[Adopted effective 6-15-1996; amended in its entirety 5-23-2023]
Whereas, there exists conclusive evidence that tobacco smoking
causes cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes, nose and throat [U.S. Center for Disease
Control and Prevention (CDC), Health Effects of Cigarette Smoking
Fact Sheet (2021), https://www.cdc.gov/tobacco/data_statistics/fact_sheets/health
effects/effects_cig_smoking/index.htm];
Whereas, the U.S. Department of Health and Human Services has
concluded that nicotine is as addictive as cocaine or heroin [CDC,
How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis
for Smoking-Attributable Disease, (2010), http://www.cdc.gov/tobacco/data_statistics/sgr/2010/]
and the Surgeon General found that nicotine exposure during adolescence,
a critical window for brain development, may have lasting adverse
consequences for brain development [U.S. Dep't of Health and
Hum. Servs., The Health Consequences of Smoking - 50 Years of Progress:
A Report of the Surgeon General at 122 (2014), http://www.surgeongeneral.gov/library/reports/50-years-of-progress/full-report.pdf],
and that it is addiction to nicotine that keeps youth smoking past
adolescence [Id. at 13 (Executive Summary)];
Whereas, a Federal District Court found that Phillip Morris,
RJ Reynolds and other leading cigarette manufacturers "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 [United States v. Phillip Morris, 449 F.Supp.2d 1, 1605-07
(D.D.C. 2006)];
Whereas, the majority (90%) of smokers begin smoking before
the age of 25, and over 5,000,000 youth and young adults (ages 25
and under) smoke [Center for Behavioral Health Statistics and Quality,
Substance Abuse and Mental Health Services Administration, Key substance
use and mental health indicators in the United States: Results from
the 2020 National Survey on Drug Use and Health (HHS Publication No.
PEP21-07-01-003, NSDUH Series H-56) (2021) (Retrieved from https://www.samhsa.gov/data/)];
Whereas, cigars and cigarillos can be sold in a single "dose"
and enjoy a relatively low tax as compared to cigarettes [CDC, Youth
Risk Behavior, Surveillance Summaries (MMWR 2010: 59, 12, note 5)
(2009) (Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf)];
Whereas, the Surgeon General found that exposure to tobacco
marketing in stores and price discounting increase youth smoking [U.S.
Dep't of Health and Human Servs., Preventing Tobacco Use Among
Youth and Young Adults: A Report of the Surgeon General 508, 530 (2012)
(www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf)];
Whereas, 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 [Food and Drug Administration, Fact Sheet:
Flavored Tobacco Products (2011), www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf;
U.S. Dep't of Health and Human Services, Preventing Tobacco Use
Among Youth and Young Adults: A Report of the Surgeon General, 508,
539 (2012) www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf];
Whereas, the U.S. Surgeon General recognized in his 2014 report
that a complementary strategy to assist in eradicating tobacco-related
death and disease is for local governments to ban categories of products
from retail sale (See fn. 3 at p. 85);
Whereas, ever use of e-cigarettes among students in Massachusetts
is 30.9% for high schoolers and 10.9% for middle schools, representing
a 20.3% decrease for high schoolers, and a 4.6% decrease for middle
schoolers from 2019 to 2021 (MA YRBS 2017);
Whereas, the Massachusetts Department of Environmental Protection
has classified liquid nicotine in any amount as an "acutely hazardous
waste" (310 CMR 30.136);
Whereas, the New England Commission on Higher Education requires
colleges and universities to maintain a safe and healthy environment
for students [New England Commission on Higher Education, Standards
for Accreditation at 24 (2021), https://www.neche.org/resources/standards-for-accreditation],
which is incompatible with the sale of tobacco and nicotine products;
Whereas, research indicates that the density and proximity of
tobacco retailers increase smoking behaviors, including number of
cigarettes smoked per day, reduced smoking abstinence during a quit
attempt, and increased smoking prevalence among youth [Ying-Chih Chuang
et al., Effects of neighbourhood socioeconomic status and convenience
store concentration on individual level smoking, 59(7) J. Epidemiol
Cmty Health 568 (2005) (doi: 10.1136/jech.2004.029041); Shelley D.
Golden et al., County-level associations between tobacco retailer
density and smoking prevalence in the USA, 2012, 17 (101005) Prev.
Med. Rep. (Mar. 2020) (doi: 10.1016/j.pmedr.2019.101005); Eric C.
Leas et al., Place-Based Inequity in Smoking Prevalence in the Largest
Cities in the United States, 179(3) JAMA Intern Med., 442 (2019) doi:
10.1001/jamainternmed.2018.5990); JG Lee et al., Associations of tobacco
retailer density and proximity with adult tobacco use behaviors and
health outcomes: a meta-analysis. Tobacco Control. Published Online
First: 03 September 2021; LR Reitzel et al., The effect of tobacco
outlet density and proximity on smoking cessation. American Journal
of Public Health. 2011, 101(2):315-320; L Henriksen et al., Is adolescent
smoking related to the density and proximity of tobacco retailers
and retail cigarette advertising near schools? Preventive Medicine.
2008, 47(2):210-4];
Whereas, the density of tobacco retailers near adolescents'
homes has been associated with increased youth smoking rates and initiation
of noncigarette tobacco product use [LJ Finan et al., Tobacco Outlet
Density and Adolescents' Cigarette Smoking: A Meta-Analysis,
28(1) Tob Control. 27 (2019) (doi: 10.1136/tobaccocontrol-2017-054065);
Abdel Magid HS et al., Tobacco Retail Density and Initiation of Alternative
Tobacco Product Use Among Teens, 66(4) J. Adolescent Health 423 (2020)
(doi: 10.1016/j.jadohealth.2019.09.004)];
Whereas, tobacco retailers are more prevalent in underserved
communities, especially in neighborhoods with a higher proportion
of African American or Hispanic residents [Siahpush M. et al., Association
of availability of tobacco products with socio-economic and racial/ethnic
characteristics of neighbourhoods, 124(9) Pub. Health 525 (2010) (doi:
10.1016/j. puhe.2010.04.010); Lee JG, et al., Inequalities in tobacco
outlet density by race, ethnicity and socioeconomic status, 2012,
USA: results from the ASPiRE Study, 71(5) J. Epidemiol Cmty Health
487 (2017) (doi: 10.1136/jech-2016-208475); D.O. Fakunle et al., Black,
White, or Green? The Effects of Racial Composition and Socioeconomic
Status on Neighborhood-Level Tobacco Outlet Density, Ethn Health.
1 (2019) (doi: 10.1080/13557858.2019.1620178)];
Whereas, policies to reduce tobacco retailer density have been
shown to be effective and can reduce or eliminate social and racial
inequities in the location and distribution of tobacco retailers [Ribisl
KM, et al., Reducing Disparities in Tobacco Retailer Density by Banning
Tobacco Product Sales Near Schools, 19(2) Nicotine Tobacco Res. 239
(2017) (doi: 10.1093/ntr/ntw185); HG, Henry et al., Tobacco Retail
Licensing and Density 3 Years After License Regulations 117 Philadelphia,
Pennsylvania (2012-2019), 110 (4) Am J. Pub. Health 547 (2020) (doi:
10.2105/AJPH.2019.305512); A.E. Myers et al., A comparison of three
policy approaches for tobacco retailer reduction, 74 Prev. Med. 67(2015)
(doi: 10.1016/j.ypmed.2015.01.025)];
Whereas, the Massachusetts Supreme Judicial Court has held that
". . . [t]he right to engage in business must yield to the paramount
right of government to protect the public health by any rational means"
[Druzik et al v. Board of Health of Haverhill, 324 Mass. 129 (1949)];
Now, therefore, it is the intention of the City of Beverly Board
of Health to regulate the sale of tobacco products and to amend the
Board's regulations that went into effect June 1, 2019.
This regulation is promulgated pursuant to the authority granted
to the Beverly Board of Health by Massachusetts General Laws 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:
An establishment whose primary purpose is to sell or offer
for sale to consumers, but not for resale, tobacco products and tobacco
paraphernalia, and in which the sale of other products is merely incidental,
and in which the entry of persons under the age of 21 is prohibited
at all times. An adult-only retail tobacco store must maintain a valid
permit, issued by the Board, for the retail sale of tobacco products.
Any establishment that possesses or is required to possess a retail
food permit shall not be considered an adult-only retail tobacco store.
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.
The Beverly Board of Health.
Any day of the week, inclusive of Saturday and Sunday, during
which a retail establishment is open.
A distinguishable taste or aroma, other than the taste or
aroma of tobacco, imparted or detectable before or during consumption
of a tobacco product including, but not limited to, a taste or aroma
relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert,
alcoholic beverage, menthol, mint, wintergreen, 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.
Any roll of tobacco wrapped in paper or in any substance not
containing tobacco;
Little cigars, which shall mean rolls of tobacco wrapped in
leaf tobacco or any substance containing tobacco and as to which 1,000
units weigh not more than three pounds; and
Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in Subsection A.
The word "cigarette" shall include within its meaning, without
limitation, little cigars and smokeless tobacco; and the words "smokeless
tobacco" shall mean snuff, snuff flour and any other tobacco or tobacco
product prepared in such manner as to be suitable for chewing, including,
but not limited to, cavendish, plug, twist and fine-cut tobaccos.
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, defined as 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.
Any card, paper, note, form, statement, ticket or other issue
distributed for commercial or promotional purposes to be later surrendered
by the bearer so as to receive an article, service or accommodation
without charge or at a discount price.
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.
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.
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
such 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 Massachusctts 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 vessel which contains nicotine in liquid
or gel form, whether or not combined with another substance or substances,
for use in a tobacco product. The term does not include a container
containing nicotine in a cartridge that is sold, marketed, or intended
for use in a tobacco product if the cartridge is prefilled and sealed
by the manufacturer and not intended to be opened by the consumer
or retailer.
The higher of the price listed for a tobacco product on its
package or the price listed on any related shelving, posting, advertising
or display at the place where the tobacco product is sold or offered
for sale, plus all applicable taxes if such taxes are not included
in the state price, and before the application of any discounts or
coupons.
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. RYO 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.
Any display from which customers may select a tobacco product
without assistance from store personnel.
A 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, electronic cigarettes, electronic
cigars, electronic pipes, electronic hookah, liquid nicotine, or 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 such 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 product.
A.
No person shall sell or otherwise distribute tobacco products within
the City of Beverly without first obtaining a tobacco product sales
permit issued annually by the Board. Such permit shall only be issued
to owners of permanent, nonmobile locations, and permit holders may
only sell tobacco products at the location specified in the permit.
B.
As part of the permit application process, a copy of this regulation
shall be provided to the applicant. An applicant must sign a statement
declaring that the applicant has read this regulation and that the
applicant is responsible for instructing any and all employees or
other personnel who may conduct tobacco product sales regarding this
regulation and applicable federal, state and local law concerning
the sale of tobacco.
C.
An applicant for a permit to sell tobacco products must 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 will be issued.
D.
Every retail establishment that sells tobacco products must obtain
and display a separate permit. A retail establishment with more than
one location must obtain and display separate permits at each location.
E.
A tobacco product sales permit issued pursuant to this regulation
is nontransferable upon the sale of a permitted establishment without
permission from the Board. A new owner of an establishment that sold
tobacco products under the prior owner's permit must apply for
a new permit within 30 days of acquiring the business. The purchaser
shall not sell tobacco products until the transfer of the permit is
approved by the Board. No new permit will be issued to a new owner
unless and until all outstanding penalties incurred by the previous
business owner are satisfied in full. Failure to submit a completed
application within 30 calendar days of purchase will result in the
retirement of the permit held by the previous owner.
F.
Issuance of a tobacco product sales permit shall be conditioned on
an applicant's consent to unannounced, periodic inspections of
the permitted retail establishment to ensure compliance with this
regulation.
G.
A tobacco product sales permit will not be renewed if the permit
holder has failed to pay any fine issued pursuant to this regulation
and the time period to appeal the fine has expired and/or the permit
holder has not satisfied any outstanding permit suspension.
H.
An applicant for a tobacco product sales permit shall pay an application
fee in an amount to be determined annually by the Board.
I.
A tobacco product sales permit shall not be issued to any new applicant
for a retail establishment that is located within 500 feet of a public
or private elementary or secondary school 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.
J.
Maximum number of tobacco product sales permits.
(1)
At any given time, there shall be no more than 39 tobacco product
sales permits issued in Beverly. No applications to renew a permit
shall be denied pursuant to this subsection; however, any permit holder
who fails to renew their permit within 30 days of expiration shall
be treated as a new permit applicant.
(2)
At any given time, there shall be no more than two tobacco product sales permits issued to adult-only retail tobacco stores. These permits shall count towards the maximum number of permits allowed in the City pursuant to Subsection J(1).
(3)
Any applicant who purchases or acquires an existing business
with a tobacco product sales permit at the time of the sale or acquisition
must apply within 30 calendar days of such sale or acquisition for
the permit held by the seller if the applicant intends to sell tobacco
products. Such applicant may only apply for a tobacco product sales
permit for an adult-only retail tobacco store if the seller possessed
the same.
(4)
The Board may from time to time change the maximum allowable
number of tobacco product sales permits by a vote to be taken at an
open public meeting of the Board.
(5)
As of the effective date of this regulation, any permit surrendered, revoked or not renewed, either because a permit holder no longer sells tobacco products or because a permit holder has closed the permitted business, shall return to the Board and shall be permanently retired by the Board and the total allowable number of tobacco product sales permits established in Subsection J(1) shall be reduced by the number of retired permits.
(6)
Relocation of business.
(a)
Notwithstanding the cap on the total allowable number of permits established in Subsection J(1), the owner of a business holding a valid tobacco product sales permit may transfer such permit to a new location of the permitted business, subject to approval by the Board, provided that the business relocates within Beverly and remains under the same ownership. The new location may not be 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 new location.
(b)
An application to transfer a permit to a new location must be
made no later than 30 calendar days after relocation of the business.
A business may not sell tobacco products at the new location until
the transfer of the permit has been approved by the Board. Failure
to submit a completed application within 30 days of relocation will
result in the retirement of the permit issued for the previous location.
(c)
All fines and suspensions must be satisfied prior to a transfer.
(d)
This section applies to the relocation of a permitted business
only, and does not apply to the expansion of a business, such as the
opening of a second retail location.
A.
No person shall sell tobacco products or permit tobacco products
to be sold to a person under the age of 21.
B.
No permit holder or employee shall allow the entry of persons under
the age of 21 into an adult-only retail tobacco store at any time.
C.
Required signage.
(1)
In conformance with MGL c. 270, § 7, all permit holders
shall cause the conspicuous posting of a copy of MGL c. 270, § 6,
in a retail shop or other place used to sell tobacco products, along
with such signage as may be developed by the Massachusetts Department
of Public Health disclosing referral information for smoking cessation
resources. Such signage may be made available from the Board and shall
be at least 48 square inches and shall be posted in such a manner
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 permit holder
shall also cause the conspicuous posting of any additional signs required
by the Department of Public Health. All permit holders displaying
hand-rolled cigars or manufactured cigars outside of their original
package for sale must display a sign containing one of the warning
statements required by 940 CMR 22.04 in a clear and conspicuous format,
a minimum of 50 square inches in size, and in a location readily visible
to the consumer in conformance with 940 CMR 22.06(2)(e).
(2)
The permit holder shall cause, in any retail shop or other place
used to sell tobacco products that rely on vaporization or aerosolization,
a conspicuously posted sign stating that "The sale of tobacco products,
including e-cigarettes, to someone under the 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.
(3)
An adult-only retail tobacco store permit holder shall conspicuously
post signage at all public entrances stating that "Entry of persons
under the age of 21 is prohibited at all times."
D.
Identification. Any person selling or distributing tobacco products
shall verify the age of a purchaser of tobacco products by means of
a valid government-issued photographic identification containing the
purchaser's date of birth and demonstrating that the purchaser
is at least 21 years old. Verification is required for any person
under the age of 27.
E.
All retail sales of tobacco products must be in person between the
seller and the buyer and occur at a permitted location.
A.
No person shall sell or distribute or cause to be sold or distributed
an individual cigar having a retail price of less than $2.50.
B.
No person shall sell or distribute or cause to be sold or distributed
any original, factory-wrapped package of two or more cigars having
a retail price of less than $5.
C.
This section shall not apply to 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 outside the boundaries
of Beverly.
D.
The Board may amend this regulation from time to time to adjust the
dollar amounts in this section to reflect changes in the applicable
consumer price index.
It shall be a violation of this regulation to sell or distribute
or cause to be sold or distributed any flavored tobacco product except
in a permitted adult-only retail tobacco store.
It shall be a violation of this regulation to sell or distribute
blunt wraps in Beverly.
A.
It shall be a violation of this regulation to:
(1)
Distribute or cause to be distributed any free samples of tobacco
products within Beverly;
(2)
Accept or redeem, offer to accept or redeem, or cause or hire
any person to accept or redeem or offer to accept or redeem any coupon
that provides a tobacco product without charge or for less than the
listed or nondiscounted price; or
(3)
Sell a tobacco product to a consumer through any multipack discount
(e.g., "buy-two-get-one-free") or otherwise provide or distribute
to a consumer any tobacco product without charge or for less than
the listed or nondiscounted price in exchange for the purchase of
any other tobacco product.
A.
The sale or distribution of tobacco products in any form other than
the original, factory-wrapped package is prohibited. No tobacco product
may be repackaged for retail sale. No person may sell or distribute
or cause to be sold or distributed any individual cigarette or package
of cigarettes containing fewer than 20.
B.
A retailer of liquid nicotine containers must comply with the provisions
of 310 CMR 30.00.
C.
A retailer of nicotine sold in a liquid or gel substance must comply
with 940 CMR 21.05, which requires that any liquid or gel containing
nicotine be contained in a child-resistant package that, at a minimum,
meets the standards for special packaging set forth in 15 U.S.C. §§ 1471
through 1476 and 16 CFR Part 1700 et seq.
Self-service displays of tobacco products are prohibited. Humidors,
including but not limited to walk-in humidors, must be kept locked.
Vending machines containing tobacco products are prohibited.
Nonresidential RYO machines are prohibited.
No health care institution located in Beverly shall sell tobacco
products or cause tobacco products to be sold. No retail establishment
that operates or has a health care institution within it, such as
a pharmacy, optician/optometrist or drugstore, shall sell tobacco
products or cause tobacco products to be sold.
No educational institution located in Beverly, or any retail
establishment operating on the property of an educational institution,
shall sell or cause tobacco products to be sold.
It shall be a violation of these regulations for a permit holder
to engage in the sale or distribution of any controlled substance,
as defined in 21 U.S.C. § 812 and MGL c. 94C, without the
required state registration.
Except as otherwise provided in this regulation, the sale or
distribution of tobacco products in Beverly is subject to the requirements
and prohibitions established in MGL c. 270, §§ 6, 6A,
7, 28 and 29, and MGL c. 112, § 61A. All permit holders
must comply with 940 CMR 21.00, Sales and Distribution of Cigarettes,
Smokeless Tobacco Products and Electronic Smoking Devices in Massachusetts;
940 CMR 22.00, Sales and Distribution of Cigars in Massachusetts;
and 105 CMR 665.000, Minimum Standards for Retail Sale of Tobacco
and Electronic Nicotine Delivery Systems. A violation of any provision
of the foregoing not inconsistent with this regulation shall be a
violation of this regulation.
A.
Any permit holder found in violation of any provision of this regulation
shall receive a notice of violation from the Board or the Board's
designated agent.
B.
The following fines and actions apply against any permit holder who
violates this regulation; provided, however, that such fines related
to any violation within a retail establishment shall apply against
the permit holder and not an employee thereof.
C.
Any violation of this regulation shall be punishable by:
(1)
A fine of $1,000 in the case of a first violation, and if a
first violation involves the sale of tobacco products to a person
under the age of 21, the violator's tobacco product sales permit
shall be suspended for three consecutive business days pursuant to
105 CMR 665.040(D);
(2)
A fine of $2,000 in the case of a second violation within 36
months of a previous violation, and a suspension of the violator's
tobacco product sales permit for seven consecutive business days;
and
(3)
A fine of $5,000 in the case of a third or subsequent violation
within a thirty-six-month period, and a suspension of the violator's
tobacco product sales permit for 30 consecutive business days.
D.
Every day that a violation exists shall be deemed to be a separate
offense. Separate but simultaneous violations shall be treated as
separate violations. Multiple permit suspensions may not be served
concurrently.
E.
Any person who receives notice of a violation of this regulation
may request a hearing before the Board. The request must be made in
writing and filed within seven days of the date the violation notice
was received.
F.
Upon accrual of four violations of this regulation within a thirty-six-month
period, or upon the commission of two or more egregious violations
of this regulation within 36 months as determined by the Board, the
Board may issue a notice of intent to revoke and shall hold a hearing
in accordance with this regulation and, after such hearing, may permanently
revoke any tobacco sales permit held by the violator.
G.
Before suspending or revoking a tobacco product sales permit, the
Board shall provide notice of the intent to suspend or revoke such
permit, which notice shall contain the reasons therefor and shall
establish a time and date for a hearing, to be held no earlier than
seven days from the date of the notice. The permit holder or their
designee shall have the opportunity to be heard and shall be notified
of the Board's decision and the reasons therefor in writing.
If, after hearing, the Board finds that a violation of this regulation
occurred, the Board shall suspend or revoke the subject permit. For
purposes of such suspensions or revocations, the Board shall make
the determination notwithstanding any separate criminal or noncriminal
proceedings concerning the same offense. Upon suspension or revocation
of a tobacco product sales permit, all tobacco products must be removed
from the retail establishment. Failure to remove all tobacco products
shall constitute a separate violation of this regulation.
H.
Failure to comply with the terms of a permit suspension imposed pursuant
to this regulation may subject the permit holder to an additional
suspension of all Board-issued permits for 30 consecutive business
days.
I.
Complaints and investigations.
(1)
The authority to inspect retail establishments operating in
Beverly for compliance and to enforce this regulation shall be held
by the Board and its designated agents.
(2)
Any person may register a complaint with the Board and its designated
agents to initiate an investigation and enforcement of this regulation
by the Board.
(3)
Refusal by a permit holder or the employee of a permit holder
to cooperate with an inspection or investigation pursuant to this
regulation shall result in the suspension of the tobacco product sales
permit for 30 consecutive business days.
J.
The fines and penalties established herein shall not limit the Board's
ability to suspend or permanently revoke a tobacco product sales permit
when, in the discretion of the Board, the circumstances or events
underlying any violation warrant such suspension or revocation.
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 June 21, 2023.
