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Town of Agawam, MA
Hampden County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Council of the Town of Agawam 7-9-2018 by TOR-2018-6.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 149, Smoking and Tobacco Products, which comprised Art. I, Smoking on Public Transportation, adopted 12-21-1972 as § 11-5 of the Code of the Town of Agawam; Art. II, Smoking in Public Places, adopted 11-15-1999 by TOR-99-6, as amended; and Art. III, Sales or Gifts of Tobacco Products, adopted 10-1-2007 by TOR-2007-9.
This chapter is promulgated pursuant to MGL c. 270, § 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."
As used in this article, 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, e-hookahs 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 minimis 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 Agawam.
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.
MUNICIPAL BUILDING
Any building or facility owned, operated, leased or occupied by the municipality.
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 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.
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 nontobacco 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.
Terms not defined herein shall be defined as set forth in MGL c. 270, § 22, and/or 105 CMR 661.00. To the extent any of the definitions herein conflict with MGL c. 270, § 22, or 105 CMR 661.00, 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 Agawam 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:
(1) 
Smoking bars whose operators have newly applied after the date these regulations take effect;
(2) 
Nursing homes;
(3) 
Hotels, motels, bed-and-breakfast rooms;
(4) 
In all outdoor areas where food and/or beverages are served to the public by employees of restaurants, bars and taverns;
(5) 
Public transportation, bus/taxi waiting areas;
(6) 
On all Town-owned playgrounds, parks, beaches, ballfields or any other recreational facility, future or existing, with structures, improved paths, parking areas or other maintained improvements. Also included are all municipal buildings, future or existing, and their grounds, including, but not limited to, the Town Hall, Senior Center, Town Hall Annex, Fire and Police Stations, Library, and Building Maintenance Facility. A municipal golf course shall be exempt from this section.
D. 
The use of e-cigarettes is prohibited wherever smoking is prohibited per MGL c. 270, § 22, and § 149-3C 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) 
$300 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 § 149-3B 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 § 149-3A, C and D 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 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 effect the legality of any remaining paragraphs or provisions.
Notwithstanding the provisions of § 149-3 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.
For the purpose of this regulation, the following words shall have the following meanings:
ADULT-ONLY 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, 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 minimum legal sales age is prohibited at all times, and maintains a valid permit for the retail sale of tobacco products as required to be issued by the Agawam Board of Health.
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, 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.
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.
DISTINGUISHABLE
Perceivable by either the sense of smell or taste.
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 opened 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.
MINIMUM LEGAL SALES AGE (MLSA)
The age an individual must be before that individual can be sold a tobacco product in 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 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 these regulations, 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.
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 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 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 hookahs, 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.
A. 
No person shall sell tobacco products or permit tobacco products, as defined herein, to be sold to a person under the minimum legal sales age; or not being the individual's parent or legal guardian, give tobacco products, as defined herein, to a person under the minimum legal sales age. The minimum legal sales age in Agawam is 21.
B. 
Required signage:
(1) 
In conformance with and in addition to MGL c. 270, § 7, a copy of MGL c. 270, § 6, shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell tobacco products at retail. The notice shall be provided by the Massachusetts Department of Public Health and made available from the Agawam Board of Health. The notice shall be at least 48 square inches and shall be posted conspicuously by the permit holder in the retail establishment or other place in such a manner so that it may be readily seen by a person standing at or approaching the cash register. The 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. The owner or other person in charge of a shop or other place used to sell tobacco products at retail shall conspicuously post any additional signs required by the Massachusetts Department of Public Health. The owner or other person in charge of a shop or other place used to sell hand-rolled cigars must display a warning about cigar consumption in a sign at least 50 square inches pursuant to 940 CMR 22.06(2)(e).
(2) 
The owner or other person in charge of a shop or other place used to sell tobacco products, as defined herein, at retail shall conspicuously post signage provided by the Agawam Board of Health that discloses current referral information about smoking cessation.
(3) 
The owner or other person in charge of a shop or other place used to sell tobacco products that rely on vaporization or aerosolization, as defined herein as "tobacco products," at retail shall conspicuously post a sign stating that "The sale of tobacco products, including c-cigarettes, to someone under the minimum legal sales age of 21 years is prohibited." 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 in such a manner so that it may be readily seen by a person standing at or approaching the cash register. The 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. 
Identification. Each person selling or distributing tobacco products, as defined herein, shall verify the age of the purchaser by means of a valid government-issued photographic identification containing the bearer's date of birth that the purchaser is 21 years old or older. Verification is required for any person under the age of 27.
D. 
All retail sales of tobacco products, as defined herein, must be face-to-face between the seller and the buyer and occur at the permitted location.
A. 
No person shall sell or otherwise distribute tobacco products, as defined herein, within the Town of Agawam without first obtaining a tobacco product sales permit issued annually by the Agawam Board of Health. Only owners of establishments with a permanent, nonmobile location in Agawam are eligible to apply for a permit and sell tobacco products, as defined herein, at the specified location in Agawam.
B. 
As part of the tobacco product sales permit application process, the applicant will be provided with the Agawam 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 tobacco product sales regarding federal, state and local laws regarding the sale of tobacco and this regulation.
C. 
Each applicant who sells tobacco products is required to provide proof of a current tobacco retailer license issued by the Massachusetts Department of Revenue, when required by state law, before a tobacco product sales permit can be issued.
D. 
A separate permit, displayed conspicuously, is required for each retail establishment selling tobacco products, as defined herein, the fee for which shall be determined by the Agawam Board of Health annually.
E. 
A tobacco product sales permit is nontransferable.
F. 
Issuance of a tobacco product sales permit shall be conditioned on an applicant's consent to unannounced, periodic inspections of his/her retail establishment to ensure compliance with this regulation.
G. 
A tobacco product 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 and/or the permit holder has not satisfied any outstanding permit suspensions.
H. 
A tobacco product sales permit will not be renewed if the permit holder has sold a tobacco product to a person under the MLSA (§ 149-9A) three times within the previous permit year and the time period to appeal has expired. The violator may request a hearing in accordance with Subsection D of § 149-22, Violations and penalties.
I. 
Maximum number of tobacco product sales permits. At any given time, there shall be no more than 38 tobacco product sales permits issued in Agawam. No permit renewal will be denied based on the requirements of this subsection except any permit holder who has failed to renew his or her permit within 30 days of expiration will be treated as a first-time permit applicant.
J. 
A tobacco product sales permit shall not be issued to any new applicant for a retail location within 500 feet of a public or private elementary or secondary school as measured by a straight line from the nearest point of the property line of the school to the nearest point of the property line of the site of the applicant's business premises.
A. 
No person shall sell or distribute or cause to be sold or distributed a single cigar.
B. 
No person shall sell or distribute or cause to be sold or distributed any original factory-wrapped package of two or more cigars, unless such package is priced for retail sale at $5 or more.
C. 
This section shall not apply to:
(1) 
The sale or distribution of any single 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 Agawam.
D. 
The Agawam Board of Health may adjust from time to time the amounts specified in this section to reflect changes in the applicable Consumer Price Index by amendment of this regulation.
No person shall sell or distribute or cause to be sold or distributed any flavored tobacco product, except in smoking bars and adult-only retail tobacco stores.
No person or entity shall sell or distribute blunt wraps in Agawam.
A. 
No person shall:
(1) 
Distribute, or cause to be distributed, any free samples of tobacco products, as defined herein;
(2) 
Accept or redeem, offer to accept or redeem, or cause or hire any person to accept or redeem or offer to accept or redeem any coupon that provides any tobacco product, as defined herein, without charge or for less than the listed or nondiscounted price; or
(3) 
Sell a tobacco product, as defined herein, to consumers through any multipack discounts (e.g., "buy-two-get-one-free") or otherwise provide or distribute to consumers any tobacco product, as defined herein, without charge or for less than the listed or nondiscounted price in exchange for the purchase of any other tobacco product.
B. 
Subsection A(2) and (3) shall not apply to products, such as cigarettes, for which there is a state law prohibiting them from being sold as loss leaders and for which a minimum retail price is required by state law.
A. 
The sale or distribution of tobacco products, as defined herein, in any form other than an original factory-wrapped package is prohibited, including the repackaging or dispensing of any tobacco product as defined herein for retail sale. 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. 
A retailer of liquid nicotine containers must comply with the provisions of 310 CMR 30.000 and must provide the Agawam Board of Health with a written plan for disposal of said product, including disposal plans for any breakage, spillage or expiration of the product.
C. 
All retailers must comply with 940 CMR 21.05, which reads: "It shall be an unfair or deceptive act or practice for any person to sell or distribute nicotine in a liquid or gel substance in Massachusetts after March 15, 2016, unless the liquid or gel product is contained in a child-resistant package that, at a minimum, meets the standard for special packaging as set forth in 15 U.S.C. §§ 1471 through 1476 and 16 CFR § 1700 et seq."
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").
A. 
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 regulation. The violator shall receive:
(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 regulation within a thirty-six-month period, the Board of Health shall hold a hearing in accordance with Subsection D of this section and may permanently revoke a tobacco product sales permit.
B. 
Refusal to cooperate with inspections pursuant to this regulation shall result in the suspension of the tobacco product sales permit for 30 consecutive business days.
C. 
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.
D. 
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 regulation 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 regulation.
Whoever violates any provision of this regulation 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.
A. 
Enforcement of this regulation shall be by the Agawam Board of Health or its designated agent(s).
B. 
Any resident who desires to register a complaint pursuant to the regulation may do so by contacting the Agawam Board of Health or its designated agent(s), and the Board shall investigate.
If any provision of this regulation is declared invalid or unenforceable, the other provisions shall not be affected thereby but shall continue in full force and effect.
This regulation shall be effective as of October 1, 2018.