[Adopted 7-7-2014]
Whereas conclusive evidence exists that tobacco smoke causes
cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes, nose, and throat; and 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 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 United States Environmental
Protection Agency classified secondhand smoke as a known human carcinogen
(U.S EPA, 2003) 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 Dalton Board of Health recognizes the rights 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
workplaces and other specified areas.
This regulation is promulgated under the authority granted to
the Dalton Board of Health pursuant to 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."
For the purposes of this regulation, the following words shall
have the meanings respectively ascribed to them by this section:
An adult-only 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 Boards of Health of the Town of Dalton.
An individual who has been designated by the owner of operator
of any establishment to be the manager or otherwise in charge of said
establishment.
Money, gratuity, privilege, or benefit received from an employer
in return for work performed or services rendered.
Any electronic device, not approved by the United States
Food and Drug Administration, 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 any liquid, or
solid nicotine. This term shall include such devices whether they
are manufactured as e-cigarettes, e-cigars, e-hookah, e-pipes or under
any other product name.
An individual or person who performs a service 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 minimis
amount of time.
An individual, person, partnership, association, corporation,
trust, organization, school, college, university or other educational
institution or other legal entity, whether public, quasi-public, private,
or nonprofit which uses the services of one or more employees at one
or more workplaces, at any one time, within the Town of Dalton.
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 limiting to an office, function room or hallway.
Any outside area of an establishment that is under the control
or management of said establishment.
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 of designees of any of the foregoing.
A not-for-profit establishment created and organized pursuant
to MGL c. 180 as a charitable corporation with a defined membership.
A private club is not a place of public accommodation but rather distinctly
private. Criteria used to determine whether a club is distinctly private
include, but are not limited to, those factors identified in 204 CMR
10.02. If the private club holds an alcoholic beverage license, said
license shall be a "club license" or a "war veteran's club license"
as defined in MGL c. 138, § 12, and by the Massachusetts
Alcoholic Beverages Control Commission. Said license is subject to
the terms set forth by the local licensing authority.
Any building, facility or vehicle owned, leased, operated
or occupied by the municipality, including, but not limited to, retail
stores, retail food stores, supermarkets, restaurants, any type of
outdoor seating where employees offer food or drink, or alcoholic
beverages outdoor eating establishments where food and alcoholic beverages
are served by an employee, bars, libraries, museums, theaters, banks,
laundromats, indoor sports arenas, auditoriums, inn/hotel/motel lobbies,
private and public educational facilities, shopping malls, common
areas of residential buildings, public restrooms, lobbies, staircases,
halls, exits, entrance ways elevators accessible to the public, public
mass transit conveyances and indoor platforms and enclosed outside
platforms, open meetings of a governmental body as defined in MGL
c. 30a, § 11A, MGL c. 39, § 23A, and MGL c. 34,
§ 9F, and licensed child-care locations.
Any establishment commonly known as a "supermarket," "grocery
store," "bakery" or "convenience store," or any other establishment
in which the primary activity is the sale of food items to the public
for off-premises consumption.
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 maintains a valid permit for the retail sales of tobacco products
as required to be issued by the Dalton Board of Health.
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 or inhaled.
An establishment that primarily is engaged in the retail
sales of tobacco and nicotine delivery 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."
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.
Any enclosed area of a structure or 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.
A.
It is the responsibility of the employer to provide a smoke-free
environment for all employees working in enclosed spaces and to meet
compliance with these regulations.
B.
Pursuant to MGL c. 270, § 22(j), smoking is also hereby
prohibited in private clubs, public places, outdoor seating, workplaces,
enclosed spaces, retail tobacco stores, smoking bars, and bars, and
all other areas as defined by this regulation.
C.
The use of e-cigarettes or other electronic nicotine delivery devices is prohibited wherever smoking is prohibited per MGL c. 270 § 22, and § 605-37 of this regulation.
D.
Within 10 feet of the main entrance to a building open to the public.
E.
It shall be unlawful for any employer or other person having control
of the premises upon which smoking is prohibited by this regulation,
or the business agent or designee of such person, to permit a violation
of this regulation.
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 provided by the Massachusetts
Department of Public Health and available from the Dalton 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 from the
Dalton Board of Health.
Notwithstanding the provisions of § 605-37 of this regulation, smoking may be permitted in the following places and/or circumstances:
A.
Private residences except those portions used as a child-care or
health care office when operation as such.
B.
Hotel and motel rooms rented to guests that are designated as "smoking
rooms," provided that at least 80% of the rooms be smoke-free at all
times. A room so assigned shall have signs posted indicating that
smoking is allowed therein and shall have self-closing doors. No change
in room designations shall take place without prior written approval
of the appropriate Board of Health.
C.
Private or semi-private rooms of nursing homes and long-term care
facilities, which are separately ventilated, occupied by one or more
patients, and all of whom are smokers who have requested, in writing,
to be placed in rooms where smoking is permitted and only allowed
by meeting compliance with this regulation.
Any employer, employee, and/or his or her business agent who
violates any provision of this regulation shall receive:
A.
In the case of a first violation, a fine of $100.
B.
In the case of a second violation within 24 months of the date of
the first violation, a fine of $200.
C.
In the case of three or more violations within 24 months of the current
violation, including the current violation, a fine of $300.
D.
In case of a food service establishment or any other permit holder
in which the Board of Health has jurisdiction, may revoke permits
to operate in accordance with this regulation upon determination that
permit holder has committed a violation of this regulation. The permit
holder shall have an opportunity to be heard at such hearing and shall
be notified of the Board's decision, and the reasons therefor,
in writing.
E.
Each day on which any violation exists shall be deemed to be a separate
offense.
B.
This regulation shall be enforced by the appropriate Board of Health
and its designees.
C.
This regulation of enforcement may be periodic, unannounced inspections
of those establishments subject to this regulation. Any citizen who
desires to register a complaint under this regulation may request
that the appropriate Board of Health initiate an investigation.
If any paragraph or provision of this regulation to be illegal
or against public policy or unconstitutional, it shall not affect
the legality of any remaining paragraphs or provisions.
Notwithstanding the provisions of the foregoing § 605-37 of this regulation, nothing in this regulation shall be deemed to amend or repeal applicable fire, health or other regulations.
Implementation of this regulation will occur on July 8, 2014.
