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HomeMy WebLinkAboutOrdinance 6464113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Ordinance: 6464 File Number: 2021-0568 AMEND § 114.10 REGULATION OF EXPANDED POLYSTYRENE (EPS) FOAM SINGLE -USE PLATES, BOWLS, CLAMSHELLS, CUPS AND SIMILAR PRODUCTS: AN ORDINANCE TO AMEND § l 14.10 REGULATION OF EXPANDED POLYSTYRENE (EPS) FOAM SINGLE -USE PLATES, BOWLS, CLAMSHELLS, CUPS AND SIMILAR PRODUCTS TO COMPLY WITH ACT 751 OF 2021 WHEREAS, the Arkansas State Legislature through Act 751 of 2021 removed a city's power to regulate Expanded Polystyrene (EPS) Foam except upon "property owned or maintained by the municipality..."A.C.A. §14-1-104(c); and WHEREAS, § 114.10 of the Fayetteville Code should be amended to conform with this new state law by amending (C) Application and (D) Prohibited Use of Expanded Polystyrene Foam Single -Use Products so that the City can continue to prohibit commercial vendors from using EPS single -use "auxiliary containers on property owned or maintained by the municipality..." A.C.A. § l 4-1-104(c). NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section l : That the City Council of the City of Fayetteville, Arkansas hereby amends § 114.10 Regulation of Expanded Polystyrene (EPS) Foam Single -Use Plates, Bowls, Clamshells, Cups, and Similar Products of the Fayetteville Code by repealing subsections (C) and (D) and enacting replacement subsections as shown below: "(C) Application. These regulations shall apply to all food trucks, concessionaires, caterers, restaurants, and other prepared, ready -to -eat food or drink providers operating on city owned or maintained property. Page 1 Printed on 813121 Ordinance: 6464 File Number: 2021-0568 (D) Prohibited Use of Expanded Polystyrene Foam Single -Use Products. No single -use expanded polystyrene foam auxiliary containers including plates, bowls, clamshells, cups, and similar products may be provided by any food truck operator, concessionaire, caterer, restaurant, or other prepared, ready -to -eat food or drink provider while on or operating on city owned or maintained property." PASSEDAnd APPROVED on 8/3/2021 ttest: Lioneld JoZan. OM Lisa Branson; Deputy City Clerk Page 2 Printed an 8/3/21 City of Fayetteville, Arkansas 113 West Mountain Street Fayetteville, AR 72701 (479)575-8323 Text File File Number: 2021-0568 Agenda Date: 8/3/2021 Version: 1 Status: Passed In Control: City Council Meetinq File Type: Ordinance Agenda Number: C.5 AMEND § 114.10 REGULATION OF EXPANDED POLYSTYRENE (EPS) FOAM SINGLE -USE PLATES, BOWLS, CLAMSHELLS, CUPS AND SIMILAR PRODUCTS: AN ORDINANCE TO AMEND § 114.10 REGULATION OF EXPANDED POLYSTYRENE (EPS) FOAM SINGLE -USE PLATES, BOWLS, CLAMSHELLS, CUPS AND SIMILAR PRODUCTS TO COMPLY WITH ACT 751 OF 2021 WHEREAS, the Arkansas State Legislature through Act 751 of 2021 removed a city's power to regulate Expanded Polystyrene (EPS) Foam except upon "property owned or maintained by the municipality..." A.C.A. § 14-1-104(c); and WHEREAS, § 114.10 of the Fayetteville Code should be amended to conform with this new state law by amending (C) Application and (D) Prohibited Use of Expanded Polystyrene Foam Single -Use Products so that the City can continue to prohibit commercial vendors from using EPS single -use "auxiliary containers on property owned or maintained by the municipality..." A.C.A. § 14-1-104(c). NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 114.10 Regulation of Expanded Polystyrene (EPS) Foam Single -Use Plates, Bowls, Clamshells, Cups, and Similar Products of the Fayetteville Code by repealing subsections (C) and (D) and enacting replacement subsections as shown below: "(C) Application. These regulations shall apply to all food trucks, concessionaires, caterers, restaurants, and other prepared, ready -to -eat food or drink providers operating on city owned or maintained property. (D) Prohibited Use of Expanded Polystyrene Foam Single -Use Products. No single -use expanded polystyrene foam auxiliary containers including plates, bowls, clamshells, cups, and similar products may be provided by any food truck operator, concessionaire, caterer, restaurant, or other prepared, ready -to -eat food or drink provider while on or operating on city owned or maintained property." City of Fayetteville, Arkansas Page 1 Printed on 81412021 Legistar ID No.: AGENDA REQUEST FORM FOR: Council Meeting of August 3, 2021 FROM: Council Member Teresa Turk ORDINANCE OR RESOLUTION TITLE AND SUBJECT: AN ORDINANCE TO AMEND § 114.10 REGULATION OF EXPANDED POLYSTYRENE (EPS) FOAM SINGLE -USE PLATES, BOWLS, CLAMSHELLS, CUPS AND SIMILAR PRODUCTS TO COMPLY WITH ACT 751 OF 2021 APPROVED FOR AGENDA: Council Member Tere a Turk Date CJuly 16, 2021 City Attorney Kit Oilliams Date Approved 41 DEPARTMENTAL CORRESPONDENCE OFFICE OF THE CITY ATTORNEY TO: Mayor Jordan City Council Kit Williams City Attorney Blake Pennington Assistant City Attorney CC: Susan Norton, Chief of Staff Jodi B Paraleegger all Peter Nierengarten, Environmental Director Environmental Action Committee FROM: Kit Williams, City Attorney - f DATE: July 14, 2021 RE: §114.10 Regulation of Expanded Polystyrene (EPS) Foam Single -Use Plates, Bowls, Clamshells, Cups and Similar Products Ordinance 6185 passed on May 21, 2019 prohibited the City's purchase of EPS single use utensils and requested that EPS single use utensils not be allowed to be used by "concession stands, boat docks, food trucks or similar businesses on City owned property including all City owned parks and City owned off-street parking lots ..." This ordinance was not codified as a more comprehensive EPS (Styrofoam) single use containers and utensils regulation was being prepared. On November 5, 2019, the City Council enacted Ordinance 6250, An Ordinance To Enact §114.10 Regulation of Expanded Polystyrene (EPS) Foam Single -Use Plates, Bowls, Clamshells, Cups and Similar Products. Act 751 of 2021 appeared to be directed at our Styrofoam regulatory ordinance and invalidated many of its provisions. "Except as provided under subsection (c) of this section, a municipality or county shall not restrict, tax, prohibit, or otherwise regulate the use, disposition, or sale of auxiliary containers." A.C.A. § 14-1-104(b). "(c) A municipality or county may: (2) Regulate the use of auxiliary containers on property owned or maintained by the municipality or county." A.C.A. § 14-1-104(c) This statutory authority expressly granted to cities the right to regulate the broadly defined "auxiliary containers." This means that the Fayetteville Code's §114.10 Regulation of Expanded Polystyrene (EPS) Foam Single -Use Plates, Bowls, Clamshells, Cups and Similar Products may still be applied to concession stands, food trucks and caterers operating on city property. Thus, all food trucks and caterers operating on city owned or maintained property which would include all city parks, all city streets, and all city parking lots can be prohibited from using any ESP single -use auxiliary containers while on city property which would include our street right-of-way. Similarly, any caterer using the city owned Fayetteville Town Center can still be prohibited from using single -use EPS auxiliary containers. To accomplish this, the City Council will need to amend subsections (C) Application and (D) Prohibited Use of Expanded Polystyrene Foam Single -Use Products of §114.10 of the Fayetteville Code. I have attached the current Code section to this memo. Below is how I would recommend that the amended subsections would read: "(C) Application. These regulations shall apply to all food trucks, concessionaires, caterers and other prepared, ready -to -eat food or drink providers operating on city owned or maintained property. (D) Prohibited Use of Expanded Polystyrene Foam Single -Use Products. No single -use expanded polystyrene foam products including plates, bowls, clamshells, cups, and similar products may be provided by any food truck operator, concessionaire, caterer, or other prepared, ready -to -eat food or drink provider while on or operating on city owned or maintained property." I will prepare the needed ordinance which will make §114.10 compliant with the new state law which will be effective on July 28th . This amendment will continue to enable the City to prevent food and drink commercial operations from distributing EPS foam single -use products in our parks, parking lots and streets. We cannot legally do more, but at least we can proactively reduce the litter and bad ecological effects of EPS foam products for our parks and other city property (including the Fayetteville Town Center). 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Stricken language would be deleted from and underlined language would be added to present law. Act 751 of the Regular Session State of Arkansas As Engrossed: H3123121 H416121 93rd General Assembly A Bill Regular Session, 2021 HOUSE BILL 1704 By: Representative Ray By: Senator D. Sullivan For An Act To Be Entitled AN ACT TO AMEND THE LAW TO PROHIBIT MUNICIPALITIES AND COUNTIES FROM RESTRICTING THE USE OF AUXILIARY CONTAINERS; AND FOR OTHER PURPOSES. Subtitle TO AMEND THE LAW TO PROHIBIT MUNICIPALITIES AND COUNTIES FROM RESTRICTING THE USE OF AUXILIARY CONTAINERS. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: SECTION 1. Arkansas Code Title 14, Chapter 1, Subchapter 1, is amended to add an additional section to read as follows: 14-1-104. Auxiliary containers — Definition. a As used in this section "auxiliary container" means a bag, cup, package,container, Mottle device or other acka in that is without limitation: 1 Made of cloth paper, plastic,foamed plastic, expanded plastic, cardboard corru ated material aluminum lass ostconsumer recycled material or similar coated or laminated material; and 2 Designed for the consum tion transportationor protection of merchandise food or beverage at a food service facility, manufacturing facility, distribution facility, ro essing facility, or retail facility. JkL Exce t as provided under subsection c of this section a municipality or count shall not restrict tax rohibit ar otherwise 04-06-2021 10:10:49 KLL147 As Engrossed: H3/23/21 H4/6/21 HB1704 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 regulate the use, disposition, or sale of auxiliary -containers. c A municipality ❑r count may: 1 Operate a recycling ro ram a composting ro ram and a solid waste disposal program; and (2) Regulate the use of auxiliary containers on property owned or maintained by the municipality or count_ (d) This section does not: 1 Affect a general state or local sales and use tax• 2 Prevent a municipality or county from restricting the use of glass containers within the municipality or county based on public safer concerns; 3 Prevent a municipality or county from passing or enforcin an ordinance that prohibits littering, if the ordinance complies with the Litter Control Act, § 8-6-401 et seg.; or (4) Prevent a municipality from setting by ordinance reasonable standards for the regulation of alcohol possession within the boundaries of a designated entertainment district under 14-54-1412. Is/Ray APPROVED: 4/19/21 2 04-06-2021 10:10:49 KLL147 113 West Mountain Street Fayetteville, AR 72701 (479) 576-8323 Ordinance: 6185 File Number: 2019-0122 POLYSTYRENE FOAM PRODUCTS: AN ORDINANCE TO PROHIBIT THE PURCHASE OF EXPANDED POLYSTYRENE FOAM WITH CITY OF FAYETTEVILLE MONIES, TO END THE USE OF EXPANDED POLYSTYRENE FOAM PRODUCTS BY CITY CONCESSIONAIRES AND FOOD TRUCKS IN CITY PARKS AND CITY OFF-STREET PARKING LOTS AND TO RAISE PUBLIC AWARENESS OF THE ECOLOGICAL DAMAGES CAUSED BY THIS PRODUCT WHEREAS, items of Expanded Polystyrene Foam (commonly referred to by the brand name "Styrofoam") are one of the top ten most littered items in our country and cause unsightly litter that necessitates time consuming and difficult cleanup efforts; and, WHEREAS, this Expanded Polystyrene Foam does not biodegrade, but rather breaks down into smaller particles that pollute our natural and built environment; and, WHEREAS, this foam is made from the monomer styrene, which is a suspected human carcinogen and known neurotoxin; and, WHEREAS, the City of Fayetteville should ban most of the uses and purchases of Expanded Polystyrene Foam by the City; and, WHEREAS, the City Council of the City of Fayetteville declares it is in the best interest of the health and welfare of its residents, visitors, and employees to reduce the litter and pollutants on the land and in the waters of Fayetteville; and, WHEREAS, the City of Fayetteville is dedicated to reducing the volume of items entering our landfill through holistic recycling programs; and, Page 1 Prinred on 5122119 File Number 2019-0122 Ordinance 6185 WHEREAS, although the City of Fayetteville has a robust recycling program, it is not feasible, practical nor effective to attempt to recycle Expanded Polystyrene Foam; and, WHEREAS, there are readily available and reasonable cost alternatives to Expanded Polystyrene Foam that can be recycled or composted by Fayetteville. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby prohibits the purchase of Expanded Polystyrene (EPS) Foam products by all City Departments, with the exception of encapsulated EPS for dock flotation and construction materials used for insulation structural stability, weight reduction or formwork remaining in place post -occupancy. The City Council further prohibits any businesses, including but not limited to catering companies, from providing Expanded Polystyrene Foam products such as plates, bowls and cups when the City of Fayetteville has purchased their services. Section 2`That the City Council of the City of Fayetteville, Arkansas hereby requests that the Administration ensure through appropriate contracts or otherwise that all entities operating concession stands, boat docks, food trucks, or similar businesses on City owned property including all city owned parks and city owned off-street parking lots end as soon as possible any purchasing and use of any Expanded Polystyrene Foam products such as plates, bowls, cups, and similar items. The City Council hereby empowers the Administration to bar food trucks that stock, supply to customers or otherwise use Expanded Polystyrene Foam products from serving customers while in any city owned off-street parking lot or city owned park by November 1, 2019. Section 3. That the City Council of the City of Fayetteville, Arkansas hereby requests that the University of Arkansas Board of Trustees, the Fayetteville School Board, the Advertising and Promotion Commission and the governing bodies of the Fayetteville Public Library, Walton Arts Center and Theatre Squared join in this effort to promptly reduce and soon eliminate the use of Expanded Polystyrene Foam products within their facilities and prohibit caterers from bringing such products into their facilities. Section 4. That the City Council of the City of Fayetteville, Arkansas hereby determines that acceptable alternative to EPS Foam products include, but are not limited to, paper, fiber and compostable products. Section 5. That the City Council of the City of Fayetteville, Arkansas hereby further agrees to support the general goal of reducing EPS Foam product use by citizens, other government entities, and Page 2 Printed on 5/22119 File Number. 2019-0122 Ordinance 6185 businesses throughout the City of Fayetteville by promoting awareness of the issues surrounding Expanded Polystyrene Foam and by promoting the adoption of reasonably priced alternatives. PASSED and APPROVED on 5/21/2019 Attest: _ W`J Lisa Branson, Deputy City Cler& j$11n►�rg1. %G ER K / p44 � U . OA+ -'pG y I NS PS f`Y41 "(N111111110, Page 3 Printed on 5122119 FAYETTEVILLE CODE OF ORDINANCES TITLE A BUSINESS REGULATIONS 114.10 (C) Articles Permitted to Be Sold. Only objects of art or craft produced and sold by a local artist or craftsperson may be sold at the First Thursday Fayetteville event. The Fayetteville Convention and Visitors Bureau is empowered to assign precise locations for any vendors wishing to display or sell their personall y created art or craft work. (D) Sanitation. At the close of a vendor's operation (no later than 10:00 p.m.), the vendor shall clean the immediate area around the vendor's operation and ensure that all trash and debris are removed and properly discarded. (Ord. No. 5307, 3-16-10; Ord. No. 5392, 3-15-10; Ord. No. 5487, 3-6-12; Ord. No. 5682, 4-15-14) 114.04-114.09 Reserved 114.10 Regulation Of Expanded Polystyrene (EPS) Foam Single -Use Plates, Bowls, Clam- shells, Cups And Similar Products (A) Purpose. Expanded polystyrene (EPS) foam single -use products break down in the environ- ment into tiny pieces which become virtually impossible pickup or clean from the environment and travel through the air and water causing worldwide pollution, damage to the environment and health risks to many living things. The City Council has determined it is vital to our citizen's health and especially to our water supply of Beaver Lake that the amount of EPS that can escape into our environment should be reduced as much as possible. Furthermore, there are many other products that can be reused, recycled or composted which are readily available at a reasonable cost that can substitute for EPS Foam products. (B) Benefits for Fayetteville Citizens. Substantial reduction In the use of EPS single -use products will substantially reduce unsightly and unhealthful litter and the taxpayers' expense of cleaning UP such litter as much as possible. Keeping as much EPS out of Beaver lake as possible will ensure better and more healthy water quality with less expense for the Beaver Water District to attempt to remove EPS from our drinking water. Switching to reusable, recyclable orcompostable products will reduce the volumes required to be landfilled, the cost of disposal and the life of current landfills. (C) Application. These regulations shall apply to restaurants; hotels; grocery stores with delis or food bars; cafeterias; convenience stores; coffee, tea and donut shops; caterers; and any other prepared, ready -to -eat food or drink providers. (D) Prohibited Use Of Expanded Polystyrene Foam Single -Use Products. No single -use expanded Polystyrene foam product including plates, bowls, clamshells, cups, and similar products may be provided by any restaurant, hotel, grocery store for its deli or food bar, cafeteria, conve- nience store, coffee, tea or donut shop, caterer or other prepared, ready -to -eat food or drink provider. (E) Exemption. The Mayor may grant temporary exemption from this prohibition} if necessitated by an emergency, a public health and safety need or medical necessity, The City Council may grant a permanent exemption by amending this Code section. (Ord. No. 6260, § 1, 11-5-19) Supp. No. 17 CD114:5 NORTI-NF.ST ARWEAS Danocraz f0azettc NO, BOX ItC7. FAYET"PALL E. AB. WU • .179-142.170C - =A% ;:'? 69° 1'k • is",'.'Yi tit'/;�.Di.CCv AFFIDAVIT OF PUBLICATION I, Brittany Smith, do solemnly swear that I am the Accounting Legal Clerk of the Northwest Arkansas Democrat -Gazette, a daily newspaper printed and published in said County, State of Arkansas; that I was so related to this publication at and during the publication of the annexed legal advertisement the matter of- Notice pending in the Court, in said County, and at the dates of the several publications of said advertisement stated below, and that during said periods and at said dates, said newspaper was printed and had a bona fide circulation in said County; that said newspaper had been regularly printed and published in said County, and had a bona fide circulation therein for the period of one month before the date of the first publication of said advertisement; and that said advertisement was published in the regular daily issues of said newspaper as stated below. City of Fayetteville Ord 6464 Was inserted in the Regular Edition on: August 8, 2021 Publication Charges: $161.12 Brittany Smith Subscribed and sworn to before me This day of e�Z.� , 2021. Cathy Wiles Benton COUNTY N ARY PUBLIC—ARKANSAS mission Expires 02-20-2024 Notary Public / No. 12397118 My Commission Expires: **NOTE** Please do not pay from Affidavit Invoice will be sent. Ordinance: 6464 File Number. 2021-0568 AMEND § 114.10 REGULATION OF EXPANDED POLYSTYRENE (EPS) FOAM SINGLE -USE PLATES, BOWLS, CLAMSHELLS, CUPS AND SIMILAR PRODUCTS: AN ORDINANCE TO AMEND § 114.10 REGULATION OF EXPANDED POLYSTYRENE (EPS) FOAM SINGLE -USE PLATES, BOWLS, CLAMSHELLS, CUPS AND SIMILAR PRODUCTS TO COMPLY WITH ACT 751 OF 2021 WHEREAS, the Arkansas State Legislature through Act 751 of 2021 removed a city's power to regulate Expanded Polystyrene (EPS) Foam except upon "property owned or maintained by the municipality..." A.C.A. §14-1- 104(c); and WHEREAS, § 114.10 of the Fayetteville Code should be amended to conform with this new state law by amending (C) Application and (D) Prohibited Use', of Expanded Polystyrene Foam Single -Use Products so that the City can continue to prohibit commercial vendors from using EPS single -use "auxiliary containers on property owned or maintained by the municipality..." A.C.A.§ 14-1-104(c). NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 114.10 Regulation of Expanded Polystyrene (EPS) Foam Single -Use Plates, Bowls, 'Clamshells, Cups, and Similar Products of the Fayetteville Code by repealing subsections (C) and (D) and enacting replacement subsections as shown below: "(C) Application. These regulations shall apply to all food trucks, concessionaires, caterers, restaurants, and other prepared, ready -to -eat food or drink providers operating on city owned or maintained property. (D) Prohibited Use of Expanded Polystyrene Foam Single -Use Products. No single - use expanded polystyrene foam auxiliary containers including plates, bowls, clamshells, cups, and similar products may be provided by any food truck operator, concessionaire, eateret, restaurant, or other prepared, ready -to -eat food or drink provider while on or operating on city owned or maintained property." PASSED and APPROVED on 0/2021 Approved: Lioneld Jordan, Mayor Attest: Kara Paxton, City Clerk Treasurer This publication was paid for by the City Clerk -Treasurer of the City of Fayetteville, Arkansas. Amount paid: $ 161.12 75450795 Aug 8, 2021