Town of Blackstone, MA Chapter 188A Tobacco

[HISTORY: Adopted by the Board of Health of the Town of Blackstone 9-15-1997; amended in its entirety 2-23-2017. Subsequent amendments noted where applicable.]

§ 188A-1 Purpose; findings; definitions.

A. Statement of purpose. Whereas there exists conclusive evidence that tobacco smoke causes cancer, respiratory and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat; and whereas more than 80% of all smokers begin smoking before the age of 18 years [Centers for Disease Control and Prevention, "Youth Surveillance - United States 2000," 50 MMWR 1 (Nov. 2000)]; and whereas nationally in 2000, 69% of middle school age children who smoke at least once a month were not asked to show proof of age when purchasing cigarettes (Id.); and whereas the U.S. Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin; and whereas despite state laws prohibiting the sale of tobacco products to minors, access by minors to tobacco products is a major problem; now, therefore it is the intention of the Town of Blackstone Board of Health to curtail the access of tobacco products by minors.

B. Authority. This regulation is promulgated pursuant to the authority granted to the Town of Blackstone Board of Health by MGL c. 111, § 31 that "Boards of Health may make reasonable health regulations."

C. Definitions. For the purpose of this regulation, the following words shall have the following meanings:

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.

EMPLOYEE

Any individual who performs services for an employer.

EMPLOYER

Any individual, partnership, association, corporation, trust or other organized group of individuals, including the Town of Blackstone or any agency thereof, which uses the services of one or more employees.

MINOR

Any individual who is under the age of 21.

NICOTINE DELIVERY PRODUCT

Any manufactured article or product made wholly or in part of a tobacco substitute or containing nicotine that is expected or intended for human consumption, but not including a product approved by the United States Food Drug Administration for sale as a tobacco use cessation or harm reduction product or for other medical purposes and which is being marketed and sold solely for that approved purpose. Nicotine delivery products include, but are not limited to, e-cigarettes, e-cigars, e-hookahs and similar products.

PERMIT HOLDER

Any person engaged in the sale or distribution of tobacco products directly to consumers who applies for and receives a tobacco 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.

PERSON

An individual, employer, employee, retail store manager or owner, or the owner or operator of any establishment engaged in the sale or distribution of tobacco products directly to consumers.

SELF SERVICE DISPLAY

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

TOBACCO PRODUCT

Cigarettes, cigars, chewing tobacco, pipe tobacco, bidis, snuff or tobacco in any of its forms, pipes and hookahs for tobacco use, electronic cigarettes and/or battery-powered vaporizers, e-liquids and/or heating elements.

VENDING MACHINE

Any automated or mechanical self service device, which upon insertion of money, tokens or any other form of payment, dispenses cigarettes or any other tobacco product.

§ 188A-2 Tobacco sales to minors prohibited; regulations to ensure enforcement.

A. Tobacco and nicotine delivery products sale to minors prohibited. No person shall sell tobacco products or permit tobacco products to be sold to a minor; or not being the minor's parent or legal guardian, give tobacco products to a minor.

B. 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 Town of Blackstone 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.

C. Identification. 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 old or older. Verification is required for any person under the age of 27.

D. All retail sales of tobacco must be face-to-face between the seller and the buyer.

§ 188A-3 Tobacco sales permit.

A. Tobacco and nicotine delivery products sales permit. No person shall sell or otherwise distribute tobacco at retail within the Town of Blackstone without first obtaining a tobacco sales permit issued annually by the Town of Blackstone Board of Health. Only owners of establishments with a permanent, nonmobile location in the Town of Blackstone are eligible to apply for a permit and sell tobacco products at the specified location in the Town of Blackstone.

B. As part of the tobacco sales permit application process, the applicant will be provided with the Town of Blackstone 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 tobacco sales regarding both state laws regarding the sale of tobacco and this regulation.

C. Each applicant is required to provide proof of a current tobacco sales license issued by the Massachusetts Department of Revenue before a tobacco sales permit can be issued.

D. The fee for a tobacco sales permit shall be determined by the Town of Blackstone Board of Health annually. All such permits shall be renewed annually by December 31.

E. A separate permit is required for each retail establishment selling tobacco or other tobacco products.

F. Each tobacco sales permit shall be displayed at the retail establishment in a conspicuous place.

G. No tobacco sales permit holder shall allow any employee to sell cigarettes or other tobacco products until such employee reads this regulation and state laws regarding the sale of tobacco and signs a statement, a copy of which will be placed on file in the office of the employer, that he/she has read the regulation and applicable state laws.

H. A tobacco sales permit is nontransferable. A new owner of an establishment that sells tobacco must apply for a new tobacco sales permit. No new permit will be issued unless and until all outstanding penalties incurred by the previous permit holder are satisfied in full.

I. Issuance of a tobacco 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.

J. A tobacco 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.

§ 188A-4 Miscellaneous provisions.

A. Free distribution. No person shall distribute, or cause to be distributed, any free samples of tobacco products.

B. Out-of-package sales. 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.

C. 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.

D. Tobacco vending machines. All tobacco vending machines are prohibited.

E. Electronic cigarettes and/or battery-powered vaporizers. The sale of all electronic cigarettes and/or battery-powered vaporizers, e-liquids and/or heating elements in the Town of Blackstone are prohibited.

§ 188A-5 Violations and penalties; enforcement.

A. 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.

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

(1) 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. The violator shall receive:

(a) In the case of a first violation, a fine of $300 and the tobacco sales permit may be suspended for seven consecutive business days.

(b) In the case of a second violation, a fine of $300 and the tobacco sales permit may be suspended for 14 consecutive business days.

(c) In the case of a third violation, a fine of $300 and the tobacco sales permit may be suspended for 21 consecutive business days.

(d) A fourth violation may result in the permanent revocation of the tobacco sales permit.

(2) Refusal to cooperate with inspections pursuant to this regulation shall result in the suspension of the tobacco sales permit for 30 consecutive business days.

(3) 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 issued permits for 30 consecutive business days.

(4) The Town of Blackstone Board of Health shall provide notice of the intent to suspend a tobacco 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 Town of Blackstone Board of Health may suspend the tobacco sales permit if the Board finds that a sale to a minor occurred. For purposes of such suspensions, 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 shall be removed from the retail establishment upon suspension of the tobacco sales permit. Failure to remove all tobacco products shall constitute a separate violation of this regulation.

C. Enforcement of this regulation shall be by the Board of Health of the Town of Blackstone or its designated agent(s).

D. Any citizen who desires to register a complaint pursuant to the regulation may do so by contacting the Board of Health of the Town of Blackstone or its designated agent(s) and the Board shall investigate.

§ 188A-6 Severability.

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.

§ 188A-7 Effective date.

This regulation shall take effect on March 7, 2017.