Town of Sharon, MA Article 22B Regulation Prohibiting Smoking in Workplaces, Public Places and Membership Associations

§ 300-22B.1 Statement of purpose.

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 (ETS), which includes both exhaled smoke and the side-stream smoke from burning tobacco products, causes the death of 53,000 Americans each year (McGinnis JM, Foege W, "Actual Causes of Death in the United States," JAMA 1993 270:2207-2212); and whereas the U.S. Environmental Protection Agency classified secondhand smoke as a known human carcinogen and the International Agency for Research on Cancer (IARC) of the World Health Organization also classified secondhand smoke as a known human carcinogen (IARC-WHO, 2002); now, therefore, the Board of Health of Sharon recognizes the right of those who wish to breathe smoke-free air and establishes this regulation to protect and improve public health and welfare by prohibiting smoking in workplaces, public places and membership associations.

§ 300-22B.2 Authority.

This regulation is promulgated pursuant to the authority granted to the Sharon Board of Health by MGL c. 111, § 31, that "Boards of Health may make reasonable health regulations." It is also promulgated pursuant to MGL c. 270, § 22(j), which states in part that: "Nothing in this section shall permit smoking in an area in which smoking is or may hereafter be prohibited by law including, without limitation: any other law or. . .health. . .regulation. Nothing in this section shall preempt further limitation of smoking by the commonwealth...or political subdivision of the commonwealth."

§ 300-22B.3 Definitions.

A. 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.

COMPENSATION

Money, gratuity, privilege, or benefit received from an employer in return for work performed or services rendered.

E-CIGARETTE

Any electronic nicotine delivery product composed of a mouthpiece, heating element, battery and/or electronic circuits that provides a vapor of liquid nicotine to the user, or relies on vaporization of solid nicotine or any liquid, regardless of whether the liquid contains nicotine. This term shall include any devices, whether they are manufactured as e-cigarettes, e-cigars, e-pipes or under any other product name.

EMPLOYEE

Any individual who performs services for compensation for an employer at the employer's workplace, including a contract employee, temporary employee, and independent contractor who performs a service in the employer's workplace for more than a de-minimus amount of time.

EMPLOYER

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

ENCLOSED

A space bounded by walls, with or without windows or fenestrations, continuous from floor to ceiling and enclosed by one or more doors, including, but not limited to, an office, function room or hallway.

MEMBERSHIP ASSOCIATION

A not-for-profit entity that has been established and operates for 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 Chapter 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 veteran's organization incorporated or chartered 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.

OUTDOOR SPACE

An outdoor area, open to the air at all times and which cannot be enclosed by a wall or side covering.

PERSON

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 building, establishment, business, or restaurant or retail store, or the business agents or designees of any of the foregoing.

RETAIL TOBACCO STORE

An establishment which is not required to possess a retail food permit whose primary purpose is to sell or offer for sale to consumers, but not for resale, tobacco products and 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 which maintains a valid permit for the retail sale of tobacco products as required, issued by the Sharon Board of Health.

SMOKING (OR SMOKE)

The lighting of a cigar, cigarette, pipe or other tobacco product or possessing a lighted cigar, cigarette, pipe or other tobacco or non-tobacco product designed to be combusted and inhaled.

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 referred to as "cigar bars" and "hookah bars."

WORKPLACE

An indoor area, structure or facility or a portion thereof, at which one or more employees perform a service for compensation for an employer; other enclosed spaces rented to or otherwise used by the public; and where the employer has the right or authority to exercise control over the space.

B. Terms not defined herein shall be defined as set forth in MGL c. 270, § 22, and/or 105 CMR 661. To the extent any of the definitions herein conflict with MGL c. 270, § 22, and 105 CMR 661, the definition contained in this regulation shall control.

§ 300-22B.4 Smoking prohibited.

A. It shall be the responsibility of the employer to provide a smoke-free environment for all employees working in an enclosed workplace.

B. Smoking is hereby prohibited in Sharon in accordance with MGL c. 270, § 22 (commonly known as the "Smoke-Free Workplace Law").

C. Pursuant to MGL c. 270, § 22(j), smoking is also hereby prohibited in the enclosed areas of membership associations, also known as "private clubs."

D. The use of e-cigarettes is prohibited wherever smoking is prohibited per MGL c. 270, § 22.

E. Smoking is prohibited within eight feet of any entrance to any workplace.

§ 300-22B.5 Posting notice of prohibition.

Every membership association in which smoking is prohibited by and under the authority of this regulation shall conspicuously display on the premises "No Smoking" signs provided by the Massachusetts Department of Public Health and available from the Sharon Board of Health 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) and comparable in size to the sign provided by the Massachusetts Department of Public Health and available at the Sharon Health Department.

§ 300-22B.6 Enforcement.

A. An owner, manager, or other person in control of a building, vehicle or vessel who violates this article, in a manner other than by smoking in a place where smoking is prohibited, shall be punished by a fine of:

(1) For the first violation: $100;

(2) For a second violation occurring within two years of the date of the first offense: $200; and

(3) For a third or subsequent violation occurring within two years of the second violation: $300.

B. Each calendar day on which a violation occurs shall be considered a separate offense.

C. This regulation shall be enforced by the Board of Health and its designees.

D. Violations of § 300-22B.4B shall be disposed of by a civil penalty using the noncriminal method of disposition procedures contained in MGL c. 40, § 21D without an enabling ordinance or bylaw. The disposition of fines assessed shall be subject to MGL c. 111, § 188.

E. Violations of § 300-22B.5A, C, D and E may be disposed of by a civil penalty using the noncriminal method of disposition procedures contained in MGL c. 40, § 21D.

F. If an owner, manager or other person in control of a building, vehicle or vessel violates this regulation repeatedly, demonstrating egregious noncompliance as defined by the regulations of the Department of Public Health, the Board of Health may revoke or suspend the license to operate and shall send notice of the revocation or suspension to the Department of Public Health.

G. Any person may register a complaint to initiate an investigation and enforcement with the Board of Health, the local inspection department or the equivalent.

§ 300-22B.7 Severability.

If any paragraph or provision of this regulation is found to be illegal or against public policy or unconstitutional, it shall not affect the legality of any remaining paragraphs or provisions.

§ 300-22B.8 Conflict with other laws or regulations.

Notwithstanding the provisions of § 300-22B.4 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.

§ 300-22B.9 When effective.

This regulation shall take effect 30 days after the date of publication of a summary of this regulation.