Where conclusive evidence exists that tobacco smoke causes cancer,
respiratory and cardiac disease, 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 "E.T.S."], which includes both exhaled smoke and the
side stream smoke from burning cigarettes, causes the death of fifty-three
thousand (53,000) Americans each year; and whereas the Environmental
Protection Agency (1993) had designated environmental tobacco smoke
as a Class A carcinogen similar to radon and asbestos with no known
safe levels of exposure; now, therefore, the Board of Health of the
Town of Ashland recognizes the right to those who wish to breathe
smoke-free air and establishes this regulation to protect and improve
the public health and welfare by prohibiting smoke from public places.
This regulation is promulgated under the authority granted to the
Ashland Board of Health under Massachusetts General Laws 111, Section
31.
For the purpose of this regulation, the following words shall
have the meanings respectively ascribed to them by this paragraph:
ADEQUATE VENTILATION
An enclosed area that is separately vented and under a negative
pressure environment sufficient to prevent tobacco smoke from entering
all non-smoking areas in the building. The ventilation rate in a designated
smoking area shall conform to the current American Society of Heating,
Refrigeration and Air-Conditioning Engineers (A.S.H.R.A.E.) recommendation
for a smoking lounge, a ventilation rate of a minimum of thirty (30)
cubic feet per minute (cfm), per person based on occupancy of no more
than seven (7) people per one hundred (100) square feet of net occupied
space.
BAR
An establishment whose business is devoted to the serving
of alcoholic beverages for consumption by guests on the premises and
in which the serving of food is twenty percent (20%) or less of the
establishment's gross income only incidental to the consumption
of such beverages.
BOARD
The Board of Health of the Town of Ashland.
EMPLOYEE
Any individual person who performs services for an employer.
EMPLOYER
An individual person, partnership, association, corporation,
trust, or other organized group of individuals, including the Town
of Ashland or any agency thereof, which utilizes the services of two
(2) or more individual employees.
HEALTH CARE FACILITY
Any office or entity providing individual care or treatment
of diseases, whether physical, mental or emotional, or other medical,
physiological or psychological conditions including but not limited
to rehabilitation hospitals or other clinics, including weight control
clinics, nursing homes, homes for the aging or chronically ill, laboratories,
offices of any surgeon chiropractor, physical therapist, physician,
dentist and all specialist within these professions.
PERSON
Any person, 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 agents or designees of any of the foregoing.
PUBLIC PLACE
Any building or facility owned or operated by the town, including
school buildings or grounds; any area open to the general public including,
but not limited to, libraries, museums, theaters, auditoriums, indoor
sports arenas and/or recreational facilities, lobbies of inns, hotels,
and motels, educational facilities, shopping malls, public rest rooms,
lobbies, staircases, halls, exits, entrances, elevators accessible
to the public, and licensed child-care locations.
PUBLIC TRANSPORTATION
Buses, taxis, and other means of transportation available
to the general public while such means of transportation is operating
within the boundaries of the town including platforms by which such
means of transportation may be accessed.
RESTAURANT
Any coffee shop, cafeteria, sandwich stand, private or public
school cafeteria, and any eating establishment including but not limited
to an establishment which gives or offers food for sale to the public,
guests, or employees, as well as kitchens in which food is prepared
on the premises to be consumed elsewhere, including catering facilities.
RETAIL STORE
Any establishment whose primary purpose is to sell or offer
for sale to consumers, any goods, wares, merchandise, article or other
things, including supermarkets and grocery stores. "Retail store"
shall not include restaurants as defined herein.
SMOKING
Inhaling, exhaling, burning, or carrying any lighted cigar,
cigarette, pipe, or other tobacco products in any form.
WORKPLACE
Any enclosed area of a structure or portion thereof at which
two (2) or more employees perform services for their employer but
not including the personal residence of the employer.
Every person having control of premises upon which smoking is
prohibited by and under the authority of this regulation shall conspicuously
display upon the premises "No Smoking" signs or international "No
Smoking" symbol (consisting of a pictorial representation of a burning
cigarette enclosed in a red circle with a red bar across it). The
sign shall measure eight (8) inches by ten (10) inches.
No person shall smoke nor shall any person having control of the premises upon which smoking is prohibited by this regulation, or the agent or designee of such person, permit a person to smoke in any of the following places as defined herein: health care facilities, public places, public transportation vehicles, restaurants, retail stores, and workplaces except as otherwise provided in §
304-5 of this regulation. Additionally, no person shall smoke in any place in which a sign conforming to the requirements of §
304-3 of this regulation is posted. No person shall remove a sign posted under the authority of §
304-3 of this regulation.
Smoking in a bar shall at the owner's option be prohibited or limited to a room which is enclosed and equipped with adequate ventilation, as defined in §
304-2.
Notwithstanding the provisions of §
304-5 of this regulation, smoking shall be permitted in the following places and/or circumstances:
A. Private residence, except when used as a licensed child care facility
or health care facility;
B. Hotel and motel rooms that are rented to guests that are designated
smoking rooms;
C. Hotel and motel conference/meeting rooms and private and public assembly
rooms while these rooms are being used for private functions; and
D. Private or semi-private rooms of nursing homes and long-term facilities,
occupied by one (1) or more patients, all of whom are smokers who
have requested in writing to be placed in rooms where smoking is permitted.
Smoking is permitted in bingo parlors, however a non-smoking
room shall be provided to accommodate at least twenty-five percent
(25%) of the maximum seating capacity.
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.
Any person who violates this regulation shall be subject to
a fine in the amount of one hundred dollars ($100) for the first offense,
two hundred dollars ($200) for the second offense and three hundred
dollars ($300) dollars for the third offense or subsequent offense.
If any provision of this regulation is declared invalid or unenforceable,
the other provisions shall not be affected thereby but shall continue
in full force and effect.
This regulation is promulgated under the authority granted to the Ashland Board of Health under Massachusetts General Laws Chapter 111, Section 31 that "boards of health may make reasonable health regulations." It is also promulgated pursuant to Massachusetts General Laws Chapter
270, Section 22(2) (j), which states in part that, "Nothing 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 ordinance or by-law or any fire, health or safety regulation. Nothing in this section shall preempt further limitation of smoking by the commonwealth or any department, agency or political subdivision of the commonwealth." This regulation is also promulgated under and Chapter 40, Section 21D.
For the purposes of this regulation, the following words shall
have the meanings respectively ascribed to them by this paragraph:
BUSINESS AGENT
An individual who has been designated by the owner or operator
of any membership association to be the manager or otherwise in charge
of said membership association.
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.
MEMBERSHIP ASSOCIATION (ALSO KNOWN AS A "PRIVATE CLUB")
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: (i) 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 (ii) a corporation organized under Chapter 180; or
(iii) an established religious place of worship or instruction in
the commonwealth whose real or personal property is exempt from taxation;
or (iv) a veterans' organization incorporated or chartered by
the Congress of the United States, or otherwise, having one or more
affiliated chapters by the Congress of the United States, or otherwise,
having one or more affiliated chapters or branches incorporated in
any state. Except for a religious place of worship or instruction,
an entity shall not be a membership association for the purpose 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.
OUTDOOR SPACE
An outdoor area, open to the air at all times and cannot
be enclosed by a wall or side covering. If the outdoor space has a
structure capable of being enclosed by walls or covers, regardless
of the materials or the removable nature of the walls or covers, the
space will be considered enclosed, when the walls or covers are in
place. All outdoor spaces shall be physically separated from an enclosed
work space. If doors, windows, sliding or folding windows or doors
or other fenestrations form any part of the border to the outdoor
space, the openings shall be closed to prevent the migration of smoke
into the enclosed work space. If the windows, sliding or folding windows
or doors or other fenestrations are opened or otherwise do not prevent
the migration of smoke into the work space, the outdoor space shall
be considered an extension of the enclosed work space and subject
to this regulation.
PERSON
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.
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 the 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.
It shall be the responsibility of the membership association,
person having control of the premises, or its business agent to ensure
compliance with all sections of this regulation. Any membership association,
person having control of the premises, or its business agent who violates
any provision of this regulation may be penalized by filing a criminal
complaint at the appropriate venue, or at the Board's discretion,
penalized by non-criminal method of disposition as provided in Massachusetts
General Laws, Chapter 40, Section 21D, in which the violator may receive:
A. First violation: a fine of one hundred dollars ($100.00).
B. Second violation within 24 months of the date of the first violation:
a fine of two hundred dollars ($200.00).
C. Three or more violations within 24 months of the current violation,
including the current violation: a fine of three hundred dollars ($300.00).
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 §
304-16 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.
This regulation shall be effective on January 2, 2007.