[HISTORY: Adopted by the City Council of the City of Fitchburg 7-21-1992
by Ord. No. 199-92. Amendments noted where applicable.]
A.
Tobacco is the major cause of preventable deaths in Fitchburg
as it is throughout the United States.
B.
The Fitchburg medical community has identified nicotine
addiction to be a serious problem among the children and adolescents of Fitchburg.
C.
The free distribution of tobacco products and the availability
of self-service tobacco products have been demonstrated to result in the unlawful
distribution of tobacco to minors.
D.
The Fitchburg City Council adopts this chapter to protect
and improve the health of the children of the City of Fitchburg and to prevent
violations of Massachusetts State law prohibiting the provision of tobacco
products to minors.
As used in this chapter, the following terms shall have the meanings
indicated:
Any individual under 18 years of age.
Any natural person or any firm, partnership, company, corporation
or other entity.
Any product containing tobacco, including but not limited to cigarettes,
cigars, chewing tobacco, snuff, pipe tobacco and smokeless tobacco.
Any self-service device which, upon insertion of money, tokens or
any other form of payment, dispenses tobacco, cigarettes or any other tobacco
product.
No person shall sell any tobacco product in the City of Fitchburg unless
that person holds a valid retail tobacco sales permit obtained from the Fitchburg
Board of Health. Such permit shall be renewed annually at a cost of $5. Before
a tobacco permit is issued to a person, that person must first read and understand
all of the provisions of this chapter. A separate permit shall be required
for each place of business. A permit is not required to sell tobacco products
from a vending machine; however, all such machines must be registered with
the Board of Health by their owners. All tobacco vendors shall pay a fee of
$45 for each location at which tobacco is sold. This fee shall be used to
support the reasonable expenses of the City in performing an annual inspection
and such other inspections and services as may be reasonably necessary for
the effective enforcement of this chapter.
It shall be unlawful to sell, give or furnish tobacco in any form to
any individual under 18 years of age.
No free or nominal cost samples of tobacco or tobacco products shall
be distributed or sold to minors. Coupons received through the mail or in
periodicals are redeemable by permitted tobacco retailers.
No person shall sell tobacco by use of a vending machine or install
or maintain a tobacco vending machine with the intent of making such sales
except as provided in the following subsections:
A.
Vending machines are permitted if they are equipped with
a lockout device which prevents the machine from being operated until the
person responsible for monitoring sales from the machine disables the lock.
The locking device must be of a design which prevents it from being left in
an unlocked condition and which will allow only a single sale when it is unlocked.
B.
In addition, a vending machine is allowed only in establishments
where a responsible person will be present to monitor the machine when the
establishment is open.
D.
No sales of tobacco are permitted from a vending machine
which also offers for sale any nontobacco product.
Any person who sells tobacco products or who is responsible for monitoring
sales from a tobacco vending machine shall request of any customer who is
not obviously 18 years of age or older or who is not already known to be 18
years of age or older a photographic identification establishing the person's
age. Positive proof of age must be established before any sale of tobacco
is made.
Tobacco sales permit holders shall conspicuously post and reasonably
maintain a notice at each cash register where tobacco products are sold which
informs the clerk that it is illegal to sell tobacco products to minors. Tobacco
vendors who sell tobacco products from a vending machine must maintain such
a sign at the location where the device which operates the locking device
is located. Such signs shall be available from the Board of Health at no charge.
Tobacco sales permit holders shall conspicuously post and reasonably
maintain a notice at each cash register where tobacco products are sold which
informs customers that it is the store's policy to refuse to sell tobacco
products to minors. Tobacco vending machines must also be posted with such
a sign. Such signs shall be available from the Board of Health at no charge.
No person shall sell tobacco products to a person under 18 years of
age who has a note from an adult requesting such a sale.
All single packages of tobacco products must be kept either behind the
counter or within plain sight of the sales clerk. All tobacco products must
be sold in their original packaging. The sale of single cigarettes is forbidden.
Tobacco permit holders shall be responsible for properly training all
employees regarding their responsibilities under these regulations. Permit
holders shall obtain a written statement from each employee acknowledging
that the employee has been given and has read and understands this chapter.
This chapter shall be enforced through inspections conducted by the Board of Health or the Police Department. The Director of Public Health, the Chief of Police, inspectors employed by the Board of Health and any police officer shall be considered enforcing persons within the meaning of MGL c. 40, § 21D. Such enforcing persons may, as an alternative to initiating criminal proceedings, give the offender written notice of noncriminal disposition within the meaning of MGL c. 40, § 21D. The fines imposed shall be as set forth in § 164-15. Inspections will be conducted once each quarter or more or less frequently, at the discretion of the enforcing agency, but in any event not less frequently than once each year.
Violation of any of the provisions of this ordinance may be deemed a
noncriminal offense by the enforcing person or agency.
Violations of §§ 164-3, 164-4, 164-5, 164-6, 164-7 and 164-10 shall be punishable by a fine and/or a suspension or revocation of the violator's tobacco sales permit. Fines shall be as follows: $100 for the first offense, $200 for the second offense and $300 for the third and any subsequent offenses in any twelve-month period. A merchant's tobacco permit may be suspended or revoked for a period determined by and at the discretion of the Board of Health or the Police Department. The Board of Health or the Police Department may, at its discretion, issue a warning in lieu of either a fine or permit suspension. Any fine under §§ 164-4, 164-5, 164-7, 164-8, 164-9, 164-10 or 164-11 will be assessed against the person who holds the tobacco permit unless that person can demonstrate that the employee who violated these regulations was properly trained as per § 164-12. Violations of § 164-6 shall be assessed against the owner of the vending machine or the person in charge and control of the premises in which the vending machine is located. The City of Fitchburg, by its enforcing authority, may enforce any of the provisions of this chapter through injunctive relief in a court of appropriate jurisdiction.
The Health Department and the Police Department shall have jurisdiction
to enforce this chapter.
The Health Department or Police Department shall respond to any requests
from tobacco retailers for assistance in training sales personnel. The Health
Department shall provide copies of this chapter to tobacco retailers for the
purpose of training their employees.
If any provision of this ordinance is declared invalid, the other provisions
shall not be affected thereby but shall continue in full force and effect.
This ordinance will take effect 30 days after approval by the Mayor, except for § 164-6, which shall take effect 90 days after such approval.
