Town of Franklin, MA Chapter 262 Tobacco Products and Smoking

[HISTORY: Adopted by the Board of Health 4-1-2019[1]. Amendments noted where applicable.]

GENERAL REFERENCES

Smoking — See Ch. 254.

Sale of tobacco products to minors — See Ch. 261, Art. I.

[1] Editor's Note: This enactment superseded former Ch. 262, Tobacco Products and Smoking, adopted 7-1-2016.

§ 262-1 Purpose.

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.

§ 262-2 Authority.

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."

§ 262-3 Definitions.

A. As used in this regulation, the following words shall have the following meanings, unless the context requires otherwise:

ADULT-ONLY 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 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.

BLUNT WRAP

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.

CHARACTERIZING FLAVOR

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.

CIGAR

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.

COMPENSATION

Money, gratuity, privilege, or benefit received from an employer in return for work performed or services rendered.

COMPONENT PART

Any element of a tobacco product, including, but not limited to, the tobacco, filter and paper, but not including any constituent.

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.

DISTINGUISHABLE

Perceivable by either the sense of smell or taste.

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 Franklin.

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.

FLAVORED TOBACCO PRODUCT

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.

HEALTH CARE INSTITUTION

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.

MEMBERSHIP ASSOCIATION

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:

(1) 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

(2) A corporation organized under Chapter 180;[1] or

(3) An established religious place of worship or instruction in the commonwealth whose real or personal property is exempt from taxation; or

(4) 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.

MUNICIPAL BUILDING

Any building or facility owned, operated, leased or occupied by the municipality.

NONRESIDENTIAL ROLL-YOUR-OWN (RYO) MACHINE

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.

PERMIT HOLDER

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.

SELF-SERVICE DISPLAY

Any display from which customers may select a tobacco product without assistance from an employee or store personnel, excluding vending machines.

SMOKE CONSTITUENT

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.

SMOKING (or SMOKE)

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.

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."

TOBACCO PRODUCT

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.

VENDING MACHINE

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.

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.

[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.

§ 262-4 Retail sale.

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.

§ 262-5 Tobacco products sales permit.

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.

§ 262-6 Cigarette packaging; cigar sales.

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.

§ 262-7 Self-service displays.

All self-service displays of tobacco products are prohibited. All humidors including, but not limited to, walk-in humidors must be locked.

§ 262-8 Tobacco vending machines; roll-your-own machines.

A. All tobacco vending machines are prohibited in the Town of Franklin.

B. All nonresidential roll-your-own machines are prohibited.

§ 262-9 Prohibition on smoking in public places and workplaces.

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.

§ 262-10 Violations and penalties.

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.

§ 262-11 Noncriminal disposition.

A. Whoever violates any provision of this regulation may be penalized by the noncriminal method of disposition as provided in MGL c. 40, § 21D, and the Town of Franklin General Bylaws.

B. Each day any violation exists shall be deemed to be a separate violation.

§ 262-12 Enforcement.

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.

§ 262-13 Severability.

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.

§ 262-14 Conflict with other laws or regulations.

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.

§ 262-15 Effective date.

This regulation shall be effective as of April 1, 2019.