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Board of Health Increases Fines for Violating Tobacco Regulations but Does Not Create New No-Smoking Locations

The Burlington Board of Health approved some tobacco regulation changes that increase penalties on businesses violating the terms of their permits and added some additional products to the list of what is prohibited for sale. It also clarified some language related to where nicotine delivery systems can be used. 

Health Director Susan Lumenello said the proposed changes were mostly to keep the town in line with the rules set by the states. She said a municipality can impose rules and penalties for violating those rules that are more strict than the state but cannot be less strict. 

“Therefore these amendments are necessary,” she told the board. 

One of the biggest changes comes in the form of increased penalties for businesses found selling tobacco or vaping products to anyone under the age of 21-years-old. Lumenello laid out the changes for any company found in violation within a 36-month period. They are: 

  • First offense: Fine increased from $100 to $1,000. There will also be a permit suspension of three consecutive business days. 
  • Second offense: Fine increased from $200 to $2,000. There will also be a permit suspension of seven consecutive business days. 
  • Third offense: Fine increased from $300 to $5,000. There will also be a permit suspension of 30 consecutive business days. 
  • Fourth offense: The Board of Health will hold a hearing to potentially permanently revoke the permit to sell these products. 

Lumenello further explained that if an establishment does have hearing for a fourth violation it can only focus on whether the violation actually occurred 

Other changes include adding any tobacco flavor enhancers and flavored rolling papers to the list of prohibited items. The board consider in other mitigating factors for leniency such as an employee being inexperienced or someone filling in made the sale.  

“They would be before the board but the only question would be whether the sale was made or not,” she said. “The board cannot go easier on the business than the state regulations.”  

The board voted in favor of adopting these regulatory changes. 

There was a separate discussion concerning where tobacco and vaping products can be used. 

The first part of the regulation changes in this regard was to clarify that the use of any nicotine delivery systems, such as vape pens, is prohibited wherever smoking is prohibited. 

The board then discussed the possibility of expanding smoking prohibitions to a variety of venues, including around municipal buildings, at municipally-owned parks and athletic fields, membership organizations and private clubs, hotels/motels/B&Bs, outdoor restaurant seating areas and at public transportation waiting areas. 

The issue with these rules, members of the board’s subcommittee on tobacco stated, is how to enforce them. 

When it came to municipal buildings they questioned the logistics of having a buffer area. If the board were, for example, to say no smoking within 25 feet of a building what if that limit puts them in the middle of a parking lot. Would the town then be compelled to set up smoking stations and who would be responsible for maintaining them? 

There is also enforcement. Lumenello said the responsibility to enforce the regulations falls on the owner of the building or the person who runs the building. In the case of municipal buildings that responsibility would fall on Town Administrator Paul Sagarino who told Lumenello that he would do whatever the board decided but that it would be difficult to enforce. 

The same is true for the town parks and athletic fields. Lumenello said in that case the responsibility would be on the Parks & Recreation Department and she read a response from Department Director Brendan Egan who also said enforcement would be difficult and that it’s not a problem they often encounter. 

“It would be very difficult for the staff to keep parks smoke free,” he wrote. “We don’t receive complaints about this now and I’d like to think that’s because it’s not a problem. Adding these provisions and asking town staff to enforce this would be time consuming and could lead to unnecessary confrontations. We could be chasing calls around town instead of performing the duties of the job.”

As for membership organizations and private clubs, the subcommittee recommended against prohibiting smoking in these areas. Health agent Marlene Johnson explained that smoking is already limited to certain areas of these clubs and that if they have public events no smoking is allowed in the rooms where they are taking place. 

In regards to hotels, motels and bed and breakfast locations the subcommittee said smoking in public areas is already prohibited and they see no reason to prohibited smoking in designated rooms if the establishment chooses to have that option. 

As for outdoor restaurant seating, Lumenello said most, if not all, of the restaurants in town already have this rule in place on their own. 

Finally, the subcommittee said, due to the enforcement issue, they did not believe it was feasible to prohibit smoking at public transportation waiting areas. 

In the end the board voted against adding any new smoking location prohibitions to the regulations. They did, however, suggest that each department in charge of public locations issue an advisory and put up signage discouraging smoking in public areas under their jurisdiction, especially anywhere where children often congregate.