[Adopted 12-31-2013]
The purpose of this regulation is to protect the health of the employees and general public in the Town of South Hadley.
This regulation is promulgated under the authority granted to the South Hadley Board of Health pursuant to MGL c. 111, § 31 that "[b]oards of health may make reasonable health regulations." (Note: This sentence is only applicable to Board of Health regulations. If enacting an ordinance or bylaw, this section can begin with the second sentence, with the word "also" omitted.) 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. 
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 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.
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 nonprofit, which uses the services of one or more employees at one or more workplaces, at any one time, including the Town of South Hadley.
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.
OUTDOOR SPACE
An outdoor area, open to the air at all times and which cannot be enclosed by a wall or side covering.
RETAIL TOBACCO STORE
An establishment which 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 is merely incidental, and in which the entry of persons under the age of 18 is prohibited at all times, and which maintains a valid permit for the retail sale of tobacco products as required to be issued by the South Hadley 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 designed to be combusted 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 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."
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 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.
B. 
Smoking is hereby prohibited in South Hadley 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 the following places:
(1) 
Smoking bars, including cigar bars and hookah bars.
(2) 
Retail tobacco stores.
(3) 
In the area within 30 feet of any municipal building entrance or exit.
(4) 
Municipal-owned parks and playgrounds.
(5) 
Municipal-owned athletic fields.
(6) 
Municipal-owned beaches and swimming areas.
(7) 
Membership associations (private clubs).
(8) 
Hotels, motels, bed-and-breakfasts and lodging homes.
(9) 
All outdoor areas of restaurants, bars, taverns and private clubs where food and/or beverages are sold, served, or otherwise consumed or carried.
D. 
A nursing home, licensed pursuant to MGL c. 111, § 71, may apply to the South Hadley Board of Health for designation of part of the facility as a residence.
(1) 
All applications shall designate the residential area of the nursing home. The residential area shall not contain an employee workspace, such as offices, rest rooms or other areas used primarily by employees.
(2) 
The entire facility may not be designated as a residence.
(3) 
The designated residential area must be for the sole use of permanent residents of the facility. No temporary or short-term resident may reside in the residential portion of the facility.
(4) 
All areas in the designated residential area in which smoking is allowed shall be conspicuously designated as smoking areas and be adequately ventilated to prevent the migration of smoke to nonsmoking areas.
(5) 
The facility shall provide suitable documentation, acceptable to the South Hadley Board of Health, that the facility is the permanent domicile of the residents residing in that portion of the facility, that information on the hazards of smoking and secondhand smoke have been provided to all residents and that smoking cessation aids are available to all residents who use tobacco products.
(6) 
The designated residential area shall be in conformance with the smoking restriction requirements of MGL c. 111, § 72X and 105 CMR 150.015(D)(11)(b). All residential areas shall be clearly designated as such and shall not be altered or otherwise changed without the express approval of the South Hadley Board of Health.
(7) 
All areas of a nursing home not designated as a residence shall comply with this section.
(8) 
The nursing home shall make reasonable accommodations for an employee, resident or visitor who does not wish to be exposed to tobacco smoke.
(9) 
Upon compliance with this section, submission of the required documentation and satisfactory inspection, the South Hadley Board of Health shall certify the designated portion of the facility as a residence. The certification shall be valid for one year from the date of issuance. No fewer than 30 days before the expiration of the certification, the facility may apply for recertification. If the South Hadley Board of Health does not renew the certification before its expiration, or provide notice that it has found sufficient cause to not recertify the residence portion of the nursing home as such, the certification shall be considered to continue until the time as the Board of Health notifies the nursing home of its certification status.
E. 
The use of e-cigarettes is prohibited wherever smoking is prohibited per MGL c. 270, § 22 and Subsection C of this section.
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:
(1) 
For the first violation: $100;
(2) 
For a second violation occurring within two years of the date of the first offense: $200; and
(3) 
For a third or subsequent violation occurring within two years of the second violation: $300.
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 § 300-84B 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.
E. 
Violations of § 300-84A, C, D and E may be disposed of by a civil penalty using the noncriminal method of disposition procedures contained in MGL c. 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 the license 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 § 300-84 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 December 31, 2013.