COUNCIL AGENDA REPORT ADOPT ORDINANCE OF THE TOWN OF LOS GATOS ADDING ARTICLE III TO CHAPTER 10 TO THE TOWN OF LOS GATOS MUNICIPAL CODE

Transcription

1 awx WU F MEETING DATE: 12/ 16/ 14 ITEM NO: 3 u COUNCIL AGENDA REPORT DATE: DECEMBER 4, 2014 TO: MAYOR AND TOWN COUNCIL FROM: SUBJECT: GREG LARSON, TOWN MANAGER 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, 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 NAMGRWdminWorkPi1es\ 2014 Council Reports\Dec 161EPS Adoption -2nd Reading docxN:\MGRWdminWorkFiles12014 Council ReportslDec 16\EPS Adoption -2nd Reading docx

2 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, 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 to the Los Gatos Municipal Code 2. Ordinance Adding a New Section to the Los Gatos Municipal Code

3 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 ( ) 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 et seq. ( " CEQA ") and the CEQA Guidelines, California Code of Regulations, Title 14, Section et seq. It is incorporated by reference herein. Pursuant to Section 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 et seq. ( "CEQA Guidelines "), and the public comment period; and Town of Los Gatos Expanded Polystyrene Foam Disposable Food service Container -Ware Pagel of 5 NAMGRWdminWorkFiles\ 2014 Council Reports\ Dec 16\ EPS Ordinance redline doex ATTACHMENT

4 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 ofthe 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 ofthe project described in the Final Program IS/ND; and and A Notice of Determination shall be filed pursuant to CEQA Guidelines, Sections 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 ordinance shall be effective on June 1, This 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 Town of Los Gatos Expanded Polystyrene Foam Disposable Food Service Container -Ware Page 2 of 5 NAMGRWdmmWorkFi1es12014 Council Reports\ Dec 16\ EPS ordinance redline docx

5 ARTICLE III EXPANDED POLYSTYRENE FOAM FOOD SERVICE CONTAINER -WARE Sec Sec Sec Sec Sec Sec Sec Findings and purpose. Definitions. Implementation Date. Polystyrene Foam Disposable Food Service Ware Prohibited. Exemptions. Administrative Penalty. Severability Sec 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 Definitions. Customer means any person obtaining prepared food from a food provider. Disposablefood service ware orfood 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 orfood 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, Town of Los Gatos Expanded Polystyrene Foam Disposable Food Service Container -Ware Page 3 of 5 NAMGRWdmmWorkFi1es\2014 Council Reports\Dec MEPS ordinance redline docx

6 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 offersods 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). Polystyrenefoam is commonly made into disposable food service ware products. Polystyrenefoam does not include clear or solid polystyrene (oriented polystyrene). Preparedfood means food or beverages that are packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises. Preparedfood 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 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 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 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 Tout/ of Los Gatos Expanded Polystyrene Foam Disposable Food Service Container -Ware Page 4 of 5 NAMGRWdminWorkFites12014 Council Reporls\Dec 16\EPS Ordinance redline docx

7 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 ofthe Director shall be final and is not subject to appeal. Sec 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 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. Town of Los Gatos Expanded Polystyrene Foam Disposable Food Service Container -Ware Page 5 of 5 N:\ MGRWdminWorkFiles\2014 Council Reports Dec 16\ EPS Ordinance redline docx

8 THIS PAGE INTENTIONALLY LEFT BLANK

9 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 ( ) shall read as fully set forth in Exhibit A. SECTION II In the event that any part ofthis 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 et seq. ( " CEQA ") and the CEQA Guidelines, California Code of Regulations, Title 14, Section et seq. It is incorporated by reference herein. Pursuant to Section 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 et seq. ( " CEQA Guidelines "), and the public comment period; and Town of Los Gatos Expanded Polystyrene Foam Disposable Food Service Container -Ware Page 1 of 5 N:VNGRWdminWorkFiles\ 2014 Council Reports\Dec 16\ EPS Ordinance final docx ATTACHMENT 2

10 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 ofthe program examined by the Program IS/ ND and is within the scope ofthe project described in the Final Program IS/ND; and 5. A Notice of Determination shall be filed pursuant to CEQA Guidelines, Sections and SECTION V This ordinance was introduced at a regular meeting ofthe Town Council of the Town of Los Gatos on December 2, 2014 and adopted by the following vote as an ordinance ofthe Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on ordinance shall be effective on June 1, This 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 Town of Los Gatos Expanded Polystyrene Foam Disposable Food Service Container -Ware Page 2 of 5 NAMGWAdminWorkFi1es\ 2014 Council Reports\Dec WEPS Ordinance fmal docx

11 CHAPTER 10 ARTICLE III EXPANDED POLYSTYRENE FOAM FOOD SERVICE CONTAINER -WARE Sec Sec Sec Sec Sec Sec Sec Findings and purpose. Definitions. Implementation Date. Polystyrene Foam Disposable Food Service Ware Prohibited. Exemptions. Administrative Penalty. Severability See 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 Definitions. Customer means any person obtaining prepared food from a food provider. Disposable food service ware orfood container means a container or single -use disposable product that is used, or intended to be used, to hold prepared food. Disposablefood service ware orfood 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 Town of Los Gams Expanded Polystyrene Foam Disposable Food Savice Container -Ware Page 3 of 5 NAMGRWdminWorkFi1es\2014 Council Reports\ Dec 16\ EPS Ordinance final docx

12 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). Polystyrenefoam is commonly made into disposable food service ware products. Polystyrenefoam does not include clear or solid polystyrene (oriented polystyrene). Preparedfood means food or beverages that are packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises. Preparedfood 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 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 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 due to a unique packaging hardship" under Subsection B ofthis 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 Town of Los Gatos Expanded Polystyrene Foam Disposable Food Service Container -Ware Page 4 of 5 N:UvIGR\AdminWorkFiles\2014 Council Repor[s\ Dec 16\EPS Ordinance final docx

13 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 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 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. Town of Los Gatos Expanded Polystyrene Foam Disposable Food Service Container -Ware Page 5 of 5 NANIGR\ AdminWorkFiles12014 Council Reports\Dec WEPS Ordinance final docx

14 THIS PAGE INTENTIONALLY LEFT BLANK