[HISTORY: Adopted by the Board of Health
of the Town of Southwick as indicated in article histories. Amendments
noted where applicable.]
[Adopted 8-4-2016[1]]
[1]
Editor's Note: These regulations also superseded former Art.
I, Sale to Minors, adopted 4-3-2014.
Whereas, tobacco use by minors is a continuing problem with
grave public health consequences because more than 80% of all smokers
begin before the age of 18 and more than 3,000 teens begin smoking
every day in the United States ("Preventing Tobacco Use Among Young
People: A Report, of the Surgeon General," Atlanta, GA: U.S. Department
of Health and Human Services, 1994); whereas, the U.S. Department
of Health and Human Services has concluded that nicotine is as addictive
as cocaine or heroin, action is needed to curtail the easy access
of tobacco products and nicotine delivery products to minors; now,
therefore, be it determined that a strict and enforceable system to
prevent access to nicotine delivery products and the illegal sale
of tobacco products to minors be enacted as follows.
As used in this article, the following terms shall have the
meanings indicated:
Any establishment that admits only those persons who are
over the age of 21, and never permits anyone under age 21 to be present.
Any electronic device, not approved by the United States
Food and Drug Administration, composed of a mouthpiece, heating element,
battery and/or electronic circuits that provides a vapor of liquid
nicotine to the user, or relies on vaporization of any liquid or solid
nicotine. The term shall include such devices, whether they are manufactured
as e-cigarettes, e-cigars, e-pipes, e-hookah or under any other product
name.
Any manufactured article or product made wholly or in part
of a tobacco substitute or containing nicotine that is expected or
intended for human consumption, but not including a product approved
by the United States Food and Drug Administration for sale as a tobacco
use cessation or harm reduction product or for other medical purposes
and which is being marketed and sold solely for that approved purpose.
Nicotine delivery products include, but are not limited to e-cigarettes,
e-cigars, e-pipes, or under any other product name.
A display from which individual packs or cartons of tobacco
products or nicotine delivery products may be selected by a customer.
Any machine or device designated for or used for the vending
of cigarettes, cigars, tobacco, tobacco products, or nicotine delivery
products upon insertion of coins, trade checks, swipe cards, slips
or any other form of payment.
A.Â
Sale to minors. Whoever sells a cigarette, chewing tobacco, snuff or any tobacco product in any of its forms to any person under the age of 21 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 21, shall be punished according to the fine schedule set forth in Paragraph H of this article. Whoever sells a nicotine delivery product in any of its forms to any person under the age of 21 or, not being his parent or guardian, gives a nicotine delivery product in any of its forms to any person under the age of 21, shall be punished according to the fine schedule set forth in Subsection H of this section.
B.Â
Posting state law.
(1)Â
In conformance with M.G.L. c. 270, § 7, a copy of M.G.L.
c. 270, § 6, shall be posted conspicuously by the owner
or other person in charge thereof in the shop or other place used
to sell cigarettes and other tobacco products at retail.
(2)Â
The notice to be posted shall be provided by the Massachusetts Department
of Public Health and made available from the Southwick Board of 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 readily be
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 four feet or more than
nine feet from the floor. For all other cash registers that sell cigarettes,
a notice shall be attached. The notice is provided by the Massachusetts
Department of Public Health and is no smaller than nine square inches.
The notice shall 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 less than four feet or more than nine
feet from the floor.
C.Â
Permit for location and sale of tobacco and/or nicotine delivery
products.
(1)Â
After the effective date of these regulations, the Southwick Board
of Health will issue a permit for location and sales that will specify
the name, address and approved location per the Southwick Board of
Health or its designated agent/s for retailers who sell tobacco and/or
nicotine delivery products.
(2)Â
After the effective date of these regulations, all retailers who
are required to hold a state license to sell cigarettes or other tobacco
or nicotine delivery products will be required to hold and maintain
a valid permit for location and sales from the Town of Southwick for
each location at which tobacco and/or nicotine delivery products are
sold.
(3)Â
After receiving the permit, the merchant will receive signage that states "Sale of cigarettes or any tobacco products to persons under age 21 is illegal." If the merchant also sells nicotine delivery products, the merchant will receive signage that states "Sale of nicotine delivery products to persons under age 21 is illegal per the Town of Southwick Board of Health's Regulations Limiting Youth Access to Tobacco and Nicotine Delivery Products." Any merchant not posting said signage will be in noncompliance of these regulations and subject to penalties per Subsection H.
(4)Â
The term of the permit shall be one year.
(5)Â
The fee for a one-year tobacco and/or nicotine delivery products
retailer's permit for location and sales shall be determined
by the Southwick Board of Health annually.
(6)Â
A permit for location and sales is nontransferable, except a new
permit will be issued to a retailer who changes locations.
(7)Â
During such time that a permit for location and sales of tobacco and/or nicotine delivery products has been suspended for violation of this article, all tobacco and/or nicotine delivery products must be removed from the premises. Any person or entity selling any tobacco and/or nicotine delivery products without said permit shall be fined according to Subsection H until said permit is reinstated by the Southwick Board of Health or its designated agent/s.
D.Â
Tobacco and/or nicotine delivery products vending machines. After
the effective date of this article, retailers may not use vending
machines to sell cigarettes, smokeless tobacco products, or nicotine
delivery products except when the machine is located in an adult-only
establishment.
E.Â
Out-of-package sales. The sale or distribution of tobacco products
in any form other than an original factory-wrapped package is prohibited.
No person may sell or cause to be sold or distribute or cause to be
distributed, any cigarette package that contains fewer than 20 cigarettes,
including single cigarettes. Packaged, single cigarettes may be sold
from vending machines in adult-only establishments.
F.Â
Self-service displays. Retailers may not use self-service displays
to sell cigarettes, smokeless tobacco products, or nicotine delivery
products except when such displays are located in adult-only establishments.
G.Â
Sales by employees. No commercial entity selling tobacco products
at retail shall allow any employee to sell cigarettes, other tobacco
products, or nicotine delivery products until such employee reads
the Southwick Tobacco Control Regulations and state laws regarding
the sale of tobacco. Employees shall sign a statement provided by
the Board of Health indicating that they have read all tobacco and
nicotine delivery products laws and regulations. Signed statements
shall be placed on file in the office of the employer.
H.Â
Penalties, fines, suspensions, hearings. It shall be the responsibility
of the permit holder or his or her agent to ensure compliance with
all sections of these regulations pertaining to their place of business.
The permit holder or his or her agent or persons involved in violation
of any of the provisions of these regulations shall receive:
(1)Â
In the case of a first violation, the permit holder or his or her
agent or persons not in compliance with the provisions of these regulations
shall receive a fine of $100.
(2)Â
In the case of a second violation within a thirty-six-month period,
the permit holder or his or her agent or persons not in compliance
with the provisions of these regulations shall receive a fine of $200
and the permit shall be suspended for seven consecutive business days.
(3)Â
In the case of three or more violations within a thirty-six-month
period, the permit holder or his or her agent or persons not in compliance
with the provisions of these regulations shall receive a fine of $300
and the permit shall be suspended for 30 consecutive business days.
(4)Â
The Southwick Board of Health shall provide written notice to the
vendor of the intent to suspend a "permit for location and sales."
The notice shall contain the reasons for the suspension and establish
a date and time for a hearing. The date of the hearing shall be no
earlier than seven days after the date of said notice. The retailer
shall have an opportunity for appeal at the hearing and shall be notified
of the Board's decision and reasons in writing. The suspension
shall begin the next business day after the hearing.
(5)Â
Nonpayment of fines will result in the loss of the vendor's
permit for each day of nonpayment.
I.Â
Noncriminal disposition. Whoever violates any provision of these
regulations, the violation of which is subject to a specific penalty,
may be penalized by the noncriminal method of disposition as provided
in M.G.L. c. 40, § 21D or by filing a criminal complaint
at the appropriate venue.
Enforcement of these regulations shall be implemented by the
Southwick Board of Health, its designated agent/s or by police officers
of the Town of Southwick. Any citizen who desires to register a complaint
of noncompliance under these regulations may do so by contacting the
Southwick Board of Health or its designated agent/s.
The Southwick Board of Health, its designated agents or police
officers of the Town of Southwick shall engage in a continuing program
to explain and clarify the purposes and requirements of these regulations
to citizens affected by it and to guide owners, operators and managers
in their compliance with it. Such programs may include publication
of a brochure for affected businesses and individuals explaining the
provisions of these regulations. The Southwick Board of Health may,
at its discretion, respond to reasonable requests from retailers for
assistance in training sales personnel.
If any provision, clause, sentence or paragraph of these regulations
or the application thereof to any person or circumstances shall be
held invalid, such invalidity shall not affect the other provisions
of this article which can be given effect without the invalid provision
or application, and to this end the provisions of this regulation
are declared to be severable.
These regulations shall take effect upon passage.
The use of e-cigarettes is prohibited wherever smoking is prohibited
per both Massachusetts law, and regulations prohibiting smoking in
membership associations in Southwick[1] effective as of October 1, 2016.
[Adopted 2-1-2007]
Whereas, conclusive evidence exists that tobacco smoke causes
cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes and throat; and
Whereas, the harmful effects of tobacco smoke are not confined
to smokers but also cause severe discomfort and illness to nonsmokers;
and
Whereas, environmental tobacco smoke (hereinafter ETS), which
includes both exhaled smoke and the side stream smoke from burning
tobacco products, causes the death of 53,000 Americans each year (McGinnis
JM, Foego W, "Actual Causes of Death in the United States," JAMA 1993
270:2207-2212); and
Whereas, the U.S. Environmental Protection Agency classified
secondhand smoke as a known human carcinogen and the International
Agency for Research on Cancer (IARC) of the World Health Organization
also classified secondhand smoke as a known human carcinogen (IARC-WHO,
2002).
Now, therefore, the Board of Health of the Town of Southwick
recognizes the rights of those who wish to breathe smoke-free air
and establishes this regulation to protect and improve the public
health and welfare by prohibiting smoking in the membership associations,
as defined herein.
This regulation is promulgated under the authority granted to
the Southwick Board of Health pursuant to Massachusetts General Laws
Chapter 111, Section 31: "Boards of health may make reasonable health
regulations." Except as provided below, the provisions of Massachusetts
General Laws Chapter 270, Section 22, shall apply, including penalties,
fines and sanctions.
For the purposes of this regulation, the following words shall
have the meanings respectively ascribed to them by this section:
An individual who has been designated by the owner or operator
of any membership association to be the manager or otherwise in charge
of said membership association.
A space bounded by walls, with or without windows or fenestrations,
continuous from floor to ceiling and enclosed by one or more doors,
including, but not limited to, an office, function room or hallway.
A not-for-profit entity that has been established and operates,
for a charitable, philanthropic, civic, social, benevolent, educational,
religious, athletic, recreation or similar purpose, and is comprised
of members who collectively belong to: (i) a society, organization
or association of a fraternal nature that operates under the lodge
system, and having one or more affiliated chapters or branches incorporated
in any state; or (ii) a corporation organized under Chapter 180; or
(iii) an established religious place of worship or instruction in
the commonwealth whose real or personal property is exempt from taxation;
or (iv) a veterans' organization incorporated or chartered by
the Congress of the United States, or otherwise, having one or more
affiliated chapters or branches incorporated in any state. Except
for a religious place of worship or instruction, an entity shall not
be a membership association for the purpose of this definition, unless
individual membership containing not less than full membership costs
and benefits is required for all members of the association for a
period of not less than 90 days.
Any individual, firm, partnership, association, corporation,
company or organization of any kind, including, but not limited to,
an owner, operator, manager, proprietor or person in charge of any
building, establishment, business, or restaurant or retail store,
or the business agents or designees of any of the foregoing.
The lighting of a cigar, cigarette, pipe or other tobacco
product or possessing a lighted cigar, cigarette, pipe or other tobacco
or nontobacco product designated to be combusted and inhaled.
A.Â
Smoking is prohibited in the enclosed areas of membership associations,
also known as private clubs.
B.Â
It shall be unlawful for any person having control of the premises
upon which smoking is prohibited by this regulation, or the business
agent or designee of such membership association, to permit a violation
of this regulation.
If any paragraph or provision of this regulation is found to
be illegal or against public policy or unconstitutional, it shall
not affect the legality of any remaining paragraphs or provisions.
Notwithstanding the provisions of the foregoing § 417-13 of this regulation, nothing in this regulation shall be deemed to amend or repeal applicable fire, health or other regulations so as to permit smoking in areas where it is prohibited by such fire, health or other regulations.
This regulation shall be governed and construed in accordance
with the laws of the Commonwealth of Massachusetts.
This regulation shall take effect on February 1, 2007.
