[HISTORY: Adopted by the Board of Health of the Town of Williamstown 9-8-2014. Amendments noted where applicable.]
Editor's Note: This legislation also repealed former Ch. 158, Smoking, adopted 6-2-1993, as amended.
There exists substantial evidence that tobacco smoke causes lung cancer and is a major risk factor in cardiovascular disease and various lung disorders in smokers. In addition, nicotine is addictive, and it is clear that addiction to nicotine occurs more quickly in children than in adults. Increasing evidence further demonstrates that concentrations of environmental tobacco smoke (ETS) may cause discomfort, respiratory disorders (especially in children if continually exposed in their homes) and, on occasion, lung cancer and other ailments in non-smokers. Many non-cigarette tobacco products, such as cigars and cigarillos, can be sold in a single "dose"; are available in fruit, candy and alcohol flavors; and are popular among youth. The U.S. Food and Drug Administration and the U.S. Surgeon General have stated that flavored tobacco products are considered to be "starter" products that help establish smoking habits that can lead to long-term addiction. Nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes, are sold in dozens of flavors that appeal to youth, such as cotton candy and bubble gum. The Massachusetts Supreme Judicial Court has held that ". . . [t]he right to engage in business must yield to the paramount right of government to protect the public health by any rational means."
The purpose of these regulations is to protect the public health, comfort, and environment by restricting smoking in public places, public buildings, at public meetings, and in the workplace; to designate smoking areas; to make tobacco products less accessible to children; and to set an example for the children of the Town in an effort to protect them from the dangers of nicotine. These regulations are adopted pursuant to MGL c. 111, § 31, as health regulations designed to protect and improve the health of the residents of the Town of Williamstown and those who visit here.
In these regulations, the following terms have the meanings indicated.
- An establishment or an area within a restaurant, hotel, or other establishment:
- 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.
- The Williamstown Board of Health or its designated agents.
- BOARD OF HEALTH
- The Williamstown Board of Health.
- 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.
- 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.
- 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 use of additives or flavorings that do not contribute to the distinguishable taste or aroma of the product or the provision of ingredient information.
- An educational facility offering education at above the secondary-school level.
- COMPONENT PART
- Any element of a tobacco product, including, but not limited to, the tobacco, filter and paper, but not including any 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.
- Perceivable by either the sense of smell or taste.
- Any individual who performs services for an employer.
- Any individual, partnership, association, corporation, trust or other organized group of individuals that uses the services of one or more employees.
- ENCLOSED EXTERIOR AREA
- If the exterior/outdoor space has a structure capable of being enclosed by walls or covers, regardless of the materials or the removable nature of the walls or covers, the space will be considered enclosed when the walls or covers are in place. All outdoor spaces shall be physically separated from an enclosed work space. If doors, windows, sliding or folding windows or doors or other fenestrations form any part of the border to the outdoor space, the openings shall be closed to prevent the migration of smoke into the enclosed work space. If the windows, sliding or folding windows or doors or other fenestrations are opened or otherwise do not prevent the migration of smoke into the work space, the outdoor space shall be considered an extension of the enclosed work space and subject to this chapter.
- 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.
- FOOD ESTABLISHMENT
- An establishment permitted by the Board of Health under the provisions of 105 CMR 590.000, State Sanitary Code Chapter X, Minimum Sanitation Standards for Food Establishments, as currently promulgated or promulgated in the future.
- FREESTANDING DISPLAY
- Any display of tobacco or tobacco products which is not attached to or on top of a checkout counter, or where distribution of the tobacco products is not directly controlled by an employee.
- 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 and dentist offices.
- MEMBERSHIP ASSOCIATION (also known as a PRIVATE CLUB)
- A not-for-profit entity that has been established and operates for a charitable, philanthropic, civic, social, benevolent, educational, religious, athletic, recreation or similar purpose, and is comprised of members who collectively belong to: (i) a society, organization or association of a fraternal nature that operates under the lodge system, and having one or more affiliated chapters or branches incorporated in any state; or (ii) a corporation organized under MGL c. 180; or (iii) an established religious place of worship or instruction in the commonwealth whose real or personal property is exempt from taxation; or (iv) a veterans' organization incorporated or chartered by the Congress of the United States, or otherwise having one or more affiliated chapters by the Congress of the United States, or otherwise having one or more affiliated chapters or branches incorporated in any state. Except for a religious place of worship or instruction, an entity shall not be a membership association for the purpose of this definition, unless individual membership containing not less than full membership costs and benefits is required for all members of the association for a period of not less than 90 days.
- MINIMUM LEGAL SALES AGE (MLSA)
- The age an individual must be before that individual can be sold a tobacco product in the municipality.
- 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.
- PUBLIC TRANSIT FACILITY
- A bus, taxi, or other means of public transit while operating within the limits of Williamstown.
- RETAIL FOOD ESTABLISHMENT
- An establishment commonly known as a "supermarket" or "grocery store" in which the primary activity is the sale of food items to the public for off-premises consumption.
- 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 age of 18 is prohibited at all times, and maintains a valid permit for the retail sale of tobacco products as required to be issued by the Town Board of Health.
- SELF-SERVICE DISPLAY
- Any display from which customers may select a tobacco product or a nicotine delivery product without assistance from an employee or store personnel.
- Public or private elementary or secondary schools.
- 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 hookah, 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, any other tobacco products.
- An area within a structure or portion thereof in which two or more employees perform services for their employer. The word includes areas such as an employee lounge, dining facilities, restroom, conference room, hallway, stairway, and entranceway.
Smoking prohibited. Smoking is prohibited in the following public places:
A hallway, elevator, entranceway, restroom, lobby or waiting area of a museum, library, clinic, nursing home, auditorium, long-term health care facility, indoor sports arena, theater, inn, hotel, motel, restaurant, college or municipal building.
An auditorium, except as provided in § 158-5E; the performance area of an indoor sports arena; or the galleries or display areas of a museum.
A public transit facility.
A food establishment, or bar, in any area (interior or exterior) where food or beverage is received, stored, prepared, served, or consumed.
A licensed child-care facility.
A room or hall used for public meetings, while being so used.
The public areas of a building owned or maintained by the Town of Williamstown and used by the general public.
Smoking restricted. Unless prohibited by Subsection A above, or pursuant to § 158-6 below, in the following public places, smoking is permitted in a designated exterior unenclosed smoking area.
A museum, library, clinic, nursing home, auditorium, long-term health care facility, indoor sports arenas, theater, inn, hotel, motel or college.
The following places are not subject to the smoking prohibitions or restrictions of these regulations:
Smoking prohibition: Smoking in the workplace is prohibited, except in specifically designated smoking areas permitted pursuant to Subsection B of this section.
Designated smoking areas: An employer may designate unenclosed outdoor areas in which employees may smoke.
The proprietor or other person in charge of a place subject to these regulations shall:
Conspicuously post a "no smoking" sign or international symbol as appropriate at the entrance to and within every area in which smoking is permitted or prohibited by these regulations.
Ask a person who is smoking in a nonsmoking area either to refrain from smoking or to move to a smoking area.
Use any other appropriate and reasonable means to implement these regulations.
Nothing in these regulations prohibits an employer, or the proprietor or other person in charge of a place, establishment, or facility, from prohibiting smoking within the entire place, establishment, or facility.
These regulations do not permit smoking if it is restricted or prohibited by any other applicable health, safety, fire, or sanitary statute, regulation, or code.
ID required. A person who sells any tobacco product for personal consumption shall verify by means of an ID that no person purchasing the product is younger than the minimum legal sales age (MLSA) of 21 years of age, except that no such verification is required for a purchaser over the age of 26.
Sale or distribution to person under 21. It is unlawful for anyone to sell any tobacco products to any person under the age of 21. It is unlawful for anyone (other than a parent or guardian of the recipient) to give tobacco products to any person under the age of 18.
Posting of signs. In conformance with MGL c. 270, § 7, the proprietor or person in charge of any place in which tobacco products are sold at retail shall attach to each cash register the sign provided by the Massachusetts Department of Public Health or Board of Health pertaining to tobacco product sales. The sign shall be posted so that it may readily be seen by a person standing at or approaching the cash register. The sign shall directly face the purchaser and shall not be obstructed from view or placed at a height less than four feet nor greater than nine feet from the floor. Such signage shall not be less than 5 1/2 by 8 1/2 inches in size. In addition, each proprietor or person in charge of any place in which tobacco products are sold at retail shall post a sign, to be supplied by the Board of Health, advising that "ID is required for all tobacco sales." The owner or other person in charge of a shop or other place used to sell tobacco products at retail shall conspicuously post signage provided by the Board of Health that discloses current referral information about smoking cessation. Such signage shall be not less than 8 1/2 by 11 inches in size.
Promotion. No person or entity shall, in or upon any part of the streets, parks, public grounds, public buildings or other public places within the Town of Williamstown, distribute any products containing tobacco for any promotional or other commercial purpose.
Display. No person shall display or offer tobacco products for sale except in an area, or from within an enclosure, which physically precludes the removal of the tobacco products without the assistance of the person authorizing such display or offer, or an employee of such person.
Redemption. The redemption of coupons or promotions involving the sale of tobacco products at less than full retail price shall be conducted only at a checkout counter or at a location directly controlled by an employee.
Self-service displays. Self-service displays of tobacco products from which individual items may be selected by the customer are prohibited.
Original package required. Sale or distribution of tobacco products in any form other than an original factory-wrapped package is prohibited.
Single unit sales. No person shall sell or distribute or cause to be sold or distributed a single cigar. No person shall sell or distribute or cause to be sold or distributed any original package of two or more cigars, unless such package is priced for retail sale at $5 or more. The Board of Health may, in its discretion, raise this price as needed. This section shall not apply to:
The sale or distribution of any single cigar having a retail price of $2.50 or more.
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 the Town of Williamstown.
Flavored tobacco products. No person shall sell or distribute or cause to be sold or distributed any flavored tobacco product, other than menthol, mint, or wintergreen, at retail, except in smoking bars or retail tobacco stores.
Blunt wraps. No person or entity shall sell or distribute blunt wraps.
Vending machines. No tobacco product may be sold by vending machine within the Town of Williamstown.
Sale of tobacco products by health care institutions. No health care institution 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 or drug store, shall sell or cause to be sold tobacco products as defined herein.
No person shall sell or otherwise distribute tobacco products, as defined herein, within the Town of Williamstown without first obtaining a tobacco product sales permit issued annually by the Town of Williamstown Board of Health. Only owners of establishments with a permanent, nonmobile location in the Town of Williamstown are eligible to apply for a permit and sell tobacco products, as defined herein, at the specified location in the Town of Williamstown.
As part of the tobacco product sales permit application process, the applicant will be provided with the Town of Williamstown 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.
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.
The fee for a tobacco product sales permit shall be determined by the Town of Williamstown Board of Health.
A separate permit is required for each retail establishment selling tobacco products, as defined herein.
Each tobacco product sales permit shall be displayed at the retail establishment in a conspicuous place.
A tobacco product sales permit is nontransferable. A new owner of an establishment that sells tobacco products, as defined herein, must apply for a new permit. No new permit will be issued unless and until all outstanding penalties incurred by the previous permit holder are satisfied in full.
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.
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.
Maximum number of tobacco product sales permits.
At any given time, there shall be no more than seven tobacco product sales permits issued in Town of Williamstown. 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. New applicants for permits who are applying at a time when the maximum number of permits have been issued will be placed on a waiting list and will be eligible to apply for a permit on a "first-come, first-served" basis as issued permits are either not renewed, revoked, or are returned to the Board of Health.
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.
Applicants who purchase an existing business that holds a current tobacco product sales permit at the time of the sale of said business must apply within 60 days of such sale for the permit held by the seller if the buyer intends to sell tobacco products, as defined herein.
Whoever, himself or by his servant or agent or as the servant or agent of any other person or firm or corporation, violates any of the provisions of these regulations is subject to a fine as stated in Chapter 1, General Provisions, Article II, Noncriminal Disposition, of the Code of the Town of Williamstown. Each day of violation, after written notice, is a separate violation.
An establishment subject to these regulations may make written application to the Board of Health for a variance from these regulations.
Every variance is subject to a public hearing. Notice of a hearing upon an original application for a variance shall be posted as part of the public notice of the meeting at which the Board of Health will consider the application. The notice shall be posted not less than one week before the meeting.
By vote of a majority of its full authorized membership, the Board of Health may vary the application of any provision of these regulations with respect to any particular case in which, in the Board of Health's opinion, both of the following requirements are fulfilled:
The enforcement of the regulations would do manifest injustice; and
The applicant has proved that the same degree of protection of the public health, safety, and welfare can be achieved without strict application of the particular provision. Any alternative means of protection shall be detailed and documented by the applicant to the satisfaction of the Board of Health.
A variance may be granted subject to appropriate conditions.
Any variance granted by the Board of Health shall be in writing.
An establishment to whom a variance has been granted under this section shall keep a copy available for public inspection.
A variance may not be granted to make smoking lawful in any area in which smoking is prohibited by law other than these regulations.
These regulations or any portion of them may be amended, supplemented, or repealed from time to time by the Board of Health, with notice as provided by law, on the Board's own motion or by petition.
As of the effective date of these regulations, all prior Williamstown Board of Health smoking regulations are repealed.
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.
The effective date of these regulations is January 5, 2015.