[Adopted 11-3-2003]
Whereas conclusive evidence exists that tobacco
smoke causes cancer, respiratory and cardiac diseases, negative birth
outcomes, and irritations to the eyes, nose, throat; and whereas the
harmful effects of tobacco smoke are not confined to smokers but also
cause severe discomfort and illness to nonsmokers; and whereas environmental
tobacco smoke (hereinafter "ETS"), which includes both exhaled smoke
and the side stream smoke from burning tobacco products, causes the
death of 53,000 Americans each year (McGinnis JM, Foege W, "Actual
Causes of Death in the United States," JAMA 1993 270:2207-2212); and
whereas the United States Environmental Protection Agency classified
secondhand smoke as a known human carcinogen and the International
Agency for Research on Cancer (IARC) of the World Health Organization
also classified secondhand smoke as a known human carcinogen (IARC-WHO,
2002); now, therefore, the Middleton Board of Health recognizes the
right of those who wish to breathe smoke-free air and establishes
these regulations to protect and improve the public health and welfare
by prohibiting smoking in workplaces and public places.
These regulations are promulgated under the
authority granted to the Middleton Board of Health under MGL c. 111,
§ 31, which provides that "Boards of health may make reasonable
health regulations."
For the purposes of these regulations, the following
words shall have the meanings respectively ascribed to them by this
section:
An adult-only establishment whose business is devoted to
the serving of alcoholic beverages for the consumption of guests on
the premises and in which the serving of food is only incidental to
the consumption of such beverages. Revenue generated from the serving
of alcoholic beverages must be equal to or greater than 80% of the
total combined revenue generated by the service of such beverages
and food. Revenue figures to be considered as evidence for the purpose
of these regulations are those used in calculating the meal tax amount
that is required to be filed with the Massachusetts Department of
Revenue for the preceding year.
The Board of Health of the Town of Middleton.
An individual who has been designated by the owner or operator
of any establishment to be the manager or otherwise in charge of said
establishment.
Any person who performs services for an employer with or
without compensation.
A person, partnership, association, corporation, trust, or
other organized group of individuals, including the Town of Middleton
or any agency thereof, who or which utilizes the services of one or
more employees.
A space bounded by walls (with or without windows) continuous
from the floor to the ceiling and enclosed by doors, including but
not limited to offices, rooms and halls.
A convalescent home, nursing home, rest home or charitable
home for the aged, licensed under the provisions of MGL c. 111, § 71.
Any institution or facility providing nursing care which
is licensed under MGL c. 111, § 71 or under any other law
of the commonwealth, including but not limited to convalescent homes
and charitable homes for the aged.
Any individual, firm, partnership, association, corporation,
company or organization of any kind, including but not limited to
an owner, operator, manager, proprietor or person in charge of any
building, establishment, business, or restaurant or retail store,
or the business agents or designees of any of the foregoing.
Any building, facility or vehicle owned, leased, operated
or occupied by the municipality, including school buildings and grounds,
and any enclosed area open to the general public, including but not
limited to retail stores, retail food stores, supermarkets, libraries,
museums, theaters, banks, laundromats, indoor sports arenas, auditoriums,
inn/hotel/motel lobbies, private and public educational facilities,
shopping malls, common areas of residential buildings, public rest
rooms, lobbies, staircases, halls, exits, entranceways, elevators
accessible to the public, public mass transit conveyances and indoor
platforms and enclosed outside platforms, open meetings of a governmental
body as defined in MGL c. 30A, § 11A, MGL c. 39, § 23A
and MGL c. 34, § 9F and licensed child care locations.
Any establishment commonly known as a supermarket, grocery
store, bakery or convenience store or any other establishment which
offers food items to the public for off-premises consumption.
Any establishment whose primary purpose is to sell or offer
for sale to consumers any goods, wares, merchandise, articles or other
things.
Any establishment whose primary purpose is to sell or offer
for sale tobacco products and tobacco paraphernalia, in which the
sale of other products is merely incidental, and neither possesses
nor is required to possess a retail food permit.
Inhaling, exhaling, burning or carrying any lighted cigar,
cigarette, or other tobacco product in any form.
The Town of Middleton.
Any enclosed area of a structure or portion thereof at which
one or more employees perform services for their employer.
A.
Smoking is prohibited in all workplaces and all public
places.
B.
Bars. Smoking shall be prohibited in all bars after
the effective date of these regulations.
C.
It shall be unlawful for any employer, or other person
having control of the premises upon which smoking is prohibited by
these regulations, or the business agent or designee of such person,
to permit a violation of these regulations.
Every person having control of premises upon
which smoking is prohibited by and under the authority of these regulations
shall conspicuously display upon the premises "No Smoking" signs provided
by the Massachusetts Department of Public Health and available from
the Middleton Board of Health 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) and comparable in size to
the sign provided by the Massachusetts Department of Public Health
and available from the Middleton Board of Health.
Notwithstanding the provisions of § 318-16 of these regulations, smoking may be permitted in the following places and/or circumstances:
A.
Private residences, except those portions used as
a child care or health care office when operating as such.
B.
Hotel and motel rooms rented to guests that are designated
as smoking rooms, provided that at least 75% of the rooms shall be
smoke free at all times. A room so designated shall have signs posted
indicating that smoking is prohibited therein and shall have self-closing
doors. No change in room designations shall take place without prior
written approval of the Middleton Board of Health.
C.
Smoking by residents and patients of nursing homes
and long-term care facilities may be permitted in one separately enclosed
designated smoking room, provided that the air in the designated smoking
room does not interfere with the smoke-free air in the remainder of
the facility.
D.
Retail tobacco stores, provided that such establishments
prohibit entry to persons under the age of 18 at all times and that
such establishments conspicuously post signs at all entrances which
warn patrons of the dangers of environmental tobacco smoke.
E.
Open air outdoor or sidewalk seating, provided that:
(1)
Said area is not artificially heated or cooled;
(2)
Said area is not enclosed, except for one side which
may adjoin the building; and
(3)
The outdoor space and the indoor space are, where
they adjoin, separated by a solid wall and self-closing doors such
that smoke cannot enter the indoor space.
Any employer, or his or her business agent,
who violates any provision of these regulations, the violation of
which is subject to a specific penalty, may be penalized by the noncriminal
method of disposition as provided in MGL c. 40, § 21D or
by filing a criminal complaint at the appropriate venue. It shall
be the responsibility of the employer, or his or her business agent,
to ensure compliance with all sections of these regulations. The violator
shall receive:
A.
These regulations shall be enforced by the Board of
Health and its designees.
B.
One method of enforcement may be periodic, unannounced
inspections of those establishments subject to these regulations.
Any citizen who desires to register a complaint under these regulations
may request that the Board of Health initiate an investigation.
Whoever violates any provision of these regulations, the violation of which is subject to a specific penalty, may be penalized by the noncriminal method of disposition as provided in MGL c. 40, § 21D or by filing a criminal complaint at the appropriate venue. Noncriminal disposition authority can be found in the Town of Middleton Bylaws in Chapter 1, General Provisions, Article I, Enforcement.
A.
Each day on which any violation exists shall be deemed
to be a separate offense.
B.
Penalty: $100 for the first offense; $200 for the
second offense within 24 months of the date of the first violation;
$300 for the third or subsequent offense within 24 months of the date
of the current violation.
C.
Enforcing persons: Middleton Board of Health.
If any paragraph or provision of these regulations
is found to be illegal or against public policy or unconstitutional,
it shall not affect the legality of any remaining paragraphs or provisions.
Notwithstanding the provisions of the foregoing, § 318-16 of these regulations shall not be deemed to amend or repeal applicable fire, health or other regulations so as to permit smoking in areas where it is prohibited by such fire, health or other regulations.
These regulations shall take effect on February
1, 2004.
