A.
No person shall sell or provide a tobacco product, as defined herein,
to a person under the minimum legal sales age. The minimum legal sales
age in Barnstable is 21.
B.
Identification. Each person selling or distributing tobacco products,
as defined herein, shall verify the age of the purchaser by means
of a valid government-issued photographic identification containing
the bearer's date of birth and that the purchaser is 21 years old
or older. Verification is required for any person under the age of
27.
C.
All retail sales of tobacco products, as defined herein, must be
face-to-face between the seller and the buyer and occur at the permitted
location.
D.
Tobacco product sales permit.
(1)
No person shall sell or otherwise distribute tobacco products, as
defined herein, within the Town of Barnstable without first obtaining
a tobacco product sales permit issued annually by the Barnstable Board
of Health. Only owners of establishments with a permanent, non-mobile
location in Barnstable are eligible to apply for a permit and sell
tobacco products, as defined herein, at the specified location in
Barnstable.
(2)
As part of the tobacco product sales permit application process,
the applicant will be provided with the Barnstable 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 about the sale
of tobacco and this regulation.
(3)
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 applicant may be asked to
provide evidence that a legitimate business transfer or business purchase
has taken place.
(4)
A separate permit, displayed conspicuously, is required for each
retail establishment selling tobacco products, as defined herein.
The fee shall be determined by the Barnstable Board of Health annually.
(5)
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.
(6)
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.
(7)
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.
(9)
A tobacco product sales permit will 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.
A.
Refusal, notification of right to access, and final request for access.
If a person denies access to the Board of Health or its agent, the
Board of Health or its agent shall:
(1)
Inform the person that:
(a)
The permit holder is required to allow access to the Board of
Health or its agent;
(b)
Access is a condition of the acceptance and retention of a tobacco
sales permit; and
(c)
If access is denied, an order issued by the appropriate authority
allowing access, hereinafter referred to as an inspection order, will
be obtained according to law; and
(2)
Make a final request for access.
B.
Refusal; reporting. If, after the Board of Health or its agent presents
credentials and provides notice, explains the authority upon which
access is requested, and makes a final request for access, the permit
holder continues to refuse access, the Board of Health or its agent
shall provide details of the denial of access on an inspection report
form.
C.
Tobacco sales compliance checks, inspections and investigations.
(1)
All permitted premises shall be subject to an inspection or to a
tobacco sales compliance check by the Board of Health or its agent.
(2)
Any person who hinders or delays the Board of Health or its agent
in the performance of the his/her duties or who refuses to admit to,
or locks out any such agent from, any place which such agent is authorized
to conduct a compliance check or inspection or who refuses to give
to such agent such information as may be required to give to proper
enforcement of the General Laws, shall be punished by a fine of not
less than $50 and not more than $200.
D.
Inspection order to gain access. If denied access to an establishment which sells tobacco products for an authorized purpose, and after complying with Subsection A, the Board of Health or its agent may issue, or apply for the issuance of, an inspection order to gain access as provided by law.
E.
Responsibilities of tobacco sales permit holder. The tobacco sales
permit holder is responsible for the proper management of the premises
so that unlawful acts do not occur on the premises and so that the
premises does not become a threat to the public welfare or public
safety. When violations of the permit or of the law are brought to
the attention of the Board of Health, a disciplinary hearing will
be held, and, as a result of evidence brought to the attention of
the Board of Health at the hearing, the Board of Health may modify,
suspend, or revoke the permit.
F.
Issuing noncriminal ticket citation or inspection report and obtaining
acknowledgement of receipt. At the conclusion of the tobacco sales
compliance check or tobacco sales establishment inspection, and according
to law, the Board of Health or its agent shall provide a copy of the
completed noncriminal ticket citation or notice of the violations
to the permit holder or the person in charge, and request a signed
acknowledgement of receipt.
G.
Refusal to sign acknowledgement. The Board of Health or its agent
shall:
(1)
Inform a person who declines to sign an acknowledgement of receipt of a noncriminal ticket citation or inspectional findings as specified in Subsection F that:
(a)
An acknowledgement of receipt is not an agreement with findings;
(b)
Refusal to sign an acknowledgement of receipt will not affect
the permit holder's obligation to correct the violations noted in
the inspection report within the time frames specified; and
(c)
A refusal to sign an acknowledgement of receipt is noted in
the inspection report and conveyed to the Board of Health's historical
record for the establishment; and
(2)
Make a final request that the person in charge sign an acknowledgement
receipt of a noncriminal ticket citation or inspectional findings.
A.
Free distribution and coupon redemption. No person shall:
(1)
Distribute or cause to be distributed any free samples of tobacco
products, as defined herein;
(2)
Accept or redeem, offer to accept or redeem, or cause or hire any
person to accept or redeem or offer to accept or redeem any coupon
that provides any tobacco product, as defined herein, without charge
or for less than the listed or nondiscounted price; or
(3)
Sell a tobacco product, as defined herein, to consumers through any
multipack discounts (e.g., "buy-two-get-one-free") or otherwise provide
or distribute to consumers any tobacco product, as defined herein,
without charge or for less than the listed or nondiscounted price
in exchange for the purchase of any other tobacco product.
B.
Out-of-package sales.
(1)
The sale or distribution of tobacco products, as defined herein,
in any form other than an original factory-wrapped package is prohibited,
including the repackaging or dispensing of any tobacco product, as
defined herein, for retail sale. 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.
(2)
Permit holders who sell liquid nicotine containers must comply with
the provisions of 310 CMR 30.000, and must provide the Barnstable
Board of Health with a written plan for disposal of said product,
including disposal plans for any breakage, spillage or expiration
of the product.
(3)
All permit holders must comply with 940 CMR 21.05, which reads: "It
shall be an unfair or deceptive act or practice for any person to
sell or distribute nicotine in a liquid or gel substance in Massachusetts
after March 15, 2016, unless the liquid or gel product is contained
in a child-resistant package that, at a minimum, meets the standard
for special packaging as set forth in 15 U.S.C. §§ 1471
through 1476 and 16 CFR § 1700 et seq."
(4)
No permit holder shall refill a cartridge that is prefilled and sealed
by the manufacturer and not intended to be opened by the consumer
or retailer.
C.
Self-service displays. All self-service displays of tobacco products,
as defined herein, are prohibited. All humidors, including, but not
limited to, walk-in humidors, must be locked.
D.
Vending machines. All vending machines containing tobacco products,
as defined herein, are prohibited.
E.
Prohibition of sale of tobacco products by educational institutions.
No educational institution located within the Town of Barnstable shall
sell or cause to be sold tobacco products, as defined herein. This
includes all educational institutions as well as any retail establishments
that operate on the property of an educational institution.
F.
Incorporation of state laws and state regulations.
(1)
The sale or distribution of tobacco products, as defined herein,
must comply with those provisions found at MGL c. 270, §§ 6,
6A, and 7, and MGL c. 112, § 61A.
(2)
The sale or distribution of tobacco products, as defined herein,
must comply with those provisions found at 940 CMR 21.00 ("Sales and
Distribution of Cigarettes, Smokeless Tobacco Products and Electronic
Smoking Devices in Massachusetts") and 940 CMR 22.00 ("Sales and Distribution
of Cigars in Massachusetts").
G.
Sale of
flavored tobacco products prohibited. No person shall sell or distribute
or cause to be sold or distributed any flavored tobacco product, except
in smoking bars and adult-only retail tobacco stores.
[Added 5-28-2019]
A.
Violations of this smoking regulation will be subjected to the provisions
of the regulation of the Town of Barnstable regarding noncriminal
disposition.
B.
Any person who knowingly violates any provision of this regulation,
or who smokes in a municipal area subject to regulation, in which
a "Smoking Prohibited by Law" sign or its equivalent is conspicuously
displayed, shall be punished by a fine of $50 for each offense.
C.
Any proprietor(s) or other person(s) in charge of a public place
or workplace, including municipal entities, who fail(s) to comply
with these regulations shall be subject to the following actions for
each offense:
(1)
A warning shall be issued for a first offense. A fine of $100 may
be issued for the second offense, $200 for a third offense, $300 for
a fourth offense, and $300 for any subsequent offense; and
(2)
Following the second offense, the Board of Health may, after a public
hearing, suspend any license for that public place for a period of
up to two days for each day of noncompliance or withhold renewal of
license. Following a third offense, the Board of Health may suspend
an existing permit/license for a period of time determined by the
Board of Health until compliance is achieved.
D.
Persons, firms, corporations, or agencies selling tobacco products
to minors or selling tobacco products without a tobacco sales permit
shall be punished as follows:
(1)
In the case of a first violation, a fine of $100.
(2)
In the case of a second violation within 24 months of the date of
the current violation, a fine of $200, and the tobacco product sales
permit shall be suspended for up to seven consecutive business days.
(3)
In the case of three or more violations within a twenty-four-month
period, a fine of $300, and the tobacco product sales permit shall
be suspended for up to 30 consecutive business days.
(4)
In the case of four violations or repeated, egregious violations of this regulation, as determined by the Board of Health, within a twenty-four-month period, the Board of Health shall hold a hearing in accordance with Subsection G of this section and may permanently revoke a tobacco product sales permit.
E.
Failure to cooperate with inspections pursuant to this regulation
shall result in the suspension of the tobacco product sales permit
for up to 30 consecutive business days.
F.
In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of tobacco products while his
or her permit is suspended shall be subject to the suspension of all
Board of Health issued permits for up to 30 consecutive business days.
Multiple tobacco product sales permit suspensions shall not be served
concurrently.
G.
The Barnstable Board of Health shall provide notice of the intent
to suspend or revoke a tobacco product 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 Barnstable Board of Health shall suspend or revoke
the tobacco product sales permit if the Board of Health finds that
a violation of this regulation occurred. All tobacco products, as
defined herein, shall be removed from the retail establishment upon
suspension or revocation of the tobacco product sales permit. Failure
to remove all tobacco products, as defined herein, shall constitute
a separate violation of this regulation.
H.
In addition to the remedies provided above, the Board of Health may
apply for injunctive relief to enforce the provisions of this article
in any court of competent jurisdiction.
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.
These amended regulations shall be effective as of December
30, 2018.
