Section 665.055 - Enforcement(A) No provision of 105 CMR 665.055 shall be construed as a limitation on the emergency powers of the Department of Public Health of the Commonwealth or its Commissioner.(B)Local Enforcement.(1)General Procedures. Unless otherwise expressly provided in any general law to the contrary, each board of health may enforce 105 CMR 665.000, or otherwise at law or in equity in the same manner that local rules and regulations are enforced.(2)Emergency Procedures. Whenever an emergency related to tobacco products exists in which the interest of protecting the public health requires that ordinary procedures be dispensed with, the board of health or its authorized agent, acting in accordance with the provisions of M.G.L. c. 111, § 30, may, without notice or hearing, issue an order reciting the existence of the emergency and requiring that such action be taken as the board of health deems necessary to meet the emergency. Any person to whom such order is directed shall comply therewith within the time specified in the order, provided, however, that such fines and actions related to any violation within a retail establishment shall apply against the retailer and/or his or her business agent and not an employee thereof. Each day's failure to comply with the order shall constitute a separate offense. Upon compliance with the order and within seven days after the day the order has been served, he or she may file a written petition in the office of the board of health requesting a hearing. He or she shall be granted a hearing as soon as possible, but not later than ten days after the filing of the petition. The procedures for such hearing shall otherwise conform with the hearing requirements which would have existed had the order been issued under nonemergency circumstances.(C)Complaints. Any person who desires to register a complaint pursuant to 105 CMR 665.000 may do so by contacting the Board of Health or its designated agent(s) in the city, town, or other legally constituted governmental unit within the Commonwealth where the retail establishment is located.(D)State Enforcement.(1) Whenever any Board of Health has failed after a reasonable length of time to enforce 105 CMR 665.000 the Commissioner of Public Health of the Commonwealth or his or her designated representative may act for the Commonwealth in any way that the local board of health is authorized to act to effect compliance.(2) Upon the determination by the federal Food and Drug Administration or the federal Centers for Disease Control and Prevention or other regulatory authority that an electronic nicotine delivery system has been shown by substantial epidemiologic, laboratory, or other evidence to be the cause of an imminent danger to public health, the Commissioner of Public Health may place a ban or restriction on the sale of such electronic nicotine delivery system.(E)Service of Orders.(1) Unless otherwise stated in 105 CMR 665.000, orders issued under the provisions of 105 CMR 665.000 shall be served on all persons responsible for the violation, provided, however, that such fines and actions related to any violation within a retail establishment shall apply against the retailer and/or his or her business agent and not an employee thereof.(2) These orders shall be served in the following manner: (a) personally, by any person authorized to serve civil process;(b) by any person authorized to serve civil process by leaving a copy of the order at his or her last and usual place of abode;(c) by sending him a copy of the order by registered or certified mail, return receipt requested, if he is within the Commonwealth; or(d) if his or her last and usual place of abode is unknown or outside the Commonwealth, by posting a copy of the order in a conspicuous place on or about the premises and by advertising it for at least three out of five consecutive days in one or more newspapers of general circulation within the municipality wherein the building or premises affected is situated.(F)Hearings. (1)Procedure for Requesting and Holding Hearing. Unless otherwise specified in 105 CMR 665.055(F), the person or persons to whom any order has been served pursuant to any section of 105 CMR 665.000 may request a hearing before the Board of Health or the Department, as applicable, by filing with the Board of Health or the Department, as applicable, within seven days after the day the order was served, a written petition requesting a hearing on the matter. Upon receipt of such petition, the Board of Health or the Department, as applicable, shall set a time and place for such hearing and shall inform the petitioner thereof in writing. The hearing shall be commenced not later than 30 days after the day on which the order was served. The Board of Health or the Department, as applicable, upon application of the petitioner, may postpone the date of hearing for a reasonable time beyond such 30-day period if in the judgment of the Board of Health or the Department, as applicable, the petitioner has submitted a good and sufficient reason for such postponement.
(2)Hearing of Petitioner. At the hearing, the petitioner shall be given an opportunity to be heard and to show why the order should be modified or withdrawn.(3)Procedure by the Board after Hearing. After the hearing the Board of Health or the Department, as applicable, shall sustain, modify, or withdraw the order and shall inform the petitioner in writing of its decision. If the Board of Health or the Department, as applicable, sustains or modifies the order, it shall be carried out within the time period allotted in the original order or in the modification.(4)Public Record. Every notice, order, or other record prepared by the Board of Health or the Department, as applicable, connection with the hearing shall be entered as a matter of public record in the office of the clerk of the city, town, other legally constituted governmental unit within the Commonwealth, or in the office of the Board of Health or the Department, as applicable.(5)Hearing Petition Not Submitted or Sustaining of Order. If a written petition for a hearing is not filed with the board of health within seven days after the day an order has been served or if after a hearing the order has been sustained in any part, each day's failure to comply with the order as issued or modified shall constitute an additional offense.(G)Judicial Appeals. Any person aggrieved by the final decision of the Board of Health or the Department, as applicable, with respect to any order or other action taken with respect to 105 CMR 665.000 may seek relief therefrom in any court of competent jurisdiction, as provided by the laws of this Commonwealth.Adopted by Mass Register Issue 1412, eff. 3/6/2020.Amended by Mass Register Issue 1419, eff. 6/12/2020.