[HISTORY: Adopted by the Board of Health of the Town of Orange 11-2-1994, as amended through 2-1-1995. Subsequent amendments noted where applicable.]
A. 
The Board of Health of the Town of Orange does hereby find that:
(1) 
The Environmental Protection Agency (1993) has designated environmental tobacco smoke as a Class A carcinogen, for which there are no known safe levels of exposure. Conclusive evidence exists that tobacco smoke causes lung cancer, heart disease, negative birth outcomes, respiratory infection, decreased respiratory function, bronchi-constriction, and bronchi-spasm, allergies and irritations to the eyes nose and throat of both the smoker and nonsmoker exposed to secondhand smoke.
(2) 
Accordingly, the Board of Health finds and declares that the purposes of this regulation are to:
(a) 
Protect the public health and welfare by prohibiting smoking in public places; and
(b) 
Guarantee the right of nonsmokers to breathe smoke-free air; and
(c) 
Recognize that the need to breathe smoke-free air shall have priority over the desire to smoke.
(3) 
Further, the Board of Health finds cigarette smoking and other tobacco use by minors to be a continuing problem with grave public health consequences. A third purpose of this regulation is to implement a strict and enforceable system to prevent the illegal sale of cigarettes and other tobacco products to minors.
B. 
These regulations are adopted pursuant to MGL c.111, § 31.
The following words and phrases, whenever used in this regulation, shall be construed as defined in this section:
BOARD OF HEALTH
The Board of Health of the Town of Orange.
BUSINESS
Any sole proprietorship, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.
EMPLOYEE
Any person who is employed by any employer in the consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.
EMPLOYER
Any person, partnership, corporation, including a municipal corporation, or nonprofit entity, who employs the services of one or more individual persons.
ENCLOSED AREA
All space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door- or passageways) which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid, "office landscaping" or similar structures.
FREESTANDING DISPLAY
Self-service products; products that do not require clerk assistance to handle or reach.
PLACE OF EMPLOYMENT
Any enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conferences and classrooms, employee cafeterias and hallways. A private residence is not a place of employment unless it is used as a child-care or health-care facility.
PUBLIC PLACE
An enclosed, indoor area when open to and used by the general public, including, but not limited to, the following facilities: licensed child-care locations; educational facilities; elevators accessible to the public; clinics and nursing homes; inns, hotel and motel lobbies, stairwells, halls, entranceway, and public restrooms; libraries; schools; municipal buildings; museums; retail stores; indoor sports arenas; theaters; auditoriums; public transit facilities; and any rooms or halls when used for public meetings. A room or hall used for private social functions in which the sponsor of the private function and not the owner or proprietor has control over the seating arrangements shall not be construed as a public place.
RETAIL TOBACCO STORE
A retail store utilized for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.
SERVICE LINE
Any indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.
SMOKING
Inhaling, exhaling, burning or carrying any lighted cigar, cigarette, weed, plant or other combustible substance in any manner or in any form.
SPORTS ARENA
Sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice skating rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.
TOBACCO VENDING MACHINE
Any machine or device designated for or used for the vending of cigarettes, cigars, or tobacco products upon the insertion of coins, trade checks, or slugs.
VENTILATION
A mechanical system to remove tobacco smoke. Particulate air cleaners or filtration systems are not considered ventilation.
A. 
Smoking shall be prohibited in all enclosed public places within the Town of Orange, including, but not limited to, the following places, and with the following exceptions:
(1) 
Retail stores and malls.
(2) 
Waiting rooms, hallways, wards and semi-private rooms of health-care facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors' offices and dentists' offices.
(3) 
Child-care facilities.
(4) 
Municipal buildings.
(5) 
Schools (MGL c.71, § 2A).
(6) 
Elevators.
(7) 
Buses, taxicabs, and other means of public transit under the authority of the Town of Orange, and ticket, boarding, and waiting areas of public transit depots (including airports).
(8) 
Restrooms.
(9) 
All areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including, but not limited to, attorneys offices and other offices, banks, and public areas of motels and hotels.
(10) 
Public areas of aquariums, galleries, libraries and museums when open to the public.
(11) 
Any facility which is primarily used for exhibiting any motion picture, stage, drama, lecture, musical recital or other similar performance, except where smoking is part of the stage production.
(12) 
Sports arenas, auditoriums and conventions halls.
(13) 
Every room, chamber, place of meeting or public assembly under the control of any board, council, commission, committee, including joint committees, or agencies of the Town of Orange or any political subdivision of the state during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the Town of Orange.
(14) 
Lobbies, hallways and other common areas in multiple-unit commercial facilities.
(15) 
Polling places.
B. 
Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment or facility may declare that entire establishment as a nonsmoking establishment.
A. 
It shall be the responsibility of employers to provide a smoke-free workplace for all employees, but employers are not required to incur any expense to make structural or physical modifications.
B. 
Each employer having an enclosed place of employment located within the Town of Orange shall adopt, implement, make known and maintain a written policy containing the following requirements: Smoking shall be prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
C. 
Each employer may specifically designate enclosed areas in which employees may smoke; provided, however, that nonsmokers are not required to use and/or pass through that enclosed area. Hallways, elevators, entranceways, stairwells, restrooms and waiting areas in all the above facilities may not be designated as smoking areas. Designated smoking areas must be separately ventilated to the outdoors. Nonsmoking areas of comparable size and capacity must be available and provide for those who do not wish to be exposed to tobacco smoke. Smoking areas must be conspicuously marked.
D. 
All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee.
A. 
Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to smoking restrictions:
(1) 
Private residences, except when used as a child-care facility.
(2) 
Retail tobacco stores.
(3) 
Restaurants, hotel and motel conference or meeting rooms and private and public assembly rooms while these places are being used for private functions; and a percentage of hotel and motel sleeping rooms designated as smoking rooms.
(4) 
Private or semiprivate rooms of nursing homes and long-term care facilities, occupied by one or more patients, all of whom are smokers who have requested in writing on the facility admission form to be placed in rooms where smoking is permitted.
(5) 
Limousines for hire, when the driver and all passengers affirmatively consent to smoking in such vehicle.
(6) 
Performers upon the stage, provided that smoking is part of a theatrical production.
B. 
Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment as described in this section may declare that entire establishment as a nonsmoking establishment.
"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) shall be clearly, sufficiently and conspicuously posted in every building or other place where smoking is regulated by this regulation by the owner, operator, manager or other person having control of such building or other place.
A. 
Enforcement of this chapter shall be implemented by the Board of Health, its staff, or other officials who may be designated by the Board of Health.
B. 
Any citizen who desires to register a complaint under this regulation may initiate enforcement with the Board of Health.
C. 
Notwithstanding any other provision of this regulation, a private citizen may bring legal action to enforce this regulation.
[Amended 5-7-1997]
A. 
Any person who smokes in a smoke-free area as specified in §§ 282-3 and 282-4 shall be subject to a fine of $20 for each violation.
B. 
Any proprietor(s) or other person(s) in charge of a public place or workplace who fail(s) to comply with these regulations shall be subject to a fine of $200 for each day a violation continues.
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.
[Amended 5-7-1997]
A. 
Sales to minors. In conformance with MGL c.270, § 6, it is a violation of these regulations to sell a cigarette, chewing tobacco, snuff, or any tobacco in any of its forms to any person under the age of 18 or, not being his parent or guardian, to give a cigarette, chewing tobacco, snuff, or tobacco in any of its forms to any person under the age of 18.
B. 
Posting of state law. In conformance with MGL c.270, § 7, a copy of MGL c.270, § 6, shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell cigarettes at retail. The notice shall be that notice provided by the Massachusetts Department of Health. 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 in such a manner so that it may be readily seen by a person standing at or approaching the cash register. Such notice 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. For all other cash registers that sell cigarettes, a notice shall be attached which is no smaller than nine inches, which is the size of the sign provided by the Massachusetts Department of Public Health. Such notice must be posted in a manner so that it may be readily seen by a person standing at or approaching the cash register. Such notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four feet or more than nine feet from the floor.
C. 
Identification required. No retailer shall sell or permit to be sold cigarettes or other tobacco products to an individual without requesting and examining identification establishing the purchaser's age as 18 years or greater.
D. 
Permit required. After October 1, 1995, it shall be unlawful for a retailer to sell cigarettes or other tobacco products unless that retailer holds and maintains a valid permit from the Board of Health for each location in which tobacco products are sold. The term of the permit shall be one year if the licensee complies with the provisions of this regulation.
E. 
Violations and penalties.
(1) 
A permit shall be suspended after notice and opportunity to be heard as follows:
(a) 
In the case of a first violation, the permit holder shall be notified in writing of penalties levied for further violations, including permit suspension, and shall meet with the Board within 30 days of written notification of the violation to discuss the violation and possible remedies.
(b) 
In the case of a second violation within 12 months of the first violation, the permit holder shall be fined $100, and shall meet with the Board within 30 days of written notification of the violation to discuss the violation and remedies.
(c) 
In the case of a third violation within 12 months of the second violation, the permit holder shall be required to pay a fine of $200 and shall meet with the Board within 30 days of written notification of the violation to discuss the violation and remedies.
(d) 
In the case of fourth and subsequent violations within 12 months of the most recent previous violation, the permit holder shall pay a fine of $200 and the permit shall be suspended for seven days from the date of the suspension.
(e) 
The Board shall provide notice to the permit holder of the intent to suspend a tobacco sales permit, which notice shall contain the reasons therefor and establish a time and date for a hearing, which date shall be no earlier than seven days after the date of said notice. The permit holder shall have an opportunity to be heard at such hearing and shall be notified of the Board's decision, and the reasons therefor, in writing. All tobacco products shall be removed from the premises upon suspension of the tobacco sales permit. Failure to remove all tobacco products shall constitute a separate violation of this regulation.
(2) 
NOTE: It is the intention of the Board that a permit holder without a violation for 12 or more months shall have its next violation handled as per a first violation with the attendant penalties.
F. 
Fee for permit. The fee for a one-year tobacco retailer's permit is $25.
G. 
Nontransferability. A tobacco retail permit is nontransferable, except a new permit will be issued to a tobacco retailer who changes locations.
H. 
Vending machines. After October 1, 1995, cigarette vending machines or any other device for the sale or distribution of tobacco products are prohibited.
I. 
Out-of-package sales prohibited. It is unlawful to sell cigarettes out of the manufacturer's package with required health warnings. Sale or distribution of cigarettes in any form other than an original factory-wrapped package is prohibited.
J. 
Free distribution/free samples prohibited. No person or entity shall knowingly distribute or furnish without charge or at less than the prevailing local retail price for tobacco products, or cause to be furnished or distributed without charge or at less than the prevailing local retail price for tobacco products, cigarettes or other tobacco products in any public place or at any event open to the public.
K. 
Freestanding displays prohibited. Freestanding displays of tobacco products, from which individual packages or cartons may be selected by the customer, are prohibited.
A. 
The proprietor(s) of a public place 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, provided that the decision shall not conflict with the spirit of any minimum standard established by these regulations.
B. 
Notice of a hearing upon an original application for a variance must be posted with the 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 and extended for like periods upon submission of a renewal application.
D. 
A copy of any variance granted under this section shall be maintained on the premises for which it is issued for public inspection, and a notice of the variance shall be posted at the entrance.