, Steve W. Martin, Adam Hill, Jeff Lee, Keith Sto1ton, President Aaron Gomez NOES: Directors Debbie Arnold, John Peschong ABSENT: Directors Lynn Compton, Jeff Heller, Robert Enns ABSTAIN: None Original si~ned by _./~7 1/. -z ~1 ~ez, President San Luis Obispo County Integrated Waste Management Authority ATTEST: Origir;gned by LiiJ JWMA Interim Board Secretary 9
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