[HISTORY: Section 9 of the Plainville Board of Health Regulations. See § 704-11 for effective and revision dates through 2019. Subsequent amendments noted where applicable.]
Tobacco products — See Ch. 736.
Whereas, since July 5, 2004, all enclosed workplaces with one or more employees must be smoke-free. Designated smoking areas or smoking rooms are not permitted; and
Whereas, there exists conclusive evidence that tobacco smoking causes cancer, respiratory and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat to both the smoker and the nonsmoker; and
Note: Center for Disease Control and Prevention, (CDC) (2012), Health Effects of Cigarette Smoking Fact Sheet. Retrieved from: http://www.cdc.gov/tobacco/data_statistice(fact_sheets/health_effects/effects_cig_smoking/index.htm.
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 (ETS), which includes both exhaled smoke and the side stream smoke from burning cigarettes, causes death, by lung cancer alone, of 3,000 Americans each year (U.S. EPA, 1993); and
Whereas, an estimated 3,000 minors begin smoking every day in the United States and more than 80% of all smokers begin smoking before the age of 18; and
Whereas, among the 15.7% of students nationwide who currently smoke cigarettes and were less than 18 years old, 14.1% usually obtained them by buying them in a store (i.e., convenience store, supermarket, or discount store) or gas station; and
Note: CDC (2009), Youth Risk Behavior. Surveillance Summaries (Morbidity and Mortality Weekly Report (MMWR) 2010: 59, 11 (No. SS-55)) Retrieved from: http://www.cdc.gov/HealthyYouth/yrbs/index.htm.
Whereas, nationally in 2009, 72% of high school smokers and 66% of middle school smokers were not asked to show proof of age when purchasing cigarettes; and
Note: CDC Office of Smoking and Health, National Youth Tobacco Survey, 2009. Analysis by the American Lung Association (ALA), Research and Program Services Division using SPSS software, as reported in "Trends in Tobacco Use," ALA Research and Program Services, Epidemiology and Statistics Unit, July 2011. Retrieved from: www.lung.org/finding-cures/our-research/trend-reports/Tobacco-Trend-Report.pdf.
Whereas, the United States Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin;
Note: CDC (2010), How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis for Smoking-Attributable Disease. Retrieved from: http://www.cdc.gov/tobacco/data_statistics/sgr/2010.
Whereas, despite state laws prohibiting the sale of tobacco products to minors, access by minors to tobacco products is a major public health problem;
Whereas, many non-cigarette tobacco products, such as cigars and cigarillos, can be sold in a single "dose"; enjoy a relatively low tax as compared to cigarettes; are available in fruit, candy and alcohol flavors; and are popular among youth; and
Note: CDC (2009), Youth Risk Behavior, Surveillance Summaries (MMWR 2010: 59, 12, note 5). Retrieved from: http:www.cdc.gov/rnmwr/pdf/ss/ss5905.pdf.
Whereas, according to the CDC's youth risk behavior surveillance system, the percentage of high school students in Massachusetts who reported the use of cigars within the past 30 days went from 11.8% in 2003 to 14.9% in 2009; and
Note: CDC (2009) Youth Risk Behavior, Surveillance Summaries (MMWR 2010: 59, 72 (No SS-55)). Retrieved from: www.cdc.gov; and CDC (2003), Youth Risk Behavior, Surveillance Summaries (MMWR 2004: 53, 54 (No. SS-02)).
Whereas, survey results show that more youth report that they have smoked a cigar product when it is mentioned by name than report that they smoked a cigar in general, indicating that cigar use among youth is underreported; and
Note: 2010 Boston Youth Risk Behavior Study. 16.5% of Boston youth responded that they had ever smoked a fruit or candy flavored cigar, cigarillo or little cigar, while 24.1% reported ever smoking a "Black and Mild" Cigar.
Whereas, in Massachusetts, youth use of all other tobacco products, including cigars, rose from 13.3% in 2003 to 17.6% in 2009, and was higher than the rate of current cigarette use (16%) for the first time in history; and
Note: Commonwealth of Massachusetts, Data Brief, Trend, in Youth Tobacco Use in Massachusetts, 1993-2009. Retrieved from: http://www.mass.gov/Eeohhs2/docs/dph/tobacco_control/adolescent _tobacco_use_youth__trends_1993_2009.pdf
Whereas, research shows that increased cigar prices significantly decreased the probability of male adolescent cigar use and a 10% increase in cigar prices would reduce use by 3.4%; and
Note: Ringel, J., Wasserman, J., & Andreyeva, T. (2005) Effects of Public Policy on Adolescents' Cigar Use: Evidence from the National Youth Tobacco Survey American Journal of Public Health, 95(6), 995- 998, doi: 10.2105/AJPH 2003.030411 and cited in Cigar, Cigarillo and Little Cigar Use among Canadian Youth: Are We Underestimating the Magnitude of this Problem?, J. Prim. P. 2011, Aug: 32(3- 4): 161-70. Retrieved from: www.nebi.nim.gov/pubmed/21809109.
Whereas, nonresidential roll-your-own (RYO) machines located in retail stores enable retailers to sell cigarettes without paying the excise taxes that are imposed on conventionally manufactured cigarettes. High excise taxes encourage adult smokers to quit and high prices deter youth from starting. Inexpensive cigarettes, like those produced from RYO machines, promote the use of tobacco, resulting in a negative impact on public health and increased health care costs, and severely undercut the evidence-based public health benefit of imposing high excise taxes on tobacco; and
Note: Eriksen, M., Mackay, J., Ross, fl (2012). The Tobacco Atlas, Fourth Edition, American Cancer Society, Chapter 29, p. 80. Retrieved from: www.TobaccoAtlas.org.
Note: Chaloupka, F.J. & Liccardo Pacula, R., NIH, NCI (2001). The Impact of Price on Youth Tobacco Use, Smoking and tobacco Control Monograph 14: Changing Adolescent Smoking Prevalence) 193-200. Retrieved from: http://dccps.nih.gov/TCRB/monographs/.
Whereas, it is estimated that 90% of what is being sold as pipe tobacco is actually being used in nonresidential RYO machines. Pipe tobacco shipments went from 11.5 million pounds in 2009 to 22.4 million pounds in 2010. Traditional RYO tobacco shipments dropped from 11.2 million pounds to 5.8 million pounds; and cigarette shipments dropped from 308.6 billion sticks to 292.7 billion sticks according to the December 2010 statistical report released by the United States Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (TTB).
Now, therefore, it is the intention of the Plainville Board of Health to regulate the sale of tobacco products and nicotine delivery products.
Pursuant to MGL c. 111, § 31, the Plainville Board of Health recognizes the right of those who wish to breathe smoke-free air and enacts the following regulations to protect and improve the health of the residents of the Town of Plainville and as a strict and enforceable system to prevent access to and the illegal sale of tobacco products to minors.
Note: TTB (2011). Statistical Report - tobacco (2011) (TTB S 5210-12-2010). Retrieved from: http://www.tlb.gov/statistics/2010/201012tobacco.pdf.
This regulation is promulgated under the authority granted to the Plainville Board of Health under MGL c. 111, § 31, that, "boards of health may make reasonable health regulation."
As used in this regulation, the following terms shall have the meanings indicated:
- ADULT-ONLY RETAIL TOBACCO AND NICOTINE DELIVERY PRODUCT STORE
- An establishment that is not allowed to possess a retail food permit, whose primary purpose is to sell or offer for sale but not for resale, tobacco products, nicotine delivery products and tobacco paraphernalia and in which the entry of persons under the minimum legal sales age is prohibited at all times, and maintains a valid permit for the retail sale of tobacco products and nicotine delivery products as required to be issued by the Plainville Board of Health.
- BLUNT WRAP
- Any tobacco product manufactured or packaged as a wrap or as a hollow tube made wholly or in part from tobacco that is designed or intended to be filled by the consumer with loose tobacco or other fillers.
- Any roll of tobacco that is wrapped in leaf tobacco or in any substance containing tobacco, with or without a tip or mouthpiece, not otherwise defined as a cigarette under MGL c. 64C, § 1, Paragraph 1.
- 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 individual who performs services for an employer in return for wages or profit.
- Any individual, partnership, association, corporation, trust, or other organized group of individuals, including the Town of Plainville or any agency thereof, which regularly uses the services of two or more employees.
- A space bound by walls and under a roof.
- FREESTANDING DISPLAY
- An individual display of tobacco products or chewing tobacco from which individual packages or cartons may be selected by the customer, which is not attached to or on top of a checkout counter, or where distribution of the tobacco products is not directly controlled by an employee.
- HEALTH CARE INSTITUTION
- 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 institutions include, but are not limited to, hospitals, clinics, health centers, pharmacies, drugstores, doctor offices and dentist offices.
- Any employee, volunteer or any other person who patronizes an area where tobacco products are sold.
- INDOOR SPORTS ARENA
- Any sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller or ice rink, bowling alley, or other similar place where members of the general public assemble to engage in physical exercise, participate in athletic competition or witness sports events.
- Any individual who is under the age of 21 years.
- MUNICIPAL BUILDING
- Any building or facility owned, operated, leased or occupied by the municipality, including school buildings or grounds.
- NICOTINE DELIVERY PRODUCT
- 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.
- NONRESIDENTIAL ROLL-YOUR-OWN (RYO) MACHINES
- A mechanical device made available for use (including to an individual who produces cigars, smokeless tobacco, pipe tobacco, or roll-you-own tobacco solely for the individual's own personal consumption or use) that is capable of making cigarettes, cigars, or other tobacco products. RYO machines located in private homes used for solely personal consumption are not nonresidential RYO machines.
- PUBLIC PLACE
- Any building or facility owned, leased, operated or occupied by the municipality, including school buildings or grounds; an enclosed, indoor area when open to and used by the general public, including but not limited to the following facilities: licensed child-care locations, educational facilities, elevators accessible to the public, clinics and nursing homes, inns, hotel and motel lobbies, stairwells, halls, entranceways, public restrooms, libraries, schools, municipal buildings, museums, retail stores, retail food establishments, hair cutting establishments, laundromats, indoor sports arenas, theaters, beano or bingo games, auditoriums, public transit facilities and any rooms or halls when used for public meetings. A room or hall used for a private social function in which the sponsor of the private function and not the owner or proprietor has control over the seating arrangements shall not be construed as a public place.
- RETAIL FOOD ESTABLISHMENT
- Any establishment commonly known as a "supermarket," "grocery store," "bakery" or "convenience store" in which the primary activity is the sale of food items to the public for off-premises consumption.
- RETAIL STORE
- Any establishment whose primary purpose is to sell or offer for sale to consumers, but not for resale, any goods, wares, merchandise, articles or other things, including retail food stores. "Retail store" shall not include restaurants as defined herein.
- SELF-SERVICE DISPLAY
- A display from which individual packs or cartons of tobacco products may be selected by a customer.
- Inhaling, exhaling, burning or carrying any lighted cigar, cigarette, nicotine delivery product or other tobacco product in any other form.
- TOBACCO PRODUCT
- Cigarettes, cigars, chewing tobacco, pipe tobacco, bidis, snuff or tobacco in any of its forms.
- VENDING MACHINE
- Any automated or mechanical self-service device, which upon insertion of money, tokens, or any other form of payment, dispenses or makes cigarettes, any other tobacco product or nicotine delivery product.
- WORK SPACE
- An enclosed area occupied by an employee during the course of his employment.
- 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.
These regulations shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable health, safety or fire codes, regulations or statutes.
No person shall display on or in any bus, taxicab licensed or garaged within the Town of Plainville or any other vehicle used for public transportation within the Town of Plainville an advertisement for cigarettes, cigars, pipe tobacco, smokeless tobacco, or other tobacco product. Anyone violating this regulation shall be subject to a fine of $100 per day per vehicle.
Sales to minors. 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. Whoever sells a cigarette, chewing tobacco, snuff, nicotine delivery product, or any tobacco in any of its forms to any person under the age of 21 or, not being his parent or guardian, gives a cigarette, chewing tobacco, snuff, nicotine delivery product, or any tobacco in any of its forms to any person under the age of 21 shall be punished according to the fine schedule.
Posting state law.
In conformance with MGL c. 270, § 7, a copy of MGL c. 270, § 6, shall be posted conspicuously by the owner or the person in charge thereof in the establishment which states: "It is illegal to sell or give tobacco products, including nicotine delivery products such as e-cigarettes to any person under the age of 21."
The notice to be posted shall be provided by the Massachusetts Department of Public Health and made available from the Board of Health of the Town of Plainville. Such notice shall be at least 48 square inches and shall be posted at the cash register which receives the greatest volume of single cigarette package sales in such a manner so that it may be readily seen by a person standing at or approaching the cash register. Such 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.
For all other cash registers that sell cigarettes, a notice shall be attached which is no smaller than nine square inches, which is the size of the sign provided by the Massachusetts Department of Public Health. Such notice must be posted in a manner that it may be readily seen by a person standing at or approaching the cash register. Such notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of no less than four feet or more than nine feet from the floor.
Permit for the location and sales of tobacco and nicotine delivery products.
It shall be unlawful for any retail business to sell any tobacco product and nicotine delivery product unless that retailer holds and maintains a valid tobacco and nicotine delivery product sales permit from the Plainville Board of Health for each location in which tobacco products are sold. The term of the permit shall be for one year if the licensee complies with the provisions of this section. It shall be the responsibility of the permit holder to ensure compliance with all sections of these regulations. An application for a tobacco and nicotine delivery product sales permit constitutes an agreement by the applicant that the applicant is aware of and agrees to abide by all Town of Plainville regulations and laws concerning the sale and distribution of tobacco products, with the understanding that any violation of these laws and regulations may be cause to have the tobacco and nicotine delivery product sales permit suspended or revoked.
Each applicant who sells tobacco is required to provide proof of a current tobacco sales license by the Massachusetts Department of Revenue before a tobacco and nicotine delivery products sales permit.
There is a fee for the tobacco and nicotine delivery product sales permit which will be determined by the Plainville Board of Health. All such permits must be renewed annually prior to January 1.
After receiving the permit, the merchant will receive signs that state: "Sale of cigarettes or any other tobacco products, including nicotine delivery products to persons under the age of 21 is illegal."
A permit for location and sales is nontransferable, except a new permit will be issued to a tobacco retailer who changes locations and has shown compliance pertaining to the provisions of this regulation.
A tobacco and nicotine delivery product sales permit will not be renewed if the permit holder has failed to pay all fines issued and the time period to appeal the fines has expired and/or has not satisfied any outstanding permit suspensions.
Maximum number of tobacco product and nicotine delivery product sales permits.
At any given time, there shall be no more than 13 tobacco and nicotine delivery product sales permits issued in Plainville reduced by the number of permits not renewed pursuant to Subsection D(2) below reduced by the number of permits not renewed pursuant to Subsection D(3). No permit renewal will be denied based on the requirements of this subsection except any permit holder who has failed to renew his or her permit within 30 days of expiration must forfeit the expired permit and must reapply as a first-time permit applicant.
As of January 1 of each year, any permit not renewed either because a retailer no longer sells tobacco and/or nicotine delivery products, as defined herein, or because a retailer closes the retail business or has forfeited the permit because of failure to renew, shall be returned to the Plainville Board of Health and shall be permanently retired by the Board of Health and the total allowable number of tobacco product and nicotine delivery product sales permits under Subsection D(1) shall be reduced to 10.
Applicants who purchase an existing business that holds a current tobacco product and nicotine delivery product sales permit at the time of the sale of said business must apply within 60 days of such sale for the permit held by the seller if the buyer intends to sell tobacco products, as defined herein.
A tobacco product and nicotine delivery product sales permit shall not be issued to any new applicant for a retail location within 500 feet of a public or private elementary and secondary school, as measured by a straight line from the nearest point of the property line of the school to the nearest point of the property line of the site of the applicant's business premises.
Cigar sales regulated.
No retailer, retail establishment, or other individual or entity shall sell or distribute or cause to be sold or distributed a cigar unless the cigar is contained in an original package of at least four cigars. The original of at least four cigars shall be sold at the market retail price or at $5, whichever price is higher.
This section shall not apply to:
The sale or distribution of any cigar having a retail price of $2.50 or more.
A person or entity engaged in the business of selling or distributing cigars for commercial purposes to another person or entity engaged in the business of selling or distributing cigars for commercial purposes with the intent to sell or distribute outside the boundaries of Plainville.
Retail tobacco stores.
The Plainville Board of Health may adjust from time to time the amounts specified in this section to reflect changes in the applicable Consumer Price Index by amendment of this regulation.
Prohibition of the sale of blunt wraps. No person or entity shall sell or distribute blunt wraps in Plainville.
Freestanding displays. Freestanding displays are prohibited.
Sales by employees.
In the event of a prospective purchase of cigarettes, nicotine delivery product, or other tobacco products at retail by a person age 26 years old or younger, the employee responsible for the completion of the sale shall request and examine photographic identification establishing the purchaser's age as 21 years or greater as long as such is not in conflict with federal law.
No person or entity selling tobacco products and nicotine delivery products shall allow anyone under age 21 years of age to sell cigarettes, nicotine delivery products or other tobacco products until such employee reads the Board of Health regulations and state laws regarding sale of tobacco and signs a sworn statement, a copy of which will be placed on file in the office of the employer, that he/she has read the regulation.
Free distribution/sampling. No person or entity shall, except at full retail price, in or upon any part of the streets, parks, public grounds, public buildings, or other public places within the Town of Plainville, distribute any products containing tobacco or nicotine for any promotional or other commercial purpose.
Reduced pricing. No person or entity shall distribute tobacco products and nicotine delivery products substantially reduced in price from the prevailing average retail price of the particular brand in the Town of Plainville.
Vending machines. After the effective date of this regulation, it shall be unlawful to sell or distribute any tobacco product through a cigarette vending machine or any other device used in the sale and distribution of tobacco products and nicotine delivery products within the Town of Plainville, unless said cigarette vending machine is located in an area where the retailer ensures that no person younger than 21 years of age is present, or permitted to enter at any time.
Nonresidential roll-your-own machines. All nonresidential roll-your-own machines are prohibited.
Out-of-package sales prohibited. Sale or distribution of tobacco products and nicotine delivery products in any form other than an original factory-wrapped package is prohibited.
Self-service displays. Self-service displays of tobacco and nicotine delivery products are prohibited in the Town of Plainville. All humidors, including, but not limited to, walk-in humidors, must be locked.
Municipal buildings. Smoking shall be prohibited in all public areas of municipal buildings.
The use of nicotine delivery products, such as an e-cigarette, is prohibited wherever smoking is prohibited, pursuant to MGL c. 270, § 22, relative to secondhand smoke.
All adult only retail stores must post a sign on all entry doors stating that "this store is for patrons 21 years and older, strictly enforced by management."
Noncriminal disposition. Whoever violates any provision of this regulation, the violation of which is subject to a specific penalty, 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.
Any person who smokes or uses a nicotine delivery product such as an e-cigarette in a nonsmoking area shall be subject to a fine of no less than $25 and no more than $50 for each violation.
Any proprietor(s) or other person(s) in charge of a public place or workplace who fail(s) to comply with these regulations shall be subject to both:
In addition to the remedies provided by Subsections A and B above, the Board of Health or any person aggrieved by the failure of the proprietor or other person in charge of a public place or workplace to comply with any provision of this chapter may apply for injunctive relief to enforce the provisions of this chapter in any court of competent jurisdiction.
Any person aggrieved by the failure or refusal to comply with restrictions in any municipal building may complain, in writing, to the head of the department or agency occupying the area where the violation takes place. Said agency or department head shall respond, in writing, within 15 days to the complainant that he has inspected the area described in the complaint and has enforced the provisions of this section as provided herein.
It shall be the responsibility of the permit holder and/or his or her agent to ensure compliance with all sections of this regulation pertaining to his/her place of business. The permit holder and/or his or her agent, or the person involved in violation of any of the provisions of this regulation, may receive:
In the case of a first violation, the permit holder and/or individual in charge of the area permitted for tobacco products and nicotine delivery product sales, or persons not in compliance with the provisions of this regulation, shall receive a fine of $100.
In the case of a second violation within three years, the permit holder and/or individual in charge of the area permitted for tobacco products and nicotine delivery product sales, or persons not in compliance with the provisions of this regulation, shall receive a fine of $200.
In the case of three or more violations within three years, the permit holder and/or individual in charge of the area permitted for tobacco products and nicotine delivery product sales, or persons not in compliance with the provisions of this regulation, shall receive a fine of $300.
The Plainville Board of Health may suspend a tobacco and nicotine delivery products sales permit pursuant to this regulation upon determination that the permit holder has committed three violations of this regulation within three years, calculated from the date of the first offense. The Plainville Board of Health shall provide notice of the intent to suspend a tobacco sales permit, which will contain the reasons therein and establish a time and date for a hearing, which date shall be no earlier than seven days after the date of the notice. The Plainville Board of Health, after a hearing, may suspend or revoke the tobacco sales permit.
During such a time that a "permit for location and sales" of tobacco products and nicotine delivery products has been suspended or revoked, all tobacco products shall be removed from the premises. Failure to remove all tobacco products and nicotine delivery products shall constitute a separate violation of this regulation. A permit holder whose permit has been revoked may not apply for a new permit prior to the expiration of one calendar year from the date of the revocation.
Enforcement of this regulation shall be implemented by the Board of Health of the Town of Plainville or its designated agent(s).
This regulation may be enforced by periodic, unannounced inspections.
Any citizen who desires to register a complaint of noncompliance under the regulation may do so by contacting the Board of Health of the Town of Plainville or its designated agent(s).
If any provision, clause, sentence or paragraph of this regulation or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the other provisions of this article which can be given effect without the invalid provision or application. To this end the provisions of this regulation are declared severable.
These regulations shall be effective as of June 1, 1993. Amended: December 3, 1997; June 6, 2001; June 5, 2002 (formatted numbers only); April 2, 2014, June 1, 2016, January 2019, and August 2019.