Town of Barnstable, MA
Barnstable County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town of Barnstable Board of Health as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Noncriminal disposition — See Ch. 1, Art. I.
Alcoholic beverages — See Ch. 20.
Fee for tobacco sales permit — See Ch. 318.
[Adopted 5-7-1996; amended 6-11-2002, effective 7-1-2002 (Section 1.00 of Part IX of the 1991 Codification as updated through 6-1-1996)]

§ 371-1 Findings and purpose.

A. 
The 1986 Surgeon General's Report on "The Health Consequences of Involuntary Smoking" clearly documents that nonsmokers are placed at risk for developing disease as a result of exposure to environmental tobacco smoke or secondhand smoke. In 1993, the Environmental Protection Agency classified environmental tobacco smoke as a known human carcinogen. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution, and that breathing secondhand smoke is a cause of disease, including lung cancer, in nonsmokers.
B. 
Exposure to environmental tobacco smoke presents a serious and substantial public health risk. Of particular concern is the workplace environment of nonsmokers, where they may be subjected to sustained, involuntary exposure. At special risk are children, the elderly, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease.
C. 
Studies have shown that vending machines afford an opportunity for unauthorized sale of cigarettes to minors. Evidence further demonstrates that tobacco is extremely addictive. Approximately 80% of all smokers begin smoking before age 18 and more than 3,000 young people begin smoking every day in this nation.
D. 
The Cape Cod Regional Tobacco Control Program Advisory Panel (comprised of representatives of the Boards of Health from the Towns of Barnstable, Bourne, Brewster, Chatham, Dennis, Eastham, Falmouth, Harwich, Mashpee, Nantucket, Orleans, Provincetown, Sandwich, Truro, Wareham, Wellfleet and Yarmouth) urges all public places and workplaces to become voluntarily smokefree before November 1, 1996.
E. 
These regulations are an integral part of the efforts by the 17 Boards of Health comprising the Cape Cod Regional Tobacco Control Program to adopt uniformly, to the extent possible, regulations to protect the residents of our communities from the dangers of tobacco use and secondhand smoke. The intent of a uniform regulation is to minimize any potential economic impact to the business community which might result from varying regulations throughout the region.

§ 371-2 Authority.

The Town of Barnstable pursuant to Massachusetts General Laws Chapter 111, § 31, adopts these regulations as reasonable health regulations designed to protect and improve the health of its residents.

§ 371-3 Definitions.

As used in this article, the following terms shall have the meanings indicated:
EMPLOYEE
A person who performs services for wages or other consideration.
EMPLOYER
A person, partnership, association, corporation, trust, or other organized group, including the County of Barnstable and any department or agency thereof, and any municipal entity, which utilizes the services of two or more employees.
MINOR
A person under 18 years of age.
PUBLIC PLACE
An enclosed, indoor area that is open to and used by the general public, including but not limited to the following facilities: licensed child-care facilities; educational facilities; clinics; nursing homes; all elevators, stairwells, halls, lobbies and entranceways accessible to the public; common areas (not including actual sleeping quarters) of guesthouses, bed-and-breakfasts, inns, hotels and motels; public rest rooms; laundromats; hair salons, barbershops; libraries; municipal buildings; museums; retail food establishments; indoor sports arenas; enclosed shopping malls; theaters; auditoriums; public transit facilities; and any function rooms/halls when used for public meetings or public social functions. A function room/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.
SMOKING
The lighting of or having in one's possession any lighted cigarette, cigar, pipe, or other tobacco product.
TOBACCO
Cigarettes, cigars, snuff, chewing tobacco or tobacco in any of its forms.
TOBACCO VENDING MACHINE
A mechanical or electrical device which dispenses tobacco products by self-service, with or without the assistance of a clerk or operator.
WORKPLACE
Any area within a structure or portion thereof in which two or more employees perform services for their employer. It also includes employee lounges, rest rooms, dining areas, conference rooms, hallways, stairways, and entranceways.

§ 371-4 Smoking in public places prohibited.

Smoking shall be prohibited in all public places (as defined in § 371-3) as of June 1, 1996.

§ 371-5 Workplace regulations.

A. 
It shall be unlawful for any person to smoke in any workplace except in specifically designated smoking areas as described in Subsection B below.
B. 
Each employer may specifically designate enclosed areas in which employees may smoke; provided, however, that comparable nonsmoking areas of adequate size and capacity are available and provided, further, that physical barriers and separate ventilation systems, vented directly to the outside, are used to segregate smoking areas from nonsmoking areas. Smoking areas shall be such that smoke is not able to seep into nonsmoking areas. Common areas, including hallways, elevators, entranceways, stairwells, rest rooms, and waiting areas listed in the definition of "public place" in § 371-3, may not be designated as smoking areas. Areas designated as smoking and nonsmoking areas must be conspicuously marked.
C. 
Each person having control of premises upon which smoking is prohibited by this regulation shall not knowingly permit a violation of this regulation.

§ 371-6 Posting of signs.

Every person having control of a premises where smoking is prohibited by this regulation shall conspicuously display on the premises, including the primary entrance doorways, signs reading "Smoking Prohibited By Law." Posting of 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.

§ 371-7 Sale and distribution of tobacco products.

A. 
Permit. To monitor compliance of the sale of tobacco products, permits will be issued. No person, firm, corporation, establishment, or agency, shall sell tobacco products within the Town of Barnstable without a valid tobacco sales permit issued by the Board of Health. Permits must be posted in a manner conspicuous to the public. Tobacco sales permits must be renewed annually at a time and fee set forth by the Board of Health.
B. 
Sales to minors. In conformance with Massachusetts General Laws Chapter 270, § 6, no person, firm, corporation, establishment, or agency shall sell tobacco products to a minor. Each employee working in an establishment licensed to sell tobacco products shall be required to receive a copy of the Board of Health regulations and state laws regarding the sale of tobacco and sign a form indicating that such regulations/laws have been received and understood, a copy of which must be placed on file in the office of the employer and retained. Such signed forms must be made available for inspection, during the license holder's normal business hours upon request of an agent of the Board of Health.
C. 
Distribution of tobacco products. No person, firm, corporation, establishment, or agency shall distribute tobacco products free of charge or in connection with a commercial or promotional endeavor within the Town of Barnstable. Such endeavors include, but are not limited to, product "giveaways," or distribution of a tobacco product as an incentive, prize, award, or bonus in a game, contest, or tournament involving skill or chance. Such restrictions shall not apply to use of coupons from magazines, newspapers, periodicals, or attached to packaging. All distributors/retailers of tobacco products or tobacco merchandise must require that, if a customer appears to possibly be under 25 years of age, the customer present a valid state-issued picture identification card or drivers license with appropriate photograph to confirm that the customer is of a legal age to purchase the tobacco product.
D. 
All self-service displays of tobacco products are prohibited.

§ 371-8 Violations and penalties.

A. 
Violations of this smoking regulation will be subjected to the provisions of the regulation of the Town of Barnstable regarding noncriminal disposition.[1]
[1]
Editor's Note: See Ch. 1, Art. I.
B. 
Any person who knowingly violates any provision of this regulation, or who smokes in a municipal area subject to regulation, in which a "Smoking Prohibited By Law" sign or its equivalent is conspicuously displayed, shall be punished by a fine of $50 for each offense.
C. 
Any proprietor(s) or other person(s) in charge of a public place or workplace, including municipal entities, who fail(s) to comply with these regulations shall be subject to the following actions for each offense:
(1) 
A warning shall be issued for a first offense. A fine of $100 may be issued for the second offense, $200 for a third offense, $300 for a fourth offense, and $300 for any subsequent offense; and
(2) 
Following the second offense the Board of Health may, after a public hearing, suspend any license for that public place for a period of up to two days for each day of noncompliance or withhold renewal of license. Following a third offense, the Board of Health may suspend an existing permit/license for a period of time determined by the Board of Health until compliance is achieved.
D. 
Persons, firms, corporations, or agencies selling tobacco products to minors or selling tobacco products without a tobacco sales permit shall be punished by a fine of not more than $300 per day for each day of such violation and/or suspension of the tobacco sales permit.
E. 
In addition to the remedies provided by Subsection B, C and D above, the Board of Health may apply for injunctive relief to enforce the provisions of this article in any court of competent jurisdiction.

§ 371-9 Inspection procedures.

A. 
Refusal, notification of right to access, and final request for access. If a person denies access to the Board of Health or its agent, the Board of Health or its agent shall:
(1) 
Inform the person that:
(a) 
The permit holder is required to allow access to the Board of Health or its agent;
(b) 
Access is a condition of the acceptance and retention of a tobacco sales permit; and
(c) 
If access is denied, an order issued by the appropriate authority allowing access, hereinafter referred to as an inspection order, will be obtained according to law; and
(2) 
Make a final request for access.
B. 
Refusal, reporting. If, after the Board of Health or its agent presents credentials and provides notice, explains the authority upon which access is requested, and makes a final request for access, the permit holder continues to refuse access, the Board of Health or its agent shall provide details of the denial of access on an inspection report form.
C. 
Tobacco sales compliance checks, inspections and investigations.
(1) 
All permitted premises shall be subject to an inspection or to a tobacco sales compliance check by the Board of Health or its agent.
(2) 
Any person who hinders or delays the Board of Health or its agent in the performance of the his/her duties or who refuses to admit to, or locks out any such agent from any place which such agent is authorized to conduct a compliance check or inspection or who refuses to give to such agent such information as may be required to give to proper enforcement of the General Laws, shall be punished by a fine of not less than $50 and not more than $200.
D. 
Inspection order to gain access. If denied access to an establishment which sells tobacco products for an authorized purpose, and after complying with Subsection A, the Board of Health or its agent may issue, or apply for the issuance of, an inspection order to gain access as provided by law.
E. 
Responsibilities of tobacco sales permit holder. The tobacco sales permit holder is responsible for the proper management of the premises so that unlawful acts do not occur on the premises and so that the premises does not become a threat to the public welfare or public safety. When violations of the permit or of the law are brought to the attention of the Board of Health, a disciplinary hearing will be held and, as a result of evidence brought to the attention of the Board of Health at the hearing, the Board of Health may modify, suspend, or revoke the permit.
F. 
Issuing noncriminal ticket citation or inspection report and obtaining acknowledgement of receipt. At the conclusion of the tobacco sales compliance check or tobacco sales establishment inspection and according to law, the Board of Health or its agent shall provide a copy of the completed noncriminal ticket citation or notice of the violations to the permit holder or the person in charge, and request a signed acknowledgement of receipt.
G. 
Refusal to sign acknowledgement. The Board of Health or its agent shall:
(1) 
Inform a person who declines to sign an acknowledgement of receipt of a noncriminal ticket citation or inspectional findings as specified in Subsection F that:
(a) 
An acknowledgement of receipt is not an agreement with findings;
(b) 
Refusal to sign an acknowledgement of receipt will not affect the permit holder's obligation to correct the violations noted in the inspection report within the time frames specified; and
(c) 
A refusal to sign an acknowledgement of receipt is noted in the inspection report and conveyed to the Board of Health's historical record for the establishment; and
(2) 
Make a final request that the person in charge sign an acknowledgement receipt of a noncriminal ticket citation or inspectional findings.

§ 371-10 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.

§ 371-11 Other applicable laws.

A. 
The Board of Health or its agent shall enforce this regulation. Any violation of these regulations may be enforced and punished by the provisions of Chapter 1, General Provisions, Article I, Noncriminal Enforcement of Violations, as adopted by the Town of Barnstable.
B. 
Any citizen who desires to register a complaint of noncompliance under this regulation may do so by contacting the Public Health Division.

§ 371-12 Effective date.

These amended regulations shall be effective as of July 1, 2002.
[Adopted 2-10-2000, effective 4-3-2000 (Section 2.00 of Part IX of the 1991 Codification as updated through 6-1-1996)]

§ 371-13 Findings and purpose.

A. 
Findings.
(1) 
Environmental tobacco smoke is a leading public health problem in the Town of Barnstable and throughout the United States; and
(2) 
There exists conclusive evidence that environmental tobacco smoke causes cancer, cardiovascular disease, respiratory disease, negative birth outcomes, allergies and irritations to the eyes, ears nose and throat of both smokers and nonsmokers; and
(3) 
The Environmental Protection Agency (EPA) has designated environmental tobacco smoke to be a Class A carcinogen, similar to radon and asbestos, with no known safe level of exposure; and
(4) 
Children, the elderly, individuals with cardiovascular disease, individuals with impaired respiratory function, and asthmatics are among those people who are particularly susceptible to the harmful effects of inhaling environmental tobacco smoke.
B. 
Pursuant to Massachusetts General Laws, Chapter 111, § 31, the Town of Barnstable Board of Health adopts the following regulation, to be adopted for the following express purposes:
(1) 
To protect the public health and welfare by restricting smoking in all restaurants, bars, and lounges; and
(2) 
To assure smoke-free air for nonsmokers; and
(3) 
To recognize that the need to breathe smoke-free air shall have priority over the desire to smoke in an enclosed public area.

§ 371-14 Authority.

The Town of Barnstable, pursuant to Massachusetts General Laws Chapter 111, § 31, adopts these regulations as reasonable health regulations designed to protect and improve the health of its residents.

§ 371-15 Definitions.

As used in this article, the following terms shall have the meanings indicated:
BAR/LOUNGE
An establishment with a food service license, devoted primarily to serving alcoholic beverages for consumption by guests on the premises, in which the consumption of food is only incidental to the consumption of such beverages.
EMPLOYEE
A person who performs services for wages or other consideration.
EMPLOYER
A person, partnership, association, corporation, trust, or other organized group, including the County of Barnstable and any department or agency thereof, and any municipal entity, which utilizes the services of two or more employees.
FOOD-SERVICE ESTABLISHMENT
An establishment having one or more seats, in which food is served to the public, that is a covered area and/or located within a permanent structure. A food-service establishment is further defined as an establishment devoted primarily to serving food for consumption by guests, where the consumption of alcoholic beverages is only incidental to the consumption of food.
FUNCTION ROOM/HALL
A separate, enclosed room used for private functions within a food-service establishment. A function room/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, is exempt from this regulation.
SMOKING
The lighting of or having in one's possession any lighted cigarette, cigar, pipe, or other tobacco product.
SMOKING BAR
An establishment whose business is primarily devoted to the selling of tobacco products for consumption by patrons on the premises and in which the serving of limited foods is incidental to the consumption of such products. An establishment which serves full meals is not considered a smoking bar for the purposes of this regulation. An establishment which serves appetizers and snacks may be considered a smoking bar for the purposes of this regulation.
TOBACCO
Cigarettes, cigars, snuff, chewing tobacco or tobacco in any of its forms.

§ 371-16 Smoking prohibited.

Smoking shall be prohibited in all food service establishments, lounges and bars as of April 3, 2000.

§ 371-17 Smoking permitted.

Notwithstanding § 371-16 above, smoking may be permitted in the following places or circumstances:
A. 
Function rooms/halls used for private social functions, provided that the sponsors of the private functions have control over the seating arrangements; and
B. 
Outdoor seating areas of food-service establishments, provided that:
(1) 
Such an outdoor area is not enclosed except for the one side which adjoins the establishment; and
(2) 
The smoking section of an outdoor seating area shall not be located within 10 feet of any doorway, any mechanical ventilation intake fixture, and/or any window of the establishment.

§ 371-18 Preexisting smoking bars.

Any smoking bar in existence as of the first date of publication of the notice of the public hearing regarding this regulation may apply for a variance before the Board of Health from this regulation.

§ 371-19 Posting of signs.

Every person having control of a premises where smoking is prohibited by this regulation shall conspicuously display on the premises, including the primary entrance doorways, signs reading "Smoking Prohibited By Law." Posting of 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.

§ 371-20 Violations and penalties.

A. 
Violations of this smoking regulation may be enforced by the provisions of MGL Chapter 40, § 21D et seq. noncriminal disposition and by Chapter 1, General Provisions, Article I, regarding noncriminal dispositions.
B. 
Any person who knowingly violates any provision of this regulation, or who smokes in a food-service establishment, bar, or lounge as defined in this regulation in which a smoking-prohibited-by-law sign or its equivalent is conspicuously displayed, shall be punished by a fine of up to $50 for each offense.
C. 
Any proprietor(s) or other person(s) in charge of a food-service establishment, lounge, and/or bar, who fail(s) to comply with these regulations shall be subject to the following actions for each offense:
(1) 
A warning shall be issued for a first offense. A fine of up to $100 may be issued for the second offense, up to $200 for a third offense, up to $300 for a fourth offense, and up to $300 for any subsequent offense;
(2) 
No provision, clause or sentence of this paragraph of this Regulation shall be interpreted as prohibiting any Town of Barnstable Department or Board from suspending or revoking licenses or permits issued by and within the jurisdiction of such Departments for repeated violations of this regulation.
D. 
In addition to the remedies provided by Subsections B and C 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 article may apply for injunctive relief to enforce the provisions of this article in any court of competent jurisdiction.
E. 
The Board of Health or its designee(s) shall enforce this regulation.

§ 371-21 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.

§ 371-22 Effective date.

These regulations shall be effective as of April 3, 2000.