[Adopted 4-1-1999]
Whereas conclusive evidence exists that tobacco
smoke causes cancer, respiratory and cardiac diseases, negative birth
outcomes, irritations to the eyes, nose, and throat; and whereas the
harmful effects of tobacco smoke are not confined to smokers but also
cause severe discomfort and illness to nonsmokers; and whereas environmental
tobacco smoke (hereinafter "ETS"), which includes both exhaled smoke
and the side stream smoke from burning cigarettes, has been designated
by the Environmental Protection Agency (1993) to be a Class A carcinogen
similar to radon and asbestos with no known safe levels of exposure;
and whereas numerous studies have shown that ETS is harmful to human
health, now, therefore, the Board of Health of the Town of Townsend
recognizes the right of those who wish to breathe smoke-free air and
establishes this regulation to protect and improve the public health
and welfare by prohibiting smoking in certain public places.
Through broadly drafted statutes, the Commonwealth
of Massachusetts delegated its authority to regulate public health
at the local level to Boards of Health. See e.g. MGL c. 111, § 31
(directing Boards of Health to enact "reasonable health regulations");
MGL c. 111, § 122 (directing Boards of Health to "examine
into all nuisances, sources of filth and causes of sickness"). As
a result of that extensive grant of authority, Boards have the authority
to regulate all areas of public health, including but not limited
to, the ability to regulate environmental tobacco smoke (hereinafter
"ETS"). Moreover, Boards of Health have broad authority to enforce
their regulations. Boards may levy specified fines and collect them
through criminal proceedings in district court, or if authorized by
Town Meeting, through the less arduous noncriminal method of disposition.
In addition, Boards of Health may seek and obtain injunctive orders
restraining violations of their ETS regulations.
For the purposes of this article, the following
words shall have the meanings respectively ascribed to them by this
section:
An area of a restaurant that is devoted to the serving of
alcoholic beverages for consumption by guests or restaurant patrons
on the premises and in which the serving of food is only incidental
to the consumption of such beverages.
Any freestanding establishment whose business 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.
The Board of Health of the Town of Townsend.
Any individual person who performs services for an employer.
An individual person, partnership, association, corporation,
trust, or other organized group of individuals, including the Town
of Townsend or any agency thereof, which regularly utilizes the services
of one or more individual employees.
Any office or institution providing individual care or treatment
of diseases, whether physical, mental or emotional, or other medical,
physiological or psychological conditions, including, but not limited
to, rehabilitation hospitals or other clinics, including weight control
clinics, nursing homes, homes for the aging or chronically ill, laboratories,
offices of any surgeon, chiropractor, physical therapist, physician,
dentist and all specialists within these professions.
Any building or facility owned, operated, or leased by the
Town, including school buildings, school grounds or municipal grounds.
Any car, truck, bus or other vehicle owned, operated, or
leased by the Town.
Any person, 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
building, establishment, business, or restaurant or retail store,
or the agents or designees of any of the foregoing.
A properly ventilated area is an enclosed volume separately
ventilated directly to the outside and which does not allow any air
to recirculate through the building ventilation system. The properly
ventilated area shall be under negative pressure relative to the remainder
of the establishment so as to prevent air from escaping into other
areas which may be accessed by nonsmokers. An area so constructed
and operated is considered to have proper ventilation.
Any building or facility owned or operated by the Town, including
school-, school grounds or municipal grounds; any indoor area open
to the general public including, but not limited to libraries, museums,
theaters, auditoriums, indoor sports arenas and/or recreational facilities,
the lobbies of inns, hotels and motels, educational facilities, shopping
malls, public restrooms, lobbies, staircases, halls, exits, entrances,
elevators accessible to the public, licensed child-care locations;
and any outdoor areas open to the general public, including, but not
limited to, playgrounds, athletic fields and the Town Common. "Public
place" does not include sidewalks or roadways.
Any bus, taxi, and other means of transportation available
to the general public while such means of transportation is operating
within the boundaries of the Town including indoor platforms by which
such means of transportation may be accessed.
Any coffee shop, cafeteria, sandwich stand, private or public
school cafeteria, or other eating establishment which gives or offers
food for sale to the public, guests, or employees, as well as any
kitchen in which food is prepared on the premises for serving elsewhere,
including catering facilities and which is required to have a food
service permit, except that the term "restaurant" shall not include
"bar" as defined in these regulations.
Any establishment whose primary purpose is to sell or offer
for sale to consumers, but not for resale, any goods, wares, merchandise,
articles or other things, including supermarkets and grocery stores.
"Retail store" shall not include "restaurant" as defined herein.
The capacity designated on the occupancy permit of a food
service establishment.
Inhaling, exhaling, burning or carrying any lighted cigar,
cigarette, or other lighted tobacco product in any form.
Any sports pavilions, gymnasiums, health spas, boxing arenas,
swimming pools, roller and ice rinks, bowling alleys and other similar
recreational facilities where members of the general public assemble
either to engage in physical exercise, participate in athletic competition,
or witness sports events.
The Town of Townsend.
Any enclosed area of a structure or portion thereof at which
one or more employees perform services for their employer, but not
including the personal residence of the employer.
A.
Smoking prohibited. No person shall smoke nor shall any person, employer, or other person having control of the premises upon which smoking is prohibited by this article, or the agent or designee of such person, permit a person to smoke in any of the following places as defined herein: health care facilities, municipal buildings, municipal vehicles, public places, public transportation vehicles, restaurants and retail stores except as otherwise provided in § 160-48 of this article.
B.
No person shall smoke in any place in which a sign conforming to the requirements of § 160-46 of this article is posted.
D.
Persons under 18 not admitted to designated smoking
areas:
A.
Every person having control of premises upon which
smoking is prohibited by and under the authority of this regulation
shall conspicuously display upon the premises "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).
B.
Every person having control of premises upon which smoking is allowed in a designated smoking area as permitted by § 160-48 of this article shall conspicuously display upon each entrance to the premises a sign notifying all who enter that smoking is permitted therein and that this smoking poses a hazard to their health.
Notwithstanding the provisions of § 160-45 of this article, smoking may be permitted in the following places and/or circumstances:
A.
Private residences, except when used as a licensed
child-care facility or health care facility.
B.
Hotel and motel rooms that are rented to guests that
are designated as smoking rooms.
C.
A bar and the bar area of a restaurant that is a properly ventilated smoking area as defined in § 160-44 of this article.
(1)
Three months from the implementation date of these regulations, all designated smoking areas shall have proper ventilation, as defined in § 160-44, and the establishment owner shall have on record a ventilation plan by a certified heating/ventilation/airconditioning engineer or other professional that is approved by the Townsend Board of Health.
D.
A facility owned and operated by a private club for
the exclusive use of its members and their guests, except when used
for an event open to the general public whether an admittance fee
is charged or not.
E.
Retail tobacco stores which are primarily for the
sale of tobacco products and accessories and in which the sale of
other products is merely incidental.
Notwithstanding the provisions of the foregoing § 160-48 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.
A.
Any person who violates this regulation shall be subject
to a fine in an amount of $100 for a first offense, $200 for a second
offense within a twelve-month period, and $300 for a third or subsequent
offense within a twelve-month period.
B.
In lieu of a fine, the Board of Health may suspend
or revoke the establishment's food service permit. The Board of Health
shall provide written notice to the permit holder of the intent to
suspend or revoke a food service permit. The notice shall contain
the reasons for the suspension or revocation and establish a date
and time for a hearing. The date of the hearing shall be no earlier
than seven days after the date of notification. The permit holder
shall have an opportunity to be heard and shall be notified of the
Board of Health's decision and reasons in writing.
A.
Any citizen who desires to register a complaint under
this regulation may request that the Board of Health initiate enforcement.
B.
Noncriminal disposition.
(1)
Whoever violates any provision of this regulation, the violation of which is subject to a specific penalty, may be penalized by the noncriminal disposition as provided in General Laws, Chapter 40, Section 21D, pursuant to § 1-1 of the Townsend Code, Article II, or by filing a criminal complaint at the appropriate venue.
(2)
Each day on which any violation exists shall be deemed
to be a separate offense.
(4)
Enforcing Persons: Townsend Police Department, Townsend
Board of Health and its agents.
C.
Any fines imposed under the provisions of this regulation
shall enure to the Town of Townsend for such use as the Town may direct.
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
being in force.
These regulations shall be effective as of April
1, 1999.
