[Adopted 4-14-1997]
A. 
Tobacco use is a leading public health problem in the Town of Fairhaven and throughout the United States, and there exists conclusive evidence that tobacco smoke causes cancer, respiratory diseases, various cardiac diseases, negative birth outcomes, allergies and irritations to the eyes, nose and throat of both the smoker and nonsmoker exposed to secondhand smoke.
B. 
Furthermore, cigarette smoking and other tobacco use by minors continues to be a problem with grave public health consequences. More than 80% of all smokers begin smoking before the age of 18 (the legal age to purchase cigarettes in the commonwealth), and an estimated 3,000 minors begin smoking every day in the United States. In recognition of the United States Surgeon General's conclusion that nicotine is as addictive as cocaine or heroin and that tobacco is an initial drug preferred by young people and is associated with other drug use, action is needed to curtail the easy access of cigarettes and other tobacco products to minors.
The Town of Fairhaven Board of Health, pursuant to MGL c. 111, § 31, Tercentary Edition, and amendments thereto, adopts the following regulation affecting youth access to tobacco products as a reasonable health regulation designed to protect and improve the health of its residents and the general public.
The purpose of this regulation is to establish restrictions on the sale and distribution of cigarettes and other tobacco products in order to reduce the number of children and adolescents who use these products and to reduce the life-threatening consequences associated with tobacco use in the Town of Fairhaven.
The following terms, as used in this regulation, shall, unless the context clearly requires otherwise, have the following meanings:
BOARD OF HEALTH
The Town of Fairhaven Board of Health.
DISTRIBUTOR
Any person who furthers the distribution of cigarettes or other tobacco products at any point from the original place of manufacture to the person who sells or distributes the product to individuals for personal consumption.
EMPLOYEE
Any individual who performs services for an employer in return for wages or profit.
EMPLOYER
Any individual, partnership, association, corporation, trust, nonprofit entity or other organized group, including the Town of Fairhaven and any department or agency thereof, who or which employs two or more employees.
MANUFACTURER
Any person, including any repacker and or relabeler, who manufactures, fabricates, assembles, processes or labels a finished cigarette or other tobacco products.
MINOR
A person under the age of 18 years of age.
PACKAGE
A pack, box, carton or container of any kind in which cigarettes are offered for sale, sold or otherwise distributed to consumers.
POINT OF SALE
Any location at which a consumer can purchase or otherwise obtain cigarettes or other tobacco products for personal consumption.
RETAILER
Any individual who sells cigarettes or smokeless tobacco to individuals for personal consumption or who operates a facility where vending machines or self-service displays are permitted.
RETAIL STORE
Any establishment selling goods or articles or personal services to the public.
SELF-SERVICE DISPLAY
Any display from which individual packs or cartons of tobacco products may be selected by the customer.
TOBACCO
Cigarettes, cigars, snuff or tobacco in any of its forms.
TOBACCO VENDING MACHINE
Any machine or device designated for the vending of cigarettes, cigars, tobacco or tobacco products upon the insertion of coins, trade checks, swipe cards, slips or any other payment, with or without assistance by a clerk or operator.
A. 
Tobacco sales permit.
(1) 
No person, firm, corporation or other entity shall sell tobacco products within the Town of Fairhaven without a valid tobacco sales permit issued by the Board of Health. The fee for this permit shall be set forth in the Board of Health's fee schedule for licenses, permits and services.[1]
[1]
Editor's Note: See Ch. 422, Fees.
(2) 
Within 30 days of the effective date of this regulation, all retailers who are required to hold a state license to sell cigarettes or other tobacco products will be required to file an application for a tobacco sales permit from the Town of Fairhaven Board of Health for each point of sale at which tobacco products are sold.
(3) 
After receiving the permit, the retailer will receive signage that states "Sale of cigarettes or any tobacco products to persons under age 18 is illegal, MGL c. 270, §§ 6 and 7." Any retailer not posting said signage will be in noncompliance of this regulation.
(4) 
The tobacco sales permit shall be for a term of one year and will automatically expire on December 31 of each year.
(5) 
Applications for renewal must be submitted at least 30 days prior to the expiration date.
(6) 
The fee for a one-year tobacco retailer's tobacco sales permit for each tobacco retail point of sale shall be set forth in the Board of Health's fee schedule for licenses, permits and services.
(7) 
A tobacco sales permit is not transferable from a person or a location.
(8) 
The permit must be posted in conspicuous view of the public.
B. 
Tobacco vending machines.
(1) 
Within 30 days of the effective date of this regulation, no person, firm, corporation or other entity shall install or maintain a vending machine to distribute or sell tobacco products in the Town of Fairhaven, except in facilities where the retailer ensures that no person younger than 18 years of age is present, or permitted to enter, at any time.
(2) 
When allowed by Subsection B(1), the vending machine shall be located in the establishment in the immediate vicinity and in plain view and control of a responsible employee, so that all purchases are observable and controllable.
C. 
Packaging/free distribution.
(1) 
No manufacturer, distributor or retailer may distribute or cause to be distributed any free samples of cigarettes or tobacco products in the Town of Fairhaven. Such restrictions shall not apply to use of coupons from magazines, newspapers, periodicals or attached packaging.
(2) 
It shall be unlawful to remove and commercially sell single cigarettes from the manufacturer's package which states the federally required health warnings. Commercial sale and/or distribution of cigarettes or other tobacco products in a form other than the original factory-wrapped packaging is prohibited.
(3) 
The sale of cigarettes in packages of fewer than 20 cigarettes is prohibited.
D. 
Self-service displays. Self-service displays of all tobacco products from which individual packages or cartons may be selected by the customer shall be banned effective August 28, 1997, except in facilities where the retailer ensures that no person younger than 18 years of age is present, or permitted to enter, at any time.
E. 
Sales to minors.
(1) 
In conformance with MGL c. 270, § 6, no person or entity shall sell a cigarette, chewing tobacco or any tobacco in any of its forms to any person under 18 years of age or, not being his or her parent or guardian, give a cigarette, chewing tobacco or any tobacco in any of its forms to any person under 18 years of age.
(2) 
Retailers of cigarettes or other tobacco products shall verify, by means of photographic identification containing the bearer's date of birth, that no person purchasing the product is younger than 18 years of age. No such verification is required for any person 27 years of age or older.
(3) 
A written note or telephone communication from an adult will not permit a person under the age of 18 to purchase a tobacco product.
F. 
Sales by employees. No commercial entity selling tobacco products at retail shall allow any employee to sell cigarettes or other tobacco products until such employee reads this Town of Fairhaven Board of Health youth access to tobacco products regulation and state laws regarding the sale of tobacco and signs a statement provided by the Fairhaven Board of Health indicating that such regulation/laws have been read and understood, a copy of which will be filed in the office of the employer. Such signed statements must be made available for inspection during the permit holder's normal business hours upon request of an agent of the Board of Health.
A. 
Vending machines. All vending machines as permitted in accordance with § 479-17B shall display a conspicuous sign stating that it is illegal to sell cigarettes and other tobacco products to minors. Signage will be furnished by the Massachusetts Department of Public Health and made available by the Board of Health in accordance with MGL c. 64, § 10, which sign states "Persons under age 18 are prohibited from using this machine."
B. 
Points of entry. Notices provided by the Board of Health or its agents must be posted conspicuously by the owner or individual in charge thereof at all accessible points of entry at each establishment or place used to sell cigarettes or tobacco products at retail. Such notice shall be at least 48 square inches, shall directly face any person entering the establishment at each point of entry 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. 
Cash registers. In conformance with MGL c. 270, § 7, notices provided by the Massachusetts Department of Public Health and made available by the Board of Health or its agents must be posted conspicuously by the owner or the other individual in charge thereof in each establishment or place used to sell cigarettes or tobacco products at retail. Such notice shall be posted in a manner so that it may be readily seen by a person standing at or approaching the cash register. Such 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.
(1) 
Such notice shall be at least 48 square inches and shall be posted at the cash register which receives the greatest volume of single cigarette package sales.
(2) 
For all other cash registers that sell cigarettes, a notice shall be posted that is no smaller than nine square inches.
D. 
Removal of notices. Notices provided by the Board of Health in accordance with Subsections A, B and C of this section must not be removed from the designated posting locations on the premises of the permit holder. Any retailer and/or permit holder removing said signage will be in noncompliance with this regulation.
A. 
Sale and/or distribution of tobacco products. It shall be the responsibility of the permit holder and/or individual in charge of the area where tobacco products are being sold to ensure compliance with § 479-17 of this regulation pertaining to his or her place of business. Each calendar day on which any violation of this tobacco control regulation exists shall be deemed to be a separate offense. The violation of this regulation is subject to a specific penalty and may be subjected to disciplinary action upon enactment under Chapter 401, General Provisions, § 401-1, Violations and penalties, of this Code.
(1) 
The permit holder and/or individual in charge of the area permitted for tobacco sales or persons involved in violation of any of the provisions of § 479-17 of this tobacco control regulation may receive:
(a) 
In the case of a first violation, a written warning.
(b) 
In the case of a second violation within one year, a fine of $100.
(c) 
In the case of a third violation within one year, a fine of $200, and the permit shall be suspended for seven consecutive calendar days.
(d) 
In the case of a fourth violation, a fine of $300, and the permit shall be suspended for 30 consecutive calendar days.
(2) 
The Board of Health shall provide written notice to the permittee of the intent to suspend a tobacco sales permit. The notice shall contain the reasons for the suspension and establish a date and time for a hearing. The date of the hearing shall be no earlier than seven days after the date of said notice. The permittee shall have an opportunity to be heard at such hearing and shall be notified of the Board of Health's decision and reasons in writing.
(3) 
Revocation.
(a) 
The Board of Health may, after providing opportunity for a hearing, order the revocation of a permit for:
[1] 
Serious or repeated violation of any of the requirements of this regulation;
[2] 
Interference with the Board of Health in the performance of its duties; or
[3] 
A criminal conviction of the permit holder relating to the sale and/or distribution of tobacco products.
(b) 
Notice of the intent to revoke a permit shall be given by the Board of Health to the permit holder in writing. The notice shall specify the reason(s) for which the permit is to be revoked and that the revocation shall be imposed at the end of the 10 days following service of such notice unless a written request for hearing is filed with the Board of Health by the permit holder within such ten-day period. If no request for hearing is filed within the ten-day period, the permit shall be revoked. If a written request for a hearing is filed within the ten-day period, a hearing shall be scheduled no earlier than seven days after the date of said filing. The permittee shall have an opportunity to be heard at such hearing and shall be notified of the Board of Health's decision and reasons in writing.
(4) 
During such time that a tobacco sales permit for tobacco products has been suspended or revoked for violations of this regulation, all tobacco products must be removed from the premises.
B. 
Posting of notices. It shall be the responsibility of the permit holder and/or individual in charge of the area where tobacco products are being sold to ensure compliance with § 479-18 of this regulation pertaining to his or her place of business. Each calendar day on which any violation of this tobacco control regulation exists shall be deemed to be a separate offense. The violation of this regulation is subject to a specific penalty and may be subjected to disciplinary action upon enactment under Chapter 401, General Provisions, § 401-1, Violations and penalties, of this Code. The permit holder and/or individual in charge of the area permitted for tobacco sales or persons involved in violation of any of the provisions of § 479-18 of this tobacco control regulation may receive:
(1) 
In the case of a violation of § 479-18A, B and/or C, a written warning and/or a fine of $25.
(2) 
In the case of a violation of § 479-18D, a written warning and/or a fine of $10.
The Board of Health shall supply retailer education for all new applicants for tobacco sales permits at the time of application for the permit. Such education may include distribution of materials to guide retailers in their compliance with the regulation.
A. 
The Board of Health and/or its designated agent(s) shall have the authority to enforce this regulation.
B. 
Any person who desires to register a complaint of noncompliance under this regulation may do so by contacting the Board of Health.
If any provision of this regulation is declared invalid or unenforceable, the other provisions shall continue in full force and effect.