Chapter 8.08
SUSTAINABLE FOOD PACKAGING AND CONDIMENTS
Sections:
8.08.030 Permitted and prohibited foodware.
8.08.040 Prohibition of sale of polystyrene foodware and polystyrene coolers.
8.08.060 Certification of compliance.
8.08.070 Enforcement and violation – Penalty.
8.08.010 Purpose.
The purposes of this chapter are to reduce excess packaging and undesired condiments and prohibit disposable foodware accessories from being bundled or packaged in a way that prohibits the consumer from taking only the item desired, and to eliminate and regulate the use of polystyrene products in order to protect the health of Pittsburg citizens and promote environmentally sustainable practices in the city. [Ord. 22-1503 § 1, 2022; Ord. 18-1445 § 4, 2018.]
8.08.020 Definitions.
As used in this chapter, unless the context otherwise clearly indicates, the words and phrases are defined as follows:
“ASTM standard” means meeting the standards of the American Society for Testing and Materials (ASTM) International Standards D6400 or D6868 for compostable materials, as those standards may be amended.
“City contractor” means any person that enters into an agreement with the city to furnish products or services to or for the city.
“City facility” means any building, structure, property, park, open space, or vehicle, owned or leased by the city, its agents, agencies, departments or franchisees.
“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.
“Compostable” means the product is capable of composting, accepted by the franchised hauler as compostable, and is labeled in accordance with California law, or is consistent with the timeline and specifications of ASTM D6400 and D6868, without regard to material type.
“Consumer” means a person is a member of the public, takes possession of food, is not functioning in the capacity of an operator of a food provider, and does not offer the food for resale.
“Correctional institution” means any state prison, county jail, city jail, Division of Juvenile Justice facility, county- or city-operated juvenile facility, including juvenile halls, camps, or schools, or any other state or local correctional institution, including a court facility.
“Disposable foodware” or “disposables” means single-use, disposable products used for eating, serving or transporting prepared food, including but not limited to utensils (forks, knives, spoons, and sporks), chopsticks, condiment cups and packets, straws, stirrers, splash sticks, cocktail sticks, plates, bowls, trays, wrappers or wrapping, platters, cartons, condiment containers, cups or drink ware, lids, or any other container in or on which prepared foods are placed or packaged for consumption, and other items that are designed for one-time use for prepared foods including service ware for take-out foods and/or leftovers from partially consumed meals prepared by food providers.
“Establishment” means a place of business of a food provider or other person subject to the requirements of this chapter.
“Food provider” means any person or place that stores, provides, prepares, serves, vends, packages or sells prepared food within the city to the general public to be consumed by humans on the premises or for take-away consumption. Food provider includes but is not limited to: (1) a grocery store, supermarket, restaurant, drive-through, cafe, coffee shop, snack shop, sandwich shop, hotel, motel, movie house, theatre, bar, 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 where prepared food is available for sale on the premises or for take-away consumption. Food provider also includes any organization, group or other person that regularly provides prepared food to its members or the general public as a part of its activities or services, except as set forth in PMC 8.08.050.
“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.
“Polystyrene” means a thermoplastic petrochemical material utilizing the styrene monomer, including but not limited to polystyrene foam or expanded polystyrene (sometimes incorrectly called Styrofoam™, a Dow Chemical Co. trademarked form of expanded polystyrene foam insulation), 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 foodware and other products, regardless of whether it exhibits a recycle code. Expanded polystyrene (EPS) is generally used to make such items as cups, bowls, plates, trays, clamshell containers, meat trays and egg cartons.
“Polystyrene cooler” means any cooler or ice chest made of polystyrene foam, where such foam is not fully encased in another material by its original manufacturer.
“Polystyrene foodware” means disposable foodware that contains or utilizes polystyrene.
“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. 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.
“Ready-to-eat food” means food that is in a form that is edible without additional preparation to achieve food safety, is raw or partially cooked food of animal origin and the consumer is advised as such, or may receive additional preparation for palatability or aesthetic, epicurean, gastronomic, or culinary purposes.
“Recycle code” means a resin identification code placed on certain goods to identify the material composition for separation of different types of goods for recycling.
“Single-use” means designed to be used once and then discarded, and not designed for repeated use and sanitizing.
“Standard condiment” means relishes, spices, sauces, confections, or seasoning that require no additional preparation and that are usually used on a food item after preparation, including ketchup, mustard, mayonnaise, soy sauce, hot sauce, salsa, salt, pepper, sugar, and sugar substitutes.
“Third-party food delivery platform” has the same meaning as in Section 113930.5 of the Health and Safety Code. [Ord. 22-1503 § 1, 2022; Ord. 18-1445 § 4, 2018.]
8.08.030 Permitted and prohibited foodware.
A. No food provider shall distribute or sell any polystyrene foodware in conjunction with the sale or distribution of prepared food at any location within the city.
B. Food providers that distribute prepared food in disposable foodware shall: (1) distribute only disposables that exhibit a recycle code other than No. 6 or PS or which are reusable or compostable, and (2) maintain documentation about the composition of the disposable foodware. Documentation may include information from the supplier, manufacturer, or bulk packaging of the disposables, and any other relevant information demonstrating that the disposable material is not polystyrene.
C. No person shall distribute or sell prepared food in any polystyrene foodware at city facilities that have been rented, leased or are otherwise being used with permission of the city. This subsection is limited to use of city facilities for which a person has entered into an agreement with the city to rent, lease or otherwise occupy a city facility. All facility rental agreements for any city facility shall include a provision requiring contracting parties to assume responsibility for preventing the utilization and/or distribution of polystyrene foodware while using city facilities. The facility rental agreement shall indicate that a violating contractor’s security deposit will be forfeited if the city manager or his designee determines that polystyrene foodware was used in violation of the rental agreement.
D. No person shall use or distribute polystyrene foodware at city-sponsored events, city-managed concessions, or city meetings open to the public. This subsection shall apply to the function organizers, agents of the organizers, city contractors, food providers and any other person that enters into an agreement with one or more of the function organizers to sell or distribute prepared food or otherwise provide a service related to the function. For the purpose of this section, a “function organizer” means the person(s) principally responsible for making decisions about a function’s date, time, location, program, choice of vendors, or similar decisions.
E. The city, its departments, and its city contractors, agents, and employees acting in their official capacity, shall not purchase or acquire polystyrene foodware, or distribute it for public use.
F. Except as provided in subsections (H) and (I) of this section, a food provider, for on-premises dining or when using a third-party food delivery platform, shall not provide any disposable foodware or standard condiment packaged for single use to a consumer unless the disposable foodware accessory or standard condiment is requested by the consumer.
G. Disposable foodware and standard condiments packaged for single use provided by food providers for use by consumers shall not be bundled or packaged in a manner that prohibits a consumer from taking only the type of disposable foodware or standard condiment desired without also having to take a different type of disposable foodware or standard condiment.
H. A food provider may ask a drive-through consumer if the consumer wants disposable foodware if the disposable foodware is necessary for the consumer to consume ready-to-eat food, or to prevent spills of or safely transport ready-to-eat food.
I. A food provider that is located entirely within a public use airport, as defined in Section 77.3 of Title 14 of the Code of Federal Regulations, may ask a walk-through consumer if the consumer wants disposable foodware if the disposable foodware is necessary for the consumer to consume ready-to-eat food, or to prevent spills of or safely transport ready-to-eat food.
J. A third-party food delivery platform shall provide consumers with the option to request disposable foodware or standard condiments from a food provider serving ready-to-eat food.
1. If a food provider uses any third-party delivery platform for ready-to-eat food, the food provider shall customize its menu with a list of available disposable foodware and standard condiments, and only the disposable foodware or standard condiments selected by the consumer shall be provided by the food provider. If a consumer does not select any disposable foodware or standard condiments, no disposable foodware or standard condiment shall be provided by the food provider for delivery of ready-to-eat food.
K. Nothing in this section shall prohibit a food provider from making unwrapped disposable foodware available to a consumer using refillable self-service dispensers that dispense one item at a time to allow for disposable foodware to be obtained.
L. Nothing in this section shall prohibit a food provider from making standard condiments available to a consumer using refillable self-service dispensers to allow for standard condiments to be obtained. A food provider that offers standard condiments is encouraged to use bulk dispensers for the condiments rather than condiments packaged for single use. All food providers using any disposable foodware for providing prepared food to customers will use compostable or recyclable disposable foodware that is accepted by the local franchise hauler.
M. A food provider may charge a “take-out fee” to customers to cover the cost difference. [Ord. 22-1503 § 1, 2022; Ord. 18-1445 § 4, 2018.]
8.08.040 Prohibition of sale of polystyrene foodware and polystyrene coolers.
No person shall sell any polystyrene foodware or polystyrene cooler at any location within the city. [Ord. 22-1503 § 1, 2022; Ord. 18-1445 § 4, 2018.]
8.08.050 Exemptions.
A. Regarding all disposable foodware except polystyrene foodware, the following are exempt from the provisions of this chapter:
1. Correctional institutions.
2. Health care facilities licensed pursuant to Article 1 of Chapter 2 of Division 2 of the Health and Safety Code (commencing with Section 1250), or facilities that are owned or operated by a health care service plan licensed pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (commencing with Health and Safety Code Section 1340).
3. Residential care facilities licensed pursuant to Division 2 of the Health and Safety Code (commencing with Section 1200).
4. Public and private school cafeterias.
B. Regarding polystyrene foodware, the following are exempt from the provisions of this chapter:
1. Food prepared or packaged outside of the city, provided such food is not altered, packaged or repackaged within the city limits.
2. Food brought by individuals for personal consumption to city facilities, including but not limited to city parks and facilities, provided the city facility is being used for individual recreation or similar purposes.
C. The enforcement official as defined in Chapter 8.04 PMC may temporarily suspend the provisions of this chapter for the immediate preservation of the public health, safety, or welfare in the event of an emergency or disaster as determined in his or her sole discretion.
D. Food providers that are obligated to purchase or have purchased polystyrene foodware under a contract entered into within the year prior to the effective date of the ordinance codified in this chapter are exempt from the provisions of this chapter for six months following its effective date.
E. The enforcement official may temporarily exempt any person from this chapter following the operative date of the ordinance codified in this chapter, as follows:
1. A request for an exemption shall be filed in writing with the designee enforcement official and shall include documentation of the reason for the claimed exemption and any other information necessary for the city to make its decision. The city may require the applicant to provide additional information as necessary to make the required determinations.
2. The designee enforcement official may approve the exemption for a maximum of one year, with or without conditions, upon finding that compliance would create an undue hardship. If the applicant requests to use or sell specific items or types of disposable foodware, the designee enforcement official shall find that a suitable compostable, reusable or recyclable alternative does not exist for a specific application and/or that imposing the requirements of this chapter on that item or type of disposable foodware would cause undue hardship.
3. An applicant granted an exemption shall reapply prior to the end of the one-year exemption period and demonstrate continued undue hardship if the applicant wishes to have the exemption extended. The designee enforcement official’s decision to grant or deny an exemption or to grant or deny an extension of a previously issued exemption shall be in writing and shall be final. [Ord. 22-1503 § 1, 2022; Ord. 18-1445 § 4, 2018.]
8.08.060 Certification of compliance.
A. All food providers subject to this chapter shall certify compliance with polystyrene-related provisions of this chapter on an annual basis. Such reporting must be done on a form prescribed by the city manager, and must be signed by a responsible agent or officer of the food provider confirming that the information provided on the form is accurate and complete. All reporting must be submitted no later than 45 days after the end of each calendar year.
B. If the reporting form covering the food provider’s first year is submitted on time and is compliant with this chapter, then the food provider shall participate in self-recertification reporting each subsequent year by completing and keeping the annual report on site and available to the city manager and/or his designee. Each food provider shall also keep records that verify data in each year’s on-site report. A food provider that participates in self-recertification may destroy the completed reports and related records after five years have elapsed since the date of the report.
C. If the reports required by this section are not timely submitted by a food provider, or not maintained in compliance with subsection (B) of this section, such food provider shall be subject to the fines set forth in PMC 8.08.070 and/or be required to submit annual reporting to the city as provided in subsection (A) of this section, in addition to on-site inspections. [Ord. 22-1503 § 1, 2022; Ord. 18-1445 § 4, 2018.]
8.08.070 Enforcement and violation – Penalty.
A. Violation of this chapter is hereby declared a public nuisance; this chapter shall be enforced in accordance with PMC 1.20.030, except as modified below or by any other applicable law.
B. No person owning, leasing, occupying or having charge or possession of any property in the city shall maintain a public nuisance under PMC 1.20.020, which includes, but is not limited to, leaving or storing any polystyrene packaging materials, polystyrene coolers, or polystyrene foodware outside an enclosed building or structure.
C. The enforcement official as defined in Chapter 8.04 PMC has primary responsibility for enforcement of this chapter. The enforcement official is authorized to promulgate regulations and to take any and all other actions reasonable and necessary to enforce this chapter, including, but not limited to, investigating violations, issuing citations, assessing fines and entering the premises of any establishment subject to this chapter during business hours. Other city staff may assist with this enforcement responsibility by entering the premises of an establishment as part of their regular inspection functions and reporting any alleged violations to the city manager.
D. If the enforcement official determines that a violation of this chapter has occurred, he/she shall issue a notice of violation to the operator of a subject establishment that a violation has occurred and the potential penalties that will apply for future violations.
E. Any subsequent violation of the same section of this chapter shall be subject to enforcement as follows:
1. Issue a second notice of violation.
2. Upon a third violation, issue a written citation publishable by a fine of $25.00 for each day in violation, not to exceed $300.00 annually. Any person that violates or fails to comply with any of the requirements of this chapter after a second notice of violation has been issued for that violation shall be guilty of an infraction.
F. All penalties imposed shall be payable by the operator of the establishment to the city of Pittsburg.
1. All fines collected pursuant to this chapter shall be deposited in the police support services – administrative citations account to assist code enforcement with its costs of implementing and enforcing the requirements of this chapter.
2. Any operator of an establishment that receives a citation or is assessed a fine may request an administrative review of the accuracy of the determination or the propriety of any citation issued, by filing a request for appeal with the city manager no later than 30 days after receipt of a citation. The notice of appeal must include all facts supporting the appeal and any statements and evidence, including copies of all written documentation and a list of any witnesses that the appellant wishes to be considered in connection with the appeal, and an appeal fee in the amount set by resolution of the city council. Failure to timely request a hearing or to pay the appeals processing fee constitutes a waiver of the right to appeal and a failure to exhaust administrative remedies. The appeal will be heard by a hearing officer designated by the city manager.
3. The hearing officer shall conduct a hearing concerning the appeal within 45 days from the date that the notice of appeal is filed, or on a later date if agreed upon by the appellant and the city of Pittsburg, and shall give the appellant 10 business days’ prior citation of the date of the hearing. The hearing officer may sustain, rescind, or modify the written citation by written decision. The written decision shall be served on the appellant. The hearing officer shall have the power to waive any portion of the fine in a manner consistent with the decision. The decision of the hearing officer is final and effective on the date of service of the written decision, is not subject to further administrative review, and constitutes the final administrative decision. [Ord. 22-1503 § 1, 2022; Ord. 18-1445 § 4, 2018.]