[HISTORY: Adopted by the Board of Health of the Town of Marshfield
as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Smoking — See Ch. 232.
[Adopted effective 9-1-2015]
A.
Whereas:
(1)
There exists conclusive evidence that tobacco smoking causes cancer,
respiratory and cardiac diseases, negative birth outcomes, and irritations
to the eyes, nose and throat;[1]
[1]
Centers 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.
(2)
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;[2]
[2]
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.
(3)
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;[3]
[3]
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.
(4)
The U.S. Department of Health and Human Services has concluded that
nicotine is as addictive as cocaine or heroin[4] and the Surgeon General found that nicotine exposure during
adolescence, a critical window for brain development, may have lasting
adverse consequences for brain development;[5]
[4]
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.
[5]
U.S. Department of Health and Human Services. 2014. The Health
Consequences of Smoking - 50 Years of Progress: A Report of the Surgeon
General. Atlanta: U.S. National Center for Chronic Disease Prevention
and Health Promotion, Office on Smoking and Health, p. 122. Retrieved
from: http://www.surgeongeneral.gov/library/reports/50-years-of-progress/full-report.pdf.
(5)
A Federal District Court, in a 2006 decision upheld by the United
States Supreme Court, found that Phillip Morris, RJ Reynolds and other
leading cigarette manufacturers violated federal racketeering laws,
in part, because they "spent billions of dollars every year on their
marketing activities in order to encourage young people to try and
then continue purchasing their cigarette products in order to provide
the replacement smokers they need to survive" and that these companies
were likely to continue targeting underage smokers;[6]
[6]
United States v. Phillip Morris, Inc., RJ Reynolds Tobacco
Co., et al., 449 F.Supp.2d 1 (D.D.C. 2006) at Par. 3301 and Pp. 1605-07.
(6)
Despite state laws prohibiting the sale of tobacco products to minors,
access by minors to tobacco products is a major public health problem;
(7)
Research finds that raising the minimum legal drinking age to 21
has reduced alcohol consumption among youth and protected drinkers
from long-term negative outcomes in adulthood, including alcohol and
other drug dependence;[7]
[7]
DeJong W, Blanchette J 2013. "Case Closed: Research Evidence
on the Positive Public Health Impact of the Age 21 Minimum Legal Drinking
Age in the United States." J. Stud. Alcohol Drugs, Supplement 17,
108 - 115, 2014.
(9)
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;[9]
[9]
CDC (2009), Youth Risk Behavior, Surveillance Summaries (MMWR
2010: 59, 12, note 5). Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf.
(10)
(11)
The federal Family Smoking Prevention and Tobacco Control Act
(FSPTCA), enacted in 2009,[12] prohibited candy- and fruit-flavored cigarettes, largely
because these flavored products were marketed to youth and young adults,[13] and younger smokers were more likely to have tried these
products than older smokers;[14]
[12]
21 U.S.C. § 387g.
[13]
Carpenter CM, Wayne GF, Pauly JL, et al. 2005. "New Cigarette
Brands with Flavors that Appeal to Youth: Tobacco Marketing Strategies."
Health Affairs. 24(6): 1601-1610; Lewis M and Wackowski O. 2006. "Dealing
with an Innovative Industry: A Look at Flavored Cigarettes Promoted
by Mainstream Brands." American Journal of Public Health. 96(2): 244-251;
Connolly GN. 2004. "Sweet and Spicy Flavours: New Brands for Minorities
and Youth." Tobacco Control. 13(3): 211-212; U.S. Department of Health
and Human Services. 2012. Preventing Tobacco Use Among Youth and Young
Adults: A Report of the Surgeon General. Atlanta: U.S. National Center
for Chronic Disease Prevention and Health Promotion, Office on Smoking
and Health, p. 537, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[14]
U.S. Department of Health and Human Services. 2012. Preventing
Tobacco Use Among Youth and Young Adults: A Report of the Surgeon
General. Atlanta: U.S. National Center for Chronic Disease Prevention
and Health Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/
preventing-youth-tobacco-use/full-report.pdf.
(12)
Although the manufacture and distribution of flavored cigarettes
(excluding menthol) is banned by federal law,[15] neither federal nor Massachusetts laws restrict sales
of flavored non-cigarette tobacco products, such as cigars, cigarillos,
smokeless tobacco, hookah tobacco, and electronic devices and the
nicotine solutions used in these devices;
[15]
21 U.S.C. § 387g.
(13)
The U.S. Food and Drug Administration and the U.S. Surgeon General
have stated that flavored tobacco products are considered to be "starter"
products that help establish smoking habits that can lead to long-term
addiction;[16]
[16]
Food and Drug Administration. 2011. Fact Sheet: Flavored Tobacco
Products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf;
U.S. Department of Health and Human Services. 2012. Preventing Tobacco
Use Among Youth and Young Adults: A Report of the Surgeon General.
Atlanta: U.S. National Center for Chronic Disease Prevention and Health
Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/
preventing-youth-tobacco-use/full-report.pdf.
(14)
Data from the National Youth Tobacco Survey indicates that more
than 2/5 of U.S. middle and high school smokers report using flavored
little cigars or flavored cigarettes;[17]
[17]
King BA, Tynan MA, Dube SR, et al. 2013. "Flavored-Little-Cigar
and Flavored-Cigarette Use Among U.S. Middle and High School Students."
Journal of Adolescent Health. [Article in press], www.jahonline.org/article/S1054-139X%2813%2900415-1/abstract.
(15)
The U.S. Centers for Disease Control and Prevention has reported
that electronic cigarette use among middle and high school students
doubled from 2011 to 2012;[18]
[18]
Centers for Disease Control and Prevention. 2013. "Electronic
Cigarette Use Among Middle and High School Students — United
States, 2011-2012," Morbidity and Mortality Weekly Report (MMWR) 62(35):
729-730.
(16)
Nicotine solutions, which are consumed via electronic or battery-operated
delivery smoking devices such as electronic cigarettes, are sold in
dozens of flavors that appeal to youth, such as cotton candy and bubble
gum;[19]
[19]
Cameron JM, Howell DN, White JR, et al. 2013. "Variable and
Potentially Fatal Amounts of Nicotine in E-cigarette NicotineSolutions."
Tobacco Control. (Electronic publication ahead of print.) http://tobaccocontrol.bmj.com/content/early/2013/02/12/tobaccocontrol-2012-050604.full;
U.S. Department of Health and Human Services. 2012. Preventing Tobacco
Use Among Youth and Young Adults: A Report of the Surgeon General.
Atlanta: U.S. National Center for Chronic Disease Prevention and Health
Promotion, Office on Smoking and Health, p. 549, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
(17)
The Massachusetts Department of Environmental Protection has
classified liquid nicotine in any amount as an "acutely hazardous
waste" (310 CMR 30.136);
(18)
In a lab analysis conducted by the FDA, electronic cigarette
cartridges that were labeled as containing no nicotine actually had
low levels of nicotine present in all cartridges tested, except for
one;[20]
[20]
Food and Drug Administration, Summary of Results: Laboratory
Analysis of Electronic Cigarettes Conducted by FDA, available at:
http://www.fda.gov/newsevents/publichealthfocus/ucm173146.htm.
(19)
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 14.3% in 2011;[21]
[21]
CDC (2011) Youth Risk Behavior, Surveillance Summaries [MMWR
2012: 87 (No SS-61)]. Retrieved from: www.cdc.gov; and CDC (2003),
Youth Risk Behavior, Surveillance Summaries [MMWR 2004: 53, 54 (No.
SS-02)].
(20)
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;[22]
[22]
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.
(21)
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;[23]
[23]
Commonwealth of Massachusetts, Data Brief, Trends 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.
(22)
Research shows that increased cigar prices significantly decreased
the probability of male adolescent cigar use and a ten-percent increase
in cigar prices would reduce use by 3.4%;[24]
[24]
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.
(24)
Nonresidential roll-your-own (RYO) produce inexpensive cigarettes,
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 high tobacco prices;
(25)
The sale of tobacco products is incompatible with the mission
of health care institutions because these products are detrimental
to the public health and their presence in health care institutions
undermines efforts to educate patients on the safe and effective use
of medication, including cessation medication;
(26)
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;
B.
Now, therefore it is the intention of the Marshfield Board of Health
to regulate the sale of tobacco products.
This regulation is promulgated pursuant to the authority granted
to the Marshfield Board of Health by MGL c. 111, § 31, which
states "Boards of health may make reasonable health regulations."
For the purpose of this regulation, the following words shall
have the following meanings:
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.
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.
A distinguishable taste or aroma, other than the taste or
aroma of tobacco, menthol, mint or wintergreen, imparted or detectable
either prior to or during consumption of a tobacco product or component
part thereof, including but not limited to tastes or aromas relating
to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
beverage, herb or spice; provided, however, that no tobacco product
shall be determined to have a characterizing flavor solely because
of the provision of ingredient information or the use of additives
or flavorings that do not contribute to the distinguishable taste
or aroma of the product.
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 element of a tobacco product, including but not limited
to the tobacco, filter and paper, but not including any constituent.
Any ingredient, substance, chemical or compound, other than
tobacco, water or reconstituted tobacco sheet, that is added by the
manufacturer to a tobacco product during the processing, manufacturing
or packaging of the tobacco product. Such term shall include a smoke
constituent.
Perceivable by either the sense of smell or taste.
Any public or private college, 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 that uses the services of
one or more employees.
Any tobacco product or component part thereof that contains
a constituent that has or produces a characterizing flavor. A public
statement, claim or indicia made or disseminated by the manufacturer
of a tobacco product, or by any person authorized or permitted by
the manufacturer to make or disseminate public statements concerning
such tobacco product, that such tobacco product has or produces a
characterizing flavor shall constitute presumptive evidence that the
tobacco product is a flavored tobacco product.
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, optician/optometrist offices
and dentist offices.
A bottle or other container of liquid nicotine or other substance
containing nicotine that is sold, marketed, or intended for use in
a tobacco product, as defined herein. The term does not include a
container containing nicotine in a cartridge that is sold, marketed,
or intended for use in a tobacco product, as defined herein, if the
cartridge is prefilled and sealed by the manufacturer and not intended
to be opened by the consumer or retailer.
The age an individual must be before that individual can
be sold a tobacco product in the municipality.
A mechanical device made available for use (including to
an individual who produces cigars, cigarettes, smokeless tobacco,
pipe tobacco, or roll-your-own tobacco solely for the individual's
own personal consumption or use) that is capable of making cigarettes,
cigars or other tobacco products. Roll-your-own machines located in
private homes used for solely personal consumption are not nonresidential
RYO machines.
Any person engaged in the sale or distribution of tobacco
products who applies for and receives a tobacco product sales permit
or any person who is required to apply for a tobacco product sales
permit pursuant to these regulations, or his or her business agent.
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
establishment, business or retail store.
An establishment that is not required to possess a retail
food permit whose primary purpose is to sell or offer for sale, 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 is prohibited at
all times, and maintains a valid permit for the retail sale of tobacco
products as required to be issued by the Marshfield Board of Health.
Public or private elementary or secondary schools.
Any display from which customers may select a tobacco product,
as defined herein, without assistance from an employee or store personnel.
Any chemical or chemical compound in mainstream or sidestream
tobacco smoke that either transfers from any component of the tobacco
product to the smoke or that is formed by the combustion or heating
of tobacco, additives or other component of the tobacco product.
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."
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, 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.
Any automated or mechanical self-service device which, upon
insertion of money, tokens or any other form of payment, dispenses
or makes cigarettes or any other tobacco products, as defined herein.
A.
No person shall sell tobacco products or permit tobacco products,
as defined herein, to be sold to a person under the minimum legal
sales age or, not being the individual's parent or legal guardian,
give tobacco products, as defined herein, to a person under the minimum
legal sales age. The minimum legal sales age in Marshfield is 21.
B.
Required signage.
(1)
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 Marshfield 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.
(2)
The owner or other person in charge of a shop or other place used
to sell tobacco products, as defined herein, at retail shall conspicuously
post signage provided by the Marshfield Board of Health that discloses
current referral information about smoking cessation.
(3)
The owner or other person in charge of a shop or other place used
to sell tobacco products, as defined herein, at retail shall conspicuously
post a sign stating that "The sale of tobacco products, including
e-cigarettes, to someone under the minimum legal sales age of 21 years
is prohibited." The notice 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 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.
C.
Identification. Each person selling or distributing tobacco products,
as defined herein, shall verify the age of the purchaser by means
of a valid government-issued photographic identification containing
the bearer's date of birth that the purchaser is 21 years old or older.
Verification is required for any person under the age of 27.
D.
All retail sales of tobacco products, as defined herein, must be
face to face between the seller and the buyer and occur at the permitted
location.
A.
No person shall sell or otherwise distribute tobacco products, as
defined herein, within the Town of Marshfield without first obtaining
a tobacco product sales permit issued annually by the Marshfield Board
of Health. Only owners of establishments with a permanent, non-mobile
location in Marshfield are eligible to apply for a permit and sell
tobacco products, as defined herein, at the specified location in
Marshfield.
B.
As part of the tobacco product sales permit application process,
the applicant will be provided with the Marshfield 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
product sales regarding federal, state and local laws regarding the
sale of tobacco and this regulation.
C.
Each applicant who sells tobacco products is required to provide
proof of a current tobacco retailer license issued by the Massachusetts
Department of Revenue, when required by state law, before a tobacco
product sales permit can be issued.
D.
The fee for a tobacco product sales permit shall be determined by
the Marshfield Board of Health annually.
E.
A separate permit is required for each retail establishment selling
tobacco products, as defined herein.
F.
Each tobacco product sales permit shall be displayed at the retail
establishment in a conspicuous place.
G.
A tobacco product sales permit is nontransferable. A new owner of
an establishment that sells tobacco products, as defined herein, 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.
H.
Issuance of a tobacco 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.
I.
A tobacco 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.
J.
A tobacco product sales permit will not be renewed if the permit holder has sold a tobacco product to someone under § 670-4A three times within the previous permit year and the time period to appeal has expired and/or has not satisfied any outstanding permit suspensions. The violator may request a hearing in accordance with § 670-15D.
K.
Maximum number of tobacco product sales permits. At any given time,
there shall be no more than 26 tobacco product sales permits issued
in Marshfield. No permit renewal will be denied based on the requirements
of this subsection, except that 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. Applicants who purchase a business
that holds a current tobacco product sales permit at the time of the
sale of said business may 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. New applicants for permits who 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 to apply for a permit
on a first-come-first-served basis as issued permits are either not
renewed or are returned to the Board of Health.
L.
A tobacco product sales permit shall not be issued to any new applicant
for a retail location within 500 feet of a public or private elementary
or 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. Applicants
who purchase an existing business that holds a current tobacco product
sales permit at the time of the sale of said business may 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.
No person shall sell or distribute or cause to be sold or distributed
any flavored tobacco product, except in smoking bars and retail tobacco
stores.
No person or entity shall sell or distribute blunt wraps in
Marshfield.
No person shall distribute, or cause to be distributed, any
free samples of tobacco products, as defined herein. No means, instruments
or devices that allow for the redemption of any tobacco products,
as defined herein, for free or cigarettes at a price below the minimum
retail price determined by the Massachusetts Department of Revenue
shall be accepted by any permit holder.
A.
The sale or distribution of tobacco products, as defined herein,
in any form other than an original factory-wrapped package is prohibited,
including the repackaging or dispensing of any tobacco product, as
defined herein, for retail sale. 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.
B.
A retailer of liquid nicotine containers, where liquid nicotine is
an "acutely hazardous waste" as identified in 310 CMR 30.136, must
comply with the provisions of 310 CMR 30.000 and must provide the
Marshfield Board of Health with a written plan for disposal of said
product, including disposal plans for any breakage, spillage or expiration
of the product.
All self-service displays of tobacco products, as defined herein,
are prohibited. All humidors, including but not limited to walk-in
humidors, must be locked.
All vending machines containing tobacco products, as defined
herein, are prohibited.
All nonresidential roll-your-own machines are prohibited.
No health care institution located in Marshfield shall sell
or cause to be sold tobacco products, as defined herein. No retail
establishment that operates or has a health care institution within
it, such as a pharmacy, optician/optometrist or drugstore, shall sell
or cause to be sold tobacco products, as defined herein.
No educational institution located in Marshfield shall sell
or cause to be sold tobacco products, as defined herein. 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 establishment, permit holder
and/or his or her business agent to ensure compliance with all sections
of this regulation. The violator shall receive:
(1)
In the case of a first violation, a fine of $1,000.
[Amended effective 2-10-2020]
(2)
In the case of a second violation within 36 months of the date of
the current violation, a fine of $2,000 and the tobacco product sales
permit shall be suspended for seven consecutive business days.
[Amended effective 2-10-2020]
(3)
In the case of three or more violations within a thirty-six-month
period, a fine of $5,000 and the tobacco product sales permit shall
be suspended for 30 consecutive business days.
[Amended effective 2-10-2020]
B.
Refusal to cooperate with inspections pursuant to this regulation
shall result in the suspension of the tobacco product 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 products 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 Marshfield Board of Health shall provide notice of the intent
to suspend or revoke a tobacco 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 or its business agent shall
have an opportunity to be heard at such hearing and shall be notified
of the Board of Health's decision and the reasons therefor in writing.
After a hearing, the Marshfield Board of Health shall suspend or revoke
the tobacco product sales permit if the Board of Health finds that
a violation of this regulation occurred. For purposes of such suspensions
or revocations, the Board shall make the determination notwithstanding
any separate criminal or noncriminal proceedings brought in court
hereunder or under the Massachusetts General Laws for the same offense.
All tobacco products, as defined herein, shall be removed from the
retail establishment upon suspension or revocation of the tobacco
product sales permit. Failure to remove all tobacco products, as defined
herein, shall constitute a separate violation of this regulation.
Whoever violates any provision of this regulation 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. Each day any violation exists shall be deemed to be a separate
offense.
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.
This regulation shall take effect on September 1, 2015.
[Adopted effective 9-1-2015]
The purpose of this regulation is to protect the health of the
employees and general public in the Town of Marshfield.
This regulation is promulgated under the authority granted to
the Marshfield 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.
COMPENSATION
E-CIGARETTE
EMPLOYEE
EMPLOYER
ENCLOSED
SMOKING (or SMOKE)
WORKPLACE
As used in this regulation, the following words shall have the following
meanings, unless the context requires otherwise:
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. This term shall include such devices whether they are manufactured
as e-cigarettes, e-cigars, e-pipes or under any other product name.
An individual or person who performs a service for compensation
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 Town of Marshfield.
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.
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 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, and 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 Marshfield in accordance with MGL
c. 270, § 22 (commonly known as the "Smoke-Free Workplace
Law").
A.
An owner, manager, or other person in control of a building, vehicle
or vessel who violates this section, 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.
D.
Violations of § 670-23B shall be disposed of by a civil penalty using the noncriminal method of disposition procedures contained in MGL c. 40, § 21D, without an enabling ordinance or bylaw. The disposition of fines assessed shall be subject to MGL c. 111, § 188.
F.
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.
G.
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 § 670-23 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 September 1, 2015.
