[Added 8-3-1993]
There exists substantial evidence that tobacco smoke causes cancer,
heart disease, and various lung disorders. Increasing evidence further demonstrates
that the harmful effects of tobacco smoke are not confined to smokers but
may also cause severe discomfort and illnesses to nonsmokers. Therefore, these
regulations are adopted pursuant to MGL c. 111, §§ 31 and 31C,
as health regulations designated to protect and improve the health of the
residents of the Town of Marblehead. These regulations supersede the regulations
affecting smoking in certain places which became effective on June 1, 1988.
As used in this article, the following terms shall have the meanings
indicated:
A counter at which alcoholic beverages are served and consumed.
All areas in bars, public places, retail food establishments and
restaurants except where smoking is permitted under this regulation.
An enclosed, indoor area when open to and used by the general public,
including but not limited to the following facilities: restaurants, public
elevators, retail food outlets, museums, libraries, hospitals, nursing homes,
single vehicle mass transit conveyances operated by the Town of Marblehead
or any department, agency or subdivision thereof, and other mass transit conveyances,
and an entire room or hall in a public building when used for a public meeting
where a meeting of elected or appointed officials is taking place in public.
An entire room or hall used for a private social function in which the sponsor
of the private function and not the owner or proprietor has control over the
seating arrangements shall not be construed as a public place, during the
private use of such facility.
Any establishment which serves food for consumption on the premises
and which maintains tables for the use of its customers. This includes all
food service establishments licensed by the Board of Health or required to
be licensed by the Board of Health.
Any establishment which sells food for consumption off the premises,
including but not limited to grocery stores, theaters and all other food service
establishments not included in the definition of a "restaurant" in this section.
That capacity designated on the occupancy permit of a restaurant.
The possession of a lighted tobacco product, including a cigarette,
cigar, pipe, or any other lighted smoking equipment.
Those areas within bars, public places, retail food establishments
and restaurants that are designated pursuant to this regulation as smoking
areas.
A.
Public places. No person shall smoke in any public place,
except that smoking shall be permitted in specifically designated smoking
areas as hereinafter provided. All municipal buildings shall be 100% smoke-free
environments.
B.
Restaurants and bars. In restaurants and bars, smoking
shall be prohibited except in specifically designated smoking areas.
(1)
Nonsmoking areas in restaurants shall comprise no less
than 67% of the seating capacity of the restaurant. Nonsmoking areas in bars
shall comprise not less than 33% of the seating capacity of the bar. Smoking
areas shall be so situated as to effectively eliminate the presence of smoking
by-products and secondary smoke in nonsmoking areas.
(2)
Any new bar or restaurant not in existence on the effective
date of these regulations shall be 100% smoke free.
C.
Museums, libraries, hospitals and nursing homes. There
shall be no smoking in museums, libraries, hospitals, and nursing homes except
in designated smoking areas, provided that comparable nonsmoking facilities
are available and so situated as to effectively eliminate the presence of
smoking by-products in nonsmoking areas.
D.
Retail food establishments. Smoking is prohibited in
all areas in retail food establishments except in private offices and in areas
designated for employee use, provided that equal areas shall be provided for
employee use as a nonsmoking area.
Smoking areas may be designated by the proprietor(s) or other person(s)
in charge of any facility subject to these regulations and in conformity with
these regulations, except in places in which smoking is prohibited by the
Fire Marshal or by other law or regulation.
The proprietor(s) or other person(s) in charge of a facility subject
to these regulations shall make reasonable efforts to prevent smoking in nonsmoking
areas by:
A.
Conspicuously posting "No Smoking" signs in order to
clearly designate which areas are smoke free and conspicuously posting "Smoking
Area" signs to clearly designate the same.
B.
In the case of restaurants, asking patrons if they would
like to be seated in the smoking or nonsmoking area.
C.
Arranging seating so that existing physical barriers
and ventilation systems effectively eliminate the presence of smoking by-products
in nonsmoking areas (i.e., nonsmoking areas would be situated near the fresh
air intake vent of the facility).
D.
Maintaining smoke eaters and ventilation systems in clean,
efficient working order.
A.
Any person who knowingly violates any provision of these
regulations, or who smokes in an area in which a "Smoking Prohibited" or "No
Smoking" notice is conspicuously posted as required by these regulations,
shall be subject to a fine of up to $100 for each offense.
B.
Any proprietor(s) or other person(s) in charge of any
facility subject to these regulations who fail(s) to comply with these regulations
shall be subject to:
C.
Each day that a violation of these regulations is permitted
to exist shall constitute a separate offense. The imposition of a penalty
shall not excuse the violation.
D.
The Board of Health, the Director of Public Health and
persons designated by the Director of Public Health shall have the authority
to administer and enforce these regulations.
A.
The proprietor(s) of any facilities subject to these
regulations may make written application to the Board of Health for a variance
from these regulations. The application shall set forth in detail the terms
of the requested variance and the circumstances relied upon by the applicant
and shall be signed by the applicant or the applicant's representative.
B.
Notice of a hearing upon an application for a variance
must be posted with the public notice of the Board of Health meeting at which
it is to be considered, and notice of such hearing shall be published in a
newspaper of general circulation in Marblehead once in each of two successive
weeks, the first publication to be not less than 14 days before the day of
the hearing.
C.
The Board of Health may, by majority vote, vary the application
of any provision of these regulations with respect to any particular case
when, in its opinion, the enforcement thereof would cause a hardship, financial
or otherwise, to the establishment or facility due to circumstances especially
affecting such establishment or facility but not generally affecting similar
establishments or facilities.
D.
Any variance granted by the Board of Health shall be
in writing and may be subject to conditions imposed by the Board of Health.
E.
Variances may be granted for up to one year and extended
for like periods upon submission of a renewal application which states that
no permits for alteration of the premises or of the ventilation system(s)
have been applied for or granted and that no such alterations have been made
since the original variance was granted.
F.
A copy of any variance granted under this section shall
be conspicuously posted for public inspection on the premises for which it
is issued.
G.
Any applicant seeking a variance shall submit an application to the Board of Health together with an application fee of $25. Upon scheduling a hearing on an application for a variance, the Board of Health shall cause a notice to be published at the applicant's expense in accordance with Subsection B of this section. The Board of Health may adopt forms for applications for variances from time to time and may continue hearings at any originally scheduled hearing for further proceedings. The denial of any application for variance shall not be a bar to any further application with respect to the premises for which the prior application was made.
A.
Nothing in these regulations shall make smoking lawful
in any area in which smoking is or may hereafter be prohibited by law.
B.
Whenever the provisions of these regulations conflict
with any other regulations, codes, bylaws, general laws or special acts, the
provisions imposing the greatest restriction on smoking shall prevail.
C.
If any provision of these regulations is declared invalid
or unenforceable, the other provisions shall not be affected thereby but shall
continue in full force and effect.
These regulations as amended shall become effective August 3, 1993.
