Environmental Tobacco Smoke Regulations (ETS)

The Board of Health, City of Haverhill, in accordance with, and under the authority granted by Chapter III, Section 31, of the Massachusetts General Laws, promulgated and adopted the following regulation on May 2, 1995 and amended on August 13, 2002:

SECTION I: Environmental Tobacco Smoke Regulation (ETS)

A. 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 [hereinafter ETS], which includes both exhaled smoke and the side stream smoke from burning cigarettes, 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 in 2000, the Public Health Service's National Toxicology Program listed environmental tobacco smoke as a known human carcinogen (U.S. DHHS, 2000, citing Cal. EPA, 1997), now, therefore, the Board of Health of the City of Haverhill 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 public places.

B. Authority:

This regulation is promulgated under the authority granted to the Haverhill Board of Health under Massachusetts General Laws Chapter 111, Section 31 that, " Boards of Health may make reasonable health regulations."

C. Definitions: For the purposes of this regulation, the following words shall have the meanings respectively ascribed to them by this paragraph:

Bar area of restaurant: An area of a restaurant that is devoted to the serving of alcoholic beverages fro 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.

Board:  The Board of Health of the City of Haverhill.

Business Agent: An individual who has been designated, by the owner or operator of an establishment to be the manager or otherwise in charge of said establishment.

City: The City of Haverhill

Employee: Any individual who performs services for an employer.

Employer: Any individual, partnership, association, corporation, trust, or other organized group of individuals, including the City of Haverhill or any agency thereof, which utilizes the services of one (1) or more employees.

Health Care Facility: Any office or institution providing 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.

Indoor Sports Arena: 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.

Minor: Any individual who is under the age of eighteen (18).

Permit Holder: An owner or operator of any establishment engaged in the sale of tobacco products that applies for and receives a tobacco sales permit, or his or her business agent.

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.

Private Club: A not-for-profit establishment created and organized pursuant to M.G.L. Ch. 80 as a charitable corporation with a defined membership. A private club is not a place of public accommodation but rather must be 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 veterans club license” as defined in M.G.L. Ch. 138, § 12 and by the Massachusetts Alcohol Beverage Control Commission. Said license is subject to the terms set forth by the local licensing authority.

Private Social Function: A social gathering that is not open to the public and that is under the control of the Host or Hostess rather than the proprietor or manager, such as a wedding reception.

Proper Ventilation: A separately ventilated system, which vents directly to the outside and does not allow any air to recirculate through the building ventilation system. The area shall be under negative pressure so as to reduce air from escaping into other areas, which may be accessed by nonsmokers.

Public Place: Any building or facility owned, leased, operated or occupied by the municipality, including school buildings or grounds; any area open to the general public including, but not limited to, libraries, funeral homes, 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, and licensed child-care locations.

Public Transportation: Buses, taxis, and other means of transportation available to the general public while such means of transportation is operating within the boundaries of the city including indoor platforms by which such means of transportation may be accessed.

Restaurant: Any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, and other eating establishment which gives or offers food for sale to the public, guests, or employees for on-premises consumption, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities.

Retail Food Store: Any establishment commonly known as a supermarket, grocery store, bakery, or convenience store in which the primary activity is the sale of food items to the public for off-premises consumption.

Retail Store: 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 retail food stores. "Retail store" shall not include restaurants as defined herein.

Smoking: Inhaling, exhaling, burning or carrying any lighted cigar, cigarette, or other tobacco product in any form.

Self Service Display: Any display from which customers may select a tobacco product without assistance from an employee or store personnel, excluding vending machines.

Vending Machine: Any automated or mechanical self service device, which upon insertion of money, tokens or any other form of payment, dispenses cigarettes or any other tobacco product.

Workplace: Any enclosed area of a structure or portion thereof at which one (1) or more employees perform services for their employer, including the personal residence of the employer during those hours when used as a place of employment.

D. Posting Notice of Prohibition:

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 Haverhill 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 Haverhill Board of Health.

E. Smoking Prohibited:

Except as otherwise provided in Section F of this regulation, no person shall smoke nor shall any person, 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, permit a person to smoke in any of the following places as defined herein: bars, health care facilities, public places, public transportation, restaurants, and retail stores, private clubs and workplaces. Additionally, no person shall smoke in any place in which a sign conforming to the requirements of Paragraph D of this regulation is posted. No person shall remove a sign posted under the authority of Paragraph D of this regulation.

F. Exceptions:

Notwithstanding the provisions of Paragraph E of this regulation, smoking may be permitted in the following places and/or circumstances: 

1.) Private residences except those portions used as a childcare or health care office when operating as such.

2.) Hotel and motel rooms rented to guests that are designated as smoking rooms. The non-smoking rooms shall be posted with signage indicating that smoking is prohibited there in. The number of rooms that are designated as non-smoking must be submitted in writing to the Board of Health. No changes in room designation can take place without prior written approval from the Board of Health.

3.) Hotel and motel conference/meeting rooms and private and public assembly rooms while these places are being used for private social functions.

4.) Private or semiprivate rooms of nursing homes and long term care facilities, which rooms are separately ventilated and all of whom are smokers who have requested in writing to be placed in rooms where smoking is permitted.

5.) Retail tobacco stores, which are primarily for the sale of tobacco products and paraphernalia, in which the sale of other products is merely incidental, that prohibit minors from entering the establishment, and that are not required to possess a retail food permit.

6.) A private club as defined herein that has been granted a variance by the Board of Health. The distinctly private club must provide the Board of Health with access to the establishment so that periodic, nonscheduled inspections can occur. The variance procedures and conditions are as follows:

A. Procedure

• A letter written by the License Commission to the Board of Health indicating that the club is in fact distinctly private, meeting all state and local requirements.
• Written application must be made to the Board of Health.
• Notice of a hearing upon an original application for a variance must be posted with the public notice of the Board of Health meeting at which it is to be considered.
• Variances may be granted for up to one (1) year and extended for like periods upon submission of a renewal application which states that no permit for alteration of the premises or of the ventilation system(s) have been applied for or granted and that no such alterations have been made since the last granting of a variance.
• A copy of the variance granted under this section shall be maintained on the premises for which it issued for public inspection and a notice of the variance shall be posted at the entrance.

B. Conditions

• The distinctly private club must demonstrate to the Board of Health that its meets all the criteria as outlined in the definition of Private Club contained herein.
• The Private Club must post signage provided by the Board of Health indicating that SECOND HAND SMOKE IS A HEALTH DANGER.

7.) An establishment in which minors are not allowed, and in which the revenue generated from the serving of alcoholic beverages is equal to or greater than eighty percent (80%) of the total combined revenue generated by the service of such beverages and food and that has been granted a variance by the Board of Health. Revenue figures to be considered as evidence for the purpose of this regulation shall be those used in calculating the meal tax amount filed on Massachusetts Department of Revenue Form MAB-4 line 1 for the preceding four filings. The variance procedures and conditions are as follows:

A. Procedure

• Written application must be made to the Board of Health.
• Notice of a hearing upon an original application for a variance must be posted with the public notice of the Board of Health meeting at which it is to be considered.
• Variances may be granted for up to one (1) year and extended for like periods upon submission of a renewal application which states that no permit for alteration of the premises or of the ventilation system(s) have been applied for or granted and that no such alterations have been made since the last granting of a variance.
• A copy of the variance granted under this section shall be maintained on the premises for which it issued for public inspection and a notice of the variance shall be posted at the entrance.

B. Conditions

• The above-described establishment must demonstrate to the Board of Health that it meets the requirements and the criteria as described in Section F (7).
• The establishment must post signage provided by the Board of Health indicating that SECOND HAND SMOKE IS A HEALTH DANGER.
• Smoking shall be allowed in the bar area of restaurants between the hours of 10:00 p.m. and closing provided that the restaurant holds a pouring license, food services are closed and the only food available shall be whatever food is necessary to comply with any food requirements of the licensing board. No one shall be present under the age of eighteen during this period
• Smoking shall be allowed in the bar area of restaurants during hours of operation, regardless of level of food service, provided that the restaurant that holds a pouring license, is (A) separated from the non-smoking area of the restaurant by located in a separate room or by means of physical barriers that completely enclose the bar area of the restaurant, and (B) is served by a ventilating system which that is separate from the ventilation system that serves the non-smoking portion of the restaurant so as not to interfere with the smoke free air of the non-smoking area of the restaurant, and (C) is designated to not require nonsmoking patrons to pass through any portion of the “smoking room” to access public restrooms or when entering or exiting the principal entry to the establishment; and (D) Signs posted stating “PERSONS UNDER 18 ARE PRHIBITED FROM ENTERING” (E) has been granted a variance by the Board of Health. The variance procedures and conditions are as follows:
• Bowling alleys may permit smoking in a “smoking room” that occupies a separately enclosed, forcibly ventilated room, where no food or beverages are served; is designated to not require nonsmoking patrons to pass through any portion of the “smoking room” to access public restrooms or when entering or exiting the principal entry to the establishment; and no employees of the establishment shall be required to enter the smoking area while patrons are smoking there.

G. Conflict with Other Laws or Regulations:

Notwithstanding the provisions of the foregoing Paragraph F 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.

H. Violations:

Any person who violates this regulation shall be subjected to a fine of one hundred dollars ($100) for the first offense, two hundred dollars ($200) for a second offense with in one year of the date of the first offense and three hundred dollars ($300) for a third or subsequent offense within one year of the date of the first offense.

I. Enforcement:

As an alternative to initiating criminal proceeding, violations of this regulation may be enforced in the manner provided in Massachusetts General Law, Chapter 40, Section 21 D, by the Board or its agents. Any fines imposed under the provisions of this regulation shall inure to the City of Haverhill for such use as the City may direct.

One method 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 Board of Health initiate enforcement.

J. Non-Criminal Disposition:

Whoever violates any provision of this regulation, the violation of which is subject to a specific penalty, may be penalized by the non-criminal method of disposition as provided in Massachusetts General Laws, Chapter 40, Section 21D or by filing a criminal complaint at the appropriate venue.

Each day on which any violation exists shall be deemed to be a separate offense.

K. Penalty:

$100 for first offense $200 for second offense $300 for third offense and subsequent offenses

Enforcing Persons: Haverhill Police Department Haverhill Board of Health and its designees

L. 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.

M. Effective Date:

This regulation shall take effect on September 1, 2002.

 SECTION II: Sale of Tobacco to Minors

A. Statement of Purpose:

Whereas there exists conclusive evidence that tobacco smoke causes cancer, respiratory and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat; and whereas more than ninety percent (90%) of all smokers begin smoking before the age of eighteen (18) (See, "Preventing Tobacco Use Among Young People," Surgeon General's Report, 1994); and whereas an estimated three thousand (3,000) minors begin smoking every day in the United States (See, "Cancer Facts & Figures - 1993," American Cancer Society); and whereas the U.S. Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin; and whereas despite state laws prohibiting the sale of tobacco products to minors, access by minors to tobacco products is a major problem; now, therefore it is the intention of the HaverhillBoard of Health to curtail the access of tobacco products by minors.

 B. Tobacco Sales to Minors Prohibited:

1. No person shall sell tobacco products or permit tobacco products to be sold to a minor, including the minor's parent or legal guardian, nor shall any person, including a parent or legal guardian, give tobacco products to a minor.

2. In conformance with and in addition to Massachusetts General Law, Chapter 270, Section 7, a copy of Massachusetts General Laws, Chapter 270, Section 6, shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell tobacco products at retail. The notice shall be provided by the Massachusetts Department of Public Health and made available from the Haverhill Board of Health. Such notice shall be at least 48 square inches and shall be posted at the cash register, which receives the greatest volume of tobacco product sales in such a manner so that it may be readily seen by a person standing at or approaching the cash register. Such notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four (4) feet or greater than nine (9) feet from the floor. For all other cash registers that sell tobacco products, a notice shall be attached which is no smaller than nine (9) square inches, which is the size of the sign provided by the Massachusetts Department of Public Health. Such notice must be posted in a manner so that it may be readily seen by a person standing at or approaching the cash register. Such notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of no less than four (4) feet or more than nine (9) feet from the floor.

3. Identification: Each person shall verify by means of government-issued photographic identification containing the bearer's date of birth that the purchaser is 18 years old or older. Verification is required for any person under the age of 27.

4. All retail sales of tobacco must be face-to-face between the seller and the buyer. The only exception is tobacco vending machines that are located in private clubs as defined in Section 1C where the retailer ensures that no person younger than eighteen (18) years of age is present, or permitted to enter at any time.

C. Tobacco Sales Permit:

1. No person shall sell or otherwise distribute tobacco at retail within the city of Haverhill without first obtaining a tobacco sales permit issued annually by the Haverhill Board of Health.

2. As part of the application process, the applicant will be provided with the Haverhill Board of Health 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 sales regarding both state laws regarding the sale of tobacco and this regulation.

3. Each applicant is required to provide proof of a current tobacco sales license issued by the Massachusetts Department of Revenue before a tobacco sales permit can be issued.

4. The fee for a tobacco sales permit shall be determined by the Haverhill Board of Health. All such permits shall be renewed annually on date the permit was first issued.

5. A separate permit is needed for each retail establishment selling tobacco.

6. Each tobacco sales permit shall be displayed at the retail establishment in a conspicuous place.

7. No tobacco sales permit holder or his or her business agent shall allow any employee to sell cigarettes or other tobacco products until such employee reads this regulation and state laws regarding the sale of tobacco and signs a statement, a copy of which will be placed on file in the office of the employer, that he/she has read the regulation and applicable state laws.

8. A tobacco sales permit is non-transferable, except a new permit will be issued to a retailer who changes location.

9. Issuance of a tobacco 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.

 D. Free Distribution:

No person shall distribute, or cause to be distributed, any free samples of tobacco products. No tobacco sales permit holder shall redeem or honor coupons or vouchers for tobacco or tobacco products for free or at a nominal cost within the City of Haverhill.

 E. Out-of-Package Sales:

No person may sell or cause to be sold or distribute or cause to be distributed, any cigarette package that contains fewer than twenty (20) cigarettes, including single cigarettes.

 F. Self Service Displays:

All self-service displays of tobacco products are prohibited. All humidors including, but not limited to, walk-in humidors must be locked. 

G. Tobacco Vending Machines:

All tobacco vending machines are prohibited. : The only exception is tobacco vending machines that are located in private clubs as defined herein, and where the retailer ensures that no person younger than eighteen (18) years of age is present, or permitted to enter at any time.

 H. Violations:

1. It shall be the responsibility of the permit holder and/or his or her business agent to ensure compliance with all sections of this regulation pertaining to his/her place of business. The permit holder shall receive:

a. In the case of a first violation, a fine of one hundred dollars ($100.00).

b. In the case of a second violation within 12 (twelve) months of the date of the first violation, a fine of two hundred dollars ($200.00) and the permit shall be suspended for seven (7) consecutive business days.

c. In the case of three or more violations within 12 (Twelve)-month period from the date of the current offense, a fine of three hundred dollars ($300.00) and the permit shall be suspended for thirty (30) consecutive business days.

2. The Haverhill Board of Health shall provide notice of the intent to suspend a tobacco sales permit, which notice shall contain the reasons therefore and establish a time and date for a hearing which date shall be no earlier than seven (7) days after the date of said notice. The permit holder shall have an opportunity to be heard at such hearing and shall be notified of the Board of Health's decision, and the reasons therefore in writing. The Haverhill Board of Health after a hearing, may suspend the tobacco sales permit. All tobacco products shall be removed from the retail establishment upon suspension of the tobacco sales permit. Failure to remove all tobacco products shall constitute a separate violation of this regulation.

3. Any permit holder who does not pay the assessed fine within twenty-one days from fine issuance may be subject to criminal proceedings.

 I. Non-Criminal Disposition:

Whoever violates any provision of this regulation may be penalized by the non-criminal method of disposition as provided in General Laws, Chapter 40, Section 21 D or by filing a criminal complaint at the appropriate venue.

Any fines imposed pursuant to Section 21D shall inure to the City of Haverhill for such use as the City may direct.

Each day any violation exists shall be deemed to be a separate offense.

J. Penalty:

$100 for first offense $200 for second offense plus suspension as indicated in Section H (1) (b) above $300 for third offense and subsequent offenses plus suspension as indicated in Section H (1) (c) above

 K. Enforcement:

Enforcement of this regulation shall be by the Board of Health of the City of Haverhill or its designated agent(s).

One method of enforcement may be periodic, unannounced inspections of those establishments subject to this regulation.

Any citizen who desires to register a complaint pursuant to the regulation may do so by contacting the Board of Health of the City of Haverhill or its designated agent(s) and the Board shall investigate.

 L. Severability:

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.

M. Effective Date:

These regulations shall take effect September 1, 2002.