[HISTORY: Adopted by the Board of Health
of the Town of Dover 4-25-1994; amended in its entirety 11-18-2013. Subsequent amendments noted where applicable.]
The Board of Health, pursuant to the authority granted under
MGL c. 111, § 31, hereby adopts the following regulation
to protect the public health of the community.
There exists conclusive evidence that tobacco smoke causes cancer,
respiratory diseases, various cardiac problems, allergies, and irritations
to the eyes, nose and throat of both the smoker and nonsmoker exposed
to secondhand smoke. Evidence further demonstrates that nicotine,
present in tobacco, is extremely addictive. Almost 90% of all smokers
begin smoking before the age 18 (the minimum legal age to be sold
cigarettes in the Commonwealth), and every day an estimated additional
3,000 minors begin smoking in United States. There is an urgent health
need to reduce easy access by youths to tobacco and nicotine products
through strict enforcement of the state law prohibiting sales to minors,
MGL c. 270, § 6, and additional measures. Therefore, these
regulations are adopted pursuant to MGL c. 111, § 31, as
reasonable health regulations designed to protect and improve the
health of the residents of the Town of Dover.
As used in this regulation:
An establishment whose business is devoted to the serving
of alcoholic beverages for consumption by guests or customers on the
premises and in which the service of food is only incidental to the
consumption of such beverages.
An area of a restaurant that is devoted to the serving of
alcoholic beverages for consumption by guests or restaurant patrons
on the premises and in which the serving of food is only incidental
to the consumption of such beverages.
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
solid nicotine or any liquid. This term shall include such devices
whether they are sold 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 and any person who volunteers his or her services
for an employer.
Any individual, firm, partnership, association, corporation,
trust, or other business entity or organization of any kind, including
the Town of Dover or any agency thereof, which utilizes the services
of one or more individual employees.
A space bound by walls continuous from the floor to the ceiling,
enclosed by doors and under a roof.
Any office or institution providing 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 specialists within these professions.
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 building or enclosed facility owned, operated, rented,
leased or occupied by the Town of Dover, including school buildings
and school grounds.
Any vehicle owned, rented, leased, or operated by the Town
of Dover, including, without limitation, cars, trucks, and buses.
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 products include, but are not limited to, e-cigarettes,
lozenges or other candy, drinks, and inhalers.
Any area that is designated and posted by the proprietor
or person in charge as a place where smoking by patrons, employees
or others is prohibited.
Any individual, firm, partnership, association, corporation,
trust, or other business entity or organization of any kind, including,
but not limited to, an owner, operator, manager, proprietor or person
in charge of any building, establishment, business, restaurant or
retail store, or the business agents or designees of any of the foregoing.
A not-for-profit establishment created and organized pursuant
to MGL c. 180 as a charitable corporation with a defined membership.
A private club is not a place of public accommodation but rather is
distinctly private.
An enclosed, indoor area when open to and used by the general
public, including but not limited to the following facilities: restaurants,
bar areas of restaurants, bars, auditoriums, licensed child care locations,
educational facilities, clinics, hospitals, medical buildings, health
care facilities, nursing homes, long term care facilities, public
libraries, municipal buildings, museums, theaters, retail stores,
retail food stores, indoor sports arenas, public transit facilities
not owned by the Commonwealth of Massachusetts or United States government,
enclosed shopping malls, stairwells, hallways, entrance ways, public
rest rooms, elevators accessible to the public, common areas in privately
owned buildings, and any clubs, rooms or halls when open to the public
or when used for public meetings. A room or hall used for a private
social function that is not open to the public and is under the control
of the host or hostess rather than the proprietor or manager, such
as a wedding reception, shall not be construed as a public place.
Public places shall also include all areas available to and customarily
used by the general public in all businesses and non-profit entities
patronized by the public, including but not limited to, attorneys'
offices and other offices, banks, laundromats, hair cutting establishments
and salons, and hotels and motels. Areas of private residences shall
not be considered public places except during those hours when operating
as a public meeting place, a food service establishment, such as a
residential kitchen permitted by the Board of Health, or as a business
open to the public.
Any coffee shop, cafeteria, workplace cafeteria, sandwich
stand, private and public school cafeteria, and other eating establishment
which gives or offers food for sale to the public, guests, or employees
for on-premises consumption. This includes all food service establishments
licensed by the Board of Health, including catering facilities, but
does not include private clubs or fraternal organizations when either
is closed to the public.
Any establishment whose primary activity is the sale of food
items to the public for off-premises consumption, including, but not
limited to, supermarket, grocery store, bakery, or convenience store.
This includes any "take-out" food service establishment and all other
food service establishments not included in the definition of a restaurant.
Any retail service establishment whose primary purpose is
to sell or offer for sale to consumers, but not for resale, any goods,
wares, merchandise, articles, other things or services. "Retail store"
shall include retail food stores but shall not include restaurants
as defined herein.
Any display of tobacco products or nicotine delivery products
from which individual, multi-packages, or cartons of such products
may be selected by the customer without assistance from a clerk.
The inhaling, exhaling, burning, holding or carrying of any
lighted cigar, cigarette, pipe, e-cigarette, or other lighted tobacco
product or nicotine delivery product in any form.
Any product containing tobacco in any of its forms, including,
but not limited to, cigarettes, chewing tobacco, snuff, cigars, bidis,
and pipe tobacco.
Any structure or portion thereof where one or more employees
perform services for their employer. It also includes motor vehicles,
employee lounges, rest rooms, conference rooms, hallways, stairways,
and entrance ways. Areas of private residences shall not be considered
workplaces except during those hours when operating as a public place,
a food service establishment, such as a residential kitchen permitted
by the Board of Health or as a business open to the public.
A.
No person shall smoke nor shall any person having control of the premises upon which smoking is prohibited by this regulation, or the business agent or designee of such person, permit a person to smoke in any public place as defined herein, except as otherwise provided in Subsection B of this section.
(1)
The prohibition on smoking in public places shall apply to all restaurants,
bar areas of restaurants, and bars open to the public.
(2)
The prohibition on smoking shall apply at all times to all public
places, including but not limited to auditoriums, schools and school
property, clinics, hospitals, health care facilities, nursing homes,
long term care facilities, public libraries, municipal buildings and
enclosed facilities, municipal vehicles, museums, theaters, indoor
sports arenas, enclosed shopping malls, hotel and motel lobbies.
(3)
The prohibition on smoking in public places shall apply to buses,
taxis, and other means of public mass transit while operating within
the boundaries of the Town of Dover and indoor platforms.
(4)
The prohibition on smoking in public places shall apply to retail
stores doing business with the public.
(5)
The prohibition on smoking in public places shall apply to lobbies,
hallways, elevators, entrance ways, stairwells, rest rooms, and waiting
areas and other common areas in multiple-unit residential and commercial
facilities.
B.
Exclusions: Notwithstanding any other provision of these regulations,
smoking may be permitted in the following places and/or under the
following circumstances:
(1)
Private residences, except those areas used as a public place, a
food service establishment, such as a residential kitchen permitted
by the Board of Health, or as a business open to the public, including,
but not limited to, a child care, adult care or health care facility
during the hours when operating as such.
(2)
Hotel and motel rooms rented to guests that are designated as rooms
in which smoking is permitted and are posted as such.
(3)
Retail tobacco stores which are primarily for the sale of tobacco
products and paraphernalia, in which the sale of other products is
merely incidental, which prohibit minors from entering the establishment
and are not required to possess a retail food permit.
(4)
Hotel and motel conference/meeting rooms and private enclosed assembly
rooms while these places are being used for private social functions.
(5)
Limousines for hire, when the driver and all passengers affirmatively
consent to smoking in such vehicle.
A.
Thirty days after the publication of a summary of this regulation, it shall be unlawful for any person to smoke in any workplace except in specifically designated enclosed and separately ventilated smoking areas as described in Subsection B. No place governed by this regulation shall be designated as a smoking area in its entirety. Nothing in this section shall be construed to require the creation of smoking areas.
B.
Each employer operating a workplace in the Town of Dover may specifically
designate areas in which employees may smoke; provided, however, that
comparable nonsmoking areas of sufficient size and capacity are available
to accommodate the needs of all nonsmoking employees and further provided
that smoking areas are in a separate room that is enclosed and separately
ventilated. The construction of walls, floors, ceilings and doors
shall be of such material that will prevent the permeation of tobacco
smoke pollutants. All doors must be self-closing. Designated smoking
areas may not be areas which employees are required to frequent during
the course of employment. Employees shall not be required to work
in areas in which smoking is allowed under this regulation. Motor
vehicles, hallways, elevators, entrance ways, stairwells, rest rooms
and waiting areas in all the above facilities may not be designated
as smoking areas. Areas designated as smoking and nonsmoking areas
must be conspicuously marked.
C.
Each employer operating a workplace in the Town of Dover shall, within
one month after publication of a summary of this regulation, establish
and implement a written policy governing smoking in such workplace.
Employees must be notified of the policy, and a copy of said policy
must be posted in a location easily visible and accessible to all
employees.
D.
Any employee exposed to smoke or smoking by-products who wishes to
register a complaint for alleged violations of this regulation may
file such complaint directly with the Board of Health.
E.
Each employer having control of premises upon which smoking is prohibited
by this regulation, or his or her business agent or designee, shall
conspicuously display upon the premises an appropriate number of signs
sufficient to put employees and visitors on notice reading "Smoking
Prohibited by Law," 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) in every area where smoking is
prohibited by this regulation.
F.
It shall be unlawful for any person having control of any workplace
upon which smoking is prohibited by this regulation to permit, or
for his or her business agent to permit, a violation of this regulation.
A.
No person shall sell tobacco products or nicotine delivery products
in the Town of Dover unless the sale of such products is controlled
by an employee of the establishment. A person may only sell tobacco
products or nicotine delivery products in a direct, face-to-face exchange
between the retailer and the consumer. Self-service displays of tobacco
products or nicotine delivery products shall be prohibited.
B.
No person shall sell tobacco products or nicotine delivery products
to any person under the age of 21 years or, not being his/her parent
or guardian, give tobacco products or nicotine delivery products to
any person under the age of 21.
C.
Retail establishments where tobacco products or nicotine delivery
products are sold shall conspicuously post and reasonably maintain
signs where these products are displayed and at all check-out counters
notifying customers that proof of age is required to purchase tobacco
products or nicotine delivery products.
D.
All clerks selling tobacco products or nicotine delivery products
shall verify by means of government-issued photographic identification
containing the bearer's date of birth that no person purchasing the
tobacco or nicotine containing products is younger than 21 years of
age. No such verification is required for any person over the age
of 26. No clerk shall sell tobacco products or nicotine delivery products
to a person under 21 years of age who has a note from an adult requesting
such sale.
E.
No person selling tobacco products or nicotine delivery products
shall allow an employee to sell or distribute such products until
the employee has read the Board of Health regulations and state laws
pertaining to the sale or distribution of tobacco products and nicotine
delivery products and has signed a statement that the employee has
read the regulations. Such form statement will be supplied by the
Board of Health and kept on file at the establishment subject to review
by the Board of Health.
F.
At any
given time, there shall be no more than two Tobacco Product Sales
Permits issued in the Town of Dover. 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
will be treated as a first-time permit applicant.
[Added 7-10-2023]
G.
As of July
29, 2023, any permit not renewed either because a retailer no longer
sells tobacco products, as defined herein, or because a retailer closes
the retail business, shall be returned to the Dover Board of Health.
It shall be up to the discretion of the Board of Health to determine
if a relinquished permit can then be re-issued to a new applicant
or business.
[Added 7-10-2023]
H.
Applicants
who purchase or acquire an existing business that holds a valid Tobacco
Product Sales Permit at the time of the sale or acquisition of said
business must apply within 60 days of such sale or acquisition for
the permit held by the current permit holder if the applicant intends
to sell tobacco products, as defined herein. If the permit transfer
application is not received within this specified time frame, the
permit will be deemed surrendered.
[Added 7-10-2023]
No person or entity may sell or cause to be sold, or distribute
or cause to be distributed, any single cigarette, or any package that
contains fewer than 20 cigarettes.
No free or nominal cost samples of tobacco products or nicotine
delivery products shall be distributed or sold within the Town of
Dover. No tobacco sales permit holder, or his or her business agent
or designee, shall redeem or honor any coupons or vouchers redeemable
for tobacco, tobacco products or nicotine delivery products within
the Town of Dover.
The sale of tobacco products or nicotine delivery products by
means of vending machines is prohibited.
In conformance with 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. Such notice shall be the notice
provided by the Massachusetts Department of Public Health for this
purpose.
Such notice shall be at least 48 square inches and shall be
posted at the cash register which receives the greatest volume of
tobacco product 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 tobacco
products, 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
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 more than nine feet from the floor.
No person shall display an advertisement for tobacco products
or nicotine delivery products on or in any bus, taxicab licensed or
garaged within the Town of Dover, or any other vehicle used for public
transportation within the Town of Dover. Anyone violating this regulation
shall be subject to a fine of not more than $100 per day per vehicle.
Each day or portion thereof during which a violation continues shall
constitute a separate offense.
Any person desiring to sell tobacco products or nicotine delivery
products must obtain a permit to sell such products from the Board
of Health within 30 days from the effective date of this regulation,
or before commencing such sales, whichever is later. An application
for a permit to sell tobacco products or nicotine delivery products
must be made annually, and the application for a new or renewal permit
must be made on a form provided by the Board of Health and must include
an annual permit fee as established by the Board of Health for that
year's permits. Annual permits expire on June 30, and applications
for a permit renewal must be submitted 30 days prior to its expiration
date. Prior to the issuance of the new or renewal permit, the person
and an agent of the Board of Health must conduct an inspection of
the sales facilities to determine compliance with all rules and regulations
pertaining to the sale or distribution of tobacco products and nicotine
delivery products. The Board of Health is authorized to deny the issuance
or renewal of a permit if the sales facilities do not comply with
this regulation. The Board is also authorized to revoke a permit for
cause, after notice and a hearing, for failure to comply with this
regulation. Decisions of the Board of Health may be appealed pursuant
to MGL c. 249, § 4.
A.
Any person who smokes in a nonsmoking area shall be subject to a
fine of $100 for each violation.
B.
Any person(s) in charge of a place covered by this regulation or
his or her business agent or designee who fail(s) to comply with this
regulation shall be subject to the following penalties:
(1)
First offense; warning.
Second offense within three years of one previous offense: $100.
Third offense within three years of two previous offenses: $200.
Fourth or subsequent offense within three years of three previous
offenses: $300.
Each day or portion thereof during which a violation continues
shall constitute a separate offense, and each provision of this regulation
and permit issued thereunder that is violated shall constitute a separate
offense, and
(2)
Suspension or revocation of the permit to sell tobacco products or
nicotine delivery products issued by the Board of Health for that
place for a period of time to be determined by the Board of Health.
C.
The Board of Health shall provide notice of the intent to suspend
or revoke a tobacco product or nicotine delivery product sales permit,
which notice shall contain the reasons therefor and establish a time
and date for a hearing which date shall be no earlier than seven days
after the date of said notice. The permit holder shall have an opportunity
to be heard at such hearing and shall be notified of the Board of
Health's decision and the reasons therefore in writing. The Board
of Health after a hearing may suspend or revoke the tobacco or nicotine
containing product's sales permit. All tobacco products and nicotine
delivery products shall be removed from the establishment during the
effective date(s) of suspension or revocation of the sales permit.
Failure to remove all tobacco products and nicotine delivery products
shall constitute a separate violation of this regulation.
D.
Any citizen who desires to register a complaint under this regulation
may request, in writing, that the Board of Health initiate an investigation.
E.
In addition to the remedies provided by Subsections A and B, the Board of Health or any person aggrieved by the failure of a person covered by these regulations to comply with any provision of this subsection may apply for injunctive relief to enforce the provisions of this subsection in any court of competent jurisdiction.
F.
Any person aggrieved by the failure or refusal to comply with restrictions
in any municipal building or municipal vehicle may complain 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 20 working days to the complainant that he/she has inspected
the area described in this complaint and has enforced the provisions
of this section as provided herein. In the event that the complaint
is not satisfactorily resolved, the complainant may notify the Town
Administrator and the Board of Health.
H.
The Board of Health, its agents, officers, and employees shall have
authority to enter upon privately and publicly owned property for
the purpose of performing their duties under this regulation and may
make or cause to be made such examinations or inspections as the Board
deems necessary, subject to the constitutions and laws of the United
States and the commonwealth.
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.
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 regulation shall take effect 30 days after publication
of a summary of the regulation in a newspaper distributed in the Town
of Dover. As required by MGL c. 111, § 31, an attested copy
has been filed with DEP on June 8, 1994. This regulation was voted
by a majority of this Board on April 25, 1994, amended on May 11,
1998, September 24, 2001, November 18, 2013, and July 10, 2023.
