[Amended 11-4-2015]
Whereas there exists conclusive evidence that tobacco smoke
causes cancer, respiratory and cardiac diseases, negative birth outcomes,
and irritations to the eyes, nose and throat; and whereas more than
80% of all smokers begin smoking before the age of 18 years (Centers
for Disease Control and Prevention, "Youth Surveillance - United States
2000," 50 MMWR 1 (Nov. 2000); and whereas nationally in 2000, 69%
of middle-school-age-children who smoke at least once a month were
not asked to show proof of age when purchasing cigarettes (Id.); and
whereas the United States Department of Health and Human Services
has concluded that nicotine is as addictive as cocaine or heroin;
and whereas despite state laws prohibiting the sale of tobacco products
to minors, access by minors to tobacco products is a major problem;
and whereas the sale of tobacco products is incompatible with the
mission of health care institutions because it is detrimental to the
public health and undermines efforts to educate patients on the safe
and effective use of medication; and whereas educational institutions
sell tobacco products to a younger population, which is particularly
at risk for becoming smokers, and such sale of tobacco products is
incompatible with the mission of educational institutions that educate
a younger population about social, environmental and health risks
and harms; now, therefore it is the intention of the Town of Lancaster
Board of Health to regulate the access to tobacco products.
This regulation is promulgated pursuant to the authority granted
to the Town of Lancaster Board of Health by MGL c.111, § 31,
that "Boards of Health may make reasonable health regulations."
For the purpose of this regulation, the following words shall
have the following meanings:
An individual who has been designated by the owner or operator
of any establishment to be the manager or otherwise in charge of said
establishment.
Any electronic nicotine delivery product 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.
Any public or private college, normal school, professional
school, scientific or technical institution, university or other institution
furnishing a program of higher education.
Any individual who performs services for an employer.
Any individual, partnership, association, corporation, trust
or other organized group of individuals, including the Town of Lancaster
or any agency thereof, which uses the services of one or more employees.
An individual, partnership, association, corporation or trust
or any person or group of persons that provides health care services
and employs health care providers licensed, or subject to licensing,
by the Massachusetts Department of Public Health under MGL c. 112
or a retail establishment that provides pharmaceutical goods and services
and is subject to the provisions of 247 CMR 6.00. "Health care institution"
includes, but is not limited to, hospitals, clinics, health centers,
pharmacies, drugstores, doctor offices and dentist offices.
Any individual who is under the age of 18.
Any article or product made wholly or in part of a tobacco
substitute or otherwise containing nicotine that is expected or intended
for human consumption, but not including a tobacco substitute prescribed
by a licensed physician or a product that has been approved by the
United States Food and Drug Administration for sale as a tobacco use
cessation or harm-reduction product or for other medical purposes
and which is being marketed and sold solely for that approved purpose.
"Nicotine delivery product" includes, but is not limited to, e-cigarettes.
Any person engaged in the sale or distribution of tobacco
products directly to consumers who applies for and receives a tobacco
sales permit or any person who is required to apply for a tobacco
sales permit pursuant to these regulations, or his or her business
agent.
An individual, employer, employee, retail store manager or
owner, or the owner or operator of any establishment engaged in the
sale or distribution of tobacco products directly to consumers.
Any display from which customers may select a tobacco product
or a nicotine delivery product without assistance from an employee
or store personnel, excluding vending machines.
Cigarettes, cigars, chewing tobacco, pipe tobacco, bidis,
snuff or tobacco in any of its forms.
Any automated or mechanical self-service device which, upon
insertion of money, tokens or any other form of payment, dispenses
cigarettes, any other tobacco product or nicotine delivery products.
A.
No person shall sell tobacco or nicotine delivery products or permit
tobacco or nicotine delivery products to be sold to a minor or, not
being the minor's parent or legal guardian, give tobacco or nicotine
delivery products to a minor.
B.
In conformance with and in addition to MGL, c. 270, § 7,
a copy of MGL c. 270, § 6, shall be posted conspicuously
by the owner or other person in charge thereof in the shop or other
place used to sell tobacco products at retail. The notice shall be
provided by the Massachusetts Department of Public Health and made
available from the Town of Lancaster Board of Health. The notice shall
be at least 48 square inches and shall be posted conspicuously by
the permit holder in the retail establishment or other place in such
a manner so that it may be readily seen by a person standing at or
approaching the cash register. The notice shall directly face the
purchaser and shall not be obstructed from view or placed at a height
of less than four feet or greater than nine feet from the floor. The
owner or other person in charge of a shop or other place used to sell
tobacco products at retail shall conspicuously post any additional
signs required by the Massachusetts Department of Public Health.
C.
The owner or other person in charge of a shop or other place used
to sell nicotine delivery products at retail shall conspicuously post
a sign stating that "The sale of nicotine delivery products to minors
under 18 years of age is prohibited." The owner or other person in
charge of a shop or other place used to sell e-cigarettes at retail
shall conspicuously post a sign stating that "The use of e-cigarettes
at indoor establishments may be prohibited by local law." The notices
shall be no smaller than 8.5 inches by 11 inches and shall be posted
conspicuously in the retail establishment or other place in such a
manner so that they may be readily seen by a person standing at or
approaching the cash register. These notices shall directly face the
purchaser and shall not be obstructed from view or placed at a height
of less than four feet or greater than nine feet from the floor.
D.
Identification. Each person selling or distributing tobacco or nicotine
delivery products shall verify the age of the purchaser by means of
government-issued photographic identification containing the bearer's
date of birth that the purchaser is 18 years old or older. Verification
is required for any person under the age of 27.
E.
All retail sales of tobacco or nicotine delivery products must be
face-to-face between the seller and the buyer.
F.
At any given time, there shall be no more than four tobacco sales
permits issued in the Town of Lancaster. New applicants for tobacco
sales permits that are applying at a time when the maximum number
of permits have been issued will be placed on a waiting list and will
be eligible for a permit on a first-come, first-served basis as permits
are either not renewed or returned to the Town.
A.
No person shall sell or otherwise distribute tobacco or nicotine
delivery products at retail within the Town of Lancaster without first
obtaining a tobacco and nicotine delivery product sales permit issued
annually by the Town of Lancaster Board of Health. Only owners of
establishments with a permanent, nonmobile location in the Town of
Lancaster are eligible to apply for a permit and sell tobacco products
or nicotine delivery products at the specified location in the Town
of Lancaster.
B.
As part of the tobacco and nicotine delivery product sales permit
application process, the applicant will be provided with the Town
of Lancaster Board of Health regulation. Each applicant is required
to sign a statement declaring that the applicant has read said regulation
and that the applicant is responsible for instructing any and all
employees who will be responsible for tobacco and nicotine delivery
product sales regarding both state laws regarding the sale of tobacco
and this regulation.
C.
Each applicant who sells tobacco is required to provide proof of
a current tobacco sales license issued by the Massachusetts Department
of Revenue before a tobacco and nicotine delivery product sales permit
can be issued.
D.
The fee for a tobacco and nicotine delivery product sales permit
shall be determined by the Town of Lancaster Board of Health annually.
All such permits shall be renewed annually by October 31.
E.
A separate permit is required for each retail establishment selling
tobacco or nicotine delivery products.
F.
Each tobacco and nicotine delivery product sales permit shall be
displayed at the retail establishment in a conspicuous place.
G.
No tobacco and nicotine delivery product sales permit holder shall
allow any employee to sell cigarettes, other tobacco products, or
nicotine delivery products until such employee reads this regulation
and state laws regarding the sale of tobacco and signs a statement,
a copy of which will be placed on file in the office of the employer,
that he/she has read the regulation and applicable state laws.
H.
A tobacco and nicotine delivery product sales permit is nontransferable.
A new owner of an establishment that sells tobacco or nicotine delivery
products must apply for a new permit. No new permit will be issued
unless and until all outstanding penalties incurred by the previous
permit holder are satisfied in full.
I.
Issuance of a tobacco and nicotine delivery product sales permit
shall be conditioned on an applicant's consent to unannounced, periodic
inspections of his/her retail establishment to ensure compliance with
this regulation.
No person shall distribute, or cause to be distributed, any
free samples of tobacco products or nicotine delivery products.
No person may sell or cause to be sold or distribute or cause
to be distributed any cigarette package that contains fewer than 20
cigarettes, including single cigarettes.
All self-service displays of tobacco products and/or nicotine
delivery products are prohibited. All humidors, including, but not
limited to, walk-in humidors, must be locked.
All tobacco and/or nicotine delivery product vending machines
are prohibited.
No health care institution located in the Town of Lancaster
shall sell or cause to be sold tobacco products. No retail establishment
that operates or has a health care institution within it, such as
a pharmacy or drugstore, shall sell or cause to be sold tobacco products.
No educational institution located in the Town of Lancaster
shall sell or cause to be sold tobacco products. This includes all
educational institutions as well as any retail establishments that
operate on the property of an educational institution.
A.
It shall be the responsibility of the permit holder and/or his or
her business agent to ensure compliance with all sections of this
regulation pertaining to his or her distribution of tobacco and/or
nicotine delivery products. The violator shall receive:
(1)
For violations of § 303-35A:
(a)
In the case of a first violation, a written warning.
(b)
In the case of a second violation within an eighteen-month period
of the date of the current violation, a fine of $100 and the tobacco
and nicotine delivery product sales permit shall be suspended for
seven consecutive business days.
(c)
In the case of a third violation within an eighteen-month period,
a fine of $200 and the tobacco and nicotine delivery product sales
permit shall be suspended for 30 consecutive business days.
(d)
In the case of a fourth and subsequent violations within an
eighteen-month period, a fine of $300 and the tobacco and nicotine
delivery product sales permit shall be suspended for one year, 365
consecutive business days.
(e)
All tobacco products and/or nicotine delivery products shall
be removed from public view for seven-day tobacco sales and nicotine
delivery product permit suspensions. All tobacco products and/or nicotine
delivery products shall be removed from the premises for thirty-day
or more tobacco sales and nicotine delivery product permit suspensions.
Failure to remove all tobacco and/or nicotine delivery products shall
constitute a separate violation of this regulation.
(2)
Any permit holder who does not comply with any other part of this
regulation shall be subject to a fine of $100 for each violation within
an eighteen-month period.
B.
Refusal to cooperate with inspections pursuant to this regulation
shall result in the suspension of the tobacco sales permit for 30
consecutive business days.
C.
In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of tobacco and/or nicotine delivery
products directly to a consumer while his or her permit is suspended
shall be subject to the suspension of all Board of Health issued permits
for 30 consecutive business days.
D.
The Lancaster Board of Health shall provide a violation notice of
suspension of the tobacco and nicotine delivery sales permit to the
permit holder. If the permit holder or its business agent is aggrieved
by a decision of any agent or employee of the Board or to whom a violation
notice or order has been served, he, she or it may petition for a
hearing before the Board. Such a petition must be filed in writing
at the main office of the Board within seven days after the violation
notice or order was served. Within 10 days of receiving a petition,
the Board shall inform the petitioner of the date, time, and place
of the hearing and their right to inspect and copy any records that
the Board might have concerning the matter to be heard. If the permit
holder or its business agent petitions for a hearing, the suspension
issued will be temporarily sustained until the outcome of the hearing
has been determined. After the hearing, the Board may affirm or reverse
the decision of the agent or employee in whole or part. The decision
shall be in writing and shall state the facts on which it is based.
Any person aggrieved by the final decision of the Board with respect
to any order issued under the provisions of these regulations may
seek relief in a court of competent jurisdiction in the commonwealth.
E.
Any permit holder who does not pay the assessed fine within 21 days
from fine issuance may be subject to criminal proceedings.
A.
Enforcement of this regulation shall be by the Town of Lancaster
Board of Health or its designated agent(s).
B.
Any citizen who desires to register a complaint pursuant to the regulation
may do so by contacting the Town of Lancaster Board of Health or its
designated agent(s), and the Board shall investigate.
If any provision of these regulations is declared invalid or
unenforceable, the other provisions shall not be affected thereby
but shall continue in full force and effect.
This renamed and revised regulation was passed on December 2,
2010, and shall take effect on February 1, 2011.
