[HISTORY: Adopted by the Board of Health of the Town of Franklin
as indicated in article histories. Amendments noted where applicable.]
[Adopted 11-1-1988]
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.
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.
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.
A.
Prohibition of smoking in restaurants.
(1)
Restaurants.
(a)
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.
(b)
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.
(c)
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.
(d)
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.
B.
Implementation and enforcement.
(1)
Implementation.
(a)
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.
(b)
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.
(c)
Asking patrons who may be smoking in the nonsmoking area
to either refrain from smoking or to move to a smoking area.
(d)
Using any other means which may be appropriate and reasonable.
(2)
Enforcement.
(a)
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.
(b)
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.
(c)
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.
(d)
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.
(e)
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.
(3)
Variances.
(a)
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.
(b)
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.
(c)
Variances may be granted for up to one year.
(d)
Any variation granted by the Board of Health shall be
in writing.
(e)
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.
