[HISTORY: Adopted by the Board of Health 4-1-2019[1]. Amendments noted where applicable.]
[1]
Editor's Note: This enactment superseded former Ch. 262, Tobacco
Products and Smoking, adopted 7-1-2016.
The purpose of this regulation is to protect and improve the
public health and welfare by prohibiting smoking in public places
and workplaces, and by regulating the sales of tobacco products in
the Town of Franklin.
This regulation is promulgated under the authority granted to
the Franklin 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
BLUNT WRAP
CHARACTERIZING FLAVOR
CIGAR
COMPENSATION
COMPONENT PART
CONSTITUENT
DISTINGUISHABLE
E-CIGARETTE
EMPLOYEE
EMPLOYER
ENCLOSED
FLAVORED TOBACCO PRODUCT
HEALTH CARE INSTITUTION
MEMBERSHIP ASSOCIATION
(1)
(2)
(3)
(4)
MUNICIPAL BUILDING
NONRESIDENTIAL ROLL-YOUR-OWN (RYO) MACHINE
PERMIT HOLDER
SELF-SERVICE DISPLAY
SMOKE CONSTITUENT
SMOKING (or SMOKE)
SMOKING BAR
TOBACCO PRODUCT
VENDING MACHINE
WORKPLACE
As used in this regulation, the following words shall have the following
meanings, unless the context requires otherwise:
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 tobacco paraphernalia,
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,
and which maintains a valid permit for the retail sale of tobacco
products as required to be issued by the Franklin Board of Health.
A product comprised wholly or in part of tobacco that is
manufactured as a wrap or a hollow tube designed to be filled by the
consumer with loose tobacco or other fillers and then combusted and
inhaled.
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.
Money, gratuity, privilege, or benefit received from an employer
in return for work performed or services rendered.
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
the 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 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 Franklin.
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.
Any tobacco product or component part thereof that contains
a constituent that has or produces a characterizing flavor. A public
statement, claim or other 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 provide 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, drug stores, doctor offices and dental offices.
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:
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
A corporation organized under Chapter 180;[1] or
An established religious place of worship or instruction in
the commonwealth whose real or personal property is exempt from taxation;
or
A veteran's 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.
Any building or facility owned, operated, leased or occupied
by 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. 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 directly to consumers who applies for and receives a tobacco
products sales permit or any person who is required to apply for a
tobacco sales permit pursuant to these regulations, or his or her
business agent.
Any display from which customers may select a tobacco product
without assistance from an employee or store personnel, excluding
vending machines.
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.
The lighting of a cigar, cigarette, pipe, other tobacco product
or e-cigarette or possessing a lighted cigar, cigarette, pipe or other
tobacco or nontobacco product designed to be combusted or vaporized
and inhaled.
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, 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.
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.
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.
[1]
Editor's Note: See MGL c. 180.
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.
As of July 1, 2016, no person shall sell tobacco products or permit
tobacco products to be sold to any person under the age of 21 or not
being the recipient's parent or legal guardian, give tobacco
products to any person under the age of 21.
B.
In addition, the owner or other person in charge thereof in the shop
or other place used to sell tobacco products at retail shall post
the following notice: "As of July 1, 2016, the sale of tobacco products
to persons under the age of 21 is illegal in the Town of Franklin."
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
is such a manner so that it may be readily seen by a person standing
at, or approaching the cash register. This 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.
Each person selling or distributing tobacco products shall verify
the age of the purchaser, by means of government-issued photographic
identification containing the bearer's date of birth, that the
purchaser is 21 years or older. Verification is required for any person
under the age of 27.
D.
All retail sales of tobacco products must be face-to-face between
the seller and the buyer.
E.
No person or entity shall sell or distribute blunt wraps in the Town
of Franklin.
F.
No person shall sell or distribute any flavored tobacco product,
except in adult-only retail tobacco stores as defined herein.
A.
No person shall sell or otherwise distribute tobacco products in
the Town of Franklin without first obtaining a tobacco products sales
permit issued annually by the Franklin Board of Health. Only owners
of establishments with a permanent, nonmobile location in Franklin
are eligible to apply for a permit to sell tobacco products at the
specified location in Franklin.
B.
As part of the tobacco products sales permit application process,
the applicant will be provided with the Franklin Board of Health 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
the tobacco products sales regarding both state laws concerning the
sale of tobacco and this regulation.
C.
Each applicant selling tobacco products is required to provide proof
of a current tobacco sales license issued by the Massachusetts Department
of Revenue before a tobacco products sales permit can be issued.
D.
The fee for a tobacco products sales permit shall be determined annually
by the Franklin Board of Health. All such permits shall be renewed
annually by December 31.
E.
A separate permit is required for each retail establishment selling
tobacco products in the Town of Franklin.
F.
Each tobacco products sales permit shall be displayed at the retail
establishment in a conspicuous place.
G.
A tobacco products sales permit is nontransferable, except a new
permit will be issued to a retailer who changes location.
H.
Issuance of a tobacco products sales permit shall be conditioned
on an applicant's consent to unannounced, periodic inspections
of his/her retail establishment by the Franklin Board of Health and/or
an agent of the Board to ensure compliance with this regulation.
I.
A tobacco products 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.
J.
At no time shall the number of tobacco products sales permits issued
by the Franklin Board of Health exceed 32. No permit renewal will
be denied based on the requirement of this subsection except any permit
holder who has failed to renew his or her permit within 30 days of
the expiration will be treated as a first-time 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. 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.
A.
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.
No retailer, retail establishment, or other individual or entity
shall sell or distribute or cause to be sold or distributed a cigar
unless the cigar is contained in an original package of at least four
cigars. This section shall not apply to:
(1)
The sale or distribution of any cigar having a retail price of $2.50
or more;
(2)
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
with the intent to sell or distribute outside the boundaries of the
Town of Franklin.
All self-service displays of tobacco products are prohibited.
All humidors including, but not limited to, walk-in humidors must
be locked.
A.
It shall be the responsibility of the employer to provide a smoke
free environment for all employees working in an enclosed workplace.
(1)
Smoking is hereby prohibited in the Town of Franklin in accordance
with MGL c. 270, § 22 (commonly known as the "Smoke-free
Workplace Law").
(2)
Pursuant to MGL c. 270, § 22(j), smoking is also hereby
prohibited in smoking bars, membership associations/clubs and within
30 feet of an entranceway accessible to the public, except that this
shall not apply to a smoker transiting through such thirty-foot area
nor to a smoker approaching an entranceway with the intention of extinguishing
a tobacco product.
(3)
It is prohibited for any person to sell or smoke tobacco products,
including e-cigarettes, marijuana or any combustible substance or
product designed to be burned and inhaled, in any municipal buildings
or parks and recreation areas owned by the Town of Franklin and open
to the public.
(4)
No health care institution in the Town of Franklin shall sell or
cause to be sold tobacco products. No retail establishment that operates
or has a health care institution within it, such as a pharmacy or
drug store, shall sell or cause to be sold tobacco products.
B.
Every person having control of the 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 Franklin Board
of Health or the international "No Smoking" symbol (consisting of
a pictorial representation of a burning cigarette enclosed in a circle
with a bar across it) and comparable in size to the sign provided
by the Massachusetts Department of Public Health and available from
the Franklin Board of Health.
It shall be the responsibility of the permit holder and/or his
or her business agent to ensure compliance with all sections of this
regulation pertaining to his or her distribution of tobacco and nicotine
delivery products. Any permit holder, proprietor(s) or other person(s)
in charge of a place covered by this regulation or his or her business
agent or designee who fails to comply with this regulation shall be
subject to the following:
A.
Penalties.
(1)
In the case of the first violation, a fine of $100, and the tobacco
and nicotine delivery products sales permit shall be suspended for
five consecutive business days.
(2)
In the case of a second violation within 24 months of the date of
the first violation, a fine of $200, and the tobacco products sales
permit shall be suspended for 15 consecutive business days.
(3)
In the case of three or more violations within a twenty-four-month
period, a fine of $300, and the tobacco products sales permit shall
be suspended for 30 consecutive business days.
B.
Refusal to cooperate with inspections pursuant to this regulation
shall result in the suspension of the tobacco products sales permit
for 30 consecutive business days.
C.
An individual or person who violates this regulation by smoking in
a place where smoking is prohibited shall be subject to a civil penalty
of $100 for each violation.
D.
In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of tobacco products directly to
a consumer while his or her permit is suspended shall be subject to
the suspension of all Board of Health permits for 30 consecutive business
days.
E.
The Franklin Board of Health shall provide notice of the intent to
suspend, revoke or deny the issuance or renewal of a tobacco products
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 reasons
therefor in writing. The Franklin Board of Health, after a hearing,
may suspend, revoke, or deny the issuance or renewal of the tobacco
products sales permit.
A.
Enforcement of this regulation shall be by the Franklin Board of
Health, the Franklin Health Director, the Franklin Health Agent or
the Franklin Police Department.
B.
Any person who desires to register a complaint pursuant to this regulation
may do so by contacting the Franklin Board of Health or the Franklin
Health Department.
If any paragraph or provision of this regulation is found to
be illegal or against public policy or unconstitutional, it shall
not effect the legality of any remaining paragraphs or provisions.
These regulations shall not be interpreted or construed to permit
smoking where it is otherwise restricted by other applicable health,
safety or fire codes, regulations or statutes.
This regulation shall be effective as of April 1, 2019.