This chapter is promulgated pursuant to Massachusetts General
Laws Chapter 270, Section 22(j) which states in part that "nothing
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."
If any paragraph or provision of this article 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 § 147-3 of this
article, nothing in this article 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.
For the purpose of this article, the following words shall have
the following meanings:
BLUNT WRAP
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 regardless of any content.
BUSINESS AGENT
An individual who has been designated by the owner or operator
of any establishment to be the manager or otherwise in charge of said
establishment.
CHARACTERIZING FLAVOR
A distinguishable taste or aroma, other than the taste or
aroma of tobacco, 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, including mint and menthol; 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.
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
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.
COUPON
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.
E-CIGARETTE/ELECTRONIC NICOTINE DELIVERY SYSTEM (ENDS)
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, e-hookah or under any other product
name.
EDUCATIONAL INSTITUTION
Any public or private college, school, professional school,
scientific or technical institution, university or other institution
furnishing a program of higher education.
EMPLOYEE
Any individual who performs services for an employer.
EMPLOYER
Any individual, partnership, association, corporation, trust
or other organized group of individuals that uses the services of
one or more employees.
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 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 provides 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, optician/optometrist offices
and dentist offices.
LIQUID NICOTINE CONTAINER
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, as defined herein. The term does not
include a container containing nicotine in a cartridge that is sold,
marketed, or intended for use in a tobacco product, as defined herein,
if the cartridge is prefilled and sealed by the manufacturer and not
intended to be open by the consumer or retailer.
LISTED OR NONDISCOUNTED PRICE
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.
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 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 this article, or his or her business agent.
PERSON
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.
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 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 Agawam Board of Health. Retail tobacco
stores in which the entry of persons under the age of 21 is prohibited
at all times are allowed to offer for sale, electronic nicotine delivery
systems which contain over 35 milligrams per milliliter of nicotine.
SCHOOLS
Public or private elementary or secondary schools.
SELF-SERVICE DISPLAY
Any display from which customers may select a tobacco product,
as defined herein, without assistance from an employee or store personnel.
SMOKE CONSTITUENT
Any chemical or chemical compound in mainstream or side-stream
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 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." Smoking bars in which the entry of persons under the age of
21 is prohibited at all times are allowed to offer for sale, flavored
products and electronic nicotine delivery systems which contain over
35 milligrams per milliliter of nicotine.
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.
TOBACCO PRODUCT FLAVOR ENHANCER
Any product designed, manufactured, produced, marketed, or
sold to produce a characterizing flavor when added to any tobacco
product.
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.
No person shall sell or distribute or cause to be sold or distributed
any flavored tobacco product, or tobacco product flavor enhancer,
except in smoking bars with the intent of onsite consumption.
No person or entity shall sell or distribute blunt wraps in
Agawam.
All self-service displays of tobacco products, as defined herein,
are prohibited. All humidors including, but not limited to, walk-in
humidors must be locked.
All vending machines containing tobacco products, as defined
herein are prohibited.
All nonresidential roll-your-own machines are prohibited.
No health care institution located in Agawam shall sell or cause
to be sold tobacco products, as defined herein. No retail establishment
that operates or has a health care institution within it, such as
a pharmacy, optician/optometrist or drug store, shall sell or cause
to be sold tobacco products, as defined herein.
No educational institution located in Agawam shall sell or cause
to be sold tobacco products, as defined herein. This includes all
educational institutions as well as any retail establishments that
operate on the property of an educational institution.
The sale or distribution of tobacco products, as defined herein,
must comply with those provisions found at 940 CMR 21.00 ("Sale and
Distribution of Cigarettes, Smokeless Tobacco Products, and Electronic
Smoking Devices in Massachusetts").
It shall be the responsibility of the establishment, permit
holder and/or his or her business agent to ensure compliance with
all sections of this article and Massachusetts General Laws.
A. For violations of §
149-9A, Tobacco sales to persons under the minimum legal sales age prohibited; §
149-12, Sale of flavored tobacco products prohibited and MGL c. 270 § 6; certain sections of §
149-9B, Signage; §
149-14A and
B, Free distribution and coupons; §
149-15A, Out-of-package sales; §
149-16, Self-service displays, the violator shall receive by Health Order:
(1) In the case of the first violation, a fine of $1,000.
(2) In the case of the second violation within 36 months of the date
of the current violation a fine of $2,000 and the tobacco product
sales permit shall be suspended for 14 consecutive business days.
(3) In the case of three or more violations within a thirty-six-month
period, a fine of $5,000 and the tobacco product sales permit shall
be suspended for 60 consecutive business days.
(4) In the case of four violations or repeated, egregious violations of this article within a thirty-six-month period, the Board of Health shall hold a hearing in accordance with Subsection
E of this section and shall permanently revoke a tobacco product sales permit.
B. For violation of all other sections, the violator shall receive by
Health Order:
(1) In the case of a first violation, a fine of $300.
(2) In the case of a second violation within 36 months of the date of
the current violation, a fine of $300 and the tobacco product sales
permit shall be suspended for 14 consecutive business days.
(3) In the case of three or more violations within a thirty-six-month
period, a fine of $300 and the tobacco product sales permit shall
be suspended for 60 consecutive business days.
(4) In the case of four violations or repeated, egregious violations of this article within a thirty-six-month period, the Board of Health shall hold a hearing in accordance with Subsection
E of this section and shall permanently revoke a tobacco product sales permit.
(5) All fines must be paid within 30 days of owner's written receipt
of the notice of violation or the date of the hearing decision by
the Agawam Board of Health, whichever occurs later. Failure to pay
the fine within the 30 days shall result in a suspension of the tobacco
product sales permit.
C. Refusal to cooperate with inspections pursuant to this article shall
result in the suspension of the tobacco product sales permit for 30
consecutive business days.
D. In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of tobacco products while his
or her permit is suspended shall be subject to the suspension of all
Board of Health issued permits for 30 consecutive business days.
E. The Agawam Board of Health shall provide notice of the intent to
suspend or revoke a tobacco product 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 the reasons therefor in writing. After
a hearing, the Agawam Board of Health shall suspend or revoke the
tobacco product sales permit if the Board of Health finds that a violation
of this article occurred. For purposes of such suspensions or revocations,
the Board shall make the determination notwithstanding any separate
criminal or noncriminal proceedings brought in court hereunder or
under the Massachusetts General Laws for the same offense. All tobacco
products, as defined herein, shall be removed from the retail establishment
upon suspension or revocation of the tobacco product sales permit.
Failure to remove all tobacco products, as defined herein, shall constitute
a separate violation of this article.
Whoever violates any remaining provision of this article may
be penalized by the noncriminal method of disposition as provided
in MGL c. 40 § 21D or by filing a criminal complaint at
the appropriate venue.
Each day any violation exists shall be deemed to be a separate
offense.
If any provision of this article is declared invalid or unenforceable,
the other provisions shall not be affected thereby but shall continue
in full force and effect.
This article shall be effective as of January 1, 2021.