[HISTORY: Adopted by the City Council of the City of Fitchburg 7-21-1992 by Ord. No. 199-92. Amendments noted where applicable.]
A. 
Tobacco is the major cause of preventable deaths in Fitchburg as it is throughout the United States.
B. 
The Fitchburg medical community has identified nicotine addiction to be a serious problem among the children and adolescents of Fitchburg.
C. 
The free distribution of tobacco products and the availability of self-service tobacco products have been demonstrated to result in the unlawful distribution of tobacco to minors.
D. 
The Fitchburg City Council adopts this chapter to protect and improve the health of the children of the City of Fitchburg and to prevent violations of Massachusetts State law prohibiting the provision of tobacco products to minors.
As used in this chapter, the following terms shall have the meanings indicated:
MINOR
Any individual under 18 years of age.
PERSON
Any natural person or any firm, partnership, company, corporation or other entity.
TOBACCO PRODUCT
Any product containing tobacco, including but not limited to cigarettes, cigars, chewing tobacco, snuff, pipe tobacco and smokeless tobacco.
VENDING MACHINE
Any self-service device which, upon insertion of money, tokens or any other form of payment, dispenses tobacco, cigarettes or any other tobacco product.
No person shall sell any tobacco product in the City of Fitchburg unless that person holds a valid retail tobacco sales permit obtained from the Fitchburg Board of Health. Such permit shall be renewed annually at a cost of $5. Before a tobacco permit is issued to a person, that person must first read and understand all of the provisions of this chapter. A separate permit shall be required for each place of business. A permit is not required to sell tobacco products from a vending machine; however, all such machines must be registered with the Board of Health by their owners. All tobacco vendors shall pay a fee of $45 for each location at which tobacco is sold. This fee shall be used to support the reasonable expenses of the City in performing an annual inspection and such other inspections and services as may be reasonably necessary for the effective enforcement of this chapter.
No free or nominal cost samples of tobacco or tobacco products shall be distributed or sold to minors. Coupons received through the mail or in periodicals are redeemable by permitted tobacco retailers.
No person shall sell tobacco by use of a vending machine or install or maintain a tobacco vending machine with the intent of making such sales except as provided in the following subsections:
A. 
Vending machines are permitted if they are equipped with a lockout device which prevents the machine from being operated until the person responsible for monitoring sales from the machine disables the lock. The locking device must be of a design which prevents it from being left in an unlocked condition and which will allow only a single sale when it is unlocked.
B. 
In addition, a vending machine is allowed only in establishments where a responsible person will be present to monitor the machine when the establishment is open.
C. 
Any vending machine permissible under Subsections A and B must be located such that it is well within the premises and close enough to the person controlling the machine that such person can determine the age of any person requesting permission to use the machine.
D. 
No sales of tobacco are permitted from a vending machine which also offers for sale any nontobacco product.
E. 
The vending machine must be registered as set forth in § 164-3 of this chapter.
Any person who sells tobacco products or who is responsible for monitoring sales from a tobacco vending machine shall request of any customer who is not obviously 18 years of age or older or who is not already known to be 18 years of age or older a photographic identification establishing the person's age. Positive proof of age must be established before any sale of tobacco is made.
Tobacco sales permit holders shall conspicuously post and reasonably maintain a notice at each cash register where tobacco products are sold which informs the clerk that it is illegal to sell tobacco products to minors. Tobacco vendors who sell tobacco products from a vending machine must maintain such a sign at the location where the device which operates the locking device is located. Such signs shall be available from the Board of Health at no charge.
Tobacco sales permit holders shall conspicuously post and reasonably maintain a notice at each cash register where tobacco products are sold which informs customers that it is the store's policy to refuse to sell tobacco products to minors. Tobacco vending machines must also be posted with such a sign. Such signs shall be available from the Board of Health at no charge.
All single packages of tobacco products must be kept either behind the counter or within plain sight of the sales clerk. All tobacco products must be sold in their original packaging. The sale of single cigarettes is forbidden.
Tobacco permit holders shall be responsible for properly training all employees regarding their responsibilities under these regulations. Permit holders shall obtain a written statement from each employee acknowledging that the employee has been given and has read and understands this chapter.
This chapter shall be enforced through inspections conducted by the Board of Health or the Police Department. The Director of Public Health, the Chief of Police, inspectors employed by the Board of Health and any police officer shall be considered enforcing persons within the meaning of MGL c. 40, § 21D. Such enforcing persons may, as an alternative to initiating criminal proceedings, give the offender written notice of noncriminal disposition within the meaning of MGL c. 40, § 21D. The fines imposed shall be as set forth in § 164-15. Inspections will be conducted once each quarter or more or less frequently, at the discretion of the enforcing agency, but in any event not less frequently than once each year.
Violations of §§ 164-3, 164-4, 164-5, 164-6, 164-7 and 164-10 shall be punishable by a fine and/or a suspension or revocation of the violator's tobacco sales permit. Fines shall be as follows: $100 for the first offense, $200 for the second offense and $300 for the third and any subsequent offenses in any twelve-month period. A merchant's tobacco permit may be suspended or revoked for a period determined by and at the discretion of the Board of Health or the Police Department. The Board of Health or the Police Department may, at its discretion, issue a warning in lieu of either a fine or permit suspension. Any fine under §§ 164-4, 164-5, 164-7, 164-8, 164-9, 164-10 or 164-11 will be assessed against the person who holds the tobacco permit unless that person can demonstrate that the employee who violated these regulations was properly trained as per § 164-12. Violations of § 164-6 shall be assessed against the owner of the vending machine or the person in charge and control of the premises in which the vending machine is located. The City of Fitchburg, by its enforcing authority, may enforce any of the provisions of this chapter through injunctive relief in a court of appropriate jurisdiction.
The Health Department or Police Department shall respond to any requests from tobacco retailers for assistance in training sales personnel. The Health Department shall provide copies of this chapter to tobacco retailers for the purpose of training their employees.
If any provision of this ordinance is declared invalid, the other provisions shall not be affected thereby but shall continue in full force and effect.
This ordinance will take effect 30 days after approval by the Mayor, except for § 164-6, which shall take effect 90 days after such approval.