[HISTORY: Adopted by the Board of Health of the Town of Franklin as indicated in article histories. Amendments noted where applicable.]
There exists substantial evidence that tobacco smoke causes cancer, respiratory diseases and various cardiac problems, allergies and irritation to eyes, nose and throat. Increasing evidence further demonstrates that the harmful effects of tobacco smoke are not confined to smokers but also cause severe discomfort and in some cases grave illnesses to nonsmokers. Therefore, these regulations are adopted pursuant to MGL c. 111, § 31, as reasonable health regulations designed to protect and improve the health of the residents of this Town of Franklin at a duly scheduled meeting November 1, 1988.
As used in this article, the following terms shall have the meanings indicated:
- Any individual person who performs services for an employer in return for wages or profit.
- Any individual person, partnership, association, corporation trust or other organized group of individuals, or an agency thereof, which utilizes the services of two or more employees.
- NONSMOKING AREA
- Any area that is designated and posted by the proprietor or any person in charge or a place where smoking by patrons, employees or others is prohibited.
- Any establishment serving food for consumption on the premises, which maintains tables for the use of its customers. This includes cafeterias and cafeterias in the workplace.
- SEATING CAPACITY
- That capacity designated on the occupancy permit of a restaurant.
- The possession of a lighted tobacco product, including a cigarette, cigar, pipe or any other lighted smoking equipment.
Prohibition of smoking in restaurants.
In restaurants with a seating capacity of 50 or more except in specifically designated smoking areas. Smoking areas shall be designated by the proprietor(s) or other person(s) in charge of said restaurant, except that rest rooms, entranceways and lobbies as well as places in which smoking is prohibited by the Fire Marshal, law or regulation may not be designated as smoking areas.
Smoking areas shall comprise no more than 50% of the seating capacity of the restaurant. Seats at the bar in the same room shall be included when determining seating capacity for the purpose of calculating the size of the nonsmoking area. Seating shall be so situated as to utilize a physical barrier and/or ventilation system to minimize the presence of smoking by-products in nonsmoking areas.
The nonsmoking area shall be one integral area and shall not be located between two smoking areas. In the case of a food-service establishment consisting of a single room, the provisions of this subsection shall be considered met if one side of the room, comprising at least 50% of the seating capacity, is reserved and posted as the nonsmoking area.
Employees shall consume food or use tobacco only in designated areas. Such designated areas shall not be located in food preparation areas or in areas where the eating or tobacco use of any employee may result in contamination of food, equipment or utensils.
Implementation and enforcement.
Posting "Smoking" or "No Smoking" signs or the international no smoking symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) prominently and conspicuously in every place where smoking is regulated by this article. The owner, operator, manager or other person having control of such place is responsible for the posting. Such signs shall be protected from tampering, removal or concealment.
Arranging seating so that existing physical barriers, ventilation systems and available space are utilized to minimize the toxic effects of smoke on persons in the nonsmoking area. Nonsmoking areas are to be situated near the fresh-air intake vent of the facility.
Asking patrons who may be smoking in the nonsmoking area to either refrain from smoking or to move to a smoking area.
Using any other means which may be appropriate and reasonable.
Any person who smokes in a nonsmoking area shall be subject to a fine of not less than $20 nor more than $50 for each violation.
Any proprietor(s) or other person(s) in charge of said eating establishment who fail(s) to make reasonable efforts to prevent smoking in nonsmoking areas shall be subject to a fine of not less than $10 nor more than $100 for each violation.
Any proprietor(s) or other person(s) in charge of an eating establishment who fails to comply with these regulations shall be subject to both a fine of up to $200 for each day a violation continues and suspension of any licenses issued by the Board of Health for said restaurant for a period of up to two days for each noncompliance.
The owner, manager or operator of a restaurant shall not be held liable if his host or hostess fails to ask the seating preference of patrons. Such persons will be held liable if the restaurant has not stated a policy concerning asking the preference of patrons.
In addition to the remedies provided by Subsection B(2)(a), (b) and (c), the Board of Health or any person aggrieved by the willful failure of the proprietor or other persons in charge of a restaurant to comply with any provisions of this subsection may apply for injunctive relief to enforce the provisions of this subsection in any court of competent jurisdiction.
The proprietor(s) of a restaurant may make written application to the Board of Health for a variance from these regulations which the Board of Health may grant to avoid manifest injustice or hardship.
Notice of hearing upon an original application for a variance may be posted with public notice of the Board of Health meeting at which it is to be considered.
Variances may be granted for up to one year.
Any variation granted by the Board of Health shall be in writing.
A copy of any variance granted under this section shall be maintained on the premises for which it is issued for public inspection.
These regulations shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable health, safety or fire codes, regulations or statutes.