[HISTORY: Adopted by the Special Town Meeting 11-18-1998 by Art. 11. Amendments noted where applicable.]
The purpose of this chapter is to prevent access to and the illegal sale of tobacco products to minors.
After public notice and public hearing the Board of Health shall promulgate rules and regulations to effectuate the purposes of this chapter.
Any person or entity who violates this chapter or any rules and regulations promulgated thereunder shall be liable to the town in the amount of $100 for the first violation, $200 for the second violation and $300 for each subsequent violation which shall inure to the Town of Southwick for such uses as the town may direct. Each separate instance of noncompliance following the issuance of any warning or citation pursuant to this section shall constitute a separate violation. Fines shall be recoverable by indictment or a complaint before the District Court Department of the Trial Court. As an alternative to initiating such proceedings to enforce this chapter, the town may elect to utilize the following noncriminal disposition procedure incorporated in MGL C. 40, § 21D, as amended.
The Board of Health or its designated agent, the Board of Selectmen or its designated agent, or the Police Department shall give to the offender a written notice to appear before the clerk of the District Court having jurisdiction thereof at any time during office hours, not later than 21 days after the date of such notice. Such notice shall be in triplicate and shall contain the name and address, if known, of the offender, the specific offense charged and the time and place for his required appearance. Such notice shall be signed by a member of the Board of Health or its designated agent, by a member of the Police Department, or by a member of the Board of Selectmen or its designated agent, as the case may be, and shall also be signed by the offender whenever practicable in acknowledgment that such notice has been received.
A copy of the notice shall, if possible, be delivered to the offender at the time and place of the violation. If it is not possible to deliver a copy of said notice to the offender at that time and place of violation, said copy shall be mailed or delivered to the offender's last known address, within 15 days after said violation. Such notice as so mailed shall be deemed a sufficient notice, and a certificate of the person so mailing such notice that it has been mailed in accordance with this subsection shall be prima facie evidence thereof.
At or before the completion of each tour of duty, or at the beginning of the first subsequent tour of duty, the enforcing person shall give to his commanding officer or department head as the case may be, those copies of each notice of such a violation he has taken cognizance of during such tour which have not already been delivered or mailed by him as aforesaid. Said commanding officer or department head shall retain and safely preserve one copy and shall, at a time not later than the next court day after such delivery or mailing, deliver the other copy to the clerk of the Court before which the offender has been notified to appear.
Any person notified to appear before the clerk of a District Court as hereinbefore provided may so appear and confess the offense charged, whether personally or through a duly authorized agent or by mailing to the Southwick Town Clerk with the notice such specific sum of money as the town shall fix as penalty for violation of the bylaw, rule or regulation. Such payment shall, if mailed, be made only by postal note, money order or check. The payment to the Town Clerk of such sum shall operate as a final disposition of the case. An appearance under this subsection shall not be deemed to be a criminal proceeding. No person so notified to appear before the clerk of a District Court shall be required to report to any probation officer, and no record of the case shall be entered in any probation records.
If any person so notified to appear desires to contest the violation alleged in the notice to appear and also to avail himself of the procedure established pursuant to this section, he may, within 21 days after the date of the notice, request a hearing in writing. Such hearing shall be held before a District Court Judge, clerk or assistant clerk, as the Court shall direct, and if the Judge, clerk or assistant clerk shall, after hearing, find that the violation occurred and that it was committed by the person so notified to appear, the person so notified shall be permitted to dispose of the case by paying the specific sum of money fixed as a penalty as aforesaid, or such lesser amount as the Judge, clerk or assistant clerk shall order, which payment shall operate as a final disposition of the case. If the Judge, clerk or assistant clerk shall, after hearing, find that the violation alleged did not occur or was not committed by the person notified to appear, that finding shall operate as a final disposition of the case. Proceedings held pursuant to this subsection shall not be deemed to be criminal proceedings. No person disposing of a case by payment of such penalty shall be required to report to any probation officer as a result of such violation, nor shall any record of the case be entered in the probation records.
If any person so notified to appear before the clerk of a District Court fails to pay the fine provided hereunder within the time specified or, having appeared, does not confess the offense before the clerk or pay the sum of money fixed as a penalty after a hearing and finding as provided in the preceding subsection, the clerk shall notify the enforcing person who issued the original notice, who shall determine whether to apply for the issuance of a complaint for the violation of the appropriate bylaw, rule or regulation.
The notice to appear provided for herein shall be printed in such form as the Chief Justice of the District Courts shall prescribe for the District Courts. Any fine imposed under the provisions of this section shall inure to the Town of Southwick for such use as the town may direct.