Town of Belchertown, MA Smoking and Access to Tobacco

The Environmental Protection Agency (Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, 1993) has designated environmental tobacco smoke as a Class A carcinogen, for which there are no known safe levels of exposure. Conclusive evidence exists that tobacco smoke causes lung cancer, heart disease, negative birth outcomes, respiratory infection, decreased respiratory function, broncho-constriction and broncho-spasm, allergies and irritations to the eyes, nose and throat of both the smoker and nonsmoker exposed to secondhand smoke.

(2)

Smoke from cigarettes contains more than 4,700 chemical compounds, including carbon monoxide, ammonia, benzine and arsenic. Forty-three of these compounds are known cancer-causing agents, and 400 are toxins. Secondhand smoke causes the death of 53,000 nonsmoking Americans each year (California Healthy Cities Project, 1992). Restaurant and bar employees inhale the benzo(a) pyrene equivalent of actively smoking 1 1/2 to 2 packs of cigarettes per day. In California, waitresses have the highest mortality of any female occupational group. Employees in restaurants and bars have about a fifty-percent to ninety-percent increased risk of lung cancer that is most likely attributable to tobacco smoke exposure (Smoking and Restaurants: A Guide for Policymakers, Michael Siegel, M.D. 1992).

Accordingly, the Board of Health finds and declares that one purpose of this regulation is to protect the public health and welfare by prohibiting smoking in public places.

Further, the Board of Health finds smoking and other tobacco use by minors to be a continuing problem with grave public health consequences. More than 90% of all smokers begin smoking before age 18, and more than 3,000 young people begin to smoke every day in this nation (Preventing Tobacco Use Among Young People: A Report of the Surgeon General, Atlanta, Georgia, United States Department of Health and Human Services, 1994). The average age at which Massachusetts youth are beginning to smoke is age 10. In recognition of the Surgeon General's conclusion that nicotine is as addictive as cocaine or heroin, action is needed to curtail the easy access of minors to cigarettes and other tobacco products. Therefore, a second purpose of this regulation is to implement a strict and enforceable system to prevent the illegal sale of cigarettes and other tobacco products to minors.

	Whereas the Institute of Medicine (IOM) concludes that raising the minimum legal age of access to tobacco products will reduce tobacco initiation particularly among adolescents 15 to 17, and will improve health across the lifespan and save lives. [IOM 2015. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products, Washington, DC: The National Academics Press, 2015.] [Added 6-6-2016]
	Whereas nicotine exposure during adolescence may have lasting adverse consequences for brain development. [U.S. Department of Health and Human Services. The Consequences of Smoking: 50 Years of Progress. A report of the Surgeon General: CDC, Atlanta, Georgia: Office on Smoking and Health, 2014.] [Added 6-6-2016]
	Whereas more than 80% of all adult smokers begin smoking before the age of 18; and more than 90% do so before leaving their teens. [SAMHSA, Calculated based on data in 2011 National Survey on Drug Use and Health.] [Added 6-6-2016]
	Whereas the use of electronic cigarettes (e-cigs) is high among teens with 8.7% of eighth graders, 16.2% of 10th graders, and 17.1% of 12th graders using e-cigarettes in the past month. Only 14.2% of 12th graders view regular e-cigarette use as harmful. [SAMHSA, Results from the 2013 National Survey on Drug Use and Health: Summary of National Findings, NSDUH Series H-48, Publication No. 14-144863, Rockville, MD.] [Added 6-6-2016]

These regulations are adopted pursuant to MGL c. 111, § 31, which states, "Boards of Health may make reasonable regulations."

[Amended 6-6-2016]

§ 261-2 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

BAR: An establishment which is devoted to the serving of alcoholic beverages for consumption by guests on the premises.

BUSINESS: Any sole proprietorship, partnership, joint venture, corporation or other business entity, including retail establishments where goods or services are sold, as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

DESIGNATED SMOKING AREA: An area designated at a work site by an employer in which smoking is permitted.

EDUCATIONAL INSTITUTION: Any public or private college, school, professional school, scientific or technical institute, university, or other institution furnishing a program of higher education.
[Added 6-6-2016]

ELECTRONIC SMOKING DEVICE: Any product that can deliver nicotine to the user through inhalation of vapor. "Electronic smoking device" includes any component part of such product, including liquid for use in the device regardless of whether the liquid contains nicotine, whether or not sold separately, and does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product and is being marketed and sold solely for the approved purpose.
[Added 6-6-2016]

EMPLOYEE: An individual who performs services for an employer in return for wages or profit.

EMPLOYER: An individual, partnership, association, corporation, trust or other organized group of individuals, including the Town of Belchertown or any agency thereof, which regularly uses the services of one or more employees.

ENCLOSED: A space bounded by walls with a door and under a roof.

ENVIRONMENTAL TOBACCO SMOKE (ETS, also called "secondhand smoke"): A mixture of the smoke given off by the burning end of a cigarette, pipe or cigar and the smoke from the lungs of smokers.

FOOD SERVICE ESTABLISHMENT: A place in which food is prepared for service with or without charge, including but not limited to any restaurant, coffee shop, cafeteria, workplace cafeteria, luncheonette, short-order cafe, pizza shop, donut shop, grill, tea room, sandwich shop, bar, tavern or lounge.

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, MGL c. 112, or a retail establishment that provides pharmaceutical goods and services and is subject to 247 CMR 6.00. Health-care institutions include but are not limited to hospitals, clinics, health centers, pharmacies, drug stores, doctor offices and dentist offices.
[Added 6-6-2016]

INDOOR SPORTS ARENA: A sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller or ice rink, bowling alley or similar place where members of the general public assemble to engage in physical exercise, participate in athletic competition or witness sports events.

LOUNGE/BAR SERVICE: An area in a food service establishment where alcoholic beverages are served or prepared.

MINIMUM LEGAL SALE AGE (MSLA): The age an individual must be before that individual can be sold tobacco products or electronic smoking devices and components in the municipality. In the Town of Belchertown, the minimum age shall be 21 years old.
[Added 6-6-2016]

MINOR: A person under 18 years of age.

MUNICIPAL BUILDING: The town offices, library, police/fire station, schools and other buildings owned or leased by the town.

NONSMOKING AREA: An area that is designated and posted by the proprietor, owner or person in charge as a place where smoking by patrons, employees or others is prohibited.

PLACE OF EMPLOYMENT: Any enclosed area under the control of a public or private employer which employees frequent during the course of employment, including but not limited to work areas, employee lounges and rest rooms, conference rooms and classrooms, employee cafeterias and hallways. A private residence is not a place of employment unless it is used as a child-care or health-care facility.

PUBLIC AREA: An enclosed, indoor area when open to and used by the general public, including but not limited to the following:

RESTAURANT: A coffee shop, cafeteria, sandwich shop, private and public school cafeteria and other eating establishments which give or offer food for sale to the public, guests or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities, except that the term "restaurant" shall not include a cocktail lounge or tavern if said cocktail lounge or tavern qualifies as a bar under the definition of "bar" above.

RETAIL FOOD ESTABLISHMENT: An establishment commonly known as a "supermarket," "grocery store" or "convenience store" in which the primary activity is the sale of food items to the public for off-premises consumption.

RETAIL STORE: An establishment selling goods, articles or personal services to the public.

SEATING CAPACITY: The capacity designated on the occupancy permit.

SELF-SERVICE: A self-service display of tobacco products from which individual packages or cartons may be selected by the customer. It must be within 10 feet and in full view of any employee standing in the regular location of the person designated to supervise purchase of tobacco products from the display.

SMOKE-FREE ZONE: An outdoor area where smoking a tobacco product is not permitted.

SMOKING: The use of any cigar, cigarette, pipe, electronic smoking device, or other tobacco products.[1]
[Amended 6-6-2016]

TOBACCO PRODUCTS: 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 other means, including, but not limited to: cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, or electronic cigarettes, electronic cigars, electronic pipes, electronic hookas, and other similar products, regardless of nicotine content, that rely on vaporization or aerosolization. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product and is being marketed and sold solely for the approved purpose.
[Added 6-6-2016]

TOBACCO VENDING MACHINE: A device which dispenses tobacco products by self-service or by remote control.

VENTILATION: A mechanical system to remove tobacco smoke. Ventilated areas should be enclosed, ventilated directly to the outside and kept under negative pressure. The system must prevent smoke from entering other areas of the establishment; the system must move 60 cubic feet of air per minute per smoker; and the system must be separate from the system that circulates air to the rest of the establishment so that smoky air does not recirculate into smoke-free areas. The smoking area must be under slight negative pressure with respect to the surrounding areas. Other accepted technology developed in the future would also be considered. Systems must be designed and certified effective, in writing, by a registered engineer with a specialty in heating, ventilating and air conditioning (HVAC). This definition serves to define "ventilation" for the purposes of an employee-designated smoking room as described in § 261-4C.

WORKPLACE: An area within a structure or portion thereof in which one or more employees perform services for their employer; also includes employee lounges, rest rooms, conference rooms, hallways, stairways and entranceways.

[1]

Editor's Note: The former definition of "tobacco," which immediately followed this definition, was repealed 6-6-2016.

§ 261-3 Smoking prohibited in public places.

Smoking, as defined by these regulations, including the use of electronic smoking devices, shall be prohibited in all enclosed public places within the Town of Belchertown, and include certain outdoor locations listed in these regulations, including but not limited to the following:

[Amended 6-6-2016]

(1)

Restaurants, including open, outdoor seating areas with food or beverage service, effective July 1, 2016.

(2)

Bars, including open, outdoor seating areas with food or beverage service, effective July 1, 2016.

(3)

Private clubs.

(4)

Retail stores and malls.

(5)

Waiting rooms, hallways, wards and private rooms of health-care facilities, including but not limited to hospitals, nursing homes, clinics, physical therapy facilities, doctors' offices and dentists' offices.

[Amended 6-6-2016]

(6)

Child-care facilities, including family day care in private homes.

(7)

Municipal buildings.

(8)

Schools (MGL c. 71, § 2A).

(9)

Elevators.

(10)

Buses, taxicabs and other means of public transit and ticket, boarding and waiting areas of public transit depots (including airports).

(11)

Rest rooms.

(12)

All areas available to and customarily used by the general public in all businesses and nonprofit entities patronized by the public, including but not limited to the public areas of attorneys' offices and other offices, banks, laundromats, haircutting establishments, hotels and motels and bingo facilities.

(13)

Aquariums, galleries, libraries and museums.

[Amended 6-6-2016]

(14)

Any facility which is primarily used for exhibiting any motion picture, stage production, play, lecture, musical recital or other similar performance, except where smoking is part of the stage production.

(15)

Sports arenas, auditoriums and convention halls.

(16)

Every room, chamber, place of meeting or public assembly under the control of any board, council, commission, committee, including joint committees, or agency of the town or any political subdivision of the commonwealth during such time as a public meeting is in progress, to the extent such place is subject to the jurisdiction of the town.

(17)

Lobbies, hallways and other common areas in apartment buildings, condominiums, retirement facilities, nursing homes, other multiple-unit residential facilities and other common areas in multiple-unit commercial facilities.

(18)

Polling places.

(19)

Town-owned outdoor recreational and gathering places, including the Town Common, Town Beach, and Town playing field and playgrounds, effective July 1, 2016.

[Added 6-6-2016]

Smoking is also prohibited outside buildings within a smoke-free zone surrounding the exterior entrance/exit doors for the regulated buildings described in Subsection A and § 261-4. The smoke-free zone shall extend a minimum of a ten-foot radius from the exterior door of said buildings.

§ 261-4 Workplace.

It shall be the responsibility of employers to provide a smoke-free workplace for all employees, except in those places designated as smoking areas per Subsection C. Employers are not required to incur any expense to make structural or physical modifications, with exceptions as noted in Subsection C.

Each employer having an enclosed place of employment located within the town shall adopt, implement, make known and maintain a written policy containing the following requirements: Smoking shall be prohibited in enclosed facilities within a place of employment, including but not limited to common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, rest rooms, vehicles and all other enclosed facilities.

Each employer may specifically designate enclosed areas in which employees may smoke; provided, however, that nonsmokers are not required to use or pass through said enclosed areas. Hallways, elevators, entranceways, stairwells, rest rooms and waiting areas in all the above facilities may not be designated as smoking areas. Designated smoking areas must be separately ventilated directly to the outdoors. Nonsmoking areas of comparable size and capacity must be available and provided for those who do not wish to be exposed to tobacco smoke. Smoking areas must be conspicuously marked.

All employers shall supply a written copy of the smoking policy upon request to any existing or prospective employee, as well as a conspicuous sign clearly stating the smoking policy.

§ 261-5 Where smoking is not regulated.

Notwithstanding any other provision of these regulations to the contrary, the following areas shall not be subject to smoking, as defined by these regulations, restrictions:

[Amended 6-6-2016]

(1)

Private residences, except when used as a child-care or health-care facility.

(2)

(Reserved)[1]

[1]

Editor’s Note: Former Subsection A(2), which applied to private or semiprivate rooms of retirement or nursing homes and long-term care facilities occupied by one or more patients, was repealed 6-6-2016.

(3)

Limousines for hire, when the driver and all passengers affirmatively consent to smoking in such vehicle.

(4)

Performers upon the stage, provided that smoking is part of a theatrical production.

Notwithstanding any other provision of these regulations, any owner, operator, manager or other person who controls any establishment as described in this section may declare that entire establishment as a nonsmoking establishment.

Bars.

[Added 12-7-1998 STM by Art. 25]

(1)

Notwithstanding any regulation of the Board of Health of Belchertown or of any governmental agency of authority of the Town of Belchertown to the contrary, any bar located in the Town of Belchertown shall not be subject to any restrictions with respect to smoking imposed by said Board of Health or any said governmental agency or authority; subject, however, to the obligations of any such bar to comply with any applicable smoking restrictions imposed by MGL c. 270, § 22, or any other applicable provisions of the Massachusetts statutes.

(2)

The following words, whenever used herein, shall be construed as defined in this subsection:

BAR: An establishment which is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of such beverages.

SMOKING: Inhaling, exhaling, burning or carrying any lighted cigar, cigarette, weed, plant or other combustible substance in any manner or in any form.

(3)

Notwithstanding any other provision hereof, any owner, operator, manager or other person who controls any bar in the Town of Belchertown may declare the whole or any part of said bar to be a nonsmoking establishment.

§ 261-6 Implementation.

The proprietor(s) or other person(s) in charge of a place covered by these regulations shall prevent smoking in nonsmoking areas by:

Conspicuously posting a notice or sign at each entrance to the public place indicating that smoking is prohibited therein except in specifically designated smoking areas. In addition, "Smoking" and "No Smoking" signs or the international "No Smoking" symbol shall be conspicuously posted in every area where smoking is permitted or prohibited by these regulations.

Nonsmoking areas are to be situated near the fresh air intake of the ventilation system of the facility. The heating, ventilation and air-conditioning system (HVAC) shall be installed so that no return air from smoking areas may enter the nonsmoking area.

Using any other means which may be appropriate and reasonable to enforce these regulations.

§ 261-7 Retail sale of tobacco products.

No person or entity may sell tobacco products in anything other than a face-to-face exchange between the retailer and the consumer. Examples of methods of sale which are not permitted include, but are not limited to, self-service displays and vending machines.

No person shall sell cigarettes, chewing tobacco, snuff or tobacco products, including rolling papers and electronic smoking devices, in any forms to any person under the age of 21 years old or, not being his/her parent or guardian, give cigarettes, snuff or tobacco products in any of their forms to any person under the age of 21 years, effective January 1, 2017.

[Amended 6-6-2016]

The owner or other person in charge of a store or other place used to sell tobacco products shall conspicuously post a sign stating, "The sale of tobacco products, including e-cigarettes, to someone under the minimum sale age of 21, is prohibited." The sign shall be no smaller than 8.5 inches by 11 inches and shall be posted conspicuously, facing the purchaser and not obstructed from view.

[Amended 6-6-2016]

Store owners, managers or other persons in charge where cigarettes, chewing tobacco and other tobacco products are sold shall conspicuously post and maintain signs that proof of age is required to purchase cigarettes or tobacco products. At a minimum, signs shall be posted at every cash register.

No retailer may sell tobacco products to any person younger than 21 years of age, effective January 1, 2017. Each employee shall verify by means of photographic identification containing the bearer's date of birth that no person purchasing the product is younger than 21 years of age. No such verification is required for any person over the age of 28.

[Amended 6-6-2016]

No person, firm, corporation, establishment or agency selling cigarettes, chewing tobacco or other tobacco products in any of their forms in the Town of Belchertown shall allow anyone to sell tobacco products until the employee has read the town's regulations and the state laws pertaining to the sale of tobacco products and has signed an affidavit, supplied by the Board of Health, to be kept on file at the establishment. The employee's signature will verify that all the applicable state and local regulations have been read and understood. This file must be retained for the length of each individual's employment and must be available for inspection upon request by the Board of Health or its agent(s).

Sale or distribution of any cigarette package that contains fewer than 20 cigarettes is prohibited.

Self-service sales of cigarettes from mobile food units are prohibited.

Tobacco retailer's permit.

(1)

After September 1, 1996, it shall be unlawful for a retailer to sell cigarettes or other tobacco products unless that retailer holds and maintains a valid tobacco retailer's permit from the Board of Health of the Town of Belchertown for each location in which tobacco products are sold. The term of the permit shall be one year, except for the initial permit, which will be issued September 1, 1996, renewable each January if the licensee complies with the provisions of this regulation.

(2)

The fee for a one-year tobacco retailer's permit is $10. Failure to acquire a permit will result in a fine of $100. Each day without a permit shall be considered a separate violation for purposes of any fine.

(3)

A tobacco retailer's permit is nontransferable, except that a new permit will be issued to a tobacco retailer who changes location.

No person or entity shall distribute or furnish without charge, or cause to be furnished or distributed without charge, cigarettes or other tobacco products in any public place or at any event open to the public.

No health-care institution or retail establishment that operates a health-care institution within in it, such as a pharmacy or drugstore, shall sell or cause to be sold tobacco products as defined by these regulations, effective January 1, 2017.

[Added 6-6-2016]

No educational institution shall sell or cause to be sold tobacco products as defined by these regulations, effective January 1, 2017.

[Added 6-6-2016]

§ 261-8 Tobacco vending machines.

After July 1, 1996, cigarette vending machines or any other device for the sale or distribution of tobacco products is prohibited.

§ 261-9 Posting of signs.

"No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly, sufficiently and conspicuously posted in every building or other place where smoking is regulated by this regulation by the owner, operator, manager or other person having control of such building or other place.

Every restaurant shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.

§ 261-10 Violations and penalties; enforcement.

Any person who smokes in a smoke-free area shall be subject to the following fines and penalties:

(1)

A written notice of penalties levied for future violations.

(2)

A fine of $50 for the second offense.

(3)

A fine of $100 for the third offense and every offense thereafter. Each day a violation continues is considered a separate offense.

Any proprietor(s) or other person(s) in charge of a public place or workplace who fails to comply with these regulations shall be subject to:

(1)

A written notice of penalties levied for future violations.

(2)

A fine of $200 for each day a violation continues. Each day a violation continues is considered a separate offense.

A tobacco retail permit shall be suspended after notice and opportunity to be heard as follows:

(1)

In the case of a first violation, the permit holder shall be notified, in writing, of penalties levied for further violations, including permit revocation.

(2)

In the case of a second violation within a twelve-month period, the permit holder shall be fined $200.

(3)

In the case of a third violation within a twelve-month period, the permit shall be suspended for not less than two days nor more than five days from the date of revocation. The Belchertown Board of Health shall provide notice to the permit holder of the intent to revoke a tobacco retail 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 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. All tobacco products shall be removed from the premises upon revocation of the tobacco retail permit. Failure to remove shall constitute a separate violation of this subsection. A permit holder whose permit has been revoked may not apply for a new permit prior to the expiration of one calendar year following the date of revocation.

(4)

In the case of the fourth and subsequent violations within a twelve-month period, the permit shall be suspended for not less than 30 days and not more than 90 days from the date of revocation. The Belchertown Board of Health shall provide notice to the permit holder of the intent to suspend a tobacco retail 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 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. All tobacco products shall be removed from the premises upon suspension of the tobacco retail permit. Failure to remove shall constitute a separate violation of this subsection. A permit holder whose permit has been revoked may not apply for a new permit prior to the expiration of one calendar year following the date of revocation.

Violations of this regulation and penalties listed in Subsections A, B and C may be enforced as provided for in MGL c. 40, § 21D (noncriminal disposition). The designated enforcement officer of this regulation shall be the agents of the Board of Health and its members or its designees.

In addition to the remedies provided by Subsections A, B and C, the Board of Health may apply for injunctive relief to enforce the provisions of this regulation in any court of competent jurisdiction.

Any citizen who desires to register a complaint under this regulation may do so.

Compliance monitoring of this regulation and its requirements may be enforced through periodic inspections or other legal means.

§ 261-11 Severability.

Each provision of this regulation is construed as separate to the extent that if any section, item, sentence, clause or phrase is determined to be invalid for any reason, the remainder of this regulation shall continue in full force and effect.

§ 261-12 Effective date.

This regulation shall be effective August 1, 1997, with the following additional implementation date: § 261-3A establishments serving alcohol will be 100% smoke free effective February 1, 1998.