Town of Westminster, MA
Worcester County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Board of Health of the Town of Westminster as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Tobacco and nicotine delivery products — See Ch. 250.
[Adopted 11-18-1985]

§ 248-1 Findings.

A. 
Our nation's Surgeon General has affirmed that cigarette smoking is the chief preventable cause of death in our society; smoking is the most important health issue of our time.
B. 
Each year an estimated 350,000 Americans will die prematurely from the effects of smoking. Millions more live with crippled lungs and overstrained hearts. Cigarette smoking is a major cause of emphysema, lung cancer, chronic bronchitis and heart disease.
C. 
Furthermore:
(1) 
Tobacco smoke pollutes air in enclosed places and affects nonsmokers who are present.
(2) 
Inhaling secondhand smoke makes the heart beat faster, the blood pressure go up and the level of carbon monoxide in the blood increase.
(3) 
There is more cadmium in the smoke that drifts off the burning end of tobacco products than in the drag the smoker takes. Large doses of cadmium have been related to hypertension, chronic bronchitis and emphysema.
(4) 
Smoke from an idling cigarette contains even more tar and nicotine than an inhaled one.
(5) 
The amount of carbon monoxide in the blood of nonsmokers doubles in a poorly-ventilated room filled with tobacco smoke. Even outside the room, the inhaled carbon monoxide stays in the body for three or four hours.
(6) 
The nonsmoker is forced to breathe in smoke from the burning end of the cigarette as well as the smoke exhaled by the smoker.
(7) 
Researchers have found that respiratory infections, especially pneumonia and acute bronchitis, are twice as common in young children whose parents smoke at home, compared to those with nonsmoking parents.
(8) 
The United States Surgeon General has said:
"Nonsmokers have as much right to clean air and wholesome air as smokers have their so-called right to smoke, which I would redefine as a so-called right to pollute. It is high time to ban smoking from all confined public places, such as restaurants, theaters, airplanes, trains and buses. It is time that we interpret the Bill of Rights for the nonsmoker as well as the smoker."

§ 248-2 Definitions.

For the purpose of these regulations, the following definitions shall apply:
NONSMOKING AREA
That area of a restaurant designated and posted by the proprietor or other person in charge where smoking by patrons or employees shall be prohibited.
PUBLIC MEETINGS
All meetings which are regulated by the commonwealth's Open Meeting Law (found in MGL c. 39, § 23A, B and C).
PUBLIC PLACES
All enclosed public property within the Town of Westminster.
RESTAURANT
Any establishment with a seating capacity of 25 or more persons, duly licensed by the Town of Westminster for the serving and consumption of food on the premises which maintains tables for the use of its customers.
SMOKING
The lighting of, or the having in one's possession, any lighted cigarette, cigar, pipe or other tobacco product.
SMOKING AREA
All other areas of a restaurant, unless smoking is prohibited by sanitation or fire safety codes or regulations.

§ 248-3 Regulated conduct.

The following describes which behaviors are or are not acceptable in order to define clear expectations in terms of the intention of the regulations.
A. 
Public meetings. No person shall smoke at any public meeting while the meeting is in progress. Every effort shall be made to maintain a smoke-free entrance and egress to all public meetings. There may be a designated smoking area outside and away from the principal meeting area.
B. 
Public places. No person shall smoke in any public place, except in specifically designated smoking areas. The principal entrance and egress of all public places shall be smoke-free areas.
C. 
Restaurants.
(1) 
This regulation shall not apply to any restaurant with a seating capacity of fewer than 25 persons.
(2) 
No person shall smoke in any restaurant, except in specifically designated smoking areas. This prohibition does not apply in cases in which an entire room or hall is used for a private social function and not by the proprietor or person in charge of the restaurant.

§ 248-4 Enforcement in restaurants.

The proprietor or other person in charge of a restaurant shall make reasonable efforts to prevent smoking in the nonsmoking area by:
A. 
Posting appropriate signs.
B. 
Arranging seating so that existing physical barriers and ventilation systems minimize the effects of smoking in a smoking area upon persons in an adjacent nonsmoking area.
C. 
Directing patrons seated in a a nonsmoking area to refrain from smoking.
D. 
Any other means which may be appropriate.

§ 248-5 Violations and penalties.

A. 
Any person who smokes in a nonsmoking area after notice from the person(s) in charge that such conduct violates this regulation shall be subject to a fine of not less than $10 for each offense.
B. 
Any proprietor(s) or any other person(s) in charge of a public place or designated restaurant who fail(s) to make reasonable efforts to prevent smoking in nonsmoking areas shall be subject to a fine of $30 for each offense.
C. 
Violations of these regulations shall be considered reportable to the Westminster Board of Health by its designated agent for appropriate action.
D. 
Nothing in this regulation shall make it lawful to smoke in any area in which smoking is or may hereafter be prohibited by law.

§ 248-6 Variance criteria.

A. 
If a restaurant has a bar/lounge area, and if the establishment was in existence on or before September 2, 1997, through June 30, 1998, a variance may be granted at the discretion of the Board based on the following criteria:
(1) 
The bar/lounge occupies a separate, enclosed room and the number of seats in the bar/lounge area does not exceed 25% of the establishment's total seating capacity or the current seating capacity of the bar area, whichever is less;
(2) 
The bar/lounge is equipped with a separate ventilation system to produce a negative air environment so the air in the smoking bar/lounge does not filter into the nonsmoking restaurant area.
(3) 
The restaurant entrance area, waiting areas and restrooms shall be smoke-free; and
(4) 
Persons under the age of 18 are not permitted (prohibited) from entering the restaurant bar/lounge area.
B. 
Variances are nontransferable.
C. 
If the above criteria are met, then the following must be submitted to the Westminster Board of Health for review.
(1) 
A variance application (which is available at the Westminster Board of Health office).
(2) 
At the Board's discretion, proof of the confined/negative air flow must be demonstrated.
(3) 
If smoke or smoking is detected in nonsmoking areas, the variance for smoking can be revoked.
(4) 
Written verification by an indoor air quality specialist that the air in the smoking bar/lounge is equipped with a separate ventilation system to produce a negative air environment so that the air in the smoking bar/lounge does not filter into the nonsmoking restaurant area. Documentation must include the following:
(a) 
Qualifications/experience of the air quality specialist.
(b) 
A description of the ventilation systems detailing how and where air enters the area.
(c) 
The internal air flow and how and where air exits the area.
(d) 
Any factors influencing the efficiency/effective-ness of the system, such as open doors, windows, equipment, etc. This must be included with a standard operating procedure for maximum effectiveness.
[Adopted 5-5-2010]

§ 248-7 Purpose.

The purpose of this regulation is to protect the health of the employees and general public in the Town of Westminster.

§ 248-8 Legislative authority.

This regulation is promulgated under the authority granted to the Westminster Board of Health pursuant to MGL c. 111, § 31, that "Boards of health may make reasonable health regulations." It is also promulgated pursuant to MGL c. 270, § 22(j), which states in part that "Nothing in this section shall permit smoking in an area in which smoking is or may hereafter be prohibited by law including, without limitation: any other law or . . . health . . . regulation. Nothing in this section shall preempt further limitation of smoking by the commonwealth . . . or political subdivision of the commonwealth."

§ 248-9 Definitions.

A. 
As used in this regulation, the following words shall have the following meanings, unless the context requires otherwise:
MEMBERSHIP ASSOCIATION
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:
(1) 
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
(2) 
A corporation organized under Massachusetts General Laws Chapter 180; or
(3) 
An established religious place of worship or instruction in the Town of Westminster, whose real or personal property is exempt from taxation; or
(4) 
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.
MUNICIPAL PROPERTY
All properties owned or managed by the Town of Westminster, including but not limited to buildings, municipal vehicles, parking lots, land parcels, parks, and beaches.
MUNICIPAL VEHICLES
Any vehicle or vessel owned, leased, or rented by the Town of Westminster.
RETAIL TOBACCO STORE
An establishment which is not required to possess a retail food permit whose primary purpose is to sell or offer for sale to consumers, but not for resale, tobacco products and paraphernalia, in which the sale of other products is merely incidental, and in which the entry of persons under the age of 18 is prohibited at all times, and maintains a valid permit for the retail sale of tobacco products as required to be issued by the Westminster Board of Health.
SMOKING BAR
An establishment that primarily is engaged in the retail sale of tobacco products for consumption by customers on the premises and is required by MGL c. 270, § 22 to maintain a valid permit to operate a smoking bar issued by the Massachusetts Department of Revenue. "Smoking bar" shall include, but not be limited to, those establishments that are commonly known as "cigar bars" and "hookah bars."
SMOKING or SMOKE
The lighting of a cigar, cigarette, pipe or other tobacco product or possessing a lighted cigar, cigarette, pipe or other tobacco or nontobacco product designed to be combusted and inhaled.
WORKPLACE
An indoor area, structure or facility or a portion thereof, at which one or more employees perform a service for compensation for an employer, other enclosed spaces rented to or otherwise used by the public; and where the employer has the right or authority to exercise control over the space.
WORK SPACE or WORK SPACES
An enclosed area occupied by an employee during the course of his employment.
B. 
Terms not defined herein shall be defined as set forth in MGL c. 270, § 22 and/or 105 CMR 661. To the extent any of the definitions herein conflict with MGL c. 270, § 22 and 105 CMR 661, the definition contained in this regulation shall control.

§ 248-10 Smoking prohibited.

A. 
It shall be the responsibility of the employer to provide a smoke-free environment for all employees working in an enclosed workplace and work space(s).
B. 
To the extent prohibited by MGL c. 270, § 22 (commonly known as the "Smoke-Free Workplace Law") and 105 CMR 661, smoking is hereby prohibited in Westminster.
C. 
In addition to the prohibitions contained in MGL c. 270, § 22, MGL c. 111, § 31 and MGL c. 270, § 22(j), smoking is also hereby prohibited in:
(1) 
Smoking bars;
(2) 
Retail tobacco stores;
(3) 
Nursing and rest homes;
(4) 
Municipal property and municipal vehicles; and
(5) 
Membership associations (also known as private "clubs").

§ 248-11 Enforcement; violations and penalties.

A. 
An owner, manager, or other person in control of a building, vehicle or vessel who violates this article, in a manner other than by smoking in a place where smoking is prohibited, shall be punished by a fine of:
(1) 
For the first violation: $100.
(2) 
For a second violation occurring within two years of the date of the first offense: $200; and
(3) 
For a third or subsequent violation occurring within two years of the second violation: $300.
B. 
Each calendar day on which a violation occurs shall be considered a separate offense.
C. 
This article shall be enforced by the Board of Health and its designees.
D. 
Violations of § 248-10B shall, in accordance with MGL c. 270, § 22, be disposed by a civil penalty using the noncriminal method of disposition procedures contained in MGL c. 40, § 21D.
E. 
Violations of § 248-10C may be disposed of by a civil penalty using the noncriminal method of disposition procedures contained in MGL c. 40, § 21D.
F. 
In addition to civil penalties, the Board may seek equitable relief to enjoin any violations of these regulations.
G. 
If an owner, manager or other person in control of a building, vehicle or vessel violates this regulation repeatedly, demonstrating egregious noncompliance as defined by regulation of the Department of Public Health, the Board of Health may, pursuant to MGL c. 270, § 22(l) and in accordance with any other applicable law or regulation, revoke or suspend the license to operate and shall send notice of the revocation or suspension to the Department of Public Health.
H. 
Any person may register a complaint to initiate an investigation and enforcement with the Board of Health, the local inspection department or the equivalent.

§ 248-12 Severability.

If any paragraph or provision of this regulation is found to be illegal or against public policy or unconstitutional, it shall not effect the legality of any remaining paragraphs or provisions.

§ 248-13 Conflict with other provisions.

Notwithstanding the provisions of § 248-10 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.

§ 248-14 Effective date.

This regulation was passed on May 5, 2010, and shall be effective as of May 5, 2010.