[Adopted 1-16-1997; amended 5-15-1997; 7-16-1998; 9-20-2001; 8-16-2012; 7-21-2016]
A.
Findings.
(1)
Tobacco use is the leading preventable cause of death in the United
States. Billions of dollars are expended annually for health care
costs associated with treating tobacco-related illness. The 1986 Surgeon
General's report "The Health Consequences of Involuntary Smoking,"
documented the risk to nonsmokers as a result of exposure to environmental
tobacco smoke. In 1993, the Environmental Protection Agency classified
environmental tobacco smoke as a human carcinogen.
(2)
Countless scientific studies have documented the public health and
environmental hazards of both smoking and exposure to the by-products
of smoking. Not only is tobacco smoke a major cause of indoor air
pollution, but breathing secondhand smoke is a cause of lung cancer,
cardiovascular diseases, and respiratory illness. At special risk
are children, the elderly, and individuals with heart and blood vessel
disease and impaired lung function due to conditions such as asthma,
bronchitis and emphysema. In 2007, Kelpeis et al. (J. Air & Waste
Management Association, 57:522-534) reported that outdoor tobacco
smoke levels can be substantial and potentially harmful to exposed
individuals. We are faced with a public health issue that is both
profound and urgent. The right of an individual to choose to smoke
is not at issue here. The issue addressed here is the right of individuals
to breathe smoke-free air in public places and in the workplace.
(3)
Because tobacco use is a leading cause of death and because there
is overwhelming evidence that nicotine is addictive, it would be prudent
to discourage the use of tobacco, especially by young people, in consideration
of the fact that approximately 90% of all adult smokers began smoking
before the age of twenty. It is estimated that more than 3,000 young
people begin smoking every day in the U.S. and 14.1% of these young
smokers usually obtained tobacco products by buying them in a store
(i.e. convenience store, supermarket, or discount store) or gas station,
despite state laws prohibiting the sale of tobacco products to minors.
Many non-cigarette tobacco products, such as cigars and cigarillos,
can be sold in a single "dose" thereby incurring a relatively low
tax as compared to cigarettes. These are available in fruit, candy
and alcohol flavors and are popular among youth. Nicotine solutions,
which are consumed via electronic or battery-operated delivery smoking
devices such as electronic cigarettes, are sold in dozens of flavors,
such as cotton candy and bubble gum, that appeal to youth. The U.S.
Department of Health and Human Services has concluded that nicotine
is as addictive as cocaine or heroin and the Surgeon General has determined
that nicotine exposure during adolescence may have lasting adverse
consequences for brain development. Therefore, access to tobacco products
by individuals under the age of 21 has become a major public health
problem.
(4)
In addition to causing adverse effects on health, tobacco products
contribute to environmental pollution, particularly in coastal communities,
where cigarettes and cigarette filters represent the greatest contributor
to non-biodegradable litter found on beaches and the banks of marine
estuaries (Executive Office of Energy and Environmental Affairs, Massachusetts
COASTSWEEP). Furthermore, cigarette butts (smoked and unsmoked, with
and without tobacco) have been reported to be acutely toxic to both
fresh and saltwater fish (Slaughter, et al., Tobacco Control 2011;
20(Suppl 1):i25-i29 doi: 10.1136/tc2010.040170). There is also concern
regarding toxicity due to ingestion of cigarettes and cigarette butts
by children (US Centers for Disease Control and Prevention; MMWR 1997;
46:125-8).
B.
Purpose.
(1)
The first purpose of this regulation is to protect the public health and welfare by restoring and preserving the right of all citizens to breathe clean air. Exposure to secondhand smoke presents a serious public health risk. Of particular concern is the workplace environment of persons who may be subjected to sustained, involuntary exposure to hazardous materials in the air. This regulation prohibits smoking in public places and in the workplace, both as defined in § 185-58.
(2)
A second purpose is to discourage our younger citizens from smoking
in the first place. Vending machines afford the opportunity for the
sale of tobacco products to minors. This regulation prohibits the
use of vending machines for the sale of tobacco products and establishes
regulations relative to the sale and distribution of tobacco products
in the Town of Orleans.
(3)
Now, therefore it is the intention of the Orleans Board of Health
to regulate the sale and use of tobacco products.
This regulation is promulgated under the authority granted to the Orleans Board of Health pursuant to Massachusetts General Laws Chapter 111, Section 31 that states "boards of health may make reasonable health regulations." It is also promulgated pursuant to Massachusetts General Laws Chapter 270, Section 22 (j), which states in part "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."
For the purpose of this regulation, the following words shall
have the following meanings:
Any tobacco product manufactured or packaged as a wrap or
as a hollow tube made wholly or in part for tobacco that is designed
or intended to be filled by the consumer with loose tobacco or other
fillers.
An individual who has been designated by the owner or operator
of any establishment to be the manager or otherwise in charge of said
establishment.
A distinguishable taste or aroma, other than the taste or
aroma of tobacco, menthol, mint or wintergreen, imparted or detectable
either prior to or during consumption of a tobacco product or component
thereof, including, but not limited to, tastes or aromas relating
to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
beverage, herb or spice; provided, however, that no tobacco product
shall be determined to have a characterizing flavor solely because
of the provision of ingredient information or the use of additives
or flavorings that do not contribute to the distinguishable taste
or aroma of the product.
Any roll of tobacco that is wrapped in leaf tobacco or in any substance containing tobacco with or without a tip or mouthpiece not otherwise defined as a cigarette under Massachusetts General Law, Chapter 64C, Section 1, Paragraph 1.
See Blunt Wrap.
Money, gratuity, privilege, or benefit received from an employer
in return for work performed or services rendered.
Any element of a tobacco product, including, but not limited
to, the tobacco, filter and paper, but not including any constituent.
Any ingredient, substance, chemical or compound, other than
tobacco, water or reconstituted tobacco sheet, that is added by the
manufacturer to a tobacco product during the processing, manufacturing
or packaging of the tobacco product. Such term shall include a smoke
constituent.
Perceivable by either the sense of smell or taste.
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. This term shall include such devices whether they are manufactured
as e-cigarettes, e-cigars, e-pipes or under any other product name.
Any public or private college, school, professional school,
scientific or technical institution, university or other institution
furnishing a program of higher education.
Any individual who performs services for an employer; or
an individual or person who performs a service for compensation for
an employer at the employer's workplace, including a contract employee,
temporary employee, and independent contractor who performs a service
in the employer's workplace for more than a de minimis amount of time.
A person, partnership, association, corporation, trust, or
other organized group that utilizes the services of one (1) or more
employees; or an individual, person, partnership, association, corporation,
trust, organization, school, college, university or other educational
institution or other legal entity, whether public, quasi-public, private,
or non-profit which uses the services of one (1) or more employees
at one (1) or more workplaces, at any one (1) time, including the
Town of Orleans.
A space bounded by walls, sides, screen, vinyl or acrylic
weatherization panels, with or without windows or fenestrations, continuous
from floor to ceiling and enclosed by one (1) or more doors, including
but not limited to an office, function room or hallway. Enclosed space
does not include "outdoor space" as defined in this regulation.
Any real property (including any abutting real property)
and any buildings thereon.
Any tobacco product or component part thereof that contains
a constituent that has or produces a characterizing flavor. A public
statement, claim or indicia made or disseminated by the manufacturer
of a tobacco product, or by any person authorized or permitted by
the manufacturer to make or disseminate public statements concerning
such tobacco product, that such tobacco product has or produces a
characterizing flavor shall constitute presumptive evidence that the
tobacco product is a flavored tobacco product.
An individual, partnership, association, corporation or trust
or any person or group of persons that provides health care services
and employs health care providers licensed, or subject to licensing,
by the Massachusetts Department of Public Health under M.G.L. c. 112
or a retail establishment that provides pharmaceutical goods and services
and subject to the provisions of 247 CMR 6.00. "Health care institution"
includes, but is not limited to, hospitals, clinics, health centers,
pharmacies, drug stores, doctor offices, optician/optometrist offices
and dentist offices.
The age an individual must be before that individual can
be sold a tobacco product in the Town of Orleans.
A person under eighteen years of age.
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 tobacco substitute
prescribed by a licensed physician or a product that has been 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 product includes, but is not limited to, e-cigarettes.
A mechanical device made available for use (including to
an individual who produces cigars, cigarettes, smokeless tobacco,
pipe tobacco, or roll-your-own tobacco solely for the individual's
own personal consumption or use) that is capable of making cigarettes,
cigars or other tobacco products. RYO machines located in private
homes used for solely personal consumption are not Non-Residential
RYO machines.
An outdoor area, open to the air at all times and cannot
be enclosed by a wall, screen, vinyl or acrylic weatherization panels
or side covering.
Any person engaged in the sale or distribution of tobacco
or nicotine delivery products directly to consumers who applies for
and receives a Tobacco and Nicotine Delivery Product Sales Permit
or any person who is required to apply for a Tobacco and Nicotine
Delivery Product Sales Permit pursuant to these regulations, or his
or her business agent.
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
establishment, business or retail store.
A premium cigar is defined as: "a cigar that (1) is wrapped
in whole tobacco leaf; (2) contains a 100 percent leaf tobacco binder;
(3) contains primarily long filler tobacco; (4) is made by combining
manually the wrapper, filler, and binder; (5) has no filter, tip,
or non-tobacco mouthpiece and is capped by hand; (6) has a retail
price (after any discounts or coupons) of no less than $10 per cigar;
(7) does not have a characterizing flavor other than tobacco; and
(8) weighs more than 6 pounds per 1,000 units."
An enclosed, indoor area that is open to and used by the
general public, including but not limited to: licensed child care
facilities, educational facilities, clinics, nursing homes, all elevators,
stairwells, halls, lobbies and entrance ways accessible to the public,
common areas (not including actual sleeping quarters) of guest houses,
bed and breakfasts, inns, hotels and motels, public restrooms, laundromats,
hair salons and barbershops, libraries, Town buildings, museums, retail
food establishments, food service establishments, indoor sports arenas,
bowling alleys, skating rinks, enclosed shopping malls, theaters,
auditoriums, public transit facilities, and any function rooms or
halls when use is open to the general public.
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 21 is prohibited at all times,
and maintains a valid permit for the retail sale of tobacco products
as required to be issued by the Orleans Board of Health.
Public or private elementary or secondary schools.
Any display or roll your own (RYO) machine from which customers
may select or make a tobacco product or a nicotine delivery product
without assistance from an employee or store personnel.
Any chemical or chemical compound in mainstream or side stream
tobacco smoke that either transfers from any component of the tobacco
product to the smoke or that is formed by the combustion or heating
of tobacco, additives or other component of the tobacco product.
The lighting of a cigar, cigarette, pipe, e-cigarette or
other tobacco product or possessing a lighted cigar, cigarette, pipe,
e-cigarette or other tobacco or non-tobacco product designed to be
combusted and inhaled.
An establishment that primarily is engaged in the retail sale of tobacco products for consumption by customers on the premises and is required by Mass. General Law Ch. 270, Section 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 bars are prohibited in the Town of Orleans.
Any product containing, made, or derived from tobacco or
nicotine that is intended for human consumption, whether smoked, chewed,
absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any
other means, including, but not limited to: cigarettes, cigars, little
cigars, chewing tobacco, pipe tobacco, snuff, or electronic cigarettes,
electronic cigars, electronic pipes, electronic hookah, or similar
products, regardless of nicotine content, that rely on vaporization
or aerosolization. "Tobacco product" includes any component or part
of a tobacco product. "Tobacco product" does not include any product
that has been approved by the United States Food and Drug Administration
either as a tobacco use cessation product or for other medical purposes
and which is being marketed and sold or prescribed solely for the
approved purpose.
Any automated or mechanical self-service device, which upon
insertion of money, tokens or any other form of payment, dispenses
or makes cigarettes, any other tobacco product or nicotine delivery
product.
A structure or facility or portion thereof, at which one
(1) or more employees perform a service for an employer, or other
spaces rented to or otherwise used by the public; and where the employer
has the right or authority to exercise control over the space.
A.
Smoking, as defined in this regulation, shall be prohibited in all
public places.
B.
Pursuant to M.G.L. Ch. 270, § 22(j) smoking, as defined
in this regulation is also hereby prohibited in:
(1)
Smoking bars (cigar bars and hookah bars).
(2)
Retail tobacco stores (tobacconists and smoke shops).
(3)
Town-owned conservation land.
(4)
Nursing homes.
(5)
Membership associations (private clubs).
(6)
Hotels and motels.
(7)
Bed and breakfasts and lodging homes, except in the areas accessed
exclusively by the owner(s).
(8)
All outdoor areas of restaurants, bars, taverns where food and/or
beverages are sold, served or otherwise consumed or carried.
(9)
Public transportation, bus and taxi waiting areas.
A.
It shall be the responsibility of the employer to provide a smoke
free environment for all employees working in a workplace including
the facility/land on which the workplace is located. Smoking may be
permitted in a designated outdoor space, provided that the outdoor
space is physically separated from an enclosed workspace, entrance/exit
to the workspace, and there is no migration of smoke into the workspace,
indoor entrance, and area accessible to the public, or a place of
public gathering.
B.
Smoking shall be prohibited in Orleans in accordance with M.G.L. Ch. 270, Section 22 (commonly known as the "Smoke-Free Workplace Law").
C.
Smoking shall be prohibited in tobacco retail stores and smoking
bars.
Each person having control of premises where smoking is prohibited
by this regulation shall display on the premises conspicuously, including
the primary entrance doorways, appropriate signs reading "No Smoking."
When "No Smoking" is applicable, posting the international symbol
for "No Smoking" (consisting of a pictorial representation of a burning
cigarette enclosed in a red circle with a red bar across it) shall
be deemed as compliance.
A.
No person shall sell tobacco products, including nicotine delivery
products, or permit tobacco products, including nicotine delivery
products, to be sold to a person under the minimum legal sales age;
or not being the individual's parent or legal guardian, give tobacco
products and/or nicotine delivery products, as defined herein, to
a person under the minimum legal sales age. The minimum legal sales
age in the Town of Orleans is 21.
B.
Required signage.
(1)
In conformance with and in addition to Massachusetts General Law, 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 tobacco and nicotine delivery products at retail. The notice shall be provided by the Massachusetts Department of Public Health and made available from the Orleans Board of Health. The notice shall be at least 48 square inches and shall be posted conspicuously by the permit holder in the retail establishment or other place in such a manner so that a person standing at or approaching the cash register may readily see it. The notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four (4) feet or greater than nine (9) feet from the floor. The owner or other person in charge of a shop or other place used to sell tobacco products at retail shall conspicuously post any additional signs required by the Massachusetts Department of Public Health.
(2)
The owner or other person in charge of a shop or other place used
to sell tobacco products at retail shall conspicuously post signage
provided by the Orleans Board of Health that discloses current referral
information about smoking cessation.
(3)
The owner or other person in charge of a shop or other place used
to sell tobacco products including nicotine delivery products; as
defined herein, at retail shall conspicuously post a sign stating
that "The sale of tobacco products, including nicotine delivery products
to individuals under 21 years of age is prohibited." The notices shall
be no smaller than 8.5 inches by 11 inches and shall be posted conspicuously
in the retail establishment or other place in such a manner so that
a person standing at or approaching the cash register may readily
see them. These notices shall directly face the purchaser and shall
not be obstructed from view or placed at a height of less than four
(4) feet or greater than nine (9) feet from the floor.
C.
Identification: Each person selling or distributing tobacco or nicotine
delivery products shall verify the age of the purchaser by means of
a valid government-issued photographic identification containing the
bearer's date of birth that the purchaser is 21 years of age or older.
Age verification is required for any person under the age of 30.
D.
All retail sales of tobacco products or nicotine delivery products
must be face-to-face between the seller and the buyer.
A.
No person shall sell or otherwise distribute tobacco or nicotine
delivery products at retail within the Town of Orleans without first
obtaining a Tobacco and Nicotine Delivery Product Sales Permit issued
annually by the Orleans Board of Health. Only owners of establishments
with a permanent, non-mobile location in Orleans are eligible to apply
for a permit and sell tobacco products or nicotine delivery products
at the specified location in Orleans.
B.
As part of the Tobacco and Nicotine Delivery Product Sales Permit
application process, the applicant will be provided with the Orleans
Board of Health Tobacco and Nicotine Delivery Product Sales Regulation.
Each applicant is required to sign a statement declaring that the
applicant has read said regulation and that the applicant is responsible
for instructing any and all employees who will be responsible for
tobacco and nicotine delivery product sales regarding both state laws
regarding the sale of tobacco and this regulation.
C.
Each applicant who sells tobacco is required to provide proof of
a current tobacco sales license issued by the Massachusetts Department
of Revenue before a Tobacco and Nicotine Delivery Product Sales Permit
can be issued.
D.
The Orleans Board of Health shall annually determine the fee for
a Tobacco and Nicotine Delivery Product Sales Permit. All such permits
shall be renewed annually by January 1st of each year.
E.
A separate permit is required for each retail establishment selling
tobacco or nicotine delivery products.
F.
Each Tobacco and Nicotine Delivery Product Sales Permit shall be
displayed at the retail establishment in a conspicuous place.
G.
No Tobacco and Nicotine Delivery Product Sales Permit holder shall
allow any employee to sell tobacco products or nicotine delivery products,
as defined herein, until such employee reads this regulation and state
laws regarding the sale of tobacco products and nicotine delivery
products and signs a statement, a copy of which will be placed on
file in the office of the employer, that he or she has read this regulation
and state laws.
H.
A Tobacco and Nicotine Delivery Product Sales Permit is non-transferable.
A new owner of an establishment that sells tobacco or nicotine delivery
products must apply for a new permit. No new permit will be issued
unless and until all outstanding penalties incurred by the previous
permit holder are satisfied in full.
I.
Issuance of a Tobacco and Nicotine Delivery Product Sales Permit
shall be conditioned on an applicant's consent to unannounced, periodic
inspections of his or her retail establishment to ensure compliance
with this regulation.
J.
Issuance and holding of a Tobacco and Nicotine Delivery Product Sales
Permit shall be conditioned on an applicant's on-going compliance
with current Massachusetts Department of Revenue requirements and
policies including, but not limited to, minimum retail prices of tobacco
and nicotine delivery products. Proof of the agreement to abide must
be demonstrated by enclosing a copy of the establishment's Massachusetts
Department of Revenue's tobacco sales permit with the annual application
for a Tobacco and Nicotine Delivery Product Sales Permit as required
in these regulations.
K.
A Tobacco and Nicotine Delivery Product Sales Permit will not be
renewed if the permit holder has failed to pay all fines issued and
the time period to appeal the fines has expired and/or any outstanding
permit suspensions have not been satisfied.
A.
Commercial roll-your-own machines. Non-residential roll-hour-own
machines are prohibited in the Town of Orleans.
B.
Sale of blunts. No person or entity shall sell or distribute blunts/cigar
wraps within the Town of Orleans or possess blunts/cigar wraps within
the Town of Orleans with the intent to sell or distribute them.
C.
Cigar sales regulated.
(1)
No person shall sell or distribute or cause to be sold or distributed
any package containing three (3) or fewer cigars.
(2)
This section shall not apply to:
(a)
The sale of premium cigars, as defined in this regulation, having
a retail price of ten dollars ($10.00) or more.
(b)
A person or entity engaged in the business of selling or distributing
cigars for commercial purposes to another person or entity engaged
in the business of selling or distributing cigars for commercial purposes
with the intent to sell or distribute outside the boundaries of the
Town of Orleans.
D.
Sale of flavored tobacco products prohibited. No person shall sell
or distribute or cause to be sold or distributed any flavored tobacco
product.
E.
Free distribution and coupon redemption. No person shall distribute,
or cause to be distributed, any free samples of tobacco products or
nicotine delivery products. No means, instruments or devices that
allow for the redemption of tobacco products for free or at a reduced
price below the minimum retail price determined by the Massachusetts
Department of Revenue shall be accepted by any permit holder.
F.
Out-of-package sales. No person may sell or cause to be sold, or
distribute or cause to be distributed, any cigarette package that
contains fewer than twenty (20) cigarettes, including single cigarettes.
G.
Self-service displays. All self-service displays of tobacco products
and/or nicotine delivery products are prohibited. All humidors including,
but not limited to, walk-in humidors must be locked.
H.
Vending machines. No vending machines for dispensing nicotine delivery
products, cigarettes or other tobacco products are allowed in the
Town of Orleans.
I.
A Tobacco and Nicotine Delivery Product Sales Permit shall not be
issued to any new applicant for a retail location within 500 feet
of a public or private elementary or secondary school as measured
by a straight line from the nearest point of the property line of
the school to the nearest point of the property line of the site of
the applicant's business premises. Applicants who purchase an existing
business that holds a current Tobacco and Nicotine Delivery Product
Sales Permit at the time of the sale of said business may apply, within
sixty (60) days of such sale, for the permit held by the seller if
the buyer intends to sell tobacco products, as defined herein.
J.
Prohibition of the sale of tobacco products and nicotine delivery
products by educational institutions. No educational institution located
in the Town of Orleans shall sell or cause to be sold tobacco products,
as defined herein. This includes all educational institutions as well
as any retail establishments that operate on the property of an educational
institution.
K.
Smoking bars, as defined in this regulation, are prohibited in the
Town of Orleans.
No health care institution located in the Town of Orleans shall
sell or cause to be sold tobacco products and/or nicotine delivery
products, as defined herein. No retail establishment that operates
or has a health care institution within it, such as a pharmacy, optician/optometrist
or drug store, shall sell or cause to be sold tobacco products, as
defined herein.
A.
An owner/employer/licensee may apply to the Orleans Board of Health
for a variance from the provisions of these regulations except where
prohibited by state law. The application must state in writing the
reasons and justification for the request. The applicant must establish
that enforcement of the regulations would do manifest injustice. The
Orleans Board of Health will conduct a public hearing on the request,
at which time the applicant or a designated agent shall present the
request and the basis for the request. (Exception: The Building Code
Board of Appeals must issue a variance to the ventilation requirements.)
B.
Any variance approved by the Orleans Board of Health is nontransferable
to an owner/licensee/employer other than the applicant.
C.
Any variance approved by the Orleans Board of Health must be renewed
annually unless otherwise stated as part of the variance approval.
A.
Smoking in public places and workplaces.
(1)
(2)
Each calendar day on which a violation occurs shall be considered
a separate offense.
(3)
This regulation shall be enforced by the Orleans Board of Health
and its designees.
(5)
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 Massachusetts Department
of Public Health, the Orleans Board of Health may revoke or suspend
the license to operate and shall send notice of the revocation or
suspension to the Massachusetts Department of Public Health.
(6)
Any person may register a complaint to initiate an investigation
and enforcement with the Orleans Board of Health, the local inspection
department or the equivalent.
(7)
Any person who knowingly smokes in an area subject to this regulation, in which a "No Smoking" sign or its equivalent is conspicuously displayed, shall be disposed of by a civil penalty of one hundred dollars ($100.00) for each offense using the non-criminal method of disposition procedures contained in Section 21D of Chapter 40 of Massachusetts General Law.
B.
Sale of tobacco and nicotine delivery products.
(1)
It shall be the responsibility of the establishment, permit holder
and/or his or her business agent to ensure compliance with all sections
of this regulation pertaining to his or her distribution of tobacco
and/or nicotine delivery products. The violator shall receive:
(a)
In the case of a first violation, a fine of one hundred dollars
($100.00).
(b)
In the case of a second violation within 36 months of the date
of the current violation, a fine of two hundred dollars ($200.00)
and the Tobacco and Nicotine Delivery Product Sales Permit shall be
suspended for seven (7) consecutive business days.
(c)
In the case of three or more violations within a 36 month period,
a fine of three hundred dollars ($300.00) and the Tobacco and Nicotine
Delivery Product Sales Permit shall be suspended for thirty (30) consecutive
business days.
(d)
Each calendar day on which a violation occurs shall be considered
a separate offense.
(2)
Refusal to cooperate with inspections pursuant to this regulation
shall result in the suspension of the Tobacco and Nicotine Delivery
Product Sales Permit for thirty (30) consecutive business days.
(3)
In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of tobacco or nicotine delivery
products directly to a consumer while his or her permit is suspended
shall be subject to the suspension of all Orleans Board of Health
issued permits for thirty (30) consecutive business days.
(4)
The Orleans Board of Health shall provide notice of the intent to
suspend a Tobacco and Nicotine Delivery Product Sales Permit, which
notice shall contain the reasons therefor and establish a time and
date for a hearing which date shall be no earlier than seven (7) days
after the date of said notice. The permit holder or its business agent
shall have an opportunity to be heard at such hearing and shall be
notified of the Board of Health's decision and the reasons therefor
in writing. After a hearing, the Orleans Board of Health shall suspend
the Tobacco and Nicotine Delivery Product Sales Permit if the Board
finds that a sale to a person under the age of 21 occurred. For purposes
of such suspensions, the Board shall make the determination notwithstanding
any separate criminal or non-criminal proceedings brought in court
hereunder or under the Massachusetts General Laws for the same offense.
All tobacco products and nicotine delivery products shall be removed
from the retail establishment upon suspension of the Tobacco and Nicotine
Delivery Product Sales Permit. Failure to remove all tobacco and nicotine
delivery products shall constitute a separate violation of this regulation.
C.
Non-criminal disposition. Whoever violates any provision of this regulation may be penalized by the non-criminal method of disposition as provided in Massachusetts General Laws, Chapter 40, Section 21D or by filing a criminal complaint at the appropriate venue. Each day any violation exists shall be deemed to be a separate offense.
D.
The Orleans Board of Health may apply for injunctive relief to enforce
the provisions of this subsection in a court of competent jurisdiction.
E.
Enforcement. The Orleans Board of Health, Town Administrator, Department
of Public Works & Natural Resources, Conservation Commission,
Health Department, Police Department, and such other individuals as
may be designated by the Board of Health may enforce this regulation.
Any citizen who desires to register a complaint pursuant to the regulation
may do so by contacting the Orleans Board of Health or its designated
agent(s) and the Board shall investigate.
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.
Notwithstanding the provisions of § 185-59 of this regulation, nothing in this regulation shall be deemed to amend or repeal applicable fire, health or other regulation so as to permit smoking in areas where it is prohibited by such fire, health or other regulations.
This regulation shall take effect on November 1, 2016, unless
otherwise stated in the regulation.
