RULES AND REGULATIONS AFFECTING SMOKING
IN PUBLIC PLACES AND RESTAURANTS
AND LIMITING ACCESS TO MINORS
EFFECTIVE: AUGUST 9, 1993
SECTION I -- PURPOSE AND AUTHORITY
There exists conclusive evidence that tobacco smoke causes cancer, respiratory diseases, various cardiac diseases, negative birth outcomes, allergies, and irritations to the eyes, nose, and throat to both the smoker and nonsmoker exposed to secondhand smoke. The Environmental Protection Agency lists secondhand smoke as a Group A carcinogen, a rating used only for substances (i.e. asbestos) proven to cause cancer in humans. Evidence further demonstrates that tobacco is extremely addictive. More than 90% of all smokers begin smoking before age eighteen; the average new smoker in Massachusetts is only 10 years old; 38,000 children in Massachusetts start smoking every year. Therefore, these regulations are adopted pursuant to Massachusetts General Laws Chapter 111, Sections 31 and 122 of Chapter III as reasonable health regulations designed to protect and improve the health of the residents of the Town of Holden.
SECTION II -- DEFINITIONS
As used in this regulation, the following words shall, unless the context clearly requires otherwise, have the following meanings:
Bar means an area which is primarily dedicated to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages.
Employee means any individual who performs services for an employer in return for wages or profit.
Employer means any individual, partnership, association, corporation, trust, or other organized group of individuals, including the Town of Holden or any agency thereof, which regularly uses the services of two (2) or more employees.
Enclosed means a space bound by walls with a door and under a roof.
Minor means a person less than eighteen (18) years of age.
Non-Smoking Area means any area that is designated and posted by the proprietor or person in charge as a place where smoking by patrons, employees or others is prohibited.
Public Place means an enclosed, indoor area when open to and used by the general public, including but not limited to the following facilities: licensed childcare locations; educational facilities; elevators accessible to the public; clinics and nursing homes; inns; hotel and motel lobbies; stairwells; halls; entrance ways; and public restrooms; libraries; schools; municipal buildings; museums; auto dealerships lobbies; auto service station lobbies; retail stores; enclosed shopping malls; retail food establishments; hair cutting establishments; laundromats; bank lobbies; indoor sports arenas; theaters; auditoriums; public transit facilities; and any clubs, rooms or halls when used for public meetings. A room or hall used for a private social function in which the sponsor of the private function and not the owner or proprietor has control over the seating arrangements shall not be construed as a public place.
Restaurant means any establishment serving food for consumption on the premises which maintains tables for the use of its customers. This includes cafeterias and cafeterias in the workplace.
Lounge means any establishment or separately filtered room in a restaurant where more than 50% of the revenues are produced from the sale of liquor.
Retail Food Establishment means any establishment commonly known as a supermarket or grocery store in which the primary activity is the sale of food items to the public for off-premise consumption.
Retail Store means any establishment selling goods or articles or personal services to the public.
Seating Capacity means that capacity designated on the occupancy permit of a restaurant, theater, or sports arena.
Smoking means the lighting of any cigar, cigarette, pipe or other tobacco product or having possession of any lighted cigar, cigarette, pipe, or other tobacco product.
Tobacco Product means cigarettes, cigars, pipe tobacco, chewing tobacco, snuff, or tobacco in any of its forms.
Tobacco Store means a business in which the primary business is the sale of tobacco and associated products.
Indoor Sports Arena means any sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller or ice rink, bowling alley, or other similar place where members of the general public assemble to engage in physical exercise, participate in athletic competition or witness sports events.
SECTION III -- PROHIBITION ON SMOKING IN PUBLIC PLACES
No person shall smoke in any public place except as specifically permitted by the following provisions of this Section III. No specifically designated smoking areas shall be permitted in any public place except as hereinafter provided in this Section III. Except as otherwise provided in the paragraph below entitled, "Areas Where Smoking is Optional", no public place shall be designated in its entirety as a smoking area. Nothing in this Section III shall be construed to require the designation of smoking areas in any public place.
1) No smoking shall be allowed in any restaurant except in specifically designated smoking areas as provided in this paragraph (A). Smoking areas may be designated by the proprietor(s) or other person(s) in charge of a restaurant, except that restrooms, entrance ways, hallways, stairways, and lobbies, as well as places in which smoking is prohibited by the fire marshal, law, or regulation may not be designated as smoking areas.
2) Non-smoking areas shall comprise at least eighty percent (80%) of the seating capacity of the restaurant as of August 15, 1993. As of February 15, 1994, the dining area shall be either 100% non-smoking or the non-smoking area shall be completely separated from the smoking area by floor to ceiling partitions. The doorway to the smoking area is to remain closed at least 90% of the time so that smoke will not travel to the non-smoking area. As of August 15, 1994, the smoking section shall have a separate filter system to prevent recirculation of smoke filled air into the non-smoking section. At no time shall the smoking section comprise more that 20% of the total seating capacity in the dining area.
3) Each restaurant shall have and comply with a policy of asking seating preference of patrons.
(B) Nursing Homes, Indoor Sports Arenas, Hotels
Smoking areas may be designated in inns, hotel, and motel lobbies; nursing homes; long-term care facilities; auto dealerships, auto service stations; and indoor sports arenas provided, however, that comparable non-smoking areas of sufficient size and capacity are available and provided, further, that smoking areas be enclosed and be separately ventilated from non-smoking areas. Hallways, elevators, entrance ways, stairwells, restrooms, and waiting areas in all the above facilities may not be designated as smoking areas. Areas designated as smoking and non-smoking areas must be conspicuously marked.
(C) Public Transit Facilities The prohibition on smoking in public places shall apply to buses, taxis, and other means of public mass transit while operating within the boundaries of the Town of Holden, and in indoor platforms.
(D) Retail Stores The prohibition on smoking in public places shall apply to retail stores doing business with the general public. Smoking areas may be designated in portions of said stores not open to the public and all areas with retail tobacco stores.
(E) Schools It shall be unlawful for any persons, including all teaching and non-teaching personnel as well as students to smoke or use any type of tobacco product in any public or private school grounds at any time.
The Principal or Assistant Principal in charge of each school shall conspicuously post a notice or sign at eye level and in unobstructed view at each entrance and in the gymnasium, auditorium, cafeteria, all restrooms and the Principal's office indicating that smoking is prohibited therein, and use any reasonable means to enforce this regulation.
(F) Municipal Buildings It shall be unlawful for any person, including municipal employees, to smoke or use any type of tobacco products inside any municipal building at any time.
(G) Areas Where Smoking is Optional Notwithstanding any other provision of these regulations, the following areas shall not be subject to the smoking restrictions of the regulations:
1) Any business which has been declared by its owner, operator, manager or person in charge to be a non-smoking establishment;
3) Hotel and motel rooms rented to guests;
4) Retail tobacco stores;
5) Hotel and motel conference/meeting rooms, and public and private assembly rooms while these places are being used for private functions;
6) Private or semiprivate rooms of nursing homes and long-term care facilities, occupied by one (1) or more patients, all of whom are smokers who have requested in writing on the facility admission form to be placed in rooms where smoking is permitted;
7) Performers upon the stage, provided that the smoking is part of a theatrical production.
(H) Implementation The proprietor(s) or other person(s) in charge of a public place covered by this regulation shall prevent smoking in non-smoking areas by:
1) Conspicuously posting a notice or sign at each entrance to the public place indicating smoking is prohibited therein except in specifically designated areas. In addition, conspicuously posting "Smoking" or "No Smoking" signs, or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) in every area where smoking is permitted or prohibited by this ordinance;
2) Asking patrons who may be smoking in the nonsmoking area either to refrain from smoking or to move to a smoking area;
3) Using any other means which may be appropriate and reasonable to enforce these regulations.
SECTION IV -- PUBLIC PLACE ENFORCEMENT
(A) Any person who smokes in a non-smoking area shall be subject to a fine of not less than twenty dollars ($20.00) not more than fifty dollars ($50.00) for each violation.
(B) Any proprietor(s) or other person(s) in charge of a public place or workplace who fail(s) to comply with these regulations shall be subject to both:
1) a fine of up to two hundred dollars ($200.00) for each day a violation continues; and
2) suspension of any license issued by the Board of Health for that public place for a period of up to two days for each day of non-compliance.
(C) In addition to the remedies provided by (A) and (B) above, the Board of Health or any person aggrieved by the failure of the proprietor or other person in charge of a public place or workplace to comply with any provision of this subsection may apply for injunctive relief to enforce the provisions of this subsection in any court of competent jurisdiction.
(D) Any person aggrieved by the failure or refusal to comply with restrictions in any place covered by these regulations may complain in writing to the Board of Health. The Board of Health shall respond in writing to the complainant that the location as described in the complaint has been inspected and the appropriate section of the regulation has been enforced.
SECTION V -- OTHER APPLICABLE LAWS
These regulations shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable health, safety or fire codes, regulations or statutes.
SECTION VI -- TOBACCO SALES TO MINORS PROHIBITED
(A) Sales to Minors In conformance with Massachusetts General Laws Chapter 270, Section 6, whoever sells a cigarette, chewing tobacco, snuff, or any tobacco in any of its forms to any person under the age of eighteen or, not being his parent or guardian, gives a cigarette, chewing tobacco, snuff, or tobacco in any of its forms to any person under the age of eighteen, shall be punished by a fine of not less than one hundred dollars ($100.00) for the first offense, not less than two hundred dollars ($200.00) for the second offense and not less than three hundred dollars ($300.00) for any third or subsequent offense.
(B) Posting State Law In conformance with Massachusetts General Laws, Chapter 270, Section 7, a copy of Massachusetts General Laws Chapter 270, Section 6 shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell cigarettes at retail. The notice to be posted shall be that notice provided by the Massachusetts Department of Public Health. Such notice shall be at least 48 square inches and shall be posted at the cash register which receives the greatest volume of single cigarette package sales in such a manner so that it may be readily seen by a person standing at or approaching the cash register. Such notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than 4 feet or greater than 9 feet from the floor. For all other cash registers that sell cigarettes, a notice shall be attached which is the size of the sign provided by the Massachusetts Department of Public Health. Such notice must be posted in a manner so that it may be readily seen by a person standing at or approaching the cash register. Such notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of no less than 4 feet or more than 9 feet from the floor.
The Board of Health or its enforcement officer(s) shall enforce this regulation. Whoever violates this provision shall be punished by a fine of not more than fifty dollars ($50.00). Any person unlawfully removing a copy so posted while said premises are used for the sale of cigarettes shall be punished by a fine of ten dollars ($10.00).
(C) Sales Permit Required No person or entity shall sell tobacco products within the Town of Holden without a tobacco sales permit issued by the Board of Health. The fee for this permit is $5., renewable annually by July 1.
(D) Sale of Tobacco Products No person or entity selling tobacco products shall allow anyone to sell cigarettes or other tobacco products until such employee reads the Board of Health regulations and state laws regarding sale of tobacco and signs a sworn statement, a copy of which will be placed on file in the office of the Board of Health, that she/he understands and will uphold the regulations.
(E) Free Standing Displays Prohibited Free-standing displays of tobacco products, from which individual packages or cartons may be selected by the customer, must be located within ten feet and in plain view of the person designated to supervise the purchase of tobacco products.
(F) Free Distribution/Sampling No person or entity shall, except at full retail price, in or upon any part of the streets, parks, public grounds, public buildings, or other public places within the Town of Holden distribute any products containing tobacco for any promotional or other commercial purpose.
(G) Vending Machines No person shall install or maintain a vending machine to distribute or sell tobacco products unless the vending machine is located within 10 feet and in plain view of the regular location of a person designated to supervise the purchase of tobacco products at the vending machine which also offers for sale any non-tobacco product.
(H) Packaging Sale or distribution of tobacco products in any form other than an original factory-wrapped package is prohibited.
(I) Penalties Any person or entity who fails to comply with (C), (D), (E), (F), and (G) of this section shall be punished by a fine of not less than one hundred dollars ($100) nor more than two hundred dollars ($200).
SECTION VII -- PROHIBITION OF ADVERTISING OF TOBACCO PRODUCTS ON PUBLIC TRANSPORTATION VEHICLES
No person shall display on or in any bus, taxicab licensed or garaged within the Town of Holden, or any other vehicle used for public transportation within the Town of Holden an advertisement for cigarettes, cigars, pipe tobacco, smokeless tobacco, or other tobacco product. Anyone violating this ordinance shall be subject to a civil fine of $100 per day per vehicle.
SECTION VIII -- SEVERABILITY
If any provision of these regulations is declared invalid or unenforceable, the other provisions shall not be affected thereby but shall continue in full force and effect.
SECTION IX -- EFFECTIVE DATE
These regulations shall be effective as of August 9, 1993.
Board of Health
Publication date: 9/9/93