Proposed Amendments to the Tobacco Ordinance

ORDINANCE NO. _____
City of Cambridge
In the Year Two Thousand, Two

AN ORDINANCE

In amendment to an ordinance entitled the "Cambridge Municipal Code"

Be it ordained by the City Council of the City of Cambridge as follows:

WHEREAS, 1992 election returns demonstrate that more than 60% of Cambridge residents voted in favor of Question One to raise the state excise tax on cigarettes and create a Health Protection Fund to advance the goals of tobacco control; and

WHEREAS, evidence demonstrates that tobacco in extremely addictive; and

WHEREAS, 18 is the legal age at which cigarettes can be sold to an individual in the Commonwealth; and

WHEREAS, 82% of all smokers begin smoking as teenagers; and

WHEREAS, the Surgeon General of the United States found in her 1994 Report that community-wide efforts including enforcement of minors access laws are effective at reducing adolescent use of tobacco; and

WHEREAS, nonsmokers with allergies, respiratory disease and those who suffer other of the ill effects of passive smoking may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to environmental tobacco smoke; and

WHEREAS, there exists conclusive evidence that tobacco smoke causes cancer, respiratory diseases, cardiovascular diseases, negative birth outcomes, allergic reactions, and irritations to the eyes, nose, and throat to both the smoker and otherwise healthy nonsmoker exposed to secondhand smoke; and

WHEREAS, the Surgeon General of the United States found in his 1986 Report that the simple separation of smokers and nonsmokers within the same air space does not eliminate the exposure of nonsmokers to environmental tobacco smoke; and

WHEREAS, the goal of the Commissioner of Health is to enable the people of Cambridge to breathe healthy, safe, smoke-free air in all indoor public places, including restaurants; and

WHEREAS, Courts interpreting the Americans with Disabilities Act, which require access of persons with disabilities to public places and workplaces, have deemed impaired respiratory function a disability.

Therefore, for the above reasons, the City Council of the City of Cambridge ordains as follows:

Chapter 8.28 of the Cambridge Municipal Code, entitled "Smoking," is hereby amended as follows:

CHAPTER 8.28

Restrictions on Youth Access to Tobacco Products And on Smoking in Workplaces and Public Places

8.28.010 Declaration of Legislative Findings
8.28.020 Definitions for Access of Minors to Tobacco Products
8.28.030 Access of Minors to Tobacco Products
8:28.040 Enforcement and Violations
8:28.050 Definitions for Prohibition of Smoking in the Workplace
8:28.060 Prohibition of Smoking in the Workplace
8:28.070 Enforcement and Violations
8:28.080 Definitions for Restrictions on Smoking in Public Places
8:28.090 Restrictions on Smoking in Public Places
8:28.100 Enforcement and Violations
8:28.110 Definitions for Restrictions on Smoking in Restaurants
8:28.120 Restrictions on Smoking in Restaurants
8:28.130 Enforcement and Violations
8.28.140 Invalidity of Provisions
8.28.150 Conflict with Other Laws or Regulations
8.28.160 Implementation

8.28.010 Declaration of Legislative Findings

The City Council finds and declares that the purposes of this Chapter are to protect public health, safety and general welfare by:

A. Preventing access to tobacco products by minors;

B. Creating a permitting process for tobacco sales to facilitate enforcement of this chapter;

C. Prohibiting smoking in workplaces and most other public places.

I

8.28.020. Definitions for Access of Minors to Tobacco Products:

For the purposes of this ordinance, the following words shall have the meanings respectively ascribed to them by this section:

Cambridge Public Health Department: the entity that provides public health services for the City of Cambridge, pursuant to St. 1976, c. 201.
City: The City of Cambridge.
Self Service Display: Any display of tobacco products which is so located such that said products are accessible to customers without assistance from an employee or store personnel.
Inspectional Services Department: The City of Cambridge Department which is responsible for all laws and related City ordinances which pertain to the MA State Building Code, local zoning laws and certain articles of the State Sanitary Code.
Minor: Any individual who is under the age of eighteen (18).
Person: A person, employer, employee, retail store manager or owner, or the owner or operator of any establishment engaged in the sale of tobacco products.
Vending machine: Any automated, self-service device which, upon insertion of money, tokens or any other form of payment, dispenses cigarettes or any other tobacco product.
Tobacco product: Cigarettes, cigars, rolling papers, chewing tobacco, pipe tobacco, snuff or tobacco in any of its forms.

8.28.030 Access of Minors to Tobacco Products:

A. Sales to minors prohibited:

1. No person shall sell tobacco products or permit tobacco products to be sold to a minor or, not being the minor’s parent or guardian, no person shall give tobacco products to a minor.

2. No person shall sell or permit the sale of tobacco products unless the location at which the tobacco products are available for purchase is posted with a notice which is clearly visible to anyone purchasing such products and which states: "Massachusetts state law prohibits the sale of tobacco products to any person under the age of eighteen (18) years of age. See M.G.L. chap. 270, sect. 6." Said notice shall be that notice provided by the Massachusetts Department of Public Health and is available from the Cambridge Public Health Department.

3. Each retailer shall verify by means of photographic identification containing the bearer’s date of birth that no person purchasing the product is younger than eighteen (18) years of age. No such verification is required for any person over the age of 26.

B. Tobacco sales permit:

1. No person shall sell tobacco products within the City of Cambridge without first obtaining a tobacco sales permit issued by Inspectional Services.
2. As part of the application process, the applicant will be provided with instructions on compliance with G.L.c.270 section 6 (sales of tobacco to minors and penalties for violation thereof), a copy of this ordinance and compliance with this chapter.
3. Each applicant is required to sign a statement declaring that the applicant has read said instructions and that the applicant is responsible for instructing any and all employees who will be responsible for tobacco sales regarding the law.
4. The fee for a tobacco sales permit shall be determined by the Commissioner of Inspectional Services. All such permits shall be renewed annually on July 1.
5. A separate permit is needed for each location.
6. Each tobacco sales permit shall be displayed on the premises in a conspicuous place.

C. Free distribution. No person shall, in or upon any part of the streets, parks, public grounds, public buildings or other publicly owned places within the City of Cambridge, distribute free of charge any products containing tobacco or any coupons or vouchers for free tobacco products, to any person for any promotional or other commercial purposes.

D. Packaging. Sale or distribution of single cigarettes or any tobacco product in any form other than an original factory-wrapped package is prohibited. No manufacturer, distributor or retailer may sell or cause to be sold, or distribute or cause to be distributed, any cigarette package that contains fewer than twenty cigarettes.

E. Self Service Displays. All self-service displays of tobacco products are prohibited. The only exception is self service displays that are located in facilities where the retailer ensures that no person younger than eighteen (18) years of age is present, or permitted to enter, at any time.

F. Tobacco products vending machines: No person shall distribute or sell tobacco products by the use of a vending machine unless:

1. The vending machine is located within the immediate vicinity, plain view and control of a responsible employee, so that all purchases are observable and controllable as if the tobacco products were sold over the counter;

2. All tobacco products vending machines must display a conspicuous sign stating that it is illegal for minors to purchase cigarettes; and

3. The vending machine is located in facilities where the retailer ensures that no person younger than eighteen (18) years of age is present, or permitted to enter, at any time.

8.28.040. Enforcement and penalties:

A. Noncriminal Disposition. The penalty for each violation of 8.28.030 paragraph A shall be a fine of one hundred dollars ($100.00) for the first offense, two hundred dollars ($200) for the second offense and three hundred dollars ($300) for the third and each subsequent offense within a twenty-four month period from the first offense. The permit holder is responsible for payment of the fine. Any fines imposed under the provisions of this chapter shall enure to the City of Cambridge. For the purposes of this chapter, the following shall be enforcing officers: Police Officers; and employees of the License Commission, the Health Department and Inspectional Services Department or their designees.

B. The Commissioner of Inspectional Services may suspend a tobacco sales permit granted pursuant to this ordinance upon determination that a permit holder has committed three (3) violations within twenty-four months of the first offense. The Commissioner of Inspectional Services shall provide notice of the intent to suspend a tobacco 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 (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 Commissioner’s decision, and the reasons therefor, in writing. The Commissioner of Inspectional Services, after a hearing, may suspend the tobacco sales permit for up to four weeks. All tobacco products shall be removed from the premises upon suspension or revocation of the tobacco sales permit. Failure to remove all tobacco products shall constitute a separate violation of this chapter.

C. Any permit holder who does not have an appeal pending and does not pay a fine within twenty-one days may be subject to the revocation of the tobacco sales permit granted pursuant to this chapter. The Commissioner of Inspectional Services shall provide notice of the intent to revoke a tobacco 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 (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 Commissioner’s decision, and the reasons therefor, in writing. The Commissioner of Inspectional Services, after a hearing, may revoke the tobacco sales permit until the fine is paid. All tobacco products shall be removed from the premises upon suspension or revocation of the tobacco sales permit. Failure to remove all tobacco products shall constitute a separate violation of this ordinance.

D. A violation of any provision of this chapter other than 8.28.030 paragraph A shall be subject to a fine of twenty-five dollars ($25) which may be enforced by Noncriminal Disposition as stated in 8.28.040.section A. Every day in which a person engages in conduct prohibited by this chapter shall constitute a single and separate violation. Any fines imposed under the provisions of this chapter shall enure to the City of Cambridge.

E. Any citizen who desires to register a complaint under this chapter may initiate enforcement with the Public Health Department.

II

8.28.050 Definitions for Prohibition of Smoking in Workplaces:

For the purposes of this ordinance, the following words shall have the meanings respectively ascribed to them by this paragraph:

8.28.060 Prohibition of Smoking in Workplaces.

A. Smoking is prohibited in all workplaces.

B. It shall be unlawful for any employer or other person having control of the premises upon which smoking is prohibited by this chapter, or the business agent or designee of such person, to permit violation of this chapter.

C. The Commissioner of Health may promulgate reasonable rules and regulations for the implementation of this chapter.

8.28.070. Prohibition of Smoking in Workplaces Enforcement and Penalties.

A. Any person who violates this chapter shall be subject to a fine in an amount of twenty-five dollars ($25) for a first offense, fifty hundred dollars ($50) for a second offense and one hundred dollars ($100) for a third or subsequent offense within a twenty-four month period from the first offense. Each day a violation occurs will be considered a separate offense.

B. As an alternative to initiating criminal proceedings, violations of this Section II. of this chapter may be enforced in the manner provided in MGL chap 40, sect. 21D. Any fines imposed under the provisions of this chapter shall enure to the city of Cambridge. For the purposes of this chapter, the following shall be enforcing officers: Police Officers; and employees of the License Commission, the Health Department and Inspectional Services Department or their designees.

C. Any citizen who desires to register a complaint under this chapter may request that the Cambridge Public Health Department initiate an investigation.

III

8.28.080 Definitions for Prohibition on Smoking in Public Places:

For the purposes of this ordinance, the following words shall have the meanings respectively ascribed to them by this paragraph:

Agent or 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.
Cambridge Public Health Department: The entity that provides public health services for the City of Cambridge, pursuant to St. 1976, c. 201.
City: the City of Cambridge
Enclosed Area: A space bounded by walls (with or without windows) from the floor to the ceiling and enclosed by doors. An enclosed area may include, but is not limited to, offices, rooms, and halls.
Health Care Facility: Any office or institution providing individual 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.
Inspectional Services Department: The City of Cambridge Department which is responsible for all laws and related City ordinances which pertain to the MA State Building Code, zoning code and certain articles of the State Sanitary Code and Cambridge municipal code.
Mall: Any enclosed public walkway or hall area which serves to connect retail stores or offices.
Municipal Facility: Any building, facility or vehicle owned, leased, operated or occupied by the municipality, including public parks, school buildings and grounds.
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 agents or designees of any of the foregoing.
Private Club: A not-for-profit establishment created and organized pursuant to M.G.L. Ch. 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 a private club holds an alcoholic beverage license, said license shall be a "club license" or a "war veterans club license" as defined by M.G.L. Ch. 138. Sec. 12 and by the Massachusetts Alcohol Beverage Control Commission. Said license is subject to the terms set forth by the local licensing authority.
Public park: Any outdoor playgrounds, fields, reservations and tot-lots, so-called, to which the public is invited and permitted. This includes, but is not limited to any public park adjacent to any public school or city operated building in the city of Cambridge.
Public place: An enclosed indoor area on public or private property where the public is invited or permitted, including but not limited to the following facilities: healthcare facilities, malls, municipal facilities, public transportation vehicles, retail food stores, retail stores, educational facilities, libraries, museums, theaters, banks, laundromats, indoor sports arenas, auditoriums, inn/hotel/motel lobbies and restrooms, auditoriums and any rooms or halls when used for a public meeting, public areas of banks and automatic banking lobbies, common areas of residential buildings, public restrooms, lobbies, staircases, waiting rooms, halls, exits, entrance ways, elevators accessible to the public and licensed child-card locations.
Public transportation vehicle: 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.
Retail Food Store: Any establishment selling food to the public for off premise consumption. "Retail Food Store" shall not include restaurants as defined in 8.28.110.
Retail Store: Any establishment selling goods, articles or personal services to the public, including such places as barbershops, hair salons, nail salons and tanning salons.
Smokeshop: Retail stores where the primary business is the sale of tobacco products;
Smoking: Inhaling, exhaling, burning or carrying any lighted tobacco product in any manner or in any form.

8.28.090 Prohibition of Smoking in Public Places

A. Smoking Prohibited:
No person shall smoke nor shall any person be permitted to smoke in any public place or municipal facility.

B. Election for coverage by private facilities:
The owner, manager, or other person in charge of a building or facility not covered by paragraph A of Section I. of this regulation may elect to prohibit smoking.

C. Posting notice of prohibition:
Every person having control of premises upon which smoking is prohibited by and under the authority of this Section I. of this regulation shall conspicuously display upon the premises "No Smoking" signs 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).

D. Exceptions:
Notwithstanding the provisions of paragraph A of this chapter, smoking may be permitted in the following places and/or circumstances:

(1) Private residences, except when used as a licensed child care facility or health care facility;
(2) University Dormitory rooms occupied by one (1) or more students, all of whom are smokers, who have requested in writing to be placed in rooms where smoking is permitted by the University;
(3) Inn, hotel, motel, bed and breakfast and lodging home rooms that are rented to guests that are designated as smoking rooms. Hotel and motel rooms rented to guests that are designated as "smoking rooms" may comprise no more than 25% of all rooms, leaving at least 75% smoke free at all times. A room so assigned shall have signs posted indicating that smoking is prohibited therein and shall have self-closing doors. No change in room designation shall take place without prior written approval by the Cambridge Public Health Department;
(4) Private or semiprivate rooms of nursing homes and long term care facilities, which is separately ventilated, occupied by one (1) or more patients, all of whom have requested in writing to be placed in rooms where smoking is permitted;
(5) Smokeshops provided such establishments prohibit entry to persons under the age of eighteen (18) at all times, and that such establishments conspicuously post signs at all entrances that warn patrons of the dangers of environmental tobacco smoke;
(6) Performers upon the stage, provided that the smoking is part of a theatrical production;
(7) Religious ceremonies where smoking is part of the ritual;
(8) Private clubs if all employees are members. When a private club is open to the public, the portion of said establishment open to the general public must be smoke free, separately enclosed and shall have self-closing doors;
(9) The Middlesex County Jail/House of Corrections or places of incarceration/detention.

8.28.100. Violations and Penalties:

B. As an alternative to initiating criminal proceedings, violations of this Section III of this ordinance may be enforced in the manner provided in MGL chap 40, sect. 21D. Any fines imposed under the provisions of this chapter shall enure to the city of Cambridge. For the purposes of this chapter, the following shall be enforcing officers: Police Officers; and employees of the License Commission, the Public Health Department and Inspectional Services Department or their designees.

C. Any person who desires to register a complaint under this section may request that the Cambridge Public Health Department initiate an investigation.

8.28.110 Definitions for restrictions on smoking in restaurants

Cambridge Public Health Department: The entity that provides public health services for the City of Cambridge, pursuant to St. 1976, c. 201.
City: the City of Cambridge
Enclosed Area: A space bounded by walls (with or without windows) from the floor to the ceiling and enclosed by doors. An enclosed area may include, but is not limited to, offices, rooms, and halls.
Inspectional Services Department: The City of Cambridge Department which is responsible for all laws and related City ordinances which pertain to the MA State Building Code, local zoning laws and certain articles of the State Sanitary Code and Cambridge municipal code.
License Commission: Composed of three commissioners under Chapter 95 of the Special Act of 1922; said commission regulates and issues licenses for restaurants, entertainment facilities and clubs within the City of Cambridge.
Restaurant: Any eating or entertainment establishment which possesses a common victualer license under the provisions of M.G.L. c. 140 including but not limited to any coffee shop, cafeteria, sandwich shop, private and public school cafeteria, which gives or offer food for sale to the public, guests, or employees for on-premises consumption. This includes those establishments that possess a common victualer license and/or an alcohol license as approved by the License Commission prior to 1986 and which is also approved by the License Commission to have food revenue incidental to the alcohol revenue during hours of operation.
Restaurants where food is incidental to alcohol: A restaurant which possesses a common victualer license and/or an alcohol license as approved by the License Commission prior to 1986 and which is also approved by the License Commission to have food incidental to the alcohol revenue during all hours of operation.
Smoking: Inhaling, exhaling, burning or carrying any lighted tobacco product in any manner or in any form.

8.28.120 Prohibition of Smoking in Restaurants

A. Smoking Prohibited:
No person shall smoke nor shall any person be permitted to smoke in any restaurant, except as otherwise provided in paragraph C of this chapter.

B. Posting notice of prohibition:
Every person having control of premises upon which smoking is prohibited by and under the authority of this Section I. of this regulation shall conspicuously display at the entry(s) of the premises and upon the premises "No Smoking" signs 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).

C. Exceptions:
Notwithstanding the provisions of paragraph A of this chapter, smoking may be permitted in the following place and/or circumstance:

(1) The outdoor or sidewalk seating portions of a restaurant provided that such outdoor seats are not enclosed except for the one side which adjoins the restaurant. One side of said areas may adjoin the building, provided that the outdoor space and the indoor space are separated by a solid wall and/or self-closing doors such that smoke cannot enter the indoor space at any time.

8.28.130. Violations and Penalties:

A. Any person who violates this chapter by 1) allowing smoking in a nonsmoking area or 2) allowing a minor into an area restricted to eighteen and older shall be subject to a fine in an amount of twenty-five dollars ($25) for a first offense, fifty dollars ($50) for a second offense, one hundred dollars ($100) for a third offense or subsequent offense within a twenty-four month period from the first offense. Each day a violation occurs will be considered a separate offense.

B. As an alternative to initiating criminal proceedings, violations of section 8.28.120 may be enforced in the manner provided in MGL chap 40, sect. 21D. Any fines imposed under the provisions of this chapter shall enure to the city of Cambridge. For the purposes of this chapter, the following shall be enforcing officers: Police Officers; and employees of the License Commission, the Health Department and Inspectional Services Department or their designees.

C . Any person who desires to register a complaint under this section may request that the Cambridge Public Health Department initiate an investigation.

8.28.140 Invalidity of Provisions:
In the event that any one or more of the phrases, sentences, clauses, or paragraphs contained in this Ordinance shall be declared invalid by the final and unappealable order, decree or judgement of a court of competent jurisdiction, this Ordinance shall be construed as if it did not contain such phrases, sentences, clauses, or paragrapgs.

8.28.150 Conflict with Other Laws and Regulations:
Not withstanding the provisions of the foregoing ordinance, nothing in this ordinance 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 regulations.

8.28.160 Implementation:
Implementation date will follow six (6) months after passage.

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