[HISTORY: Adopted by the Board of Health of the Town of Ashland as indicated in article histories. Amendments noted where applicable.]
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.
- 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.
- The Board of Health of the Town of Ashland.
- Any individual person who performs services for an 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.
- 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.
- 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.
- Inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other tobacco products in any form.
- Town of Ashland.
- 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.
Smoking in bar areas of restaurants shall at the owner's option be prohibited or limited to a single designated smoking room which is enclosed and equipped with adequate ventilation, as defined in § 304-2. Upon request from the Board of Health, the employer or owner of a restaurant containing a designated smoking area shall provide proof of adequate ventilation, as defined in § 304-2, from a certified heating, ventilation and air-conditioning engineer.
The number of seats in the designated smoking area shall not exceed twenty-five percent (25%) of the total seating capacity of the restaurant.
The configuration of the establishment shall not require non-smoking dining patrons to pass through any portion of a designated smoking area.
Notwithstanding the provisions of § 304-5 of this regulation, smoking shall be permitted in the following places and/or circumstances:
Private residence, except when used as a licensed child care facility or health care facility;
Hotel and motel rooms that are rented to guests that are designated smoking rooms;
Hotel and motel conference/meeting rooms and private and public assembly rooms while these rooms are being used for private functions; and
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.
As an alternative to initiating criminal proceedings, violations of this regulation may be enforced in the manner provided in M.G.L. c. 40, Sec. 21d, by the Board or its agents. Any fines imposed under the provisions of this regulation shall be payable to the Town of Ashland for such use as the Town may direct.
Any citizen who desires to register a complaint under this regulation may request that the Board of Health initiate enforcement.
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.
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)";
Whereas, it has been proven that the most widespread preventable disease is caused by the use of various tobacco products, including, but not limited to: cigarettes, cigars, pipe smoking;
Whereas, the Ashland Board of Health recognizes the fundamental nature of the equal protection of public health for all under the law, including the right of those who wish to breathe smoke free air;
Now, therefore, the Board of Health of the Town of Ashland, Massachusetts recognizes the fundamental nature of the equal protection of public health for all under the law, including the right of those who wish to breathe smoke-free air, this regulation is established to protect and improve public health and welfare by prohibiting smoking in membership associations.
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:
- BOARD OF HEALTH OR BOARD
- The Board of Health for the Town of Ashland, Massachusetts, its agents and designees.
- 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.
- 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.
- 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.
- 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.
- WORK SPACE OR WORK SPACES
- An enclosed area occupied by an employee during the course of his employment.
Smoking is prohibited in the enclosed areas of membership associations, also known as "private clubs."
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 membership association, to permit a violation of this regulation.
Every membership association in which smoking is prohibited by and under the authority of this regulation shall conspicuously display so that the signs are clearly visible to all employees, customers, and visitors while on the premises "No Smoking" signs provided by the Massachusetts Department of Public Health and available from the Ashland 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 Ashland Board of Health.
It shall be the responsibility of the establishment to ensure that the appropriate signage is displayed.
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:
First violation: a fine of one hundred dollars ($100.00).
Second violation within 24 months of the date of the first violation: a fine of two hundred dollars ($200.00).
Three or more violations within 24 months of the current violation, including the current violation: a fine of three hundred dollars ($300.00).
This regulation shall be enforced by the Board of Health and its designees.
Any citizen who desires to register a complaint under this regulation may request that the Board of Health initiate an investigation.
An individual, person, entity or organization subject to the smoking prohibitions of this regulation shall not discriminate or retaliate in any manner against a person for making a complaint of a violation of this regulation or furnishing information concerning a violation, to a person, entity or organization or to an enforcement authority. Notwithstanding the foregoing, a person making a complaint or furnishing information during any period of work or time of employment, shall do so only at a time that will not pose an increased threat of harm to the safety of other persons in or about such place of work or to the public.
All workplaces and other establishments subject to this regulation are subject to periodic, unannounced inspections.
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.