Ordinance No. 14-2116 Amending Title 9 to add Chapter 9.15 orohibitinh the use of Polystyrene Food WareORDINANCE NO. 14 -2116
AN ORDINANCE OF THE CITY OF CUPERTINO
AMENDING TITLE 9 OF THE CUPERTINO MUNICIPAL CODE TO ADD
CHAPTER 9.15 TO PROHIBIT THE USE OF POLYSTYRENE FOAM DISPOSABLE
FOOD SERVICE WARE BY FOOD VENDORS
WHEREAS, plastic debris and in particular expanded polystyrene foam ( "EPS ")
is a distinctive litter concern because it is lightweight, floats, breaks down into small
pieces, and readily travels from land to inland waterways and out to the ocean where it
can be mistaken for food by birds and other marine wildlife; and
WHEREAS, EPS disposable food service ware comprises 8% by volume of total
litter observed in storm drains in Santa Clara County; and
WHEREAS, the proposed prohibition of EPS disposable food service ware
would require food vendors to use alternative food service ware that will result in a
reduction of EPS litter, reduce the risk of harm to aquatic wildlife, and improve water
quality in the Cupertino creeks and the Southern San Francisco Bay; and
WHEREAS, on January 21, 2014, prior to taking action on the Ordinance, the
City Council reviewed, considered and adopted by separate Council resolution, the
proposed Negative Declaration analyzing the regional environmental impacts of the
Ordinance to prohibit EPS disposable food service ware; and
WHEREAS, the City of Cupertino intends and does hereby find that this
Ordinance falls within the scope of the City of San Jose's Program Initial
Study /Negative Declaration for EPS;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Chapter 9.15 is hereby added to the Cupertino Municipal Code to be
numbered, entitled, and to read as follows:
CUPERTINO MUNICIPAL CODE
CHAP',IFER 9.15
PROHIBITION OF EXPANDED POLYSTYRENE (EPS) FOAM FOOD SERVICE WARE
Ordinance No. 14 -2116
Page 2
9.15.100 Definitions.
The definitions set forth in this Section shall govern the application and interpretation
of this Chapter.
A. "Disposable food service ware" means single -use disposable products used in
the restaurant and food service industry for serving prepared food and includes, but is
not limited to, plates, trays, cups, bowls, and hinged or lidded containers (clamshells).
Disposable food service ware does not include straws, utensils, drink lids, or ice chests.
B. "Food vendor" means any establishment located in the City of Cupertino that
sells or otherwise provides prepared food for consumption on or off its premises, and
includes, but is not limited to, any shop, sales outlet, restaurant, bar, pub, coffee shop,
cafeteria, caterer, convenience store, liquor store, grocery store, supermarket,
delicatessen, mobile food truck, vehicle or cart, or roadside stand.
C. "Polystyrene foam" means a thermoplastic petrochemical material made from a
styrene monomer and expanded or blown using a gaseous agent (expanded
polystyrene) including, but not limited to, fusion of polymer spheres (expandable bead
polystyrene), injection molding, form molding, and extrusion -blow molding (extruded
foam polystyrene). "Polystyrene foam" is commonly made into disposable food service
ware products. "Polystyrene foam" does not include clear or solid polystyrene (oriented
polystyrene).
D. "Prepared food" means food or beverages that are packaged, cooked, chopped,
sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises.
"Prepared food" does not include (1) any raw, uncooked meat products, fruits, or
vegetables, unless it is intended for consumption 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.
9.15.110 Polystyrene Foam Disposal Food Service Ware Prohibited.
No food vendor shall sell or otherwise provide prepared food in polystyrene foam
disposable food service ware on or after July 1, 2014.
9.15.120 Exemptions to the Polystyrene Foam Disposal Food Service Ware
Prohibition.
Ordinance No. 14 -2116
Page 3
A. A food vendor may seek an exemption from the prohibition under Section
9.15.110 due to a "unique packaging hardship" under Subsection B of this Section, or
"unused inventory" under Subsection C of this Section.
B. The food vendor must demonstrate that no reasonably feasible alternative exists
to a specific and necessary polystyrene foam disposable food service ware to qualify for
a "unique packaging hardship" exemption.
C. The food vendor must demonstrate that before January 1, 2014, it purchased the
polystyrene foam food service ware, which. cannot be returned to the distributor, and,
despite the food vendor's best efforts, will remain in inventory on July 1, 2014, to
qualify for an "unused inventory" exemption.
D. The food vendor may submit a written application for an exemption on a form
provided by the Environmental Programs Division. The Director of Public Works
designee ( "Director ") may require the applicant to submit additional information or
documentation to make a determination regarding the exemption request. 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 six (6) months or to January 1,
2015, whichever comes first. The determination of the Director shall be final and is not
subject to appeal.
9.15.130 Administrative citation and fine
(a) Grounds for an administrative citation. An administrative citation may be issued
upon findings made by the City Manager, or his or her designee, when any person or
food vendor has provided EPS foam food service ware to a customer or violated any
other provision of this Chapter.
(b) Administrative citation fine amounts. Upon findings made under subsection (a),
the person or food vendor shall be subject to an administrative citation pursuant to
Chapter 1.10 of this Code. Fines for the administrative citation are as follows:
(1) First citation: One hundred dollar: ($100.00)
(2) Second citation for the same violation within the same twelve month period:
Two hundred dollars ($200.00)
(3) Third or any subsequent citation for the same violation within the same
twelve month period: Five hundred dollars ($500.00)
(4) Each day that any person or food vendor violates the provisions of this
Chapter a new and separate violation. occurs.
Ordinance No. 14 -2116
Page 4
(c) Administrative citation appeals and disposition shall be processed in accordance
with Chapter 1.10 of this Code.
9.15.140 Severability
If any section, subsection, subdivision, sentence, clause, or phrase of this Chapter is for
any reason held to be unconstitutional or otherwise void or invalid, by any court of
competent jurisdiction the validity of the remaining portion of this Chapter shall not be
affected thereby.
Section 2. This Ordinance shall be effective on July 1, 2014.
Section 3. The City Clerk shall certify the adoption of this Ordinance and shall give
notice of its adoption as required by law. Pursuant to Government Code Section 36933,
a summary of this Ordinance may be published and posted in lieu of publication and
posting of the entire text.
INTRODUCED at a regular meeting of the City Council of the City of Cupertino
the 21st day of January 2014 and ENACTED at a regular meeting of the City Council of
the City of Cupertino the 4th day of February 2014, by the following vote:
PASSED:
Vote: Members of the City Council
Ayes:
Wong, Sinks, Chang, Santoro
Noes:
None
Absent:
Mahoney
Abstain:
None
ATTEST: APPROVED:
&Ve" -'V" A�-
Grace Schmidt, City Clerk
Z-�q-ht &I, ���
Gilbert Wong, Mayor, 6 o Cupertino
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )
I, GRACE SCHMIDT. City Clerk and ex- officio Clerk of the City
Council of the City of Cupertino, California, do hereby certify the attached
to be a true and correct copy of Ordinance No. 14 -2116, which was
enacted on February 4, 2014, and that it has been published or posted
pursuant to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of February, 2014.
GRACE SCHMID =T,City Clerk and Ex- officio Clerk
of the City Council -of the City of Cupertino, California
Ordinance Certificate