MAINE OFFICE OF THE ATTORNEY GENERAL Amber Desrosiers, MBA, - - PowerPoint PPT Presentation

MAINE OFFICE OF THE ATTORNEY GENERAL

Amber Desrosiers, MBA, ACSM-CPT Tobacco Enforcement Coordinator

Tobacco Enforcement Coordinator

 Is responsible for oversight and enforcement of all

tobacco related statutes under Title 22 representing the Department of Health and Human Services (DHHS) regarding public, retail tobacco sales, and workplace to reduce disease, disability, and death related to tobacco use.

Agenda

 Chapter 262  Chapter 263  Chapter 262-A  Tobacco 21  Chapter 558-C  Tobacco Violation Complaint Form  Contact Information

Title 22, Chapter 262: Smoking



§1541. Definitions

 Public Places 

§1542. Smoking prohibited in public places

 Early Childcare Centers 

§1543. Posting signs



§1549. Smoking in vehicles when minor under 16 years of age is present



§1550. Smoking in outdoor eating areas

 Chapter 562 §2491 (7.) Eating Establishment  Outdoor Dining Examples 

§1542 Limitations



§1545. Penalty



§1548. Enforcement



Web link to Title 22 M.R.S. §§1541-1548: http://www.mainelegislature.org/legis/statutes/22/title22ch262sec0.html

Definitions

 Public place means any place not open to the sky into which

the public is invited or allowed.

 Enclosed area means a space between a floor and a ceiling

that is demarcated on all sides by walls, windows, shutters, doors or passageways if it extends from the floor to within 4 feet of the ceiling or from the ceiling to within 4 feet of the floor.

 Smoking includes carrying or having in one's possession a

lighted or heated cigarette, cigar, or pipe or a lighted or heated tobacco or plant product intended for human consumption through inhalation whether natural or synthetic in any manner or in any form. “Smoking” includes the use of an electronic smoking device.

Public Places

 Public place means any place not open to the sky

into which the public is invited or allowed.

• Airports
• Banks
• Convenience stores
• Eating establishments
• Dental offices
• Grocery stores
• Healthcare facilities
• Health & Fitness Centers
• Hospitals
• Indoor sport arenas
• Laundromats
• Libraries
• Office building lobbies
• Pharmacies
• Post office
• Private and Public educational

facilities

• Retail Stores
• Salon and Spas
• Taxi vehicles
• Vehicle sales, repair and

maintenance

• Veterinary offices

Smoking Prohibited in Public Places

 Smoking is prohibited in all enclosed areas of public

places, outdoor eating areas as provided in section 1550, and all rest rooms made available to the public.

Early Childcare Centers

 Center Based

 Smoking is prohibited in all

enclosed areas of the business facility.

 Smoking is prohibited in a

facility-designated motor vehicle within 12 hours before transporting a child who is in the care of the child care facility, and whenever such a child is present in the vehicle.

 Smoking is prohibited in

• utdoor areas of the facility

where children may be present.

 Home Based

 Smoking is prohibited during

hours of operation as a child care or baby-sitting service.

 Outdoor areas on the

property wherever a child under care may be present.

 During hours of operation in a

motor vehicle

• wned/operated by facility

whenever a child is in the vehicle and 12-hours prior to transporting a child.

Posting Signs

 Signs must be posted

conspicuously in buildings and

• utdoors where smoking is

regulated.

 Designated smoking areas

must have signs that read "Smoking Permitted" with letters at least one inch in height.

 Places where smoking is

prohibited must have signs that read "No Smoking" with letters at least one inch in height or the international symbol for no smoking.

http://www.notobacco.org/photos/

https://www.mainepreventionstore.com/

Smoking in Vehicles

 Smoking is prohibited in a motor

vehicle by the operator or a passenger when a person who has not attained 16 years of age is present in that motor vehicle, regardless of whether the motor vehicle's windows are open.

 Prohibition on inspection or

search (may not be inspected or

searched solely because of a violation of this section).

 Not a moving violation (no points

deducted from license).

 Civil Violation of $50. http://gearheads.org/govt-ban-on-smoking-with-kids-in-cars- necessary-protection-or-unnecessary-intervention/

Smoking means inhaling, exhaling, burning or carrying a lighted cigarette, cigar, pipe, weed, plant, regulated narcotic or other combustible substance.

Outdoor Dining

 Outdoor eating area means a patio, deck or other property that is

partially enclosed or open to the sky that is permitted for outdoor eating or drinking under the control of an eating establishment, as defined in section 2491, subsection 7, as long as food or drink is served by the eating establishment to the public for consumption on the premises.

 Smoking is prohibited in an outdoor eating area if the outdoor

eating area or any portion thereof is open and available for dining and beverage service.

 An eating establishment with an outdoor eating area shall post signs

in accordance with section 1543, notify its patrons of the prohibition

• n smoking in outdoor eating areas and request that all persons

within an outdoor eating area comply with this section.

Eating Establishment

Any place where food or drink is prepared and served, or served to the public for consumption on the premises.

▪ Cafeterias, short order cafes, luncheonettes, grills, tearooms

▪

Coffee shops, sandwich shops

▪

Hotels, motels, boarding homes

▪

Restaurants, take-out restaurants, mobile eating places, roadside stands

▪

Soda fountains, bars, cocktail lounges, night clubs

▪

Industrial feeding establishments, schools,

▪

Retail frozen dairy product establishments

▪

Airports, parks, theaters,

▪

Recreational camps, and youth camps

Outdoor Dining Examples

 Restaurant on own

property with picnic tables

 Restaurant on a Main

Street with outdoor dining on sidewalk

 Drive-In Establishments  Fairs (Food Vendors)  Drive-Thru Restaurants

Maine Medical Use of Marijuana at Eating Establishments

 DHHS - Division of Licensing and Regulatory Services

(DLRS) stated that if a business has a no smoking policy that would include smoking and vaping of medical marijuana.

 If the business has a designated smoking area then

qualifying patients would be prohibited from smoking medical marijuana in the designated smoking area as it is a public place.

 DLRS is in agreement that smoking of medical

marijuana at the drive-in is prohibited under the Maine Medical Use of Marijuana Act

Limitations

 Business not open to public (Taxi cab)  Theater  Religious ceremony  Places of employment  Motel or Hotel rooms  Private Residences

 Home-based child-care  Landlord Disclosure Law L.D. 1067 (2011)  Workplace L.D. 1429 (2009)

 Beano or Bingo games

 The Chief of the State Police may issue licenses to operate high-stakes beano or

high-stakes bingo to a federally recognized Indian tribe.

 Tobacco Specialty Store  Off-track betting facility

Apartments

H.P. 802 - L.D. 1067 Landlord Disclosure Law

 An Act To Improve

Awareness of Smoking Policies in Maine Rental Housing

 Enforcement

Princeton on Back Cove, Portland

Tobacco Specialty Store

 Initial intent  Smoking a waterpipe or

hookah is prohibited in a tobacco specialty store that is newly licensed or that requires a new license after January 1, 2007.

 The on-premises service,

preparation or consumption of food or drink is prohibited in such a store after January 1, 2007.

 State vs. FDA entry for

persons under 18 years of age.

Off-track betting facility or simulcast racing facility at a commercial track

OTB’s in Maine:

 Favorites OTB (T&B Outback, Waterville)

 Does not permit smoking

 Bangor Raceway

 Does not permit smoking

 Sanford OTB (Midtown Mall)

 Does permit smoking

 Scarborough Downs

 Does permit smoking

 Winners Circle OTB

 (Brunswick) Does not permit smoking  (Lewiston) Does permit smoking in a small designated smoking room. The room

has a double door to try and stop the smoke from filtering. There is no seating in the room. Smoke and exit quickly motto. Scarborough Downs, Scarborough

Penalty & Enforcement

Penalty



A person who violates any provision of this chapter commits a civil violation for which a fine of $100 may be adjudged, except that a fine of up to $1,500 may be adjudged for each violation of this chapter in cases when a person engages in a pattern of conduct that demonstrates a lack of good faith in complying with this chapter.

 Enforcement  The Attorney General may

bring an action to enforce this chapter in District Court

• r Superior Court and may

seek injunctive relief, including a preliminary or final injunction, and fines, penalties and equitable relief and may seek to prevent or restrain actions in violation of this chapter by a person or any person controlling such person.

Title 22, Chapter 263: Offenses Against Public Health

 §1578-B. Tobacco use in elementary and

secondary schools prohibited

 §1580-A. Smoking in places of employment

 Workplace examples  Qualifying Club  Violation

 §1580-E. Smoking in state parks and state historic

sites

http://legislature.maine.gov/statutes/22/title22ch263sec0.html

Tobacco use in elementary and secondary schools

 Prohibition

 Tobacco use in the buildings or on the grounds of any

elementary or secondary school is prohibited.

 Exceptions

 Tobacco use may be permitted in classrooms only as part of

a bona fide demonstration during a class lesson, with prior notice being given to the school's administrator.

 Enforcement

 The principal of the elementary or secondary school, or the

principal's designee, shall enforce the law prohibiting and restricting tobacco use under this section.

Workplace Smoking Act of 1985

 This law shall be known as the "Workplace Smoking Act

• f 1985.”

 Business Facility: a structurally enclosed location or portion

thereof, including vehicles used in the course of work and

• utdoor areas under the control of an employer at which

employees perform services for their employer.

Burton M. Cross Building, Augusta

Workplace Smoking Policy

Purpose: To protect the employer and employees from the detrimental effects of environmental tobacco smoke.

1.

Each employer shall establish a written policy that prohibits smoking in all structurally enclosed location or portion thereof, including vehicles used in the course of work and outdoor areas under the control of an employer at which employees perform services for their employer.

2.

Smoking shall only be permitted outside in a Designated Smoking Area.

3.

The employer shall post and supervise the implementation of the written policy.

4.

The employer shall provide a copy of this policy to any employee upon request.

Designated Smoking Area

 An employer may designate an area outdoors for smoking

provided that is a minimum 20 feet from windows, entryways, vents, doorways or other openings and it is not in a location that will allow circulation of environmental tobacco smoke into the enclosed areas of the business facility, or a public place, in any way, e.g., through the ventilation system, open windows, and open doors, or any

• utdoor area where smoking is prohibited by law.

 A DSA is not required. An employer may adopt a 100% smoke-

free to 100% tobacco-free policy

 An area for smoking outdoors may be constructed to protect

employees from the weather as long as it is not an “enclosed area.”

Workplace Sample Policies

 Good  Complies with Maine’s Workplace Smoking Act of 1985.  Better  Complies with Maine’s Workplace Smoking Act of 1985 and

exceeds Maine law by its inclusion of a ban on tobacco smoking

• n the entire property, including within personal vehicles.

 Best  Complies with Maine’s Workplace Smoking Act of 1985. This

policy exceeds Maine law by its inclusion of a ban on the use of all tobacco products, including cigarettes, cigars, smokeless tobacco products, electronic smoking devices, and any new tobacco products of any and all types on the entire property under the control of the management of this worksite, including within personal vehicle while on the property.

Commercial Property (Mall)

• Commercial Property

Manager

• Sidewalks
• Multiple Businesses
• Restaurants

Portland Mall, Portland

Vehicles used in the course of work

http://www.hartt-trans.com/ http://www.jetportcab.com/

http://www.pressherald.com/2014/02/06/road- clearing_budgets_nearly_plowed_under_in_maine_/ http://bangordailynews.com/2013/09/07/news/nation/post al-service-to-offer-thousands-of-early-retirements/

Outdoor business

http://www.mainetv.net/flagger.htm

Longfellow's Greenhouse, Manchester Eastern Maine Homecare

Veteran Service Organizations



“Club” means a reputable group of individuals, including a veterans’ service

• rganization chartered under 36 United

States Code, Subtitle II, Part B (2004), incorporated and operating in a bona fide manner solely for purposes of a recreational, social, patriotic or fraternal nature and not for pecuniary gain, which by indicia of permanent status has:



Been in continuous operation and existence;



Regularly occupied, as owner or lessee, a suitable clubhouse or facility for use

• f members;



Held regular meetings;



Conducted its business through regularly elected officers;



Charged and collected dues from members;



Adopted a charter and bylaws clearly defining the purpose of the

• rganization; and



Operated with selective membership criteria.



“Qualifying club” means a veterans' service organization chartered under 36 United States Code, Subtitle II, Part B (2004) that is not open to the public or to any other club that was not open to the public and that was in operation prior to January 1, 2004.



Examples:

 Chartered:  AMVETS  American Legion  Veterans of Foreign War (VFW)  Complete list found at:

https://www.nrd.gov/other_services _and_resources/veterans_service_or ganizations/chartered_veterans_ser vice_organizations

 Elks  Fraternal Order of Eagles  Moose International

Exception: Qualifying Club



Beginning September 1, 2006, a qualifying club may vote to permit smoking in its business facility.



Policies concerning smoking must have been mutually agreed upon by the employer and all the employees before member voting.



Voting Procedures: Employee vs. Member



If one employee votes to prohibit smoking, smoking shall not occur and the vote stops.



If all employees agree to permit smoking then a second vote goes out to the members.



If 51% of members vote to permit smoking, then smoking may occur for up to three years.



If 51% of members vote to not permit smoking, smoking shall not occur.



The qualifying club may allow smoking under authority of this subsection for no longer than 3 years from the date of the vote.



No limit on how many votes can be conducted to permit or prohibit smoking.



If a club voted to permit smoking, only the members and their invited guest are permitted.



If a club voted to permit smoking and

• pens their facility to the public, then

smoking is not permitted on the premises. The club must comply with Public Smoking law.



If a club voted to permit smoking and did not hold another vote to maintain smoking, then smoking is prohibited when the three year vote date expired.

Violation

 Any violation of this section is a civil violation for

which a fine of not more than $100 may be adjudged, except that a fine of not more than $1,500 may be adjudged for each violation of this section in cases in which the employer has engaged in a pattern of conduct that demonstrates a lack of good faith in complying with the requirements of this

• section. The Bureau of Health has authority to enforce

provisions of this section.

Smoking in state parks and state historic sites

 A person may not smoke

tobacco or any other substance in, on or within 20 feet of a beach, playground, snack bar, group picnic shelter, business facility, enclosed area, public place or restroom in a state park

• r state historic site.

 "Smoking" has the same

meaning as in section 1541, subsection 6

 Violation/Enforcement

Title 22, Chapter 262-A: Retail Tobacco Sales

 §1551. Definitions  Electronic Cigarettes

 E-cig recommendations

 §1551-A. Retail tobacco sales license required  §1555-B. Sales of tobacco products

 Retail Sales  Sales to Minors Prohibited  Display of Prohibition of Sales to Juveniles  Manner of Display  Fines

 §1560. Nicotine Water  §1560-D. Flavored cigars

http://legislature.maine.gov/statutes/22/title22ch262-Asec0.html

Definitions

 Tobacco products includes any form of tobacco and

any material or device used in the smoking, chewing or

• ther form of tobacco consumption, including cigarette

papers and pipes.

 Tobacco distributor or distributor means a person

licensed as a distributor under Title 36, chapter 704.

 Licensed by Maine Revenue Services

 Tobacco retailer or retailer means a person located

within or outside the State who sells tobacco products to a person in the State for personal consumption.

 Licensed by DHHS Health Inspection Program

Electronic Cigarettes

 September 24, 2013

 Attorney General Mills asserts that

Maine’s definition of tobacco products covers electronic cigarettes (e-cigarettes) to preclude retail sales to youths.

 Retailers of e-cigarettes must license

with DHHS and abide by all Maine law governing the retail sale of tobacco products.

 FDA Deeming Regulation

effective August 8, 2016

 Cigarettes, smokeless tobacco

and loose cigarette tobacco.

 Extended authority to all tobacco

products, including e-cigarettes, cigars and hookah.

Retail Tobacco Licenses

 Retailers must first obtain a retail tobacco license from

DHHS Health Inspection Program.

 Licenses are due annually (April 1st to March 31st)

 Retail I – less than 30% sales  Retail II – 30 - 50 %  Retail III – greater than 50%  Retail III – Tobacco Specialty Store – 60% sales

 Limitation: Smoking is not prohibited  License may not be sold, transferred, assigned or

• therwise subjected to control by any person other than

the licensee.

Retail Sales

 Tobacco products may be sold at retail only in a direct,

face-to-face exchange in which the purchaser may be clearly identified.

 A person may not sell, furnish, give away or offer to

sell, furnish or give away a tobacco product to any person under 18 (21) years of age.

 Tobacco products may not be sold at retail to any

person under 27 (30) years of age unless the seller first verifies that person's age by means of reliable photographic identification containing the person's date

• f birth.

 Tobacco 21 goes into effect on July 1, 2018

Sales to Minors Prohibited

 A person under 18 (21) years of age may not

purchase, possess, or use cigarettes, cigarette papers or any tobacco product.

 A person under 18 (21) years of age may transport or

permit to be transported in a motor vehicle cigarettes, cigarette papers or tobacco products in the original sealed package in which they were placed by the manufacturer if the transportation is in the scope of that person's employment.

 A person under 18 (21) years of age may not offer

false identification in an attempt to purchase a tobacco product or to purchase, possess or use cigarettes, cigarette papers or any other tobacco product.

Display of Prohibition of Sales to Juveniles

 A dealer or distributor of

tobacco products shall post notice of prohibiting tobacco and cigarette paper sales to persons under 18 (21) years of age.

 Notices must be publicly

and conspicuously displayed in the dealer's

• r distributor's place of

business in letters at least 3/8 inches in height.

Manner of Display

 Tobacco products may be

displayed or offered for sale

• nly in a manner that does not

allow the purchaser direct access to the tobacco products.

 The requirements of this

subsection do not apply to the display or offering for sale of tobacco products in multi-unit packages of 10 or more units, in tobacco specialty stores or in locations in which the presence of minors is generally prohibited.

 This requirement does not

preempt a municipal ordinance that provides for more restrictive regulation of the sale of tobacco products.

Fines

Sales of tobacco products:



Civil violation for which a fine of not less than $50 and not more than $1,500, plus court costs, must be adjudged for any one offense.



An employer of a person who violates commits a civil violation for which a fine of not less than $50 and not more than $1,500, plus court costs, must be

• adjudged. The fine may not be suspended.

Possession and use of tobacco products, or use of false identification by minors is a civil violation for which the following fines may be adjudged:



First offense, a fine of not less than $100 and not more than $300 may be imposed.



Second offense, a fine of not less than $200 and not more than $500 may be imposed.



All subsequent offenses, a fine of $500 must be imposed and that fine may not be suspended. Display of prohibition of sales to juveniles:



Civil violation for which a fine of not less than $50 and not more than $200 may be adjudged for any

• ne offense

Tobacco 21 (Effective November 1, 2017):



Sales of tobacco products



An employer of a person who violates subsection commits a civil violation for which a fine of not less than $300 for the first offense, not less than $600 for the 2nd offense and not less than $1,000 for each offense thereafter, plus court costs, must be adjudged. The fine may not be suspended. Each day in which a violation occurs constitutes a separate violation.



Possession and use of tobacco products



A person who violates commits a civil violation and may be subject to completing tobacco- related education classes, diversion programs

• r specified work for the benefit of the State,

the municipality or other public entity or a charitable institution



Use of false identification by minors



First offense $100 - $300



Second offense $200 to $500



All subsequent offenses $500.

Flavored Cigars



Premium cigar means a cigar that weighs more than 3 pounds per 1,000 cigars and is wrapped in whole tobacco leaf.



A person may not sell or distribute or

• ffer to sell or distribute in this State

any flavored cigar unless the cigar is a premium cigar.

 5-A. Exemptions. Any flavored cigar

that the Attorney General determined had no characterizing flavor or was otherwise exempt under former subsection 5 is exempt from the prohibition on flavored non- premium cigars in subsection 2 so long as no material change is made to the cigar's flavoring, packaging or labeling subsequent to the Attorney General's determination.



Swisher Sweets Cigarillos: Grape, Blueberry and Tropical Fusion http://www.maine.gov/ag/forms/index.shtml

Retail Tobacco Compliance Check Inspection Programs

State

 Undercover Buy

 Agents  Supervisors  Minor (Buyer)  Minor (Witness)

FDA

 Undercover Buy

 Inspectors  Chaperones  Minor (Buyer)  Minor Witness

 Advertising & Labeling

 Inspectors only

Tobacco 21



Tobacco product



"Tobacco product" means any product that is made from or derived from tobacco, or that contains nicotine, that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled

• r ingested by any other means,

including, but not limited to, a cigarette, a cigar, a hookah, pipe tobacco, chewing tobacco, snuff or

• snus. "Tobacco product" also means

an electronic smoking device and any component or accessory used in the consumption of a tobacco product, such as filters, rolling papers, pipes and liquids used in electronic smoking devices, whether or not they contain nicotine.



Sales to persons who have not attained 21 years of age prohibited.

 A person may not sell, furnish, give

away or offer to sell, furnish or give away a tobacco product to any person who has not attained 21 years of age , unless the person has attained 18 years of age as of July 1, 2018.

 Tobacco products may not be sold at

retail to any person who has not attained 30 years of age unless the seller first verifies that person's age by means of reliable photographic identification containing the person's date of birth.

 Reminder: New fine structure

effective November 1, 2017

http://www.mainelegislature.org/legis/bills/getPDF.asp?paper=SP0391&item=9&snum=128

Chapter 558-C: Maine Medical Use of Marijuana Act

 §2426. Scope  Limitations. This chapter does not permit any person to:

 A. Undertake any task under the influence of marijuana when doing so would

constitute negligence or professional malpractice or would otherwise violate any professional standard

 B. Possess marijuana or otherwise engage in the medical use of marijuana:

 (1) In a school bus;  (2) On the grounds of any preschool or primary or secondary school; or  (3) In any correctional facility;

 C. Smoke marijuana:

 (1) On any form of public transportation; or  (2) In any public place;

 D. Operate, navigate or be in actual physical control of any motor vehicle,

aircraft, motorboat, snowmobile or all-terrain vehicle while under the influence

• f marijuana

http://www.maine.gov/dhhs/mecdc/public-health-systems/mmm/documents/MMMP-Rules-144c122.pdf

L.D. 88: An Act To Delay the Implementation of Certain Portions of the Marijuana Legalization Act: 1/27/2017

 Sec. 16. 7 MRSA §2452, sub-§§6  Personal use; violation.  A person 21 years of age or older may consume marijuana or

marijuana concentrate only if that person is:

 In a private residence, or on private property, not generally accessible by

the public.

 Limitations:

 The operator of a vehicle on a public way or a passenger in the vehicle

may not consume.

 A person may not consume in a private residence or on private property

used as a day care or baby sitting service during the hours in which the residence or property is being operated as a day care or baby sitting service.

 A person may not consume in a designated smoking area as provided

under the Workplace Smoking Act of 1985.

 Takes effect February 1, 2018. https://legislature.maine.gov/legis/bills/getPDF.asp?paper=HP0066&item=3&snum=128

Tobacco Violation Compliant Form

http://www.tobaccofreemaine.org/train_take_action/concerns.php

Contact Information

Amber Desrosiers, MBA, ACSM-CPT Tobacco Enforcement Coordinator Office of the Maine Attorney General Phone: 207-626-8889 E-mail: amber.desrosiers@maine.gov