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).
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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
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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.
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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