[HISTORY: Adopted by the Board of Health of the Town of Eastham 3-5-2020. Amendments noted where applicable.]
The purpose of this chapter is to protect the health of the employees and general public in the Town of Eastham.
This chapter is promulgated under the authority granted to the Eastham Board of Health pursuant to MGL c. 111, § 31 that "[b]oards of health may make reasonable health regulations." It is also promulgated pursuant to MGL c. 270, § 22(j) which states in part that "[n]othing in this section shall permit smoking in an area in which smoking is or may hereafter be prohibited by law including, without limitation: any other law or . . . health. . . regulation. Nothing in this section shall preempt further limitation of smoking by the commonwealth . . . or political subdivision of the commonwealth."
A. 
As used in this chapter, the following words shall have the following meanings, unless the context requires otherwise:
COMPENSATION
Money, gratuity, privilege, or benefit received from an employer in return for work performed or services rendered.
E-CIGARETTE
Any electronic device, not approved by the United States Food and Drug Administration, composed of a mouthpiece, heating element, battery and/or electronic circuits that provides a vapor of liquid nicotine to the user, or relies on vaporization of any liquid or solid nicotine. This term shall include such devices whether they are manufactured as e-cigarettes, e-cigars, e-pipes or under any other product name.
EMPLOYEE
An individual or person who performs a service for compensation for an employer at the employer's workplace, including a contract employee, temporary employee, and independent contractor who performs a service in the employer's workplace for more than a de minimus amount of time.
EMPLOYER
An individual, person, partnership, association, corporation, trust, organization, school, college, university or other educational institution or other legal entity, whether public, quasi-public, private, or nonprofit which uses the services of one or more employees at one or more workplaces, at any one time, including the Town of Eastham.
ENCLOSED
A space bounded by walls, with or without windows or fenestrations, continuous from floor to ceiling and enclosed by one or more doors, including but not limited to an office, function room or hallway.
MUNICIPAL BUILDING
Any building or facility owned, operated, leased or occupied by the Town of Eastham.
RETAIL TOBACCO STORE
An establishment that is not required to possess a retail food permit whose primary purpose is to sell or offer for sale to consumers, but not for resale, tobacco products and paraphernalia, in which the sale of other products is merely incidental, and in which the entry of persons under the age of 18 is prohibited at all times, and maintains a valid permit for the retail sale of tobacco products as required to be issued by the Eastham Board of Health.
SMOKING (or SMOKE)
The lighting of a cigar, cigarette, pipe or other tobacco product or possessing a lighted cigar, cigarette, pipe or other tobacco or non-tobacco product designed to be combusted and inhaled.
WORKPLACE
An indoor area, structure or facility or a portion thereof, at which one or more employees perform a service for compensation for an employer, other enclosed spaces rented to or otherwise used by the public; and where the employer has the right or authority to exercise control over the space.
B. 
Terms not defined herein shall be defined as set forth in MGL c. 270, § 22 and/or 105 CMR 661. To the extent any of the definitions herein conflict with MGL c. 270, § 22 and 105 CMR 661, the definition contained in this chapter shall control.
A. 
It shall be the responsibility of the employer to provide a smoke-free environment for all employees working in an enclosed workplace as well as those workplaces listed in Subsection A(3) below.
B. 
Smoking is hereby prohibited in Eastham in accordance with MGL c. 270, § 22 (commonly known as the "Smoke-free Workplace Law).
C. 
Pursuant to MGL c. 270, § 22(j) smoking is also hereby prohibited in:
(1) 
Town-owned parks, playgrounds, athletic fields and beaches;
(2) 
Retail tobacco stores; and
(3) 
The area within 25 feet of any municipal building entranceway accessible to the public, except that this shall not apply to a smoker transiting through such twenty-five-foot area nor to a smoker approaching an entranceway with the intention of extinguishing a tobacco product.
D. 
The use of e-cigarettes is prohibited wherever smoking is prohibited per MGL c. 270, § 22 and § 312-4C of this chapter.
A. 
An owner, manager, or other person in control of a building, vehicle or vessel who violates this section, in a manner other than by smoking in a place where smoking is prohibited, shall be punished by a fine of:
(1) 
$100 for the first violation;
(2) 
$200 for a second violation occurring within two years of the date of the first offense; and
(3) 
$300 for a third or subsequent violation occurring within two years of the second violation.
B. 
Each calendar day on which a violation occurs shall be considered a separate offense.
C. 
This chapter shall be enforced by the Board of Health and its designees.
D. 
Violations of § 312-4B shall be disposed of by a civil penalty using the noncriminal method of disposition procedures contained in Section 21D of Chapter 40 of Massachusetts General Law without an enabling ordinance or bylaw. The disposition of fines assessed shall be subject to MGL c. 111, § 188.
E. 
Violations of § 312-4A, C and D may be disposed of by a civil penalty using the noncriminal method of disposition procedures contained in Section 21D of Chapter 40 of Massachusetts General Law.
F. 
If an owner, manager or other person in control of a building, vehicle or vessel violates this chapter repeatedly, demonstrating egregious noncompliance as defined by regulation of the Department of Public Health, the Board of Health may revoke or suspend any Board of Health-issued permit to operate and shall send notice of the revocation or suspension to the Department of Public Health.
G. 
Any person may register a complaint to initiate an investigation and enforcement with the Board of Health, the local inspection department or the equivalent.
Notwithstanding the provisions of § 312-4 of this chapter, nothing in this chapter shall 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.
If any provision of this chapter is declared invalid by a court of competent jurisdiction, such invalidity shall not affect any remaining provisions of this chapter. Any part of these regulations subsequently invalidated by a new state law or modification of an existing state law shall automatically be brought into conformity with the new or amended law and shall be deemed to be effective immediately.