City Council - Ordinance Committee

City of Chicopee City Council Ordinance Committee Members James Tillotson, Chair Fred Krampits, Vice Chair Frank Laflamme Gary Labrie Jerry Roy APPROVE 5-8-18 MINUTES March 27, 2018 The following are the minutes of a public hearing held Tuesday, March 27, 2018, at 6:30 PM in the City Council Chambers, Fourth Floor, City Hall Annex, 274 Front Street, Chicopee, MA 01013. Members Present: Tillotson, Krampits, Laflamme, Labrie, Roy Also Present: Dan Garvey (Associate City Solicitor), Councilor Courchesne, Councilor Zygarowski, Councilor Vieau, Lisa Sanders (Health Director), Elizabette Botelho (City Engineer) The meeting was called to order at 6:30 PM. In compliance with the open meeting laws the Chairman asked if anyone in the audience was recording the meeting. Hearing none the meeting continued. ITEM #1 Delete Chapter 256 Tobacco Vending Machines in its entirety And insert in place thereof Chapter 256 Tobacco Products § 256-1 Purpose. A. Tobacco use is a leading public health problem in the United States. There exists conclusive evidence that tobacco smoke causes cancer, respiratory diseases, various cardiac diseases, negative birth outcomes, allergies and irritations to the eyes, nose and throat. B. More than 80% of all smokers begin before age 18, and more than 3,000 young people begin smoking every day in the United States. Tobacco use by minors is a continuing problem with grave public health consequences. In recognition of the Surgeon General's conclusions that nicotine is as addictive as cocaine or heroin, action is needed to curtail the easy access of tobacco products to minors. C. Therefore, this chapter implements a strict and enforceable system to prevent access to and the illegal sale of tobacco products and nicotine delivery products to minors. § 256-2 Definitions. For the purpose of this chapter, the following definitions shall be applicable: 1 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. E-CIGARETTE Any electronic nicotine delivery product 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 solid nicotine or any liquid. This term shall include such devices whether they are manufactured as e-cigarettes, e-cigars, e-pipes or under any other product name. EMPLOYEE Any individual who performs services for an employer in return for wages or profit or performs services as a volunteer. EMPLOYER Any individual, partnership, association, corporation, trust or other organized group of individuals, including the City of Springfield or any agency thereof, who or which uses the services of two or more employees. INDIVIDUAL Any person who patronizes an area where tobacco products are sold. NICOTINE DELIVERY PRODUCT Any manufactured article or product made wholly or in part of a tobacco substitute or containing nicotine that is expected or intended for human consumption, but not including a product approved by the United States Food and Drug Administration for sale as a tobacco use cessation or harm reduction product or for other medical purposes and which is being marketed and sold solely for that approved purpose. Nicotine delivery products include, but are not limited to, e-cigarettes. PERMIT HOLDER Any person engaged in the sale or distribution of tobacco products directly to consumers who applies for and receives a tobacco sales permit or any person who is required to apply for a tobacco sales permit pursuant to these regulations, or his or her business agent. PERSON An individual, employer, employee, retail store manager or owner, or the owner or operator of any establishment engaged in the sale or distribution of tobacco products directly to consumers. SELF-SERVICE DISPLAY (also known as "FREESTANDING DISPLAYS") A display from which individual packs or cartons of tobacco products may be physically selected by a customer. TOBACCO PRODUCT Any product containing, made, 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, liquid nicotine, “eliquids”, or other similar products, regardless of nicotine content, that rely on vaporization or aerosolization. “Tobacco product includes any component or part of 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. VENDING MACHINES 2 Any machine or device designated for or used for the vending of cigarettes, cigars, tobacco or tobacco products upon the insertion of coins or other forms of payment. § 256-3 Sales to minors prohibited. A. In conformance with MGL c. 270, § 6, whoever sells a cigarette, or any cigarette paraphernalia, chewing tobacco, snuff, or any tobacco in any of its forms to any person under the age of 21 or, not being his parent or guardian, gives a cigarette, or any cigarette paraphernalia, chewing tobacco, snuff or tobacco in any of its forms to any person under the age of 21 shall be punished according to the provisions of § 256-11 B. No person or entity shall sell or permit cigarettes or other tobacco products to be sold to an individual without requesting and examining government-issued photographic identification establishing the purchaser's age as 21 years or greater, except that no such verification of age is required for any purchaser over the age of 26 or for mail-order sales. C. No person or entity shall sell or distribute nicotine delivery products to any person under the age of 21. Nicotine delivery products shall be subject to all sections of this Chapter 256, except § 256-8. Violators shall be punished according to the provisions of § 256-11. § 256-4 Posting state law; enforcement; violations and penalties. A. In conformance with MGL c. 270, § 7, a copy of MGL c. 270, § 7, shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell cigarettes at retail. The Massachusetts Department of Public Health shall provide the notice to be posted and made available from the Chicopee Department 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 single cigarette package 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 and shall be placed at a height of not less than four feet or greater than nine feet from the floor. For any other cash register that sell cigarettes, a notice shall be attached which is no smaller than nine square inches, which is the size 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 and shall be placed at a height of not less than four feet or more than nine feet from the floor. B. The Chicopee Health Department Director or their designee, and the Chicopee Police Department shall enforce this section. C. Whoever violates this provision shall be punished by a fine of $50. Any person unlawfully removing a copy so posted while said premises are used for the sale of cigarettes shall be punished by a of $10. § 256-5 Self-service displays. Self-service displays (also known as "freestanding displays") of tobacco products, from which individual packages or cartons may be physically selected by the customer, are only permitted in facilities where the retailer ensures that no person younger than 21 years of age is present, or permitted to enter, at any time and must be within 10 feet of the regular location and in plain view of the person designated to supervise the sale of tobacco products from self-service displays. § 256-6 Free distribution or sampling prohibited. 3 No person or entity shall, in or upon any part of the streets, parks, public grounds, public buildings, or other public places within the City of Chicopee, distribute free of charge any products containing tobacco for any promotion or other commercial purpose. § 256-7 Lockout device required on vending machines. All tobacco vending machines are prohibited; except that tobacco vending machines are permitted if equipped with a lockout device, in an establishment with a valid pouring liquor license, and located in facilities where the retailer ensures that no person younger than 21 years of age is present, or permitted to enter, at any time. A lockout device locks out sales from the vending machine unless a release mechanism is triggered by an employee. The release mechanism must not allow continuous operation of the vending machine and must be out of the reach of all consumers and in a location accessible only to employees. § 256-8 Out-of-package sales prohibited. The sale and distribution of loose cigarettes, or in packages that contain fewer than 20 cigarettes, in any form other than an original factory-wrapped package is prohibited. § 256-9 Permit for location and sales of tobacco required. A. The Chicopee Department of Health shall issue a "permit for location and sales" that will specify the name, address and approved location per the Chicopee Department of Health or its designated agent(s) for retailers who are required to be licensed by the state to sell tobacco products. B. All retailers who are required to hold a state license to sell cigarettes, and retailers who sell any other tobacco products, will also be required to hold and maintain a valid permit for location and sales from the City of Chicopee for each location at which tobacco products are sold. C. As part of the tobacco sales permit application process, the applicant will be provided with this chapter. 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 chapter. D. Each applicant is required to provide proof of a current tobacco sales license issued by the Massachusetts Department of Revenue, when required, before a tobacco sales permit can be issued. E. After receiving the permit, the merchant will receive signage from the Chicopee Department of Health and Human Services which states: "Sales of cigarettes or any tobacco products to persons under age 21 is illegal, MGL Chapter 270, Sections 6 and 7." Any merchant not posting said signage will be in noncompliance with this chapter and subject to penalties per § 256-11 of this chapter. Each tobacco sales permit shall be displayed at the retail establishment in a conspicuous place. F. 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. G. The term of the permit shall be one year if the licensee complies with the provisions of this chapter. H. The fee for a one-year tobacco retailer's permit for location and sales is $100 for each tobacco retail location. I. A permit for location and sales is nontransferable, except a new permit will be issued to a tobacco retailer who changes locations and has shown compliance pertaining to the provisions of this chapter. A new owner of an establishment that sells tobacco must apply for a new tobacco sales permit. No new permit will be issued unless and 4 until all outstanding penalties incurred by the previous permit holder and taxes owed to the City of Chicopee are satisfied in full. J. Any person or entity selling any tobacco products without said permit shall be subjected to a $50 per day until the Chicopee Department of Health receives an application and payment requesting issuance of a permit. K.All theatrical performances upon a stage or in the course of a professional film production which include smoking as part of the performance or production will be required to hold and maintain a valid performance smoking permit from the City of Chicopee. The fee for a one-year performance smoking permit is $250. § 256 – 10 Sales by employees. No commercial entity selling tobacco products at retail shall allow any employee to sell cigarettes or other tobacco products until such employee reads the Chicopee tobacco sales ordinance 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. Any employee who sells or provides cigarettes/tobacco products to a minor shall be d $100. § 256-11Violations and penalties; responsibility for compliance. A. Any permit holder who fails to comply with §§ 256-3 through 256-9 of this chapter shall be punished by a fine of $100. B. It shall be the responsibility of the permit holder in charge of the area where tobacco products are being sold to ensure compliance with all sections of this chapter pertaining to his/her place of business. C. The permit holder in charge of the area permitted for tobacco sales involved in a violation of § 256-3 or § 256-8 of this chapter shall receive: (1) In the case of a first violation, the permit holder in charge of the area permitted for tobacco sales, or persons not in compliance with the provisions of this chapter, shall receive a fine of $100. The Chicopee Department of Health shall give the permit holder notification of the ordinance, educational information and make the permit holder aware of the Chicopee Department of Health’s availability to conduct workshops related to the Massachusetts state laws and the local ordinance on the illegal sales of cigarettes/tobacco products to minors. The permit holder shall also be informed of what constitutes a violation, penalties and enforcement of the ordinance. (2) In the case of two violations within a fifteen-month period, the permit holder in charge of the area permitted for tobacco sales or persons (other than an employee) not in compliance with the provisions of § 256-3 of this chapter shall receive a fine of $200. (3) In the case of three violations within a fifteen-month period, the permit holder in charge of the area permitted for tobacco sales or persons (other than an employee) not in compliance with the provisions of this chapter shall receive a fine of $300 and the tobacco sales permit shall be suspended for seven consecutive business days. (4) In the case of four violations within a fifteen-month period, the permit holder in charge of the area permitted for tobacco sales or persons (other than an employee) not in compliance with the provisions of this chapter shall receive a fine of $300 and the tobacco sales permit shall be suspended for 30 consecutive business days. (5) In the case of five violations within a fifteen-month period, the permit holder in charge of the area permitted for tobacco sales or person (other than an employee) not in compliance with the provisions of this chapter shall receive a fine of $300 and the tobacco sales permit shall be revoked for the remainder of the current permit term or 12 months, whichever period is longer. 5 D. For any suspension or revocation, Chicopee Department of Health shall provide notice to the permit holder of the intent to suspend or revoke its tobacco sales permit, which date shall be no earlier than seven days after the date of said notice. The permit holder shall have an opportunity to be heard at a hearing. Such hearing shall be held before the Chicopee Health Commission. If, after a hearing, the permit holder is found in violation, and the permit to sell tobacco is revoked or suspended by the Commission, all tobacco products shall be removed from the premises for the duration of the revocation or suspension. Permit holders must reapply for a new permit each year. E. As an alternative to initiating criminal proceedings, violations of this chapter may be enforced in the manner provided in MGL c. 40, § 21D. Please note that currently the Housing Court Department, Western Division, processes and hears the so-called "21D noncriminal hearings." F. Each day any violation exists shall be deemed to be a separate offense. G. The Police Department and Health Department officers shall enforce this chapter. Any citizen who desires to register a complaint pursuant to this chapter may do so by contacting the Chicopee Department of Health and the Department shall investigate the complaint. H. Any employee of the permit holder who sells or provides tobacco products to a minor in violation of this chapter shall be subject to a fine of $100 for each occurrence. Chairman Tillotson stated that the Board of Health invited him, Councilor Zygarowski and Councilor McAuliffe to attend their meeting to discuss this matter. All were in attendance except Councilor McAuliffe. The Board of Health asked that the Council give the Health Department the courtesy to regulate cigarettes because cigarettes fall under their domain according to the state. Councilor Tillotson, Councilor Zygarowski and Attorney Garvey agreed. Lisa Sanders stated that the Board of Health voted to amend the age from 18 to 21. 165 cities in the state have adopted the age change as a health regulation; of these 3 have an ordinance. It will go into effect April 22, 2018. Convenience stores have already been notified. Councilor Laflamme stated that if this was going to proceed as an ordinance he would not be in favor because he feels that if you can go and fight for our country at the age of 18 you can make your own decisions. Councilor Zygarowski stated that he is glad that this is passed because he has been advocating for this for a long time. Motion made by Councilor Tillotson and second by Councilor Roy to approve. Committee vote 5 – 0 unfavorable. ITEM #2 Delete – Artisan Street – North side from the corner of Chicopee Street for a distance of 40 feet – Parking Prohibited Councilor Courchesne stated that after the CSO project the small portion of sidewalk on this side of the street was removed and now the walkway from the home goes directly into a parked car. The committee discussed the number of no parking signs that are installed to prevent people from parking too close to the intersection. Committee members felt that vehicles parked within 20 feet of the intersection should be ticketed as they are in violation. Some committee members stated that the 20 feet regulation needs to be enforced by the Police Department instead of installing no parking signs. Councilor Vieau stated that he will write a letter to the Chief of Police to enforce the 20 feet parking regulation. ITEM #3 6 Artisan Street – North side from the corner of Chicopee Street for a distance of 50 feet or a point immediately following walkway to the street – Parking Prohibited Here to Corner Motion made by Councilor Krampits and second by Councilor Tillotson to approve. Committee vote 5 – 0 favorable. ITEM #4 Leslie Street – Both sides 25 feet from the intersection of Chicopee Street – Parking Prohibited Here to Corner Motion made by Councilor Krampits and second by Councilor Tillotson to approve. Committee vote 5 – 0 favorable. ITEM #5 Whitman Street – Both sides 25 feet from the intersection of Chicopee Street – Parking Prohibited Here to Corner Motion made by Councilor Krampits and second by Councilor Tillotson to approve. Committee vote 5 – 0 favorable ITEM #6 Abbey Street – South side in front of house #33 for a distance of 52 feet – Parking Prohibited Between Signs Councilor Laflamme stated that this ordinance was requested by Jeff Neece, DPW Superintendent, to make it easier for the Water Department trucks to enter and exit the property. Motion made by Councilor Laflamme and second by Councilor Tillotson to approve. Committee vote 5 – 0 favorable. ITEM #7 Abbey Street – North side within 20 feet of the driveway to 27 Tremont Street east and west side – Parking Prohibited Councilor Laflamme stated that this ordinance was requested by Jeff Neece, DPW Superintendent, to make it easier for the Water Department trucks to enter and exit the property. Motion made by Councilor Laflamme and second by Councilor Tillotson to approve. Committee vote 5 – 0 favorable. ITEM #8 Clarendon Avenue – Both sides – 25 feet from the intersection of Meadow Street – Parking Prohibited Councilor Vieau stated that this was requested by a resident who sees cars parking at the corner and he is concerned that there may be drug activity. The resident has notified the Police Department. Motion made by Councilor Laflamme and second by Councilor Tillotson to approve. Committee vote 5 – 0 favorable. 7 ITEM #9 64 Peloquin Drive – Handicap Parking Councilor Tillotson stated that the Commission on Disability has not submitted recommendations regarding the requested handicap parking spaces. Elizabette Botelho stated that she is not in favor of this proposed ordinance because it would only create more congestion for emergency vehicle access. She further stated that her department has prepared a parking revision for Peloquin and Grocki. She continued that currently there are two handicap parking spaces in the area. She does not see the need for additional handicap parking. Councilor Vieau stated that a pilot parking program has been prepared for this area. Funding has not been available for this program. He continued that he would like to take the requests for handicap parking out of his hands. He feels that it should not be a decision made by the City Council especially for property under the care and control of the Housing Authority or the City of Chicopee. Councilor Vieau would like to see the requests go to the Commission on Disability and the Engineering Department and that pilot program could say that that’s enough handicap parking spaces for the neighborhood. Elizabette continued that you could not accommodate an additional parking space in this area it would have to be moved down the street. Handicap parking is not assigned to individuals. Anyone with a placard has a right to park in a handicap parking spot. The City cannot be providing assigned parking spaces. Councilor Roy stated that the Fire Department should have input on handicap parking requests. Councilor Vieau stated that he wants to do what the will of the Engineering Department is. Elizabette stated that she is not recommending approval. She continued that the city is not obligated to provide individual parking. The city is responsible to maintain safe access. Councilor Vieau stated that there are no handicap accessible units in that development. Elizabette stated that the city does not have to provide handicap parking at the front door of the individual. The parking must be in a safe location. Motion made by Councilor Laflamme and second by Councilor Tillotson to postpone to the call of the chair. Awaiting reply from the Commission on Disability. Motion passed. ITEM #10 52 Northern Drive – Handicap Parking Elizabette stated that she is not in favor of handicap parking at this location. There are no ramps in the area and there is one handicap parking spot in the area already. You cannot allow parking in an area where cars are backing out. Motion made by Councilor Krampits and second by Councilor Tillotson to postpone to the call of the chair. Awaiting reply from the Commission on Disability. Motion passed. ITEM #11 44 Meetinghouse Road – Handicap Parking Elizabette stated that she is not in favor of handicap parking at this location. There are no ramps in the area. Motion made by Councilor Laflamme and second by Councilor Tillotson to postpone to the call of the chair. Awaiting reply from the Commission on Disability. Motion passed. 8 ITEM #12 Hampshire Street – Hampshire Street going east at the intersection of Hartford Street – Isolated Stop Sign Motion made by Councilor Krampits and second by Councilor Tillotson to approve. Committee vote 5 – 0 favorable. ITEM #13 Delete – 11 Charbonneau Terrace – Handicap Parking Motion made by Councilor Krampits and second by Councilor Tillotson to delete from the ordinance. Committee vote 5 – 0 favorable. ITEM #14 Minutes – February 13, 2018 Motion made by Councilor Labrie and second by Councilor Tillotson to approve. Meeting adjourned at 7:23 PM. 9