[HISTORY: Adopted by the Board of Health
of the Town of Walpole effective 4-1-2005. Amendments noted where applicable.]
Whereas conclusive evidence exists that tobacco
smoke causes cancer, respiratory and cardiac diseases, negative birth
outcomes, irritations to the eyes, nose, and 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 U.S. 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 Board of Health of the Town of Walpole recognizes the
right of those who wish to breathe smokefree air and establishes this
regulation to protect and improve the public health and welfare by
prohibiting smoking in workplaces, public places and membership associations.
This regulation is promulgated under the authority
granted to the Walpole Board of Health under MGL c. 111, § 31,
that "[b]oards of health may make reasonable health regulations."
It is also promulgated pursuant to MGL c. 270, § 22(2)(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."
For the purposes of this regulation, the following
words shall have the meanings respectively ascribed to them by this
section:
An individual who has been designated by the owner or operator
of any workplace, public place or membership association to be the
manager or otherwise in charge of said workplace, public place or
membership association.
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 minimis amount
of time.
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 Walpole.
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.
A not-for-profit entity that has been established and operates,
for a charitable, philanthropic, civic, social, benevolent, educational,
religious, athletic, recreation or similar purpose, and is comprised
of members who collectively belong to:
A society, organization or association of a
fraternal nature that operates under the lodge system, and having
one or more affiliated chapters or branches incorporated in any state;
or
A corporation organized under MGL c. 180; or
An established religious place of worship or
instruction in the commonwealth whose real or personal property is
exempt from taxation; or
A veterans' organization incorporated or chartered
by the Congress of the United States, or otherwise, having one or
more affiliated chapters or branches incorporated in any state. An
entity shall not be a membership association for the purposes of this
definition, unless individual membership containing not less than
full membership costs and benefits is required for all members of
the association for a period of not less than 90 days.
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;
any enclosed area open to the general public including, but not limited
to, retail stores, retail food stores, retail tobacco stores, smoking
bars, 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, entrance ways, 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.
An establishment 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.
An establishment that primarily is engaged in the retail
sale of tobacco products for consumption by customers on the premises,
including, but not limited to, cigar bars and hookah bars, that derives
revenue from the sale of food, alcohol or other beverages that is
incidental to the sale of the tobacco products and is required by
MGL c. 270, § 22 to maintain a valid permit to operate a
smoking bar issued by the Massachusetts Department of Revenue.
[Amended 3-24-2009]
The lighting of a cigar, cigarette, pipe or other tobacco
product or possessing a lighted cigar, cigarette, pipe or other tobacco
or nontobacco product designed to be combusted and inhaled.
An indoor area, structure or facility or a portion thereof,
at which one or more employees perform a service for compensation
for the employer, other enclosed spaces rented to or otherwise used
by the public; and in either case where the employer has the right
or authority to exercise control over the space.
A.
Smoking is prohibited in the enclosed areas of workplaces,
public places and membership associations, also known as private clubs
if the membership association is a workplace.
B.
It shall be unlawful for any person having control
of the premises upon which smoking is prohibited by this regulation,
or the business agent or designee of such workplace, public place
or membership association, to permit a violation of this regulation.
C.
Smoking
bar establishments are prohibited in the Town of Walpole.
[Added 3-24-2009]
Notwithstanding § 774-4, smoking may be permitted in the following places and circumstances:
A.
Private residences; except during such time when the
residence is utilized as part of a business as a group child-care
center, school age day-care center, school age day or overnight camp,
or a facility licensed by the office of child care services or as
health care related office of facility;
B.
Premises occupied by membership association:
(1)
If the premises is owned, or under a written lease
for a term of not less than 90 consecutive days, by the association
during the time of the permitted activity,
(2)
If the premises are not located in a public building,
(3)
If the premises is not a workplace,
(4)
If the membership association has no employees.
C.
Subject to the conditions of Subsection B(1) through (4), smoking may be permitted in an enclosed indoor space of a membership association at all times if the space is restricted by the association to admittance only of its members and the invited guest of a member. However no smoking shall be permitted in an enclosed indoor space of a membership association during the time the space is:
Every workplace, public place or membership
association in which smoking is prohibited by and under the authority
of this regulation shall conspicuously display in the premises "No
Smoking" signs provided by the Massachusetts Department of Public
Health and available from the Walpole 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 Walpole Board of Health.
Any workplace, public place or membership association,
person having control of the premises or its business agent, who violates
any provision of this regulation 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 workplace, public place or membership
association, person having control of the premises or its business
agent, to ensure compliance with all sections of this regulation.
The violator shall receive:
A.
In the case of a first violation, a fine $100.
B.
In the case of a second violation within 36 months
of the date of the first violation, a fine of $200.
[Amended 1-13-2009]
C.
In the case of three or more violations within 36
months of the current violation, including the current violation,
a fine of $300.
[Amended 1-13-2009]
A.
This regulation shall be enforced by the Walpole Board
of Health and its designees.
B.
One method of enforcement may be periodic, unannounced
inspections of those establishments subject to this regulation. Any
citizen who desires to register a complaint under this regulation
may request that the Board of Health initiate an investigation.
If any paragraph or provision of this regulation
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 § 774-4 of this regulation, nothing in this regulation 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.
A variance from § 774-4A may be sought for a specific employee who is also a member of an association. Said variance may or may not be granted at the sole discretion of the Board of Health and must be renewed annually.
The above regulations prohibiting smoking in
workplaces, public places and membership associations that are workplaces
were adopted at regular meeting of the Board of Health effective April
1, 2005.
