[Adopted 6-25-2019]
The purpose of this regulation is to protect the health of the employees and general public in the Town of Harvard.
This regulation is promulgated under the authority granted to the Harvard Board of Health pursuant to M.G.L. Ch. 111, § 31 that "[b]oards of health may make reasonable health regulations." It is also promulgated pursuant to M.G.L. Ch. 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 shall section shall preempt further limitation of smoking by the Commonwealth . . . or political subdivision of the Commonwealth."
A. 
As used in this regulation, the following words shall have the following meanings, unless the context requires otherwise:
COMPENSATION
Money, gratuity, privilege, or benefit received from an employer in return for work performed or services rendered.
E-CIGARETTE
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, including those containing marijuana, or solid nicotine. 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.
EMPLOYEE
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.
EMPLOYER
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 non-profit which uses the services of one or more employees at one or more workplaces, at any one time, including the Town of Harvard.
ENCLOSED
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.
MARIJUANA
All parts of any plant of the genus Cannabis, not excepted in 935 CMR 500.002: cannabis or marijuana or marihuana (a) through (c) and whether growing or not; the seeds thereof; and resin extracted from any part of the plant; clones of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin including tetrahydrocannabinol as defined in M.G.L. Ch. 94G, § 1; provided that cannabis shall not include: (a) 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; (b) hemp; or (c) the weight of any other ingredient combined with cannabis or marijuana to prepare topical or oral administrations, food, drink or other products.
MARIJUANA ESTABLISHMENT
A marijuana cultivator, marijuana testing facility, marijuana product manufacturer, marijuana retailer or any other type of marijuana-related business licensed by the Cannabis Control Commission pursuant to 935 CMR 500.050 as a marijuana cultivator, craft marijuana cooperative, marijuana product manufacturer, independent marijuana testing laboratory, storefront marijuana retailer, delivery-only marijuana retailer, marijuana primary social consumption establishment, marijuana mixed-use social consumption establishment, marijuana research facility, marijuana transporter and marijuana micro-business.
MUNICIPAL BUILDING
Any building or facility owned, operated, leased or occupied by the Town of Harvard.
OUTDOOR SPACE
An outdoor area, open to the air at all times and cannot be enclosed by a wall or side covering.
RETAIL TOBACCO STORE
An establishment that is not required to possess a retail food permit whose primary purpose is to sell or offer for sale to consumers, but not for resale, tobacco products and paraphernalia, in which the sale of other products or offer of services is merely incidental, and in which the entry of persons under the age of 21 is prohibited at all times, and which maintains a valid permit for the retail sale of tobacco products as required by the Harvard Board of Health.
SMOKING (OR SMOKE)
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, including marijuana, designed to be combusted, electronically vaporized, and inhaled.
SMOKING BAR
An establishment that primarily is engaged in the retail sale of tobacco products for consumption by customers on the premises and is required by M.G.L. Ch. 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."
WORKPLACE
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 M.G.L. Ch. 270, § 22 and/or 105 CMR 661. To the extent any of the definitions herein conflict with M.G.L. Ch. 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 Harvard in accordance with M.G.L. Ch. 270, § 22 (commonly known as the "Smoke-Free Workplace Law").
C. 
Pursuant to M.G.L. Ch. 270, § 22(j) smoking is also hereby prohibited in:
(1) 
Smoking bars.
(2) 
Retail tobacco stores.
(3) 
Municipal-owned athletic fields, beaches, parks, playgrounds and conservation land.
(4) 
Nursing homes.
(5) 
Hotels, motels, and B&B rooms.
(6) 
Public transportation, bus and taxi waiting areas.
(7) 
The area within 50 feet of all outdoor areas where food and/or beverages are served to the public by employees of restaurants, bars and taverns.
(8) 
The area within 50 feet of any municipal building entranceway accessible to the public, except that this shall not apply to a smoker transiting through such fifty-foot area nor to a smoker approaching an entranceway with the intention of extinguishing a smoking product.
(9) 
Rights-of-way.
D. 
The use of e-cigarettes is prohibited wherever smoking is prohibited per M.G.L. Ch. 270, § 22 and § 185-81C of this regulation.
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:
(1) 
$100 for the first violation;
(2) 
$200 for a second violation occurring within two years of the date of the first offense; and
(3) 
$500 for a third or subsequent violation occurring within two years of the second violation.
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 § 145-81B shall be disposed of by a civil penalty using the non-criminal method of disposition procedures contained in M.G.L. Ch. 40, § 21D, without an enabling ordinance or by-law. The disposition of fines assessed shall be subject to M.G.L. Ch. 111, § 188.
E. 
Violations of § 145-81A, C and D may be disposed of by a civil penalty using the non-criminal method of disposition procedures contained in M.G.L. Ch. 40, § 21D
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 § 145-81D 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 23, 2019.