[Adopted effective 4-1-1985; amended in its entirety 6-28-2017]
The purpose of this regulation is to protect the health of the
employees and general public in the City of Beverly.
This regulation is promulgated under the authority granted to
the Beverly Board of Health pursuant to MGL c. 111, § 31
that "[b]oards of health may make reasonable health regulations."
It is also promulgated pursuant to MGL c. 270, § 22(j),
which states in part that "[n]othing 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 . . . health
. . . regulation. Nothing in this section shall preempt further limitation
of smoking by the commonwealth . . . or political subdivision of the
commonwealth."
A.
ADULT-ONLY RETAIL TOBACCO STORE
BAR
BAR AREA OF A MEMBERSHIP ASSOCIATION
COMPENSATION
E-CIGARETTE
EMPLOYEE
EMPLOYER
ENCLOSED
MARIJUANA
(1)
(2)
(3)
MEMBERSHIP ASSOCIATION (also known as a "private club")
MUNICIPAL BUILDING
OUTDOOR SPACE
PUBLIC PLACE
PUBLIC TRANSPORTATION
RESTAURANT
SMOKING BAR
SMOKING OR SMOKE
TOBACCO PRODUCT
WORKPLACE
As used in this regulation, the following words shall have the following
meanings, unless the context requires otherwise:
An establishment whose primary purpose is to sell or offer
for sale to consumers, but not for resale, tobacco products and tobacco
paraphernalia, in which the sale of other products is merely incidental,
and in which the entry of persons under the minimum legal sales age
of 21 is prohibited at all times. An adult-only retail tobacco store
must maintain a valid permit for the retail sale of tobacco products
as required to be issued by the Beverly Board of Health. For purposes
of this definition, any establishment that possesses or is required
to possess a retail food permit shall not be considered an adult-only
retail tobacco store.
An establishment that is devoted to the serving of alcoholic
beverages for consumption by guests on the premises and in which the
serving of food is only incidental to the consumption of such beverages.
Although a restaurant may contain a bar, the term "bar" shall not
include the restaurant dining room.
An area of a membership association that is devoted to the
serving of alcoholic beverages for consumption by members on the premises
and in which the serving of food is only incidental to the consumption
of such beverages.
Money, gratuity, privilege, or benefit received from an employer
in return for work performed or services rendered.
Any electronic device, not approved by the United States
Food and Drug Administration, 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, or marijuana product. This term shall include such devices
whether they are manufactured as e-cigarettes, e-cigars, e-pipes,
e-hookah or under any other product name.
An individual or person who performs a service for compensation,
or volunteers, for an employer at the employer's workplace, including
a contract employee, temporary employee, and independent contractor
who performs a service in the employer's workplace for more than a
de minimus amount of time.
An individual, person, partnership, association, corporation,
trust, organization, school, college, university or other educational
institution or other legal entity, whether public, quasi-public, private,
or nonprofit, which uses the services of one or more employees at
one or more workplaces, at any one time, including the City of Beverly.
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.
All parts of any plant of the genus Cannabis, not excepted
below and whether growing or not; the seeds thereof; and resin extracted
from any part of the plant; and every compound, manufacture, salt,
derivative, mixture or preparation of the plant, its seeds or resin,
including tetrahydrocannabinol as defined in MGL c. 94C, § 1;
provided that "marijuana" shall not include:
The mature stalks of the plant, fiber produced from the stalks,
oil, or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture or preparation of the mature
stalks, fiber, oil, or cake made from the seeds of the plant or the
sterilized seed of the plant that is incapable of germination;
Hemp; or
The weight of any other ingredient combined with marijuana to
prepare topical or oral administrations, food, drink or other products.
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 MGL c. 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 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.
Any building or facility owned, operated, leased or occupied
by the municipality.
An outdoor area, open to the air at all times and which cannot
be enclosed by a wall or side covering.
An enclosed indoor area on public or private property where
the public is invited or permitted, including but not limited to the
following facilities: health-care facilities; malls; municipal facilities;
public transportation vehicles; retail food stores; retail stores;
restaurants; bars; educational facilities; libraries; museums; theaters;
banks; laundromats; indoor sports arenas; auditoriums; all enclosed
areas of inns/hotels/motels, including all guest rooms; rooms or halls
used for a public meeting; public areas of banks and automatic banking
(ATM) lobbies; common areas of residential buildings; public restrooms,
lobbies, staircases, waiting rooms, halls, exits, entranceways and
elevators accessible to the public; and licensed child-care locations.
Buses, taxis, and other means of transportation available
to the general public while such means of transportation is operating
within the boundaries of the City, including indoor platforms by which
such means of transportation may be accessed.
Any coffee shop, cafeteria, sandwich stand, private and public
school cafeteria and other eating establishment that gives or offers
food for sale to the public, guests, or employees, as well as kitchens
in which food is prepared on the premises for serving elsewhere, including
catering facilities.
An establishment that primarily is engaged in the retail
sale of tobacco products for consumption by customers on the premises
and is required by MGL c. 270, § 22 to maintain a valid
permit to operate a smoking bar issued by the Massachusetts Department
of Revenue. "Smoking bar" shall include, but not be limited to, those
establishments that are commonly known as "cigar bars" and "hookah
bars."
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, including,
but not limited to, marijuana.
Any product containing, made, or derived from tobacco or
nicotine that is intended for human consumption, whether smoked, chewed,
absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any
other means, including, but not limited to: cigarettes, cigars, little
cigars, chewing tobacco, pipe tobacco, snuff; or electronic cigarettes,
electronic cigars, electronic pipes, electronic hookah, liquid nicotine,
"e-liquids" or other similar products, regardless of nicotine content,
that rely on vaporization or aerosolization. "Tobacco product" includes
any component or part of a tobacco product. "Tobacco product" does
not include any product that has been approved by the United States
Food and Drug Administration either as a tobacco use cessation product
or for other medical purposes and which is being marketed and sold
or prescribed solely for the approved purpose.
An enclosed indoor area, structure or facility or a portion
thereof, at which one or more volunteers or employees perform a service
for compensation for an 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.
B.
Terms not defined herein shall be defined as set forth in MGL c.
270, § 22 and/or 105 CMR 661. To the extent any of the definitions
herein conflict with MGL c. 270, § 22 or 105 CMR 661, the
definition contained in this regulation shall control.
A.
It shall be the responsibility of the employer to provide a smoke-free environment for all employees working in an enclosed workplace as well as those workplaces listed in Subsection C below.
B.
Smoking is hereby prohibited in Beverly in accordance with MGL c.
270, § 22 (commonly known as the "Smoke-Free Workplace Law").
C.
Pursuant to MGL c. 270, § 22(j), smoking is also hereby
prohibited in:
(1)
Public places.
(2)
Smoking bars.
(3)
Adult-only retail tobacco stores.
(4)
Municipally owned, leased, operated and/or maintained buildings
and property. This shall include but is not limited to athletic fields,
beaches, parks, playgrounds, school grounds, property held as "open
space," conservation areas, airport property, piers, wharves, docks,
Ellis Square, and Beverly Commons. This is not intended to cover sidewalks
and roadways.
(5)
Beverly Golf and Tennis Club, except for the golf course.
(6)
Nursing homes.
(7)
Hotel, motel and B&B (bed-and-breakfast) rooms.
(8)
The area within 25 feet of any municipal building entranceway
accessible to the public (e.g., sidewalk), except that this shall
not apply to a smoker transiting through such twenty-five-foot area.
(9)
All outdoor areas where food and/or beverages are served to
the public by employees of restaurants, bars and taverns.
(10)
Membership associations (private clubs), except for the bar
area of a private club with active locations in Beverly prior to August
1, 2003, provided that (a) the bar area is separated from the nonsmoking
area of the private club by location in a separate room or by means
of physical barriers that completely enclose the bar area of the private
club utilizing self-closing doors and is (b) served by a Board-of-Health-approved
key entry system that prohibits entry by the general public into the
bar area, and (c) employees must be members of the club. Any bar area
that permits smoking cannot be used for bingo or beano. Any membership
association which initiates active membership locations in Beverly
on or after August 1, 2003, shall be smoke-free at all times.
D.
The use of e-cigarettes is prohibited wherever smoking is prohibited per Massachusetts law and § 400-9.4C of this regulation.
E.
No exceptions found in this regulation shall be construed to apply
to marijuana products.
F.
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 provided by the Massachusetts
Department of Public Health and available from the Beverly 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
Beverly Board of Health.
A.
An owner, manager, or other person in control of a building, vehicle
or vessel who violates this article, in a manner other than by smoking
in a place where smoking is prohibited, shall be punished by a fine
of:
B.
Each calendar day on which a violation occurs shall be considered
a separate offense.
C.
This regulation shall be enforced by the Board of Health and its
designees.
F.
An individual or person who violates § 400-9.4C by smoking or using an e-cigarette in a place where smoking or the use of e-cigarettes is prohibited shall be subject to a civil penalty of $100 for each violation.
G.
If an owner, manager or other person in control of a building, vehicle
or vessel violates this regulation repeatedly, demonstrating egregious
noncompliance as defined by regulation of the Department of Public
Health, the Board of Health may revoke or suspend any Board-of-Health-issued
permit to operate and shall send notice of the revocation or suspension
to the Department of Public Health.
H.
Any person may register a complaint to initiate an investigation
and enforcement with the Board of Health, the local inspection department
or the equivalent.
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 § 400-9.4 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 as of October 1, 2017.
