HomeMy Public PortalAbout2022-05-24 Item 7CITY COUNCIL
AGENDA REPORT
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CITY OF MILLBRAE
621 Magnolia Avenue
Millbrae, CA 94030
SUBJECT:
Waive the Second Reading and Adopt an Ordinance
Repealing Chapter 6.40 of the Millbrae Municipal
Code and Adopting a New Chapter 6.40 Regulating
the Use of Disposable Food Service Ware by Food
Facilities and City Facilities to align with new state
laws
ATTACHMENTS:
1. Disposable Food Service Ware Ordinance
Approved: ^^
Finance Rev^€w:' N/A
Report No.^s^?
Agenda Item: '^'
For Agenda of: May 24, 2022
Department: Public Works
Craig Cer^sOriginator: ^^^gue Works Director
Budget Action: D Yes S No
REPORT TYPE: S ACTION D INFORMATIONAL
ITEM TYPE: S CONSENT D PUBLIC HEARING D EXISTING BUSINESS D NEW BUSINESS
RECOMMENDATION:
Waive the second reading and adopt an Ordinance repealing Chapter 6.40 of the Millbrae Municipal Code
and adopt an Ordinance adding a new Chapter 6.40 Regulating the Use of Disposable Food Service Ware
by Food Facilities and City Facilities to align with new state laws.
BACKGROUND:
The first reading of the Ordinance Repealing Chapter 6.40 of the Millbrae Municipal Code and Adopting
a New Chapter 6.40 Regulating the Use of Disposable Food Service Ware by Food Facilities and City
Facilities to align with new state laws was waived and introduced at City Council meeting on May 10,
2022 with a vote of 5-0-0.
Many disposable foodware items, such as cups, utensils, straws, and clamshells, are made from
polystyrene and plastic and are used for mere minutes before becoming waste that remains in our landfills
for hundreds of years. They are also a major contributor to street litter, ocean pollution, marine and other
wildlife endangerment, and climate change. In addition, foodware made from natural fiber (e.g., paper,
sugarcane, etc.) can contain perfluoroalkyl and polyfluoroalkyl substances, a class of hazardous chemicals
known as PFAS, which is used to make fiber-based foodware water and grease resistant. These "forever"
chemicals persist in the environment and the human body, leading to continued exposure and health risks.
On September 25, 2007, the City Council adopted a Sustainable Food Service Ware Ordinance (Food
Ware Ordinance) which applied to food vendors, food preparation services, and restaurants. The Food
Ware Ordinance became effective on January 1, 2008, prohibiting polystyrene food ware, including
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Styrofoam and clear polystyrene containers, and requiring the use of biodegradable, compostable,
reusable, or recyclable food service ware. The Food Ware Ordinance was adopted to address the
detrimental environmental impacts of polystyrene, including litter, harm to wildlife, and release of toxic
chemicals. At that time, polystyrene represented 15% of the total volume of litter recovered from storm
drains, where it poses a risk of clogged storm drains and flooding.
In 2019, staff from the San Mateo County Office of Sustainability (OOS) conducted extensive research
and worked closely with the County’s Environmental Health Services (EHS) to develop a Disposable
Food Service Ware Ordinance which the County adopted in 2020, repealing its existing Polystyrene Ban
Ordinance. The OOS engaged cities and stakeholders in the process to try to encourage all of the cities in
the County to adopt its Disposable Food Service Ware Ordinance to further reduce plastic pollution and
litter by limiting the use of additional single-use plastic and other disposable foodware waste, such as
plastic straws, utensils, cups, and clamshells. It also restricts many single-use fiber-based foodware from
containing intentionally added PFAS.
In February 2020, City staff sent a multilingual letter to affected businesses discussing the City’s
consideration of adopting a new food service ware ordinance, which included the County Ordinance
provisions, and requesting their input. No comments were received. On February 23, 2021, the City
Council repealed Chapter 6.40 of the Millbrae Municipal Code and adopted an ordinance adding a new
Chapter 6.40 entitled “Regulating the Use of Disposable Food Service Ware by Food Facilities and City
Facilities”. The County will conduct education and outreach to food facilities in Millbrae as well as
unincorporated areas of the county and other cities in the county that adopt the Ordinance. The County
will conduct enforcement of the Ordinance within Millbrae as well.
Recognizing the hardship caused by COVID-19 on restaurants and other food facilities, the County
amended their 2020 Ordinance by adopting Ordinance No. 04840 on February 23, 2021, which extended
the enforcement start date of the 2020 Ordinance by one year from March 25, 2021 to March 25, 2022 to
give food facilities additional time to comply.
On October 5, 2021, Governor Newsom signed Assembly Bill (AB) 1276 and AB 1200 into law:
AB 1276 expanded AB 1884’s requirement that full-service restaurants only provide single-use plastic
straws upon consumer request versus distributing them automatically without a specific request from the
consumer. Under AB 1276, food facilities must require consumers to request additional foodware
accessories such as utensils, stirrers, splash sticks, and condiment packets. The state also strengthened
enforcement by directing local governments to authorize an enforcement agency to enforce these statutes
by June 1, 2022. The law, however, does not provide a specific implementation date. Furthermore, AB
1276 allows local governments to adopt more restrictive requirements at their discretion.
AB 1200 prohibits the sale or distribution of single-use foodware comprised of paper or other plant-based
natural fiber that contain intentionally added PFAS. This law goes into effect on January 1, 2023. Th is
new legislation does not direct a specific entity to be the enforcement agency.
DISCUSSION:
The City’s February 23, 2021 Ordinance No. 785, “City’s Ordinance” includes key provisions that are
well aligned with many of the requirements of AB 1276 and AB 1200, including:
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1. Requirement that food facilities only distribute foodware accessories upon request by the
consumer;
2. Prohibition of food facilities from bundling/packaging single-use foodware accessories for
distribution;
3. Requirement that third-party food delivery platforms (e.g., Uber Eats, DoorDash, etc.) provide
options for consumers to affirmatively ask for single-use foodware accessories; and
4. PFAS restrictions on single-use fiber-based foodware. (While AB 1200 requires all single-use
fiber-based foodware to be PFAS-free, the City’s Ordinance requires the following select items to
be PFAS-free: plates, bowls, cups, food trays, clamshells, boxes, deli containers, and other
containers.)
Some discrepancies, however, do exist. Below is a summary of the new state requirements and
recommendations for aligning the City’s Ordinance with the new state requirements.
Overview of Changes to City’s Ordinance to Align with AB 1276
To align the City’s Ordinance with the new state requirements of AB 1276, the following changes are
recommended:
1. Current City Ordinance requirement: All food facilities may offer single-use foodware accessories
to consumers.
New AB 1276 requirement: Food facilities can offer single-use foodware accessories only at drive-
throughs and public airports.
Recommended change to City Ordinance: Amend the City’s Ordinance so that only food facility
drive-throughs and food facilities at public airports can offer accessories to consumers.
2. Current City Ordinance requirement: Food facilities may distribute foodware accessories using
dispensers and have them available at self-serve areas, including in open bins/containers for
consumers to grab-and-go.
New AB 1276 requirement: Open bins/containers are not allowed for distribution of accessories.
Consumers must request them from the employee and/or food facilities may have them available
at refillable dispensers that dispense accessories one item at a time.
Recommended change to City Ordinance: Amend the City Ordinance so that food facilities cannot
have available accessories in open bins/containers at self-serve areas for consumers to grab-and-
go, and explicitly state that dispensers can only dispense accessories one item at a time.
3. Current City Ordinance requirement: Food facilities are not prohibited from using self-serve,
refillable bulk condiment dispensers (there is no reference to bulk condiment dispensers in the City
Ordinance).
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New AB 1276 requirement: Food facilities are explicitly allowed to use self-serve, refillable bulk
condiment dispensers to distribute condiments.
Recommended change to City Ordinance: Amend the City Ordinance to explicitly allow for use
of refillable bulk condiment dispensers.
Overview of Changes to City’s Ordinance to Align with AB 1200
The PFAS requirements for all single-use fiber-based foodware under AB 1200 go into effect on January
1, 2023 and will supersede those of the City’s Ordinance. The City will look to the state to assume
responsibility for implementing and enforcing the new requirements starting on January 1, 2023.
City Ordinance Enforcement Start Date
Staff recommends extending the current enforcement start date of the City Ordinance from March 25,
2022 to October 1, 2022 to provide additional time for food facilities to come into compliance with the
new state requirements, especially those associated with AB 1276 and to align with San Mateo County’s
planned enforcement start date, since they will be the entity responsible for enforcing the City Ordinance.
FISCAL IMPACT:
None. No additional fiscal impact is anticipated as result of this Ordinance Amendment.
COUNCIL ACTION:
Waive the second reading and adopt an Ordinance repealing Chapter 6.40 of the Millbrae Municipal Code
and adopt an Ordinance adding a new Chapter 6.40 Regulating the Use of Disposable Food Service Ware
by Food Facilities and City Facilities to align with new state laws.
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18295271.8
CITY OF MILLBRAE, COUNTY OF SAN MATEO
STATE OF CALIFORNIA
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AN ORDINANCE OF THE CITY OF MILLBRAE
REPEALING CHAPTER 6.40 OF TITLE 6 OF THE MILLBRAE MUNICIPAL CODE
AND ADOPTING A NEW CHAPTER 6.40 UPDATING DISPOSABLE FOOD SERVICE
WARE REGULATIONS CONSISTENT WITH STATE LAW
WHEREAS, the production, management, and consumption associated with disposable
food service ware, typically used for only a few minutes before being discarded, have significant
environmental impacts, including environmental contamination; consumption of precious
resources such as energy and water; emissions of greenhouse gases; air and water pollution; litter
on streets; and plastic pollution in waterways and oceans; and
WHEREAS, disposable food service ware constitutes a substantial portion of the litter
found within the City of Millbrae (City), San Mateo County (County), and the rest of the Bay
Area. These types of food service ware are commonly littered or blown out of trash receptacles
and migrate through the storm drain system where they eventually end up in the creeks, San
Francisco Bay, Pacific Ocean, and shorelines; and,
WHEREAS, reduction of disposable food service ware in the environment will advance
compliance with federal, state, and county clean water mandates, including the City's Municipal
Regional Stormwater Permit requirement, by helping to reduce trash and litter in stormwater
discharges; and
WHEREAS, on February 23, 2021, the City adopted Ordinance No. 785 restricting food
facilities use of polystyrene and plastic-based disposable food service ware and requiring the
replacement of non-compostable or non-recyclable disposable food service ware with
compostable alternatives that are non-plastic, natural fiber-based, and free of all intentionally
added fluorinated chemicals, when and where possible; and
WHEREAS, on October 5, 2021, Governor Newsom signed into law AB 1276 and AB
1200, which restrict the distribution of single-use foodware accessories (e.g., utensils, straws,
stirrers, condiment packets, etc.) by restaurants and other food facilities statewide, and mandates
that no person shall distribute, sell, or offer for sale in the state any food packaging (including
single-use foodware) that contains regulated perfluoroalkyl and polyfluoroalkyl substances
(PFAS); and
WHEREAS, Ordinance No. 785 includes requirements that are well aligned with many
of the requirements on foodware in AB 1276 and AB 1200. However, some discrepancies exist.
ATTACHMENT
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As such, the ordinance must be amended to ensure alignment with requirements in both State
bills; and
WHEREAS, to ensure the City’s regulations are consistent with AB 1276 and AB 1200,
the City now wishes to enact this ordinance.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MILLBRAE,
CALIFORNIA, ORDAINS THAT:
SECTION 1. Chapter 6.40 of the Millbrae Municipal Code is hereby repealed and replaced in
its entirety by a new chapter 6.40 to be numbered and entitled as follows:
Chapter 6.40
REGULATING THE USE OF DISPOSABLE FOOD SERVICE WARE
6.40.010 Definitions.
6.40.020 Distribution of disposable food service ware accessories and Standard
condiment.
6.40.030 Standards and required use of disposable food service ware.
6.40.040 Recordkeeping and inspection.
6.40.050 Automatic exemptions.
6.40.060 Case-by-case consideration of requests for hardship exemption.
6.40.070 Enforcement.
6.40.010 Definitions.
For purposes of this chapter, the following terms have the following meanings:
A. “Aluminum foil-based” means any disposable food service ware composed entirely of
aluminum, including but not limited to aluminum tray liners, aluminum foil, and aluminum foil
baskets.
B. “City facilities” means any building, structure or vehicle owned or operated by the city of
Millbrae, its agent, agencies, and departments. This also includes all individuals, entities or
organizations using city facilities for public or private events.
C. “Compostable” means that an item or material that:
(1) meets standards for compostability from a certified/approved independent third party
approved by the city or designee, in collaboration with local waste processors, haulers, and/or
other entities; and/or
(2) Is any variation of acceptable materials that will break down, or otherwise become
part of usable compost in a safe and timely manner as determined by the city or designee, in
collaboration with local waste processors, haulers, and/or other entities; and
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(3) Is natural fiber-based. Compostable items may include those that are made entirely of
natural fiber or natural fiber-based items that are coated or lined with biologically based
polymer, such as corn or other plant sources (e.g., compostable plastics), if certified/approved by
independent third parties approved by the city manager or designee.
Compostable does not include items made either primarily or entirely of biologically based
polymer (e.g. Polylactic acid (PLA), Polyhydroxyalkanoate (PHA), or other compostable
plastic), even if labeled or certified as compostable.
D. “County” means the County of San Mateo.
E. “Disposable” means designed to be discarded after a single or limited number of uses and
not designed or manufactured for long-term multiple reuse.
F. “Food service ware” means food contact products used for serving, distributing, holding,
packaging, and/or transporting prepared food including, but not limited to, plates, cups, bowls,
trays, clamshell containers, boxes, utensils, straws, lids, and food contact paper (e.g., wraps,
bags, tray liners, etc.). The term “food service ware” includes food service ware accessories and
standard condiments in disposable packing.
G. “Food service ware accessories” include different types of food service ware such as straws,
stirrers, cup spill plugs, cup sleeves, condiment cups and packets, utensils, cocktail sticks/picks,
toothpicks, napkins, and other similar accessory or accompanying food service ware used as part
of food or beverage service or packaging. Detachable lids for beverage cups and food containers
are not considered a food service ware accessory.
H. “Food facility” means an operation that stores, prepares, packages, serves, vends, or
otherwise provides food to the public for human consumption, as defined by the California
Health and Safety Code Section 113789 or successor. It includes both permanent and temporary
food facilities. Public schools are exempt from the provisions of this chapter.
I. “Food scrap composting method” means (1) self-hauling of food scraps to a permitted
composting facility or a transfer station that accepts food scraps that will be transferred to a
permitted composting facility for on-site compost processing, (2) food scrap compost collection
service provided by a curbside hauler, or (3) on-site food scrap composting.
J. “Healthcare facilities” means places that provide healthcare to the public. “Healthcare
facilities” includes, but is not limited to, hospitals, clinics, outpatient care centers, nursing
homes, psychiatric care centers, medical offices, hospice homes, mental health and addiction
treatment centers, orthopedic and other rehabilitation centers, urgent care, birth centers, etc.
K. “Natural fiber/natural fiber-based” means a plant or animal-based, nonsynthetic fiber,
including but not limited to products made from paper, sugarcane, bamboo, wheat stems/stalk,
hay, wood, etc.
L. “Noncompostable” means not meeting the definition of compostable set forth in this
chapter.
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M. “Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS)" means a class of fluorinated
organic chemicals containing at least one fully fluorinated carbon atom.
N. "PFAS Restrictions” mean either of the following:
1. PFAS has not been intentionally added to a product or product component.
2. The presence of PFAS in a product or product component is below 100 parts per
million, as measured in total organic fluorine.
O. “Polystyrene-based” means and includes expanded polystyrene, which is a thermoplastic
petrochemical material utilizing a styrene monomer and processed by any number of techniques
including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection
molding, form molding, and extrusion-blow molding (extruded foam polystyrene). The term
“polystyrene” also includes polystyrene that has been expanded or blown using a gaseous
blowing agent into a solid foam (expanded polystyrene [EPS]) and clear or solid polystyrene
known as oriented polystyrene.
P. “Prepackaged food” means any properly labeled processed food, prepackaged to prevent any
direct human contact with the food product upon distribution from the manufacturer and
prepared at an approved source.
Q. “Prepared food” means food or beverages that undergo a cooking or food preparation
technique on the food facility’s premises for consumption by the public. Cooking or food
preparation technique includes, but is not limited to, the following:
1. Cooking methods, utilizing the application of heat, such as steaming, microwaving,
simmering, boiling, broiling, grilling, frying, or roasting.
2. Beverage preparation, such as blending, brewing, steeping, juicing, diluting, or pouring.
3. Food preparation techniques, such as defrosting, rinsing, washing, diluting, cutting,
portioning, mixing, blending, assembling, coating, dipping, garnishing, decorating, or icing.
Prepared food does not include raw eggs or raw, butchered meats, fish, and/or poultry sold from
a butcher case, a refrigerator case, or similar retail appliance.
R. “Standard condiment” means relishes, spices, sauces, confections, or seasonings that
require no additional preparation and that are usually used on a food item after preparation, and
includes different types such as ketchup, mustard, mayonnaise, soy sauce, hot sauce, salsa, salt,
pepper, and sugar/sugar substitutes.
S. “Takeout food” means prepared food that is purchased to be consumed off a food facility’s
premises. Takeout food includes prepared food delivered by a food facility or by a third-party
takeout food delivery service.
T. “Takeout food delivery service” is a service that delivers takeout food from a food facility to
a customer for consumption off the premises. This service can be provided directly by the food
facility or by a third party.
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U. “Utensils” include different types of instruments used to assist the consumption of food,
specifically, forks, knives, spoons, sporks, chopsticks, and tongs.
6.40.020 Distribution of disposable food service ware accessories and standard
condiment.
A. Except as provided in subsections (C) and (D), food facilities, for on-premise dining and
off-premise dining (e.g., takeout food delivery service, catering off-site, etc.), shall not provide
any disposable food service ware accessories or Standard condiment in Disposable packaging to
a consumer unless the specific type of disposable food service ware accessory (including
different types of utensils) or specific type of standard condiment is requested by the consumer.
B. Food facilities shall only distribute disposable food service ware accessories unbundled, as
separate individual units. Each type of utensil (e.g., fork, spoon, knife, etc.) must be specifically
requested by the consumer in order for a Food facility to provide the item(s). Disposable food
service ware accessories and standard condiment in disposable packaging provided by food
facilities for use by consumers shall not be bundled or packaged in a manner that prohibits a
consumer from taking only the type of disposable food service ware accessory (including
different types of utensils) or type of standard condiment desired without also having to take a
different type of disposable food service ware accessory or type of standard condiment.
C. Food facilities may ask a drive-through consumer if the consumer wants a specific type of
disposable food service ware accessory (including different types of utensils), if the item is
necessary for the consumer to consume prepared food or to prevent spills of or safely transport
prepared food.
D. Food facilities that are 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 a specific type of disposable food service ware accessory (including different
types of utensils), if the item is necessary for the consumer to consume prepared food or to
prevent spills of or safely transport prepared food.
E. If a food facility uses any takeout food delivery service, the food facility shall customize its
menu with an itemized list and/or provide options of the different types of available disposable
food service ware accessories (including different types of utensils) and the different types of
available standard condiments for consumers to proactively select. Only those specific types of
disposable food service ware accessories (including different types of utensils) or specific types
of standard condiment proactively requested by the consumer shall be provided by the food
facility. If a consumer does not request any disposable food service ware accessories or standard
condiment, no disposable food service ware accessories or standard condiment shall be provided
by the food facility for delivery of prepared food. Pursuant to subsection (d), each type of utensil
(e.g., fork, spoon, knife, etc.) offered by the food facility shall also be listed individually,
unbundled on the menu and provided by the food facility for delivery along with the prepared
food only if requested by the consumer.
F. Takeout food delivery services must:
1. Provide consumers with the option to proactively request the different types of
available Disposable food service ware accessories (including different types of utensils)
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and the different types of standard condiment from a food facility serving prepared food.
The default option on the digital ordering/point of sale platforms shall be that no
disposable food service ware accessories are requested; and
2. Provide food facilities the ability to tailor the digital ordering/point-of-sale platforms
so that food facilities can customize and itemize the different types of available
disposable food service ware accessories (including different types of utensils) and the
different types of available standard condiments for consumers to proactively select.
G. Nothing in this chapter prohibits a food facility from making unwrapped disposable food
service ware accessories available to a consumer using refillable self-service dispensers that
dispense different types of disposable food service ware accessories one item at a time to a
consumer.
H. Nothing in this chapter prohibits a food facility from making standard condiment available
to a consumer using refillable self-service dispensers. Food facilities that offer standard
condiments are encouraged to use bulk dispensers for standard condiments rather than those
packaged for single-use.
6.40.030 Standards and required use of disposable food service ware.
A. No food facility shall use polystyrene-based disposable food service ware when providing
prepared food.
B. Food facilities and city facilities shall only provide disposable straws, stirrers, utensils, and
cocktail/toothpicks (and the packaging that these individual items are wrapped in, if any) that are
compostable.
C. Nothing in this chapter shall conflict or be construed to conflict with the Americans with
Disabilities Act or any other applicable law concerning the rights of individuals with disabilities.
In particular, nothing in this chapter shall restrict, or be construed to restrict, the provision by
food facilities of disposable on compostable straws to individuals who may request the use of
disposable non-compostable straws to accommodate medical needs or disabilities. Healthcare
facilities may distribute disposable non-compostable straws with or without request by a patient
at the discretion of the healthcare facility staff based on the physical or medical needs of the
patient.
D. Food facilities and city facilities shall use compostable items for the below disposable food
service ware when providing prepared food:
1. Plates.
2. Bowls (of all sizes including, but not limited to, soup and salad bowls).
3. Cups (of all sizes including, but not limited to, beverage and accessory cups for standard
condiments).
4. Food trays and food boats.
5. Boxes.
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6. Hinged or lidded containers (e.g., clamshells), deli containers, and other containers used
for the sale and/or distribution of prepared food
E. Commencing on the effective date of this chapter until December 31, 2022, for the
compostable disposable food service ware listed in subsection D of this section, food facilities
must use items that meet PFAS restrictions. To verify the PFAS restrictions, food facilities must
use items that are certified/approved by independent third parties, approved by the city manager
or designee, in collaboration with local waste processors and haulers, as needed.
F. For all other disposable food service ware not listed in subsections B and D of this section,
food facilities and city facilities shall use only disposable food service ware that can be
composted by the food scrap composting method utilized by the food facility and/or accepted for
recycling by the food facility’s recycling collection service, unless a feasible alternative does not
exist.
G. The city and county shall maintain a list of approved disposable food service ware sources
and/or references to resources that maintain regularly updated lists of products that meet the
requirements detailed in subsections A, B, D and E of this section. This information will be
made available on the city’s website, at the city manager’s office or another designated location,
and through the county’s office of sustainability. If a product is not included on the approved
lists, the food facility wishing to use a product as disposable food service ware will establish to
the county and/or city manager or designee’s satisfaction that the product complies with the
requirements detailed in subsections A, B, D and E of this section.
6.40.040 Recordkeeping and inspection.
A. Food facilities shall keep complete and accurate record or documents of the purchase of the
acceptable disposable food service ware evidencing compliance with this chapter, for a minimum
period of three years from the date of purchase.
B. The record shall be made available for inspection at no cost to the county during regular
business hours by county employee or designated staff or representatives authorized to enforce
this chapter. Unless an alternative location or method of review is mutually agreed upon, the
records or documents shall be made available at the food facility address.
C. The provision of false or incomplete information, records, or documents to the county shall
be a violation of this chapter.
6.40.050 Automatic exemptions.
A. Prepackaged food is exempt from the provisions of this chapter.
B. Polystyrene coolers and ice chests intended for reuse are exempt from the provisions of this
chapter.
C. Disposable food service ware that is entirely aluminum foil-based or recyclable glass is
exempt from the provisions of this chapter.
D. If the city or county determines that reasonably feasible disposable food service ware that
complies with MMC 6.40.030(A), (B), (D) and (E) does not exist, these items will be exempt
from the abovementioned provisions of this chapter until the city or county determines that a
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reasonably feasible alternative is available on the market for purchase. The city and county will
have a current list of these exempted disposable food service ware made public, with hard copies
available in the city manager’s office or another designated location.
E. Temporary exemptions due to an emergency are automatic without the submission of a
request for an exemption. An emergency is defined as a sudden, unexpected occurrence posing a
clear and imminent danger that requires immediate action to prevent or mitigate the loss or
impairment of life, health, property, or essential public services. Examples of an emergency
include, but are not limited to, natural disasters, emergencies due to the release of hazardous
materials, emergencies associated with loss of power and/or water, or emergency medical
response.
6.40.060 Case-by-case consideration of requests for hardship exemption.
A. Grounds for an exemption. An exemption from any of the provisions of this chapter and the
county’s chapter may be granted by the county manager, or city manager or designee upon
demonstration by a food facility to the satisfaction that strict application of the requirements
would cause undue hardship. An “undue hardship” includes, but is not limited to, the following:
1. A situation unique to the food facility where a suitable alternative that conforms with the
requirements detailed in MMC 6.40.030(A), (B), (D) and (E) does not exist for a specific
application.
2. Imposing the provisions of this chapter would cause significant economic hardship.
“Significant economic hardship” may be based on, but not limited to, demonstrating that
suitable disposable food service ware is not available at a commercially reasonable price and
the additional cost associated with providing the disposable food service ware is particularly
burdensome to the food facility based on the type of operation(s) affected, the overall size of
the business/operation, the number, type and location of its facilities, the impact on the
overall financial resources of the food facility, and other factors. Reasonable added cost for
a suitable item as compared to a similar item that the food facility can no longer use shall not
by itself constitute adequate grounds to support an exemption for such item. In determining
whether a significant economic hardship has been established, the city manager or designee
may consider the following information: ability of the food facility to recover the additional
expense by increasing its prices, the availability of tax credits and deductions, outside
funding, and other options.
B. Request for an Exemption. A request for an exemption from the requirements of this
chapter shall include all information deemed necessary by the city to render a decision, including
but not limited to documentation showing the factual support for the requested exemption. A
request for an exemption may be approved by the city manager or designee, in whole or in part,
with or without conditions. The duration of the exemption, if granted, shall also be determined
by the city manager or designee. Information about the application process for requesting an
exemption will be made available on the city’s website, at the city’s manager’s office or another
designated location, and through the county office of sustainability.
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6.40.070 Enforcement.
A. The city manager or designee, including county officials, may enforce this chapter. Such
authorization includes, without limitation, the authority to hold hearings, issue citations, or assess
administrative fines on behalf of the city.
B. Violation of this chapter is a public nuisance subject to all applicable civil, administrative,
and criminal remedies and penalties according to the provisions and procedures contained in this
chapter and state law including, but not limited to, an action for abatement or injunctive relief.
C. Compliance plan. If requested by the city manager or designee, a food facility that is in
violation of any provision of this chapter must create and submit to the city manager or designee
a compliance plan, that must include information on corrective actions(s) that the food facility
will undertake to become compliant with this chapter. The city manager or designee may request
additional information from the food facility, including, but not limited to, a proposed timeline
for corrective action(s) and identification of individuals responsible for ensuring compliance
with this chapter. Once requested, the food facility must create and submit its completed
compliance plan within fourteen calendar days (14).
D. Notwithstanding authorization of enforcement by county personnel of this chapter, the
violation of, or noncompliance with, any of the requirements of this chapter or applicable
provisions of this code shall be subject to any administrative, civil, or criminal enforcement
remedies available under the law and/or the city’s municipal code. In addition, the city may
enforce the violation of this chapter by means of civil enforcement through a restraining order, a
preliminary or permanent injunction or by any other means authorized by the law.
This section shall not be interpreted to limit any otherwise available civil or administrative
remedies under law.
SECTION 2. SEVERABILITY
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by
a court of competent jurisdiction to be invalid or unconstitutional, such decision will not affect
the validity of the remaining portions of this Ordinance. The City Council of the City of
Millbrae hereby declares that it would have passed this Ordinance and each section, subsection,
sentence, clause and phrase thereof, irrespective of the fact that one or more sections,
subsections, sentences, clauses or phrases may be held invalid or unconstitutional.
SECTION 3. EFFECTIVE DATE; PUBLICATION
This Ordinance shall be in full force and effect thirty days from its passage. However,
enforcement of this Ordinance will not begin until October 1, 2022. At least five days prior to its
adoption and within fifteen days after its adoption, a summary of this Ordinance shall be
published once in a newspaper of general circulation in the County of San Mateo and City of
Millbrae.
INTRODUCED at a regular meeting of the City Council of the City of Millbrae held on May
10, 2022.
Page 10 of 10 18295271.8
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Millbrae held
on May __, 2022.
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MAYOR
ATTEST:
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CITY CLERK