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
Smoking — See Ch. 248.
[Adopted 6-3-2009]

§ 250-1 Statement of purpose.

Whereas there exists conclusive evidence that tobacco smoke causes cancer, respiratory and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat; and whereas more than 80% of all smokers begin smoking before the age of 18 years [Centers for Disease Control and Prevention, "Youth Surveillance - United States 2000," 50 MMWR 1 (Nov. 2000)]; and whereas, nationally in 2000, 69% of middle-school-age children who smoke at least once a month were not asked to show proof of age when purchasing cigarettes (Id.); and whereas the United States Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin; and whereas, despite state laws prohibiting the sale of tobacco products to minors, access by minors to tobacco products is a major problem; now, therefore, it is the intention of the Westminster Board of Health to curtail the access of tobacco products by minors.

§ 250-2 Legislative authority.

This regulation is promulgated pursuant to the authority granted to the Westminster Board of Health by MGL c. 111, § 31, that "Boards of health may make reasonable health regulations."

§ 250-3 Definitions.

For the purpose of this regulation, the following words shall have the following meanings:
BUSINESS AGENT
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.
EMPLOYEE
Any individual who performs services for an employer.
EMPLOYER
Any individual, partnership, association, corporation, trust or other organized group of individuals, including Westminster or any agency thereof, which uses the services of one or more employees.
MINOR
Any individual who is under the age of 18.
PERMIT
A retail tobacco sales permit issued by the Board.
PERMIT HOLDER
Any person engaged in the sale or distribution of tobacco products directly to consumers who applies for and receives a tobacco sales permit or any person who is required to apply for a tobacco sales permit pursuant to these regulations, or his or her business agent.
PERSON
An individual, employer, employee, retail store manager or owner, or the owner or operator of any establishment engaged in the sale or distribution of tobacco products directly to consumers.
SELF-SERVICE DISPLAY
Any display from which customers may select a tobacco product without assistance from an employee or store personnel, excluding vending machines.
TOBACCO PRODUCT
Cigarettes, cigars, chewing tobacco, pipe tobacco, bidis, clove cigarettes, snuff or tobacco in any of its forms.
VENDING MACHINE
Any automated or mechanical self-service device, which upon insertion of money, tokens or any other form of payment, dispenses cigarettes or any other tobacco product.

§ 250-4 Sales to minors prohibited; posting of notice; verification of age; face-to-face sales required.

A. 
No person shall sell tobacco products or permit tobacco products to be sold to a minor; or, not being the minor's parent or legal guardian, give tobacco products to a minor.
B. 
In conformance with and in addition to MGL c. 270, § 7, a copy of MGL 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 tobacco products at retail. The notice shall be provided by the Massachusetts Department of Public Health and made available from the Westminster 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 it may be readily seen by a person standing at or approaching the cash register. The notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four feet or greater than nine feet from the floor.
C. 
Identification. Each person selling or distributing tobacco products shall verify the age of the purchaser by means of government-issued photographic identification containing the bearer's date of birth that the purchaser is 18 years old or older. Verification is required for any person under the age of 27.
D. 
All retail sales of tobacco must be face-to-face between the seller and the buyer.

§ 250-5 Permit required.

A. 
No person shall sell or otherwise distribute tobacco at retail within Westminster without first obtaining a tobacco sales permit issued annually by the Westminster Board of Health. Only owners of establishments with a permanent, nonmobile location in Westminster are eligible to apply for a permit and sell tobacco products at the specified location in Westminster.
B. 
As part of the tobacco sales permit application process, the applicant will be provided with the Westminster Board of Health 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 sales regarding both state laws regarding the sale of tobacco and this regulation.
C. 
Each applicant is required to provide proof of a current tobacco sales license issued by the Massachusetts Department of Revenue before a tobacco sales permit can be issued.
D. 
The fee for a tobacco sales permit shall be determined by the Westminster Board of Health annually. All such permits shall be renewed annually by December 31.
E. 
A separate permit is required for each retail establishment selling tobacco.
F. 
Each tobacco sales permit shall be displayed at the retail establishment in a conspicuous place.
G. 
No tobacco sales permit holder shall allow any employee to sell cigarettes or other tobacco products until such employee reads this regulation and state laws regarding the sale of tobacco and signs a statement, a copy of which will be placed on file in the office of the employer, that he/she has read the regulation and applicable state laws.
H. 
A tobacco sales permit is nontransferable. A new owner of an establishment that sells tobacco must apply for a new tobacco sales 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 sales permit shall be conditioned on an applicant's consent to unannounced, periodic inspections of his/her retail establishment to ensure compliance with this regulation.
J. 
A tobacco 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.

§ 250-6 Free distribution.

No person shall distribute, or cause to be distributed, any free samples of tobacco products.

§ 250-7 Package contents; 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 20 cigarettes, including single cigarettes.

§ 250-8 Self-service displays.

All self-service displays of tobacco products are prohibited. All humidors, including, but not limited to, walk-in humidors, must be locked.

§ 250-9 Tobacco vending machines.

All tobacco vending machines are prohibited.

§ 250-10 Violations and penalties.

A. 
It shall be the responsibility of the 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.
(1) 
The violator shall receive:
(a) 
In the case of a first violation, a fine of $100 and the tobacco sales permit shall be suspended for three consecutive business days.
(b) 
In the case of a second violation within 18 months of the date of the current violation, a fine of $200 and the tobacco sales permit shall be suspended for 14 consecutive business days.
(c) 
In the case of three violations within 18 months of the date of the current violation, a fine of $300 and the tobacco sales permit shall be suspended for 30 consecutive business days.
(d) 
In the case of a fourth violation within 18 months of the date of the current violation, a fine of $300 and the tobacco sales permit shall be permanently revoked.
(2) 
All tobacco products shall be removed from public view for three-day tobacco sales permit suspensions. All tobacco products shall be removed from the premises for fourteen-day-or-more tobacco sales permit suspensions. Failure to remove all tobacco products shall constitute a separate violation of this regulation.
B. 
Refusal to cooperate with inspections pursuant to this regulation shall result in the suspension of the tobacco sales permit for 30 consecutive business days.
C. 
In addition to the monetary fines set above, any permit holder who engages in the sale or distribution of tobacco products directly to a consumer while his or her permit is suspended shall be subject to the suspension of all Board of Health issued permits for 30 consecutive business days.
D. 
The Westminster Board of Health shall provide notice of the intent to suspend a tobacco 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 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 Westminster Board of Health shall suspend the tobacco sales permit if the Board finds that a sale to a minor occurred. For purposes of such suspensions, the Board shall make the determination notwithstanding any separate criminal or noncriminal proceedings brought in court hereunder or under the Massachusetts General Laws for the same offense. All tobacco products shall be removed from the retail establishment upon suspension of the tobacco sales permit. Failure to remove all tobacco products shall constitute a separate violation of this regulation.

§ 250-11 Noncriminal disposition.

A. 
Whoever violates any provision of this regulation may be penalized by the noncriminal method of disposition as provided in MGL c. 40, § 21D or by filing a criminal complaint at the appropriate venue.
B. 
Each day any violation exists shall be deemed to be a separate offense.

§ 250-12 Enforcement.

A. 
Enforcement of this regulation shall be by the Board of Health of Westminster or its designated agent(s).
B. 
Any citizen who desires to register a complaint pursuant to the regulation may do so by contacting the Board of Health of Westminster or its designated agent(s) and the Board shall investigate.

§ 250-13 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.

§ 250-14 Effective date.

These regulations were revised and passed on June 3, 2009, and will go into effect on July 1, 2009.
[Adopted 5-5-2010]

§ 250-15 Statement of purpose.

Whereas there exists conclusive evidence that the United States Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin; the appeal created by nicotine-delivery products or e-cigarettes, which contain addictive nicotine, can lead minors into a nicotine addiction that may result in their daily use of tobacco; the United States Food and Drug Administration has conducted laboratory tests finding e-cigarettes contain toxic chemicals and carcinogens; e-cigarettes seriously compromise current laws governing indoor smoking bans, including, but not limited to, the Smoke-Free Workplace Law (MGL c. 270, § 22) and the Education Reform Act (MGL c. 71, §§ 2A, 37H); and Westminster aims to protect its youth against the use of nicotine-delivery products and its residents against the involuntary exposure of vapors from nicotine-delivery products such as e-cigarettes; now, therefor it is the intention of the Westminster Board of Health to curtail the access and use of nicotine-delivery products.

§ 250-16 Legislative authority.

This regulation is promulgated pursuant to the authority granted to the Westminster Board of Health by MGL c. 111, § 31, that "Boards of health may make reasonable health regulations."

§ 250-17 Definitions.

For the purpose of this regulation, the following words shall have the following meanings:
BUSINESS AGENT
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.
E-CIGARETTE
Any electronic nicotine-delivery product 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.
EMPLOYEE
Any individual who performs services for an employer.
EMPLOYER
Any individual, partnership, association, corporation, trust or other organized group of individuals, including Westminster or any agency thereof, which uses the services of one or more employees.
LIQUID NICOTINE (also known as "NICOTINE SOLUTION")
Any product composed either in whole, or in part, of nicotine and manufactured for use with nicotine-delivery products, including, but not limited to, e-cigarettes.
MINOR
Any individual who is under the age of 18.
NICOTINE-DELIVERY PRODUCT
Any article or product made wholly or in part of a tobacco substitute or otherwise 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.
PERSON
An individual, employer, employee, retail store manager or owner, or the owner or operator of any establishment engaged in the sale or distribution of nicotine-delivery products directly to consumers.
SELF-SERVICE DISPLAY
Any display from which customers may select a nicotine-delivery product without assistance from an employee or store personnel, excluding vending machines.
VENDING MACHINE
Any automated or mechanical self-service device, which upon insertion of money, tokens or any other form of payment, dispenses nicotine-delivery products.

§ 250-18 Permit required.

A nicotine-delivery product permit is required for any retailer who sells nicotine-delivery products in Westminster.
A. 
No person shall sell or otherwise distribute nicotine-delivery products at retail within Westminster without first obtaining a nicotine-delivery product sales permit issued annually by the Westminster Board of Health. Only owners of establishments with a permanent, nonmobile location in Westminster are eligible to apply for a permit and sell nicotine-delivery products at the specified location in Westminster.
B. 
As part of the nicotine-delivery product sales permit application process, the applicant will be provided with the Westminster Board of Health 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 nicotine-delivery product sales regarding any applicable state laws regarding the sale of nicotine-delivery products and this regulation.
C. 
The fee for a nicotine-delivery product sales permit shall be determined by the Westminster Board of Health annually. All such permits shall be renewed annually by January 1.
D. 
A separate permit is required for each retail establishment selling nicotine-delivery products.
E. 
Each nicotine-delivery product sales permit shall be displayed at the retail establishment in a conspicuous place.
F. 
No nicotine-delivery product sales permit holder shall allow any employee to sell nicotine-delivery products until such employee reads this regulation and any state laws regarding the sale of nicotine-delivery products and signs a statement, a copy of which will be placed on file in the office of the employer, that he/she has read the regulation and applicable state laws.
G. 
A nicotine-delivery product sales permit is nontransferable. A new owner of an establishment that sells nicotine-delivery products must apply for a new nicotine-delivery product sales permit. No new permit will be issued unless and until all outstanding penalties incurred by the previous permit holder are satisfied in full.
H. 
Issuance of a nicotine-delivery product sales permit shall be conditioned on an applicant's consent to unannounced, periodic inspections of his/her retail establishment to ensure compliance with this regulation.
I. 
A 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.

§ 250-19 Sales to minors prohibited; verification of age; face-to-face sales required.

A. 
No person shall sell nicotine-delivery products or permit nicotine-delivery products to be sold to a minor or give nicotine-delivery products to a minor.
B. 
Identification. Each person selling or distributing nicotine-delivery products shall verify the age of the purchaser by means of government-issued photographic identification containing the bearer's date of birth that the purchaser is 18 years old or older. Verification is required for any person under the age of 27.
C. 
All retail sales of nicotine-delivery products must be face-to-face between the seller and the buyer.

§ 250-20 Free distribution; sampling; self-service displays; vending machines.

A. 
No person shall distribute, or cause to be distributed, any free samples of nicotine-delivery products.
B. 
No person shall permit any sampling of a nicotine-delivery product.
C. 
All self-service displays of nicotine-delivery products are prohibited.
D. 
Vending machines selling nicotine-delivery products are prohibited.

§ 250-21 Use prohibited.

The use of e-cigarettes is hereby prohibited in Westminster in locations and establishments covered by MGL c. 270, § 22 (commonly known as the "Smoke-Free Workplace Law") and in additional locations and establishments covered by any regulation or bylaw in Westminster.

§ 250-22 Signage.

The owner or other person in charge of a shop or other place used to sell nicotine-delivery products at retail shall conspicuously post a sign stating that "The sale of nicotine-delivery products to minors under 18 years of age is prohibited." The owner or other person in charge of a shop or other place used to sell e-cigarettes at retail shall conspicuously post a sign stating that "The use of e-cigarettes at indoor establishments may be prohibited by local law." 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 they may be readily seen by a person standing at or approaching the cash register. These notices shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four feet or greater than nine feet from the floor.

§ 250-23 Violations and penalties.

A. 
Violations of §§ 250-18, 250-19 and 250-20:
(1) 
It shall be the responsibility of the 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 nicotine-delivery products.
(a) 
The violator shall receive:
[1] 
In the case of a first violation, a fine of $100 and the nicotine-delivery product sales permit shall be suspended for three consecutive business days.
[2] 
In the case of a second violation within 18 months of the date of the current violation, a fine of $200 and the nicotine-delivery product sales permit shall be suspended for 14 consecutive business days.
[3] 
In the case of three violations within 18 months of the date of the current violation, a fine of $300 and the nicotine-delivery product sales permit shall be suspended for 30 consecutive business days.
[4] 
In the case of a fourth violation within 18 months of the date of the current violation, a fine of $300 and the nicotine-delivery product sales permit shall be permanently revoked.
(b) 
All nicotine-delivery products shall be removed from public view for three-day nicotine-delivery product sales permit suspensions. All nicotine-delivery products shall be removed from the premises for fourteen-day-or-more nicotine-delivery product sales permit suspensions. Failure to remove all nicotine-delivery products shall constitute a separate violation of this regulation.
(2) 
Refusal to cooperate with inspections pursuant to this regulation shall result in the suspension of the nicotine-delivery product sales permit for 30 consecutive business days.
(3) 
In addition to the monetary fines set above, any permit holder who engages in the sale or distribution of nicotine-delivery products directly to a consumer while his or her permit is suspended shall be subject to the suspension of all Board of Health issued permits for 30 consecutive business days.
(4) 
The Westminster Board of Health shall provide notice of the intent to suspend a tobacco 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 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 Westminster Board of Health shall suspend the nicotine-delivery product sales permit if the Board finds that a sale to a minor occurred. For purposes of such suspensions, the Board shall make the determination notwithstanding any separate criminal or noncriminal proceedings brought in court hereunder or under the Massachusetts General Laws for the same offense. All nicotine-delivery products shall be removed from the retail establishment upon suspension of the nicotine-delivery product sales permit. Failure to remove all nicotine-delivery products shall constitute a separate violation of this regulation.
B. 
Violations of § 250-21.
(1) 
It shall be the responsibility of the owner, manager, or other person in control of a building, vehicle or vessel to ensure compliance with § 250-21 of this regulation pertaining to the use of e-cigarettes.
(a) 
The violator shall receive:
[1] 
For the first violation: $100.
[2] 
For a second violation occurring within two years of the date of the first offense: $200.
[3] 
For a third or subsequent violation occurring within two years of the second violation: $300.
(b) 
If an owner, manager or other person in control of a building, vehicle or vessel violates this regulation repeatedly, demonstrating egregious noncompliance, the Board of Health may revoke or suspend the license to operate and shall provide notice of the intent to suspend such license, which notice shall contain the reasons therefor and establish a time and date for a hearing which date shall be no earlier than seven days after the date of said notice. The owner, manager 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. For purposes of such suspensions, the Board shall make the determination notwithstanding any separate criminal or noncriminal proceedings brought in court hereunder or under the Massachusetts General Laws for the same offense.
(2) 
An individual or person who violates § 250-21 by using an e-cigarette in a place where smoking is prohibited shall be subject to a penalty of $100.
(3) 
Violations may be disposed of by a civil penalty using the noncriminal method of disposition procedures contained in MGL c. 40, § 21D.
(4) 
Each calendar day on which a violation occurs shall be considered a separate offense.
(5) 
This regulation shall be enforced by the Board of Health and its designees.
(6) 
Any person may register a complaint to initiate an investigation and enforcement with the Board of Health, the local inspection department or the equivalent.

§ 250-24 Noncriminal disposition.

A. 
Whoever violates any provision of this regulation may be penalized by the noncriminal method of disposition as provided in MGL c. 40, § 21D, or by filing a criminal complaint at the appropriate venue.
B. 
Each day any violation exists shall be deemed to be a separate offense.

§ 250-25 Enforcement.

A. 
Enforcement of this regulation shall be by the Board of Health of Westminster or its designated agent(s).
B. 
Any citizen who desires to register a complaint pursuant to the regulation may do so by contacting the Board of Health of Westminster or its designated agent(s) and the Board shall investigate.

§ 250-26 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.

§ 250-27 Effective date.

This regulation was passed on May 5, 2010. This regulation shall take effect on May 5, 2010.