Chapter 155, HEALTH, BOARD OF
[HISTORY: Adopted by the Board of Health of the Town of Lexington as indicated in article histories. Amendments noted where applicable.]
ARTICLE I, Persons With Bare Feet [Adopted 2-3-1975]
§ 155-1. Admittance to places where food or drink is prepared.
  The admittance of any barefooted person to all establishments licensed by the Lexington Board of Health as food service establishments, catering establishments, retail food stores, bakeries, commercial food processing establishments, commissaries, mobile food server or any establishment where food or drink is prepared for sale or service on the premises or else where food is served or provided for the public with or without charge shall be prohibited.
§ 155-2. Employment in food service operations.
  No employer shall permit barefooted persons to work in food service operations.
§ 155-3. Enforcement.
  The person, firm or corporation or his or its agents operating all such establishments as defined shall be responsible for making said regulations known to the general public and shall be responsible for seeking compliance within their respective establishments.
§ 155-4. Exceptions and exclusions.
  For the purpose of these regulations:
A. Establishment exceptions. All establishments operated as public, semipublic or private swimming pools, clubs, beaches or other types of establishments where going barefoot is an occupational necessity shall be exempt from these regulations, except that any or all food service operations operated in conjunction with these establishments shall be subject to the provisions of these regulations.
B. Persons excepted. All persons employed within all such excepted establishments shall be exempt from the provisions of these regulations to the extent that they shall not be employed within any food service operation operated in conjunction with exempted establishments unless attired with footwear.
§ 155-5. Effect on other regulations.
  These regulations shall in no way nullify the requirements of articles of the Sanitary Code or other regulations pertaining to health, disease and safety controls within all above-listed establishments.
§ 155-6. Severability.
  If any section, paragraph, sentence, clause or phrase of these rules and regulations shall be decided invalid for any reason whatsoever, such decision shall not affect the remaining portions of these regulations, which shall remain in full force and effect, and to this end the provisions of these regulations are hereby declared severable.
§ 155-7. Effective date.
  These rules and regulations were adopted by vote of the Board of Health of the Town of Lexington, Massachusetts, on February 3, 1975, and are to be in full force and effect on and after March 1, 1975, and shall before said effective date be published in a newspaper published in this town, and a copy thereof shall be deposited in the office of the Town Clerk.
ARTICLE II, (Reserved)
§§ 155-8 to 155-13.  (Reserved)
ARTICLE III, Smoking and Tobacco Products [Adopted 11-8-1994, as amended 1-5-1997; 6-11-1997; 6-12-2001]
§ 155-14. Findings.
A. There exists conclusive evidence that tobacco smoke causes cancer, respiratory diseases, various cardiac diseases, negative birth outcomes, allergies and irritation to the eyes, nose and throat to both the smoker and nonsmoker exposed to secondhand smoke.
B. Ongoing research attests to the health hazards of secondhand smoke. According to the federal government, 83% of worker health complaints related to indoor air quality are currently linked to smoking. Elimination of secondhand smoke will substantially prevent the amount of severe headaches, upper respiratory problems, cancer deaths and heart-related deaths.
C. The use of so-called smokeless tobacco has been shown to cause gum disease, cancer and heart-related disease.
D. Evidence further demonstrates that tobacco is extremely addictive. Nearly all first use of tobacco occurs before high school graduation and more than 3,000 young people begin smoking every day in this nation. Massachusetts youths are beginning smoking at very young ages. Due to the addictiveness of tobacco and the long-range health effects of tobacco use, ready access to cigarettes on the part of minors is a concern.
§ 155-15. Definitions.
  As used in this article, the following terms shall have the meanings indicated:
BAR or LOUNGE -- An area which is primarily dedicated to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages.
EMPLOYEE -- Any individual who is employed by any employer in consideration for direct or indirect monetary wages or profit and any person who volunteers his or her services for a nonprofit entity.
EMPLOYER -- Any individual, partnership, association, corporation, trust or other organized group of individuals, including the Town of Lexington or any agency thereof, who or which regularly uses the services of two or more employees.
ENCLOSED -- A space bound by walls with a door and under a roof.
FOOD SERVICE ESTABLISHMENT -- A place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes such place regardless of whether consumption is on or off the premises and regardless of whether there is a charge for the food. The term includes, but is not limited to, delicatessens that offer prepared food in individual service portions, mobile food units, pushcarts and catering operations. The term does not include residential kitchens, retail food stores or supply vehicles.
FREESTANDING DISPLAY -- See "self-service display."
INDOOR SPORTS ARENA -- Any sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller or ice rink, bowling alley or other similar place where members of the general public assemble to engage in physical exercise, participate in athletic competition or witness sports events.
MINOR -- A person less than 18 years of age.
MOBILE FOOD UNIT -- A vehicle-mounted food establishment designed to be readily movable.
MUNICIPAL VEHICLE -- Any vehicle owned by the town.
NONSMOKING AREA -- Any area that is designated and posted by the proprietor or person in charge as a place where smoking by patrons, employees or others is prohibited.
PUBLIC PLACE -- An enclosed, indoor area when open to and used by the general public, including but not limited to the following facilities: atriums; auditoriums; automatic teller machines; automobile repair and maintenance establishments; bar or lounge; common areas of apartment buildings containing four or more dwelling units, including stairwells, halls, entranceways, mailrooms, laundry facilities and storage areas; gasoline stations; licensed child care locations, including child care homes; educational facilities; elevators accessible to the public; clinics, hospitals, rest homes and nursing homes; retirement homes; health care providers; game arcades; hair cutting and cosmetology establishments; inn, hotel and motel lobbies, stairwells, halls, entranceways and public rest rooms; freestanding kiosks; laundromats; libraries; mobile food units; municipal buildings; museums; polling places; schools; school buses; service lines; retail stores; retail food outlets; indoor sports arenas; theaters; public transit facilities; and any clubs, rooms and halls when used for public meetings. A room or hall used for a private social function in which the sponsor of the private function and not the owner or proprietor has control over the seating arrangements shall not be construed as a public place.
RESTAURANT -- Any establishment serving food for consumption on the premises which maintains tables for the use of its customers. This includes cafeterias and cafeterias in the workplace.
RETAIL FOOD OUTLET -- Any establishment or section of an establishment where food and food products are offered to the consumer and intended for off-premises consumption. The term includes delicatessens that offer prepared food in bulk quantities only. The term does not include roadside markets that offer only fresh fruits and fresh vegetables for sale, food service establishments, bakeries or food and beverage vending machines.
RETAIL STORE -- Any establishment selling goods or articles or personal services to the public.
SELF-SERVICE DISPLAY -- Any display of cigarettes or tobacco products which is not attached to or on top of a checkout counter, or where distribution of the tobacco products is not directly controlled by an employee. Also referred to as "freestanding display."
SERVICE LINE -- Any indoor or outdoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service involves the exchange of money.
SMOKING -- The lighting of any cigar, cigarette, pipe or other tobacco product or having possession of any lighted cigar, cigarette, pipe or other tobacco product.
TOBACCO PRODUCT -- Cigarettes, cigars, pipe tobacco, chewing tobacco, snuff or tobacco in any of its forms.
WORKPLACE -- Any area within a structure or portion thereof at which persons are employed either by themselves or someone else. It also includes employee lounges, rest rooms, conference rooms, hallways, stairways and entranceways and within 10 feet of any entranceway to an office building in Zones CM, CRO and CD 1, 2 and 3 and within 10 feet of all town buildings.
§ 155-16. Prohibition on smoking in public places.
  No person shall smoke in any public place.
A. Restaurants. The prohibition on smoking in public places shall apply to all restaurants including all outdoor seating and takeout food establishments.
B. Public transit facilities. The prohibition on smoking in public places shall apply to buses, taxis and other means of public mass transit while operating within the boundaries of the Town of Lexington and indoor platforms.
C. Retail food outlets. The prohibition on smoking in public places shall apply to retail food outlets.
D. Schools. It shall be unlawful for any person, including all teaching and non-teaching personnel, to smoke in any public or private school, on school grounds or school buses at any time. The person(s) in charge of the school shall conspicuously post a notice or sign at eye level and in unobstructed view at each entrance and in the gymnasium, auditorium, cafeteria and all rest rooms and the principal's office indicating that smoking is prohibited therein and use any reasonable means to enforce this regulation.
E. Hotel/motel/inn rooms rented to guests. Hotels, motels and inns shall provide both smoking and nonsmoking rooms as requested by guests. The rooms designated will be posted as smoking prohibited or smoking permitted. Customers seeking accommodations will be routinely advised of the availability of nonsmoking rooms by check-in personnel. Smoking rooms may be designated by the proprietor(s) or other person(s) in charge of a hotel/motel/inn and may not exceed 25% of the total rooms licensed for guests. The nonsmoking rooms may not be located between smoking rooms. Nonsmoking room locations shall be so situated as to utilize physical barriers and/or ventilation systems to minimize involuntary exposure to tobacco smoke. Common rest rooms, entranceways, hallways, stairways and lobbies, as well as places in which smoking is prohibited by the Fire Marshal, law or regulation, may not be designated as smoking areas.
F. Implementation. The proprietor(s) or other person(s) in charge of a place covered by this regulation shall prevent smoking in nonsmoking areas by:
(1) Conspicuously posting a notice or sign at each entrance to the public place indicating smoking is prohibited therein and, in addition, conspicuously posting "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed by a red circle with a red bar across it) throughout the establishment.
(2) Using any other means which may be appropriate and reasonable to enforce these regulations.
§ 155-17. Prohibition on smoking at town recreation areas.
  No person shall smoke in the following town-owned recreation areas:
A. Swimming areas, including the Old Reservoir and the Town Swimming Pool.
B. Recreation playgrounds and tot lots.
C. Lexington school playing fields.
D. Little League fields.
§ 155-18. Smoking in workplace and municipal vehicles.
A. It shall be unlawful for any person to smoke in any workplace or municipal vehicle.
B. Each person having control of premises upon which smoking is prohibited by this regulation, or his or her agent or designee, shall conspicuously display upon the premises an appropriate number of signs reading "Smoking Prohibited by Law."
C. It shall be unlawful for any person having control of any premises at which smoking is prohibited by this regulation to knowingly permit, or for his or her agent to knowingly permit, a violation of this regulation.
§ 155-19. Violations and penalties; enforcement.
A. Any person who smokes in a nonsmoking area shall be subject to a fine of not less than $20 nor more than $50 for each violation.
B. Any proprietor(s) or other person(s) in charge of a public place or workplace who fail(s) to comply with these regulations shall be subject to both:
(1) A fine of up to $200 for each day a violation continues; and
(2) Suspension of any license issued by the Board of Health for that public place for a period of up to two days for each day of noncompliance.
C. In addition to the remedies provided by Subsections A and B above, the Board of Health or any person aggrieved by the failure of the proprietor or other person in charge of a public place or workplace to comply with any provision of this article may apply for injunctive relief to enforce the provisions of this article in any court of competent jurisdiction.
D. Any person aggrieved by the failure or refusal to comply with restrictions in any municipal building may complain in writing to the head of the department or agency occupying the area where the violation takes place. Said agency or department head shall respond in writing within 15 days to the complainant that he has inspected the area described in the complaint and has enforced the provisions of this article as provided herein.
§ 155-20. Effect on other laws.
  These regulations shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable health, safety or fire codes, regulations or statutes.
§ 155-21. Tobacco sales to minors prohibited.
A. Sales to minors.
(1) No retailer may sell tobacco products to any person younger than 18 years of age. Each retailer shall verify by means of photographic identification containing the bearer's date of birth that no person purchasing the product is younger than 18 years of age. No such verification is required for any person over the age of 26. For anyone who sells tobacco products to a minor, the store owner or manager and staff known to be in the immediate area of the sale at the time of the sale shall attend a training session on tobacco sales. In conformance with MGL c. 270, § 6, whoever sells tobacco products to a minor shall be punished by a fine of not less than $100 for the first offense, not less than $200 for the second offense and not less than $300 for any third or subsequent offense within three calendar years.
(2) If a tobacco retailer fails to attend a training session or fails to pay a fine as required by Subsection A(1), the Board of Health shall hold a hearing to determine if the following penalties will be imposed: prohibit a retail establishment from selling tobacco products by suspending its tobacco sales permit for a period of three days for the first offense, five days for the second offense and 10 days for the third offense.
(3) If a tobacco retailer sells tobacco products to minors on more than three occasions within three calendar years, the Board of Health shall hold a hearing to determine if the following penalties will be imposed:
(a) For selling tobacco products to minors on more than three occasions within three calendar years, prohibit a retail establishment from selling tobacco products for a period of six months by suspending its tobacco sales permit and/or denying the renewal or issuance of a tobacco sales permit; or
(b) For selling tobacco products to minors on five or more occasions within three calendar years, prohibit a retail establishment from selling tobacco products for a period of 12 months by suspending its tobacco sales permit and/or denying the renewal or issuance of a tobacco sales permit.
B. Posting state law.
(1) In conformance with MGL c. 270, § 7, a copy of MGL c. 270, § 6, 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 notice to be posted shall be that notice provided by the Massachusetts Department of Public 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 or placed at a height of less than four feet or greater than nine feet from the floor. For all other cash registers that sell cigarettes, a notice shall be attached which is no smaller than nine square inches, which is the size of the sign 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 or placed at a height of less than four feet or more than nine feet from the floor.
(2) The Board of Health or its enforcement officer(s) shall enforce this regulation.
(3) Whoever violates this provision shall be punished by a fine of not more than $50 for the first violation. If the violation is not corrected within seven days of notification, the fine shall be $50 for each day the violation continues. Any person unlawfully removing a copy so posted while said premises are used for the sale of tobacco products shall be punished by a fine of $50.
C. Self-service displays.
(1) Self-service displays of tobacco products from which individual packages may be selected by the customer are prohibited. Tobacco products must be located on, over or behind the checkout counter and must be obtained by the sales clerk. Multipacks or cartons must be within 10 feet and in plain view of the regular location of a person designated to supervise the purchase of tobacco products from the display.
(2) Self-service sales of cigarettes from mobile food units are prohibited.
D. Sales personnel. No person or entity selling tobacco products shall allow anyone to sell cigarettes or other tobacco products until such employee reads the Board of Health regulations and state laws regarding sale of tobacco and signs a sworn statement, a copy of which will be placed on file in the office of the Board of Health, that (s)he understands and will uphold the regulations.
E. Free distribution/sampling. No person or entity shall, except at full retail price and with a tobacco sales permit, in or upon any part of the streets, parks, public grounds, public buildings or other public places within the Town of Lexington, distribute any products containing tobacco for any promotional purpose, as a premium in a game or for other commercial purpose.
F. Reduced pricing. No free or nominal-cost tobacco products shall be distributed or sold within the Town of Lexington. No person or entity shall distribute coupons or vouchers redeemable for tobacco or tobacco products for free or at a nominal cost within the Town of Lexington. Such restrictions shall not apply to coupons in magazines, newspapers or other periodicals or affixed to packaging.
G. Vending machines. No person shall install or maintain a vending machine to distribute or sell tobacco products within the Town of Lexington.
H. Packaging. Sale or distribution of tobacco products in any form other than an original factory-wrapped package is prohibited. No person or entity may sell or cause to be sold, or distribute or cause to be distributed, any cigarette package that contains fewer than 20 cigarettes.
I. Penalties. Any person or entity who fails to comply with Subsections C, D, E, F, G and H shall be punished by a fine of not less than $100 nor more than $200 per day of violation. Enforcement shall be by the Board of Health or its designees.
§ 155-22. Tobacco sales permit.
A. No person, firm, corporation, establishment or agency shall sell tobacco at retail within the Town of Lexington without a tobacco sales permit issued by the Board of Health.
B. An application for a tobacco sales permit shall be filed within 30 days following the effective date of this Board of Health regulation on a form provided by the Lexington Board of Health.
C. The fee for the annual tobacco sales permit shall be $100.
D. The tobacco sales permit must be posted in conspicuous view of the public.
E. Each location shall require a separate tobacco sales permit.
F. Tobacco sales permits are nontransferable.
G. Penalties. Any person, firm, corporation, establishment or agency selling tobacco products at retail without a valid tobacco sales permit shall be punished by a fine of $100. If the violation is not corrected within seven days of notification, the fine shall be $100 for each day the violation continues.
§ 155-23. Severability.
  If any provision of these regulations is declared invalid or unenforceable, the other provisions shall not be affected thereby but shall continue in full force and effect.
ARTICLE IV, Massage and Establishments for Massage and Bodywork Practitioners and Establishments [Adopted 7-17-1996; amended 10-9-2001; 7-17-2002]
§ 155-24. License required; fee.
  No person shall practice massage or bodywork or conduct an establishment for giving massage or bodywork or related services, or vapor, pool shower or other baths for hire or reward or advertise or hold himself out as being engaged in the business of massage, or the giving of said baths, in the Town of Lexington without first obtaining a license from the Board of Health. The license fee for each establishment and therapist shall be set by the Board of Health. A license issued to an establishment or massage therapist is not transferable.
§ 155-25. Definitions.
  As used in this article, the following terms shall have the meanings indicated:
APPROVED -- Approved by the Lexington Board of Health.
APPROVED COURSE OF THERAPEUTIC MASSAGE -- A five-hundred-hour course of study approved by state or national professional associations or institutes with proven standards for practice, a code of ethics, and a grievance procedure, or alternate acceptable qualifications as described in § 155-27B. Organizations that may provide a source of professional certification may include, but are not limited to: American Massage Therapy Association, American Oriental Bodywork Therapy Association, American Polarity Therapy Association, Body-Mind Centering, Inc., Massachusetts Association of Body Oriented Psychotherapy and Counseling Bodywork, Massachusetts Professional Bodywork Association, the Rolf Institute and the Trager Institute.
CHAIR THERAPY -- Massage therapy or bodywork performed upon fully clothed individuals in a chair. Chair therapy may be conducted in a private or commercial establishment by a therapist licensed under these regulations.
ESTABLISHMENT -- The room or group of rooms, office, building, place of business or premises where massage or bodywork is practiced or where therapeutic or conditioning baths of water, vapor, or other substances are given.
HOME THERAPY -- Massage or bodywork therapy performed in the home by a therapist licensed under these regulations.
THERAPEUTIC BODYWORK -- A variety of hands-on techniques with specific anatomical focus such as Shiatsu, Neuromuscular Therapy and Rolfing. This term will also refer to body-centered psychotherapies, meaning therapies which incorporate into the counseling/therapeutic process a range of massage, bodywork, and movement techniques to help address emotional issues such as, but not limited to Bio-Energenics, Core Energies, and Hakomi.
THERAPEUTIC MASSAGE -- The act or technique of manipulating soft tissue of the human body by manual or mechanical means, to stimulate circulation, increase flexibility, decrease tension, decrease pain and to increase a person's health and well being. Therapeutic massage includes Swedish massage and other similar forms of therapy, which can involve muscle, nerve, or joint manipulation.
THERAPIST -- A person who provides massage or bodywork therapy performed in the home by a therapist licensed under these regulations.
§ 155-26. Exceptions and exclusions.
A. Individuals.
(1) These regulations shall not apply to the following individuals while engaged in the regular performance of the duties of their respective professions:
(a) Physicians, chiropractors, osteopaths or physical therapists who are duly licensed to practice their respective professions in the Commonwealth of Massachusetts.
(b) School athletic trainers.
(c) Nurses who are registered or licensed under the laws of the Commonwealth of Massachusetts.
(d) Barbers and beauticians who are duly registered under the laws of the Commonwealth of Massachusetts, except that this exemption shall apply solely to the massage of the neck, face, scalp and hair of the customer or client for cosmetic or beautifying purpose.
(2) Any person licensed to practice massage by any city or town in the commonwealth may, at the written request of a physician, attend patients in the Town of Lexington without taking out an additional license.
B. Establishments. These regulations shall not apply to hospitals, nursing homes, convalescent homes, home health agencies or other similarly licensed institutions.
§ 155-27. Requirements for individual license.
  No person shall be licensed to practice massage in the Town of Lexington unless he or she meets the following requirements:
A. Submits to the Lexington Board of Health a completed application form, in a form adopted by the Board of Health, containing all information therein requested. False statements in said application shall be grounds for denial, suspension or revocation of a license request.
B. Has written proof of having satisfactorily completed a five-hundred-hour course of study at an institution approved by the ABMP or the AMTA, or similar professional organizations for the therapy involved, or has provided evidence of sufficient training as described below. In the event an applicant for a therapist's permit does not practice any of the types of massage or bodywork therapy listed in § 155-25, and/or professional standards for the therapy do not require the same level of education and training as described in § 155-25 for individual therapists, the applicant shall submit documentation of schooling, internships, training and experience to demonstrate a sufficient level of competency to qualify for a state or national certification program, should one exist. Or, the applicant shall submit evidence that the training meets acceptable levels of education as recommended by professional organizations for that therapy. The Board of Health reserves the right to require a variance of any therapy that cannot meet the specific standards and qualifications required by this section of the regulation. The Board of Health will not license therapists offering services requiring less than 200 hours of specialized training in a given therapy.
C. Provides written evidence that he/she is at least 18 years of age.
D. Provides one front-face photograph at least two inches by two inches taken within 30 days prior to the submission of the first application, and upon request thereafter.
E. Provides written evidence of professional liability insurance.
F. Provides a nonrefundable annual license fee to be determined by the Board of Health at the time of application. License shall be renewed annually.
G. In addition, all licensed massage or bodywork therapists shall submit to the Board of Health and maintain on file a Massachusetts CORI (Criminal offender record information) check. This requirement will apply to all therapists who have lived and worked in Massachusetts at any time after attaining the age of 17 (including temporary stays, for example: college); or lived and worked in any state contiguous with Massachusetts at any time after attaining the age of 17. For practitioners whose permanent residence is not Massachusetts (out of state and international), information may be obtained from the applicant's local Chief of Police, or other local authority with access to relevant information, a criminal record check, or its recognized equivalent. If a permit is allowed to lapse for any period, a new criminal history check must be made. Sufficient evidence of such criminal conduct shall include criminal proceedings resulting in a conviction, guilty plea, or plea of nolo contendere or an admission of sufficient facts.
§ 155-28. Requirements for establishment license.
  Every establishment for the giving of massage, vapor, pool, shower or other baths shall meet the following requirements:
A. The applicant must submit to the Lexington Board of Health a completed application form containing all information therein requested. False statements in said application shall be grounds for denial of a license request.
B. Every licensee shall notify the Lexington Board of Health prior to any change of name, address or ownership.
C. No licensed establishment shall operate under any name or designation not specified on the license.
D. No licensed establishment shall be kept open between the hours of 11:00 p.m. and 7:00 a.m. unless specifically authorized in writing by the Director of Public Health.
E. Every licensee shall permit the Lexington Board of Health and/or Police Department to inspect his/her place of business at any time to the maximum extent permitted by law.
F. No establishment shall employ or shall cause to be employed as a massage therapist any person who has no license for the practice of massage in the Town of Lexington or whose massage license has been revoked or suspended within the past three years.
G. It is forbidden to employ or permit any person in or on the licensed premises to perform an act or acts, or to stimulate an act or acts, of sexual intercourse, masturbation, sodomy, flagellation or any sexual acts prohibited by law.
H. If food is served, the establishment must be in compliance with Article X of the State Sanitary Code.
I. No alcoholic beverages shall be permitted in that portion of a building used for the purpose of giving massage, vapor or other baths as determined by the Lexington Board of Health.
J. No person shall treat or be treated if afflicted with a reportable communicable disease. However, the person may treat or be treated when a written statement is received from a physician to the effect that the condition is no longer contagious.
K. The Board shall require proof of a negative tuberculin test with a new or renewal of a massage license, to be repeated every two years or at the discretion of the Board.
L. Every person practicing massage shall wash his or her hands thoroughly with soap and hot water immediately before and after treating a patron.
M. Smoking is not allowed in any building or establishment that is being used for the purpose of giving a massage.
N. All individuals employed by the establishment shall maintain a sufficient level of personal cleanliness as determined by the Board of Health and be properly clothed. It is forbidden to employ or permit any employee or other person to mingle with the patrons or to administer massage or baths while such person is unclothed or in such attire as to expose to view any portion of the pubic hair, cleft of the buttocks or genitals.
O. The establishment shall be connected to the public sewerage system.
P. All rooms shall be well lighted, well ventilated and properly heated in accordance with local and/or state regulations except during those periods declared as emergencies by local or state officials. Lighting in areas used for massage or baths shall be of such intensity that all parts of the room are clearly visible at all times.
Q. There shall be a safe, adequate supply of hot and cold running water at all times.
R. There shall be a toilet, hand-washing facilities and one or more treatment rooms. A shower is recommended, but when it is not provided, hypoallergenic soap, hot and cold running water and rubbing alcohol (70% Isopropyl by volume) shall be available in the establishment at all times.
S. When there is no shower available, the following notice must be prominently displayed or provided in writing to clients:
Notice To Clients: If you believe you are allergic to lotions, oils, or powders, please notify the therapist and they will not be used. If requested, the therapist will use rubbing alcohol or soap and warm water to remove oils, lotions or powders used during therapy.
This notice shall not be required in establishments where techniques are performed on clients fully clothed or where techniques are performed that do not use oil (e.g., Oriental Bodywork, etc.).
T. All areas of the establishment, including the fire equipment therein, shall be kept in a sanitary condition at all times. This shall include the regular application of cleansers and antibacterial agents.
U. All robes, sheets, towels and other items which may come in direct contact with the body shall be properly cleaned and stored in a sanitary manner. Single-service disposable items are acceptable.
V. No room or section of a building licensed for the purpose of giving massage, vapor or other baths shall be used as a bedroom.
W. The license of the establishment and all massage therapists must be displayed in a conspicuous place. In addition, all licensed massage or bodywork establishments shall maintain on file a Massachusetts CORI check for all massage or bodywork practitioners operating at the establishment who have lived and worked in Massachusetts at any time after attaining the age of 17 (including temporary stays, for example, college); or lived and worked in any state contiguous with Massachusetts at any time after attaining the age of 17. For practitioners whose permanent residence is not Massachusetts (out of state and international), information may be obtained from the applicant's local Chief of Police, or other local authority with access to relevant information, a criminal record check, or its recognized equivalent. If a permit is allowed to lapse for any period, a new criminal history check will be made. Sufficient evidence of such criminal conduct shall include criminal proceedings resulting in a conviction, guilty plea, or plea of nolo contendere or an admission of sufficient facts.
X. The establishment must comply with all local building code requirements.
Y. Establishment licenses shall only be granted to individuals who hold individual licenses issued by the Lexington Board of Health or to corporations whose principal officers hold such individual licenses.
Z. The Board of Health, at its discretion, may waive any of these requirements in its sole and absolute discretion.
 AA.A nonrefundable annual license fee to be determined by the Board of Health shall be paid.
§ 155-29. Hearing on denial of application.
  Any person or establishment whose application for a license or license renewal is denied may, within 10 days of said denial, request, in writing, a hearing upon the cause or causes of said denial. The Board of Health may set a time and place for said hearing within a reasonable time, not to exceed 30 days.
§ 155-30. Suspension or revocation of license.
A. No license granted under these regulations, whether for individual practitioners or for an establishment, may be suspended or revoked without a hearing, except that the Director of Public Health may suspend an establishment and an individual license for flagrant violation of the regulations or under emergency circumstances as determined by the Director. In the event that the Director shall suspend any license as herein provided, the licensee shall be entitled to have such suspension reviewed by the Board of Health at its next regularly scheduled meeting or within 14 days of receipt of a hearing request, whichever is sooner.
B. Such licenses may be suspended or revoked if, after a hearing, the Lexington Board of Health find that the licensee has:
(1) Made a material false statement on the application form;
(2) Violated or permitted a violation of any of these regulations or of any conditions of the license; or
(3) Violated or permitted a violation of any law of the commonwealth.
§ 155-31. Violations and penalties.
  Whoever violates any provisions of these rules and regulations shall be punished by a fine to be determined by the Board of Health for each day the violation continues or imprisonment for not more than six months, or both, in accordance with MGL c. 140, § 53, as amended. Each day that these violations exist shall constitute a separate violation.
§ 155-32. Severability.
  If any section, subsection, sentence, clause, phrase or portion of these regulations is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such provisions and such holding shall not affect the validity of the remaining portion thereof.
ARTICLE V, Use of Recombinant DNA Molecule Technology [Adopted 11-19-1997]
§ 155-33. Applicability.
  All activities associated with constructing and/or propagating recombinant DNA (rDNA) molecules and organisms and viruses containing rDNA molecules within the Town of Lexington shall be performed in strict accordance with these regulations and with the NIH Guidelines as defined in § 155-34 below. The regulations shall govern where they differ from the Guidelines. These regulations do not apply to finished products which contain rDNA molecules and which have been approved by other government regulatory agencies for medical or other purposes.
§ 155-34. Definitions.
  For the purpose of these regulations, the following definitions are adopted:
GUIDELINES:
A. The most recent version and any additional approvals of the National Institutes of Health Guidelines for Research Involving Recombinant DNA Molecules published in the Federal Register.
B. In the event that the National Institutes of Health shall discontinue or abolish their guidelines, those guidelines in effect and approved by the Board of Health at the time of such discontinuance shall remain in effect.
LARGE SCALE -- The use of more than 10 liters but less than 5,000 liters of rDNA culture.
SIGNIFICANT DEVIATION -- Any deviation that might have an adverse effect on personal or public health.
§ 155-35. Lexington Biosafety Committee.
A. A Lexington Biosafety Committee (LBSC) shall be established for the purpose of overseeing all uses of rDNA in Lexington and advising the Board of Health.
B. Specific responsibilities of the LBSC are as follows:
(1) Establishing policies, procedures and criteria to aid in the implementation of this article.
(2) Reviewing all amendments to the Guidelines before submitting its recommendations to the Board of Health for approval.
(3) Reviewing all applications for permits for the use of rDNA in Lexington for compliance with the Guidelines and conformity with such other regulations as the Board of Health may from time to time promulgate.
(4) Reviewing institutions' manuals, worker training programs, health-safety programs and monitoring procedures.
(5) Determining the manner in which institutions and institutional biosafety committees make reports, applications or recommendations to the LBSC and the type of information required; reviewing such reports, applications and recommendations and approving where appropriate; carrying out site visits to institutional facilities; and approving the community members of the Institutional Biosafety Committees (IBCs).
(6) Developing a procedure for members of institutions to report to the LBSC violations of these regulations, the Guidelines or any other health regulations the Board of Health may promulgate.
C. The LBSC shall be composed of the Chairman of the Board of Health or his/her designee, the Director of Health and a minimum of three other members to be appointed by the Town Manager and approved by the Board of Health. Members appointed by the Town Manager shall serve three-year terms, provided, however that of the first three members appointed to the Committee, one shall serve for a term of one year, one shall serve for a term of two years, and one shall serve for a term of three years.
§ 155-36. Registration.
A. rDNA users in the following categories are required to register proposed work with the LBSC through the Director of Public Health:
(1) Users whose experiments are all exempt from the NIH Guidelines under Section III-E.
(2) Users not constructing rDNA organisms but merely propagating them.
B. Written registration is required prior to commencement of work and includes:
(1) Name and c.v. of a person in the organization familiar with the proposed rDNA work and the NIR Guidelines.
(2) A brief summary from the above-named person describing the proposed work and giving:
(a) Name and type of organisms [host/donor (foreign DNA)/vector] being used.
(b) Reference to the section of the NIH Guidelines where the work falls.
(c) If recombinant molecules containing eukaryotic viruses are propagated in cells, give the approximate percentage of viral genome present.
(d) The scale (in filters) on which the organisms will be grown.
(e) An assurance that all work will be carried out following the NIR Guideline, where applicable, at the appropriate BL level and that exempt work will be done at BL1.
(f) Name of biological waste handler (if any) and written assurance that all waste will be disposed of according to all applicable federal, state and local codes.
(3) An annual report summarizing the work performed over the past year and addressing any ongoing work according to the format given in Subsection B(2) above.
(4) A registration fee of $100, due upon initial application and upon annual renewals.
C. Upon receiving and reviewing the submitted information, the LBSC may require additional information to be submitted, and it may recommend to the Board of Health other procedures or safeguards as it deems appropriate up to and including full permit application under the existing town ordinance.
§ 155-37. Permits.
A. All institutions planning to use rDNA in any way other than those described in § 155-36, Registration, must obtain a permit from the Board of Health with the prior approval of the LBSC before commencing said technology. All permits are issued for one year and may be revoked for cause.
B. Institutions seeking such a permit from the Board of Health must first submit the following to the LBSC:
(1) A plot plan showing the proposed location of the facility and a floor plan showing the internal layout of the facility.
(2) A list of all organisms, containment levels and decontamination procedures to be employed.
(3) A plan for a screening process to ensure the purity of the strain of host organisms used in the experiments and to test organisms resulting from such experiments for their resistance to commonly used therapeutic antibiotics. Host organisms obtained from independent laboratories shall undergo the same screening process.
(4) A plan for systematic monitoring of waste to assure that surviving rDNA organisms will not be released into the environment.
(5) A plan for systematic pest control management in laboratories, contiguous facilities and food service establishments in the same building. All waste disposal will be done in accordance with 105 CMR 480.000, Chapter VIII, State Sanitary Code, Storage and Disposal of Infectious or Physically Dangerous or Biological Waste.
(6) A plan for systematic security of the premises.
(7) Institutional Biosafety Committee (IBC).
(a) The Institutional Biosafety Committee (IBC), established by the Guidelines, shall have as members, in addition to the corporate representatives, one community representative, the Director of Health or his/her designee. The community representative shall be appointed by the Town Manager and approved by the LBSC.
(b) The IBC shall meet on a regular basis. All minutes of the IBC meetings must be forwarded to the Board of Health and the LBSC.
(c) The community member of the IBC and the Director of Health or his/her designee shall have no financial interest in the institution or any other institution in competition therewith, and such representatives shall be bound to the same provisions as to nondisclosure and nonuse of proprietary information and trade secrets as all other members of IBC, except to the extent necessary to alleviate any public health hazard. As used in this regulation, proprietary information and trade secrets shall be defined as set forth under the laws of the Commonwealth of Massachusetts.
(d) In accordance with the Guidelines the IBC, acting on behalf of the institution, reviews all rDNA use for compliance with the Guidelines and approves those projects that conform to the Guidelines. A description of each protocol approved by the IBC, including all organisms and the containment to be used, and a statement certifying that the experiment conforms to the Guidelines shall be filed with the LBSC and the Board of Health.
(e) All information sent to the Board of Health and the LBSC shall have any proprietary information and trade secrets removed therefrom. The full text shall remain on file in the records of the institution for inspection at all reasonable times by any member of the IBC.
(8) The institution's health monitoring, health surveillance and safety manuals, together with the plan for an appropriate medical surveillance program as determined by the IBC for all persons engaged in the use of rDNA. Such programs shall include, but shall not necessarily be limited to:
(a) A pre-employment medical examination for employees.
(b) Prompt reporting to the IBC of employee illnesses that are potentially related to rDNA use.
(c) Retention of medical and health records for at least 10 years. Medical or employee health records shall be made available for inspection and may be used for public health studies.
(d) A training program of safeguards and procedures for personnel.
(9) The name(s) of the principal investigator(s) responsible for enforcing the policies of the IBC.
(10) A plan for orienting representatives of the Lexington Health, Fire and Police Departments to the physical plant and to procedures to be utilized in the event of an emergency.
(11) Written agreement to allow inspection of facilities and pertinent records by the LBSC.
C. The LBSC shall review the institution's application for a permit and supporting documents and make its recommendation of the same to the Board of Health. Copies of the application, supporting documents and the LBSC recommendation shall be filed with the Board of Health and the Planning Board within 45 days after the application is filed with the LBSC. The Board of Health shall take final action on the permit application within 75 days after the application is filed with the LBSC. The period within which final action shall be taken may be extended for a definite period by mutual consent of the Board of Health and the applicant.
D. The fee for a permit granted by the Board of Health or annual renewal thereof shall be $500.
§ 155-38. Inspection and review.
A. All institutions involved in the use of rDNA shall allow inspection of their facilities, procedures and practices in order to confirm compliance with this article.
B. The Board of Health shall retain a professionally competent person, agency or institution to perform inspections and reviews. The results shall be reported to the Board of Health, the LBSC and the institution involved.
C. The Board of Health, its employees, all members of the LBSC and any individual or institution employed to perform inspections shall maintain the confidentiality of all proprietary information released to them by reason of this article.
§ 155-39. Restrictions.
A. rDNA use classified by the Guidelines as requiring any BL3 or BL4 physical containment measures as prescribed in Appendix G of the Guidelines under Standard Microbiological Practices, Special Practice Containment Practices, Containment Equipment or Laboratory Facilities shall not be permitted.
B. Experiments for which containment levels are not prescribed in the Guidelines shall be approved by the LBSC before the experiment is initiated.
C. Use of more than 5,000 liters of rDNA culture shall not be permitted.
D. There shall be no deliberate release into the environment, that is, to sewers, drains or the air, of any organisms containing rDNA.
E. The institution shall report within 24 hours to the Director of Health, followed by a written report within 15 days to the LBSC, any significant deviations from the Guidelines and any significant accidents or illnesses or releases related to the use of rDNA. An additional inspection of facilities and procedures may be deemed necessary by the LBSC based upon its judgment of the nature and extent of the problem.
§ 155-40. Violations and penalties.
A. Violation of the conditions of these regulations shall subject the violator to a fine of $500 per day, and, in addition, the facility in which the violation occurs may be closed by the Board of Health. Each day of violation shall constitute a separate and distinct offense.
B. Once a permit has been issued or a registration filed, it may be revoked by the Board of Health upon determination, after due notice and hearing, that the institution involved has materially failed to comply with these regulations, the permit agreements or the Guidelines or if in the opinion of the Board of Health the rDNA use causes a nuisance or adversely affects the public health, safety and welfare in Lexington.
§ 155-41. Assessment of expenses.
  The salaries and expenses paid by the town for inspections, reviews, staff and consultants for work directly related to carrying out the requirements of these regulations shall be assessed to the institutions holding permits under these regulations. An accounting of these costs will be furnished annually to each institution.
§ 155-42. Severability.
  Each part of these regulations is construed as separate to the end that if any section, item, sentence, clause or phrase is held invalid for any reason, the remainder of these regulations shall continue in full force and effect.
§ 155-43. Variances.
  The Board of Health may vary the application of any provision of these regulations with respect to any particular case when, in its opinion, the enforcement thereof would do manifest injustice, provided that the decision of the Board of Health is not in conflict with the spirit of these standards. Any variance granted by the Board of Health must be in writing with a copy available to the public at all reasonable hours in the office of the Town Clerk and in the office of the Board of Health.
ARTICLE VI, Animals [Adopted 4-7-1998; amended 5-8-2001]
§ 155-44. Definitions.
  As used in this article, the following terms shall have the meanings indicated:
EXOTIC ANIMALS -- Mammals, birds, reptiles, amphibians or other animals as defined by MGL c. 131, § 23.
LARGE ANIMALS -- Farm or domestic animals that weigh more than 20 pounds.
NUISANCE -- Any condition or environmental hazard that may be or poses a threat to the public health, including but not limited to improperly contained waste, garbage, odors, noise, structures, or a contaminant of the water, soil or air, or any other practice or use of a property that interferes with the legal rights of others by causing damage, annoyance, injury or other harm.
PERSON -- Every individual, partnership, corporation, firm, association, group, or governmental entity owning property or carrying on an activity subject to this regulation.
REGULATED ANIMALS -- Large and small domestic, farm-type, pet and exotic animals, including swine, horses, cows, goats, sheep, burros, llamas, deer, chickens, ducks, pigeons or other fowl, or other domestic and farm animals kept (farm-type animals kept outside homes) within the Town of Lexington. These regulations also apply to dogs and cats (§ 155-45C and D) and to exotic animals (§ 155-46D).
SMALL ANIMALS -- Any animal less than 20 pounds, such as fowl, rabbits, etc., excluding cats and small dogs, which are regulated under § 155-45C and D.
SMALL ANIMAL SHELTER -- Any building, enclosure, premises or portion thereof where more than five regulated small animals (e.g., fowl and rabbits) under 20 pounds are kept.
STABLE -- Any building, enclosure, premises or portion thereof where regulated animals of more than 20 pounds, other than house pets, are kept.
§ 155-45. Permits.
A. General.
(1) The Board of Health requires all persons who wish to maintain any large animal (including but not limited to swine, horses, cattle, goats and sheep) or more than five small animals (including but not limited to ducks, fowl, poultry, pigeons and rabbits) to obtain a permit for the keeping of such animals. A minimum of two acres is required to obtain a permit for the keeping of such animals from the Board of Health. The presence of two or more pigs or piglets requires a piggery permit from the Board of Health.
(2) Regulations for dogs and cats are described in Subsections C and D.
(3) No stable, or small animal shelter for more than five animals, shall be occupied or used within the town without first obtaining a permit from the Board of Health.
(4) All permits for keeping animals shall expire after January 31 of each year and may be revoked for cause and after a hearing by the Board of Health. No permit shall be transferred except with the approval of the Board of Health.
(5) The Conservation Commission will be notified by the Board of Health of all new animal permit applications that are subject to the Wetlands Act or Zone II restrictions.
(6) A permit will be issued only to someone who resides at the location for which the permit is requested.
(7) Before a permit will be granted, an Animal Inspector or officer of the Board of Health is to visit the property to determine fitness and suitability of the site.
(8) The owners or persons in control of any buildings or premises in which animals are kept shall keep the buildings and premises clean and free from decaying food, filth, dirt, stagnant water and animal wastes and shall provide a pit constructed of concrete or another suitable plan, approved by the Board of Health, for the storage and disposal of manure.
(9) No person shall store manure within 100 feet of any property line, wetland or well.
(10) Manure shall be spread upon land only when such land is in condition to plow, and manure so spread shall be plowed under within 48 hours.
(11) All structures must comply with applicable zoning regulations.
(12) No stable or small animal shelter shall be built within 100 feet of a wetland. No pasture, corral or pen shall be located within 25 feet of a wetland.
(13) No stable shall be located within 100 feet from a dwelling (excluding an owner-occupied dwelling). No small animal shelter shall be located within 25 feet of a dwelling (excluding an owner-occupied dwelling).
(14) All authorized animals must be confined to their permitted property.
(15) Adequate water supply must be available for animals on site.
B. Permits for piggeries. Permits for more than two swine shall be subject to the following conditions, with which the holder thereof must in all respects comply:
(1) No pens or enclosure shall be located within 150 feet of any public or private way.
(2) In pens, swine shall be fed from non-wooden troughs kept clean and in good repair. If the swine are not in pens, they shall be fed from platforms at least one foot from the ground on all sides, the air space underneath to be kept clear and clean. Food shall never be given to the swine from the ground or allowed to accumulate on the ground around the platform or trough. Unless fed to the swine immediately, all swill, garbage or refuse brought upon the premises shall be kept in leakproof covered receptacles. All rotted garbage shall be removed daily.
(3) The feeding places shall be cleaned once each day and all refuse and manure removed. Manure and refuse in outdoor pens shall be cleaned out of pens at least twice weekly.
C. Permits for cats. No more than five cats may be kept at a single residence in the Town of Lexington without a permit from the Board of Health. Persons wishing to breed cats must first apply for a breeder's license from the Board of Health and must provide documentation as to breeding facilities on the premises. Owners must be able to provide evidence of rabies vaccinations for all cats maintained at any residence in Lexington. The Board of Health may take such action as it finds necessary to remove excess (i.e., more than five) cats from a given residence or area in order to protect the public health.
D. Permits for dogs. No more than five dogs may be maintained at any residence in the Town of Lexington without a permit from the Board of Health. Persons wishing to breed dogs must first obtain a breeder's license from the Board of Health and must supply documentation as to breeding facilities. Owners must comply with all applicable state and local laws and bylaws concerning rabies vaccinations and animal control. The Board of Health may take such action as it finds necessary to remove excess (i.e., more than five) dogs from a given residence or area in order to protect the public health.
§ 155-46. Other animal regulations.
A. No person shall own or keep within the limits of this town any animal which, by barking, biting or howling, or in any other manner, disturbs the peace and quiet of any person, and no person shall own or keep within the limits of this town any bird or fowl which, by screeching or crowing or by any other noise, disturbs the peace and quiet of any person.
B. Any animal deemed to be dangerous in the view of the Board of Health, its agents or the Police Department may be removed or destroyed without prior notification of the owner.
C. No person within the town shall feed any wild animals, including, without limitation, ducks, geese and raccoons, or any homeless dogs or cats, except birds through freestanding bird feeders or bird feeders attached to a private residence. Persons feeding their own domestic animals shall do so only in a shelter space that is inaccessible to wild or roaming animals.
D. No person within the town shall possess, maintain, propagate, cultivate or deal in wild or exotic animals within the meaning of MGL c. 131, § 23, unless notice thereof has been filed with the Board of Health and all permits required by said § 23 or otherwise have been obtained.
§ 155-47. Inspections.
A. If deficiencies on the property in any way affect the well-being of the animal, the immediate neighborhood and/or the public health and are found upon routine inspection by the Animal Inspector or upon complaint received by the Board of Health, and an inspection confirms the validity of such complaint, a representative of the Board of Health or its agent may issue a written order to the person or persons having control of the premises to correct the offending deficiencies. Failure to comply with said order or repeat offenses may result in fines of up to $50 for each violation, revocation of the permit to keep animals or other penalties.
B. Failure to comply with said warning or repeat offenses may result in fines for each violation under this article of the Lexington Health Regulations and Chapter 1 of the Lexington Town Bylaws.EN
C. The owner or agent of the owner of animals must reside on the property where the animals are stabled unless approved under special permit by the Board of Health.
§ 155-48. Administration.
A. Fees. A fee of $10 shall be paid for each permit to keep an individual animal. A twenty-five-dollar late filing fee shall be imposed on all permits that are renewed more than 60 days late.
B. Renewals. Renewals shall be completed by February 1 of each year. If any complaints are received regarding a permitted premises and are investigated and verified by the Animal Inspector within the year prior to the renewal date, a reinspection must be completed one month prior to the renewal date. The Animal Inspector will then submit a detailed written report to the Board of Health, which will review the information and act on the renewal application.
C. Exemptions. Permitted, preexisting, nonconforming uses may continue to operate unless the Board of Health determines that the health or safety of the public is at risk. Such situations will then be reviewed and reconsidered by the Board of Health.
D. Special permits. The Board of Health may issue a special permit upon written request for a variance to the above regulations.
§ 155-49. Enforcement; variances.
A. Enforcement.
(1) The Board of Health may, at its discretion, take action to control any dog, cat or any other animal of any type that becomes either a nuisance or a threat to the public health, including placement in a shelter, trapping or euthanization. Any dog or cat or other animal removed by the Board of Health will be detained for 10 days or according to the policy of the shelter in which it is placed. If, at the end of 10 days or other specified period no owner has come forth, the Board of Health may transport the animal to an appropriate facility for further keeping, spay or neuter the animal, vaccinate the animal or have it euthanized.
(2) Cats for which no proof of rabies vaccination is available must be vaccinated by the owner within 10 days of notice by the Board of Health. Cats with no identifiable owner will be detained for 10 days, during which time the cat(s) may be vaccinated by order of the Board of Health. Owners will be required to pay reasonable fees for vaccination, holding in a shelter, spaying or neutering, or other services in order to repossess any animal for which the Board of Health has retained and ordered such services.
B. Variances. Variances to the above regulations may be requested from the Board of Health. Variances must be requested in writing, and the Board of Health may require a hearing.
ARTICLE VII, Establishment of Special Accounts [Adopted 4-7-1998]
§ 155-50. Authority to impose fees for consultants.
  As provided by MGL c. 44, § 53G, the Lexington Board of Health may impose reasonable fees for the employment of outside consultants engaged by the Board of Health for review of any application submitted to the Board of Health pursuant to the requirements of the Subdivision Control Law, the State Environmental Code or any other state or municipal statute, bylaw or regulation, as they may be amended or enacted from time to time.
§ 155-51. Deposit of funds in special account.
  Funds received by the Board of Health pursuant to this regulation shall be deposited with the Town Treasurer, who shall establish a special account for this purpose. Expenditures from this special account may be made at the direction of the Board of Health without further appropriation as provided in MGL c. 44, § 53G. Expenditures from this special account shall be made only in connection with the review of a specific project or projects for which a review fee has been collected from the applicant. Failure of an applicant to pay a review fee shall be grounds for denial of the permit application.
§ 155-52. Notice of selection of consultant.
  The Board of Health shall give written notice to the applicant of the selection of an outside consultant, which notice shall state the identity of the consultant and the amount of the fee to be charged to the applicant. Such notice shall be deemed to have been given on the date it is mailed or delivered.
§ 155-53. Appeal by applicant.
  The applicant may appeal the selection of the outside consultant to the Board of Selectmen, which may disqualify the outside consultant selected only on the grounds that the consultant has a conflict of interest or does not possess the minimum required qualifications. The minimum qualifications shall consist of either an educational degree in or related to the field at issue or three or more years of practice in the field at issue or a related field. Such an appeal must be in writing and received by the Board of Selectmen, and a copy received by the Board of Health, within 10 days of the date of the notice of the selection of the consultant. The required time limits for action upon the application shall be extended by the duration of the administrative appeal.
ARTICLE VIII, Floor Drains [Adopted 11-18-1998]
§ 155-54. Findings and purpose.
A. Findings.
(1) Floor drains in industrial and commercial facilities are often tied to a system leading to a leaching structure (e.g., dry well, cesspool or leach field) or a septic system;
(2) Poor management practices and accidental and/or intentional discharges may lead petroleum and other toxic or hazardous materials into these drainage systems in facilities managing these products;
(3) Improper maintenance or inappropriate use of these systems may allow the passage of contaminants or pollutants entering the drain to discharge from the leaching structure or septic system to the ground;
(4) Discharges of hazardous wastes and other pollutants to floor drains leading to leaching structures and septic systems have repeatedly threatened surface and ground water quality throughout Massachusetts; and
(5) Surface and ground water resources in the Town of Lexington contribute to the town's drinking water supplies.
B. Therefore, the Town of Lexington adopts the following regulation, under its authority as specified in § 155-55, as a preventative measure for the purposes of:
(1) Preserving and protecting the Town of Lexington's drinking water resources from discharges of pollutants to the ground via floor drains; and
(2) Minimizing the threat of economic losses to the town due to such discharges.
§ 155-55. Authority and applicability.
  The Town of Lexington Board of Health adopts the following regulation pursuant to authorization granted by MGL c. 111, §§ 31 and 122. The regulation shall apply, as specified herein, to all facilities, existing and new, within the Town of Lexington.
§ 155-56. Definitions.
  For the purposes of this regulation, the following words and phrases shall have the following meanings:
COMMERCIAL AND INDUSTRIAL FACILITY -- A public or private establishment where the principal activity is the supply, sale and/or manufacture of services, products or information, including but not limited to manufacturing, processing or other industrial operations; service or retail establishments; printing or publishing establishments; research and development facilities; small- or large-quantity generators of hazardous waste; laboratories; and hospitals.
DEP -- The Massachusetts Department of Environmental Protection.
DISCHARGE -- The accidental or intentional disposal, deposit, injection, dumping, spilling, leaking, incineration or placing of toxic or hazardous material or waste upon or into any land or water so that such hazardous waste or any constituent thereof may enter the land or waters of the commonwealth. "Discharge" includes, without limitation, leakage of such materials from failed or discarded containers or storage systems and disposal of such materials into any on-site leaching structure or sewage disposal system.
FLOOR DRAIN -- An intended drainage point on a floor constructed to be otherwise impervious which serves as the point of entry into any subsurface drainage, treatment, disposal, containment or other plumbing system.
LEACHING STRUCTURE -- Any subsurface structure through which a fluid that is introduced will pass and enter the environment, including but not limited to dry wells, leaching catch basins, cesspools, leach fields and oil/water separators that are not watertight.
OIL/WATER SEPARATOR -- A device designed and installed so as to separate and retain petroleum-based oil or grease and flammable wastes as well as sand and particles from normal wastes while permitting normal sewage or liquid wastes to discharge into the drainage system by gravity. Other common names for such systems include MDC traps, gasoline and sand traps, grit and oil separators, grease traps and interceptors.
TOXIC OR HAZARDOUS MATERIAL -- Any substance or mixture of physical, chemical or infectious characteristics posing a significant, actual or potential hazard to water supplies or other hazard to human health if such substance or mixture were discharged to land or water of the Town of Lexington. Toxic or hazardous materials include, without limitation, synthetic organic chemicals, petroleum products, heavy metals, radioactive or infectious wastes, acids and alkalis and all substances defined as toxic or hazardous under MGL c. 21C and c. 21E or Massachusetts hazardous waste regulations (310 CMR 30.000) and also include such products as solvents, thinners and pesticides in quantifies greater than normal household use.
USE OF TOXIC OR HAZARDOUS MATERIAL -- The handling, generation, treatment, storage or management of toxic or hazardous materials.
§ 155-57. Prohibited acts.
  With the exception of discharges that have received (or have applied for and will receive) a DEP-issued permit prior to the effective date of this regulation, no floor drain(s) shall be allowed to discharge, with or without pretreatment (such as an oil/water separator), to the ground, a leaching structure or septic system in any industrial or commercial facility if such floor drain is located in either:
A. An industrial or commercial process area;
B. A petroleum, toxic or hazardous materials use and/or waste storage area; or
C. A leased facility without either Subsection A or B of this section but in which the potential for a change of use of the property to a use which does have either Subsection A or B is, in the opinion of the Board of Health or its agent, sufficient to warrant the elimination of the ground discharge at the present.
§ 155-58. Requirements for existing facilities.
A. The owner of a facility in operation prior to the effective date of this regulation with a prohibited (as defined under § 155-57) floor drain system shall, as required under § 155-59:
(1) Disconnect and plug all applicable inlets to and outlets from (where possible) applicable leaching structures, oil/water separators and/or septic systems.
(2) Remove all existing sludge in oil/water separators, septic systems and, where accessible, leaching structures. Any sludge determined to be a hazardous waste shall be disposed of in accordance with state hazardous waste regulations (310 CMR 30.000). Remedial activity involving any excavation and/or soil or groundwater sampling must be performed in accordance with appropriate DEP policies.
(3) Alter the floor drain system so that the floor drain shall be either:
(a) Connected to a holding tank that meets all applicable requirements of DEP policies and regulations, with hauling records submitted to the Lexington Board of Health at the time of hauling;
(b) Connected to a municipal sanitary sewer line, if available, with all applicable DEP and local permits; or
(c) Permanently sealed. Any facility sealing a drain shall be required to submit for approval to the Board of Health a hazardous waste management plan detailing the means of collecting, storing and disposing any hazardous waste generated by the facility, including any spill or other discharge of hazardous materials or wastes.
B. Any oil/water separator remaining in use shall be monitored weekly, cleaned not less than every 90 days and restored to proper conditions after cleaning so as to ensure proper functioning. Records of the hauling of the removed contents of the separator shall be submitted to the Board of Health at the time of hauling.
C. Compliance with all provisions of this regulation must be accomplished in a manner consistent with Massachusetts plumbing, building and fire code requirements.
D. Upon complying with one of the options listed under Subsection A(3), the owner/operator of the facility shall notify the DEP of the closure of said system by filing the DEP's "Underground Injection Control (UIC) Notification Form" with the DEP and sending a copy to the Lexington Board of Health.
§ 155-59. Time limit for compliance.
  The effective date of this regulation is November 18, 1998, which shall be identical to the date of adoption of the regulation.
A. Existing facilities.
(1) Owners/operators of a facility affected by this regulation shall comply with all of its provisions within 120 days of the effective date.
(2) All applicable discharges to the leaching structures and septic systems shall be discontinued immediately through temporary isolation or sealing of the floor drain.
B. New facilities.
(1) As of the effective date of the regulation, all new construction and/or applicable change of use within the Town of Lexington shall comply with the provisions of this regulation.
(2) Certification of conformance with the provisions of this regulation by the Board of Health shall be required prior to issuance of construction and occupancy permits.
(3) The use of any new oil/water separator shall comply with the same requirements as for existing systems, as specified above in § 155-58B.
§ 155-60. Violations and penalties.
  Failure to comply with provisions of this regulation will result in the levy of fines of not less than $500, but no more than $1000, under MGL c. 111, § 31 (violation of health regulations) and § 122 (violation of nuisance regulations). Each day's failure to comply with the provisions of this regulation shall constitute a separate violation.
§ 155-61. Severability.
  Each provision of this regulation shall be construed as separate to the end that if any provision or sentence, clause or phrase thereof shall be held invalid for any reason, the remainder of that section and all other sections shall continue in full force and effect.
ARTICLE IX, Groundwater and Water Supply Protection [Adopted 11-18-1998]
§ 155-62. Findings and purpose.
A. Findings.
(1) Certain land uses have the potential to release hazardous waste, petroleum products or other contaminants significantly increasing the risk of groundwater contamination;
(2) Poor management practices, accidental discharges and improper maintenance of these facilities may lead to the release of pollutants;
(3) Discharges of hazardous wastes, leachate, pathogens and other pollutants have repeatedly threatened surface and ground water quality throughout Massachusetts; and
(4) Surface and ground water resources in the Town of Lexington contribute to the town's water resources and the drinking water supplies of other towns.
B. Therefore, the Town of Lexington adopts the following regulation, under its authority as specified in § 155-63, as a preventative measure for the purposes of:
(1) Preserving and protecting the Town of Lexington's ground and surface water resources from discharges of pollutants; and
(2) Minimizing the risk to public health and to the environment of the town due to such discharges.
§ 155-63. Authority; applicability; effective date.
A. The Town of Lexington Board of Health adopts the following regulation pursuant to authorization granted by MGL c. 111, §§ 31 and 122. The regulation shall apply, as specified herein, to all applicable facilities within the Zone IIs and/or interim wellhead protection areas (IWPA) or over a potentially productive aquifer. These regulations supersede all inconsistent regulations adopted by the Board of Health prior to the effective date.
B. The effective date is the date of issuance of this regulation.
§ 155-64. Definitions.
  For the purposes of this regulation, the following words and phrases shall have the following meanings:
AQUIFER -- Geologic formation composed of rock or sand and gravel that contains significant amounts of potentially recoverable potable water.
BOARD OF HEALTH -- The Lexington Board of Health.
COMMERCIAL FERTILIZERS -- Any substance containing one or more recognized plant nutrients which is used for its plant nutrient content and which is designed for use or claimed by its manufacturer to have value in promoting plant growth. Commercial fertilizers do not include unmanipulated animal and vegetable manure, marl, lime, limestone, wood ashes and gypsum.
DEP -- The Massachusetts Department of Environmental Protection.
DISCHARGE -- The accidental or intentional disposal, deposit, injection, dumping, spilling, leaking, incineration or placing of toxic or hazardous material or waste upon or into any land or water so that such hazardous waste or any constituent thereof may enter the land or waters of the commonwealth. "Discharge" includes, without limitation, leakage of such materials from failed or discarded containers or storage systems and disposal of such materials into any on-site leaching structure or sewage disposal system.
DPH -- The Massachusetts Department of Public Health.
GROUNDWATER -- All the water found beneath the surface of the ground, including, without limitation, the slowly moving subsurface water present in aquifers and recharge areas.
HAZARDOUS MATERIAL -- A product, waste or combination of substances which because of its quantity, concentration or physical, chemical, toxic, radioactive or infectious characteristics may reasonably pose a significant, actual or potential hazard to human health, safety, welfare or the environment when improperly treated, stored, transported, used, disposed of or otherwise managed. Hazardous materials include, without limitation, synthetic organic chemicals, petroleum products, heavy metals, radioactive or infectious materials and all substances defined as "toxic" or "hazardous" under MGL c. 21C and c. 21E, using the Massachusetts Oil and Hazardous Substance List (310 CMR 40.0000). The definition may also include acids and alkalis, solvents, thinners and pesticides.
HISTORICAL HIGH GROUNDWATER TABLE ELEVATION -- A groundwater elevation which is determined from monitoring wells and historical water table fluctuation data compiled by the United States Geological Survey.
INTERIM WELLHEAD PROTECTION AREAS (IWPA) -- For public supply wells or well fields that lack a DEP-approved Zone II, the DEP will apply an interim wellhead protection area. This interim wellhead protection area shall be a one-half-mile radius measured from the well or well field for sources whose approved pumping rate is 100,000 gallons per day or greater. For wells that pump less than 100,000 gallons per day, the IWPA radius is proportional to the well's approved daily volume following the IWPA Chart as referenced in Division Water Supply Policy 92-01.
LANDFILL -- A facility established (in accordance with a valid site assignment) for the purpose of disposing solid waste into or on the land, pursuant to 310 CMR 19.006.
NONSANITARY WASTEWATER -- Wastewater discharges from industrial and commercial facilities containing wastes from any activity other than collection of sanitary sewage, including but not limited to activities specified in the Standard Industrial Classification (SIC) Codes set forth in 310 CMR 15.004(6).
OPEN DUMP -- A facility which is operated or maintained in violation of the Resource Conservation and Recovery Act [42 U.S.C. § 4004(a)(b)] or the regulations and criteria for solid waste disposal.
RECHARGE AND POTENTIAL GROUNDWATER DEVELOPMENT AREAS -- The potential groundwater development areas, including potentially productive aquifers, and those areas that provide recharge to Zone 2 (MASS GIS Map "Potential Drinking Water Source Area Map," approved by DEP/BWSC).
SEPTAGE -- The liquid, solid and semisolid contents of privies, chemical toilets, cesspools, holding tanks or other sewage waste receptacles. Septage does not include any material that is a hazardous waste, pursuant to 310 CMR 30.000.
SLUDGE -- The solid, semisolid and liquid residue that results from a process of wastewater treatment or drinking water treatment. Sludge does not include grit, screening or grease and oil which are removed at the headworks of a facility.
TREATMENT WORKS -- Any and all devices, processes and properties, real or personal, used in the collection, pumping, transmission, storage, treatment, disposal, recycling, reclamation or reuse of waterborne pollutants, but not including any works receiving a hazardous waste from off the site of the works for the purpose of treatment, storage or disposal.
USE OF TOXIC OR HAZARDOUS MATERIAL -- The handling, generation, treatment, storage or management of toxic or hazardous materials.
VERY SMALL QUANTITY GENERATOR -- Any public or private entity, other than residential, which produces less than 27 gallons (100 kilograms) a month of hazardous waste or waste oil, but not including any acutely hazardous waste as defined in 310 CMR 30.136.

WASTE OIL RETENTION FACILITY -- A waste oil collection facility for automobile service stations, retail outlets and marinas which is sheltered and has adequate protection to contain a spill, seepage or discharge of petroleum waste products in accordance with MGL c. 21, § 52A.
ZONE 1, THE PROTECTIVE RADIUS -- The protective radius shall extend from each public water supply well to a distance of 400 feet and will include all land within the radius.
ZONE 2 (DEP-APPROVED ZONE II) -- The recharge area generated by a public water supply well after 180 days of continuous pumping at approved yield, with no recharge from precipitation. (Zone II is equivalent to Area 2 as defined in 310 CMR 22.02.)
§ 155-65. Prohibited uses.
A. The following uses are prohibited in Zones 1 and 2 and potential groundwater development areas:
(1) Landfills.
(2) Open dumps.
(3) Automobile graveyards, junk and salvage yards and automotive service and repair shops.
(4) Sludge and septage monofils.
(5) Stockpiles (disposal) of chemically treated snow and ice.
(6) Petroleum, fuel oil and heating oil bulk stations and terminals, including but not limited to those listed under Standard Industrial Classification (SIC) Codes 5171 and 5983. SIC Codes are established by the United States Office of Management and Budget and may be determined by referring to the publication Standard Industrial Classification Manual and any subsequent amendments.
(7) Storage of liquid petroleum products, except for the following:
(a) Normal household use, outdoor maintenance and heating of a structure.
(b) Waste oil retention facilities required by statute, rule or regulation.
(c) Emergency generators required by statute, rule or regulation.
B. Facilities for the treatment or disposal of non-sanitary wastewater are prohibited, with the following exceptions:
(1) Replacement or repair of an existing system is exempt if the existing design capacity is not exceeded;
(2) Treatment works approved by the DEP and designed for the treatment of contaminated ground or surface waters and operated in compliance with 314 CMR 5.05(3) or 5.05(13); and
(3) Publicly owned treatment works.
C. Facilities that generate, treat, store or dispose of hazardous waste subject to MGL c. 21C and 310 CMR 30.000 are prohibited, with the following exceptions:
(1) Very small quantity generators (310 CMR 30.000);
(2) Household hazardous waste collection centers or collection events (310 CMR 30.390);
(3) Waste oil retention facilities (MGL c. 21, § 52A); and
(4) Treatment works for the restoration of contaminated ground or surface waters in compliance with MGL c. 21E and 310 CMR 40.000.
D. Removal of soil, loam, sand, gravel or any other mineral substances within four feet of the historical high groundwater table elevation is prohibited with the following exceptions:
(1) Substances which are removed and redeposited within 45 days of removal on site to achieve a final grade greater than four feet above the historical high water mark; and
(2) Excavations for the construction of building foundations or the installation of utilities.
E. Land uses that result in impervious cover of more than 25% of any lot are prohibited, unless a system of artificial recharge of precipitation is provided that will not result in the degradation of groundwater quality.
F. All uses not expressly allowed are prohibited.
G. Discharge of any septic waste in Zone 1 is prohibited.
§ 155-66. Conditional prohibitions.
  The storage of certain waste materials, chemicals and petroleum products is prohibited except if contained in accordance with the following requirements.
A. Storage of sludge and septage is prohibited unless storage is in compliance with 310 CMR 32.00.
B. Storage of roadway de-icing chemicals (sodium chloride, chemically treated abrasives or other chemicals) and the storage of chemical fertilizers are both prohibited, unless the storage is in a structure that prevents the generation and release of contaminants or contaminated runoff.
C. Storage of animal manure is prohibited unless covered or contained within a structure designed to prevent the generation and escape of contaminated runoff or leachate.
D. Storage of liquid hazardous materials, as defined in MGL c. 21E, and/or liquid petroleum products is prohibited unless the materials are stored above ground level, on an impervious surface and in containers (or aboveground tanks) within a building or outdoors in covered containers (or aboveground tanks) designed and operated to hold either 10% of the total possible storage capacity of all containers or 110% of the largest container's storage capacity, whichever is greater. These storage requirements shall not apply to the replacement of existing tanks or systems for the keeping, dispensing or storing of gasoline provided the replacement is performed in a manner consistent with state and local requirements.
E. Compliance with all provisions of this regulation must be accomplished in a manner consistent with Massachusetts plumbing, building, and fire code requirements.
F. The storage of commercial fertilizers, soil conditioners or herbicides as defined in MGL c. 128, § 64, or pesticides as defined in MGL c. 132B, § 2, unless such storage is within a structure designed to prevent the generation and escape of contaminated runoff or leachate.
G. Individual sewage disposal systems (that are designed to receive more than 440 gallons of sewage per acre under one ownership per day; allowance is hereby made to proportion the above standard for lots smaller than one acre), except the replacement or repair of an existing system that will not result in an increase in design capacity above the original design, subject to Title Five of the Massachusetts Environmental Code, 310 CMR 15.000, and local regulations. Where a municipal sewage system is not available, new systems must be in full compliance with Title Five of the Massachusetts Environmental Code, 310 CMR 15.000, and must be approved by the Lexington Board of Health.
H. The use of septic system cleaners and additives prohibited under the Massachusetts Environmental Code, Title 5, 310 CMR 15.027.
§ 155-67. Time limit for compliance.
A. As of the effective date of this regulation, all new construction and/or applicable change of use within the Town of Lexington shall comply with the provisions of this regulation.
B. Approval of compliance with all provisions of this regulation by the Board of Health shall be required prior to issuance of construction and occupancy permits.
§ 155-68. Violations and penalties.
  Failure to comply with provisions of this regulation will result in the levy of fines of not less than $200 but no more than $1000. Each day's failure to comply with the provisions of this regulation shall constitute a separate violation.
§ 155-69. Severability.
  Each provision of this regulation shall be construed as separate to the end that if any provision or sentence, clause or phrase thereof shall be held invalid for any reason, the remainder of that section and all other sections shall continue in full force and effect.
§ 155-70. Nonconforming uses, structures and lots.
  The Board of Health may, at its discretion, exempt existing, legal, nonconforming structures and uses from this regulation, provided that they do not adversely affect an existing or potential town drinking water or groundwater resource or aquifer.
ARTICLE X, Private Wells [Adopted 11-18-1998]
§ 155-71. General provisions.
A. All well drillers doing business in Lexington shall annually file with the Board of Health a copy of their current well driller registration certificate issued by the Commonwealth of Massachusetts (MGL c. 21, § 16, 313 CMR 3.00).
B. No well shall be installed, altered, repaired, destroyed or abandoned except by a well driller who is registered with the Water Resources Commission, Division of Water Resources (MGL c. 21, § 16, 313 CMR 3.00).
C. All wells shall be located on the same lot as the building they serve.
D. No well shall be constructed, altered or repaired until a well construction permit has been obtained from the Board of Health.
E. A well construction permit shall expire six months from the date of issue unless construction has begun. The permit shall be on site at all times that work is taking place. Permits may be extended for one additional six-month period provided that a written request is received by the Board prior to the six-month expiration date. No additional fee shall be charged for a permit extension, provided there are no changes in the plans for the proposed well.
§ 155-72. Well construction permit.
A. The property owner or the well driller/digger or his agent shall submit with the well construction application, prior to the issuance of a permit, the following information:
(1) The property owner's name and address.
(2) The well driller's/digger's name and certification number as it appears on the Water Resources Commission certificate.
(3) General location of the proposed well, to include the location of all structures or other significant parts of the lot.
(4) Assessor's lot plan number for the lot and street address.
(5) A description and location of visible prior and current land uses within 200 feet of the proposed well location which represent a potential source of contamination, including but not limited to the following:
(a) Existing and proposed structures.
(b) Subsurface sewage disposal systems.
(c) Subsurface fuel storage tank.
(d) Public ways.
(e) Utility rights-of-way.
(f) Any other potential sources of pollution.
(g) A permit fee as determined by the Board of Health.
B. Well construction permits are nontransferable.
§ 155-73. Well construction.
A. Wells shall be constructed in compliance with the recommendations of the latest edition of the Manual of Individual Water Supply, United States Environmental Protection Agency (USEPA), Water Supply Division.
B. The top of the well shall be above ground that is higher than any surface sources of contamination and above any known conditions of flooding by drainage or runoff from surrounding land. The land should be graded to divert surface waters from the well, unless located in a floodproofed well house.
C. Well casing must terminate above grade and shall extend at least 12 inches above the predetermined ground surface at the wellhead except when the well is located in a floodplain. When a well is located in a floodplain, the well casing shall extend at least 2 feet above the level of the highest recorded flood. The top of the well casing shall be reasonably smooth and level.
D. The contractor shall secure the well so as to prevent either tampering with the well or the introduction of foreign material into the well.
E. All non-yielding holes which are installed in the process of constructing the well shall be filled so as not to act as a conduit for water.
F. A metal tag shall be affixed to the top of the well casing at the time of installation, so that the well may later be located if necessary by a metal detector.
G. No private well, or its associated distribution system, shall be connected to either the distribution system of a public water system or any other distribution system.
§ 155-74. Private well locations.
A. The following minimum distances are required:
(1) Property line: must comply with the town's most recent setback requirements.
(2) Public or private way: 25 feet from the edge of the road layout.
(3) Driveway: 25 feet from any traveled surface.
(4) Utility rights-of-way: 50 feet but should be maximized.
(5) Septic tank: 75 feet.
(6) Septic system leaching: 150 feet.
(7) Septic distribution box: 75 feet.
(8) Building sewer: 50 feet.
(9) Subsurface drains: 25 feet, but should be maximized.
B. Where, in the opinion of the Board of Health, hazardous conditions exist, the above distances may be increased.
C. Whenever possible, the well should be located up the groundwater gradient from sources of pollution. The Board of Health reserves the right to ban any well that may contaminate a water supply.
§ 155-75. Water quality.
A. Prior to approval of the well as a water supply, the owner or his/her agent shall take a water sample(s) from the well and submit it to a state-certified laboratory for analysis, with the cost to be borne by the owner. The results of all analysis of water taken from the well shall be submitted to the Board of Health. At a minimum, water must be tested for the following chemical and bacteriological standards: total coliform, nitrate-nitrogen, pH, sodium and iron.
B. The Board of Health will determine guidelines for the potability of well water. See National Interim Primary and Secondary Drinking Water Standards: MCLs (providing guidelines for potability of well water). The water quality standards for common parameters are as follows:
(1) Primary standards.
(a) Total coliform: zero colonies per 100 milliliters.
(b) Nitrate: 10 parts per million.
(2) Secondary standards.
(a) pH: recommend pH greater than 5.0.
(b) Sodium: greater than 20 mg/l is a concern to persons on a low sodium diet.
(c) Iron: 0.3 parts per million.
C. In locations where the Board of Health believes potential sources of contamination to exist, or where geologic or hydrologic conditions require more restrictive or additional standards than those outlined above, additional water testing and special standards may be required by the Board of Health. Such additional testing and special standards may include analysis for purgeable halocarbons and purgeable aromatics, analysis for petroleum hydrocarbons or pesticides or any other analysis that the Board of Health deems necessary to ascertain quality.
D. When the Board of Health deems it necessary, the Health Agent or other agent of the Board of Health may be present to witness the taking of the water samples and/or may take the water sample and deliver it to the state-certified laboratory him/herself at the owner's expense. When an agent is required by the Board of Health to be present for a sampling, at least five business days' notice is required to schedule an appointment.
§ 155-76. Potable well water quantity.
A. The design of the water system, including well, pump, storage tank and other accessories, must be adequate to provide a volume of water necessary to support the household's daily need, which shall be determined using the following equation: (number of bedrooms + one bedroom) x (110 gallons/bedroom) x (a safety factor of 2) = number of gallons needed daily.
B. The storage capacity of the well shall be determined using the measured static water level and the depth and radius of the drill hole casing.
C. The required volume shall be calculated by adding the volumes in Subsections A and B. It is this volume of water that must be pumped from the well within a twenty-four-hour period.
§ 155-77. Well construction completion.
A. Within 30 days after the completion of the construction of any well, the well driller/digger shall submit a report containing the following information:
(1) Name of the owner of the well.
(2) Address of the property served and/or the lot number as assigned by the Assessor's office.
(3) Depth, size and method of construction of the well.
(4) The static water level.
(5) The yield of the well after pumping.
(6) The well driller's/digger's log information.
(7) All lab results as required for the approved well usage.
B. For the above items, a Department of Environmental Management, Office of Water Resources, Water Well Completion Report must be submitted to the Board of Health, the homeowner and the Department of Environmental Management, Office of Water Resources.
C. The owner of the property which the well will serve, or the well driller acting as the agent for the owner, shall certify on the well completion report the following:
(1) The location and date the sample(s) was (were) taken and the laboratory at which it was analyzed;
(2) That the water sample(s) whose analysis results were submitted to the Board of Health was (were) taken from the well for which approval is being sought;
(3) The capacity of the water systems, in gallons per minute, has been demonstrated to equal the number of fixtures installed; and
(4) For wells installed at newly constructed buildings, an as-built plan must be submitted.
D. The well driller/digger or his/her authorized agent shall sign the well completion report. This signature shall constitute a statement of compliance with all requirements of these regulations.
E. No well is to be placed in use until the Board of Health has approved the well completion report.
§ 155-78. Well decommission.
A. Prior to the destruction or abandonment of any well, a well destruction permit must be obtained by the owner or his agent of the Board of Health. The Board of Health will require a site plan showing the well location, including the Assessor's lot and plan number, and street address for the property on which the well is located prior to the issuance of a well destruction permit.
B. Abandoned wells, test holes and borings shall be decommissioned so as to prevent the well, including the annular space outside the casing, from being a channel for pollution into the groundwater. The owner of the private well shall decommission the well if the well meets any of the following criteria:
(1) Construction of the well is terminated prior to completion of the well.
(2) The well owner notifies the Board of Health that the use of the well is to be permanently discontinued.
(3) The well has, after extended use, been out of service for at least three years.
(4) The well is a potential hazard to public health or safety and the situation cannot be corrected.
(5) The well is in such a state of disrepair that its continued use is impractical.
(6) The well has the potential for transmitting contaminants from the land surface into an aquifer or from one aquifer to another and the situation cannot be corrected.
C. The property owner shall be responsible for ensuring that all abandoned wells and test holes or borings associated with private well installation are property plugged. Only registered well drillers may plug abandoned wells, test holes and borings.
D. Abandoned well or borings shall be completely filled with a grout which cures with a final permeability of less than 1x10-7cm/sec. Wells shall be plugged with neat cement grout, sand cement grout, concrete or bentonit grout.
E. Within 30 days after completion of destruction or abandonment of any private well, the well owner or well driller acting as agent for the well owner shall submit to the Board of Health a report containing the following:
(1) The name of the owner of the well.
(2) The location of the well on the property.
(3) Any preliminary cleaning or re-drilling.
(4) Types, depths and materials of seal used.
§ 155-79. Variances.
  Variances may be granted only as follows:
A. The Board of Health may vary the application of these regulations with respect to any particular case when, in its opinion, the applicant has proven that the same degree of public health and environment protection required under these regulations can be achieved without strict application of a particular provision(s).
B. A variance request shall be in writing to the Board of Health and include all the information/reasons and proposed measure necessary to assure the protection of public health and the environment. The applicant shall pay all costs in the evaluation of the proposed variance. The Board of Health shall grant, modify or deny a variance in writing and state the reasons for any denial.
§ 155-80. Disclaimer.
  The issuance of a well permit shall not be construed as a guaranty by the Board of Health or its agents that the water system will function satisfactorily nor that the water supply will be of sufficient quality or quantity for its intended use.
ARTICLE XI, Dumpsters [Adopted 3-3-1999; amended 4-4-2002]
§ 155-81. General regulations.
A. When deemed necessary, the Board of Health may require that the area around a dumpster be enclosed or screened by the property owner or authorized agent. The enclosure must comply with § 135-60A of the Zoning Bylaw.
B. All dumpsters must have properly fitting lids and must be covered at all times when not in use, with the exception that residential dumpsters used for construction purposes may be required to be covered as the Board of Health or its agent deems necessary.
C. Each dumpster must be of sufficient size and capacity to eliminate overflowing, and the property owner or authorized agent of the premises using the dumpster must take appropriate action immediately to empty the contents when full.
D. The property owner or agent being serviced is responsible for the placement and maintenance of the dumpster, the area surrounding the dumpster and all trash, debris or other materials deposited at the site of the dumpster.
E. It shall be the responsibility of the property owner or agent being serviced to maintain the dumpster area free of odors, scattered debris, overflow and all other nuisances. It shall also be the responsibility of the property owner or agent being serviced to maintain the dumpster area free from any condition that may be considered an attraction for rodents or other pests.
F. These regulations apply to all dumpsters in the Town of Lexington, whether for residential, commercial or industrial use.
G. These regulations shall in no way nullify the requirements of the articles of the State Sanitary Code or other regulations pertaining to health, disease or safety.
§ 155-82. Violations and penalties; removal.
A. Any person who violates any provision of this regulation may be subject to a fine to be determined by the Board of Health. Each day a violation continues to occur shall constitute a separate offense.
B. The Board of Health may order that any dumpster which fails to comply with state and local sanitary codes and represents a threat to the public health be removed from the property with seven days' notice.
ARTICLE XII, On-Site Sewage Disposal Systems [Adopted 9-14-1999]
§ 155-83. Findings.
A. The Town of Lexington has implemented a program to make the sewer system available to all building lots currently within the town;
B. Rapid residential and industrial growth may affect groundwater that reaches drinking water supplies;
C. The boundaries of the town include productive aquifers, surface waters used as a drinking water supply and extensive wetlands that feed into the drinking water supplies of other towns (DEP-designated Zone II areas);
D. The Town of Lexington includes many homes which are connected to cesspools or older, inefficient subsurface disposal systems;
E. Inadequate treatment of sewage by septic systems may contribute to increased levels of nitrates, bacteria and viruses or hazardous chemicals that can contaminate water supplies; and
F. The Town of Lexington, according to Massachusetts Geographic Information Services studies, exhibits high groundwater levels and sandy soils that limit the filtration capabilities of subsurface disposal systems.
§ 155-84. New on-site sewage disposal systems prohibited.
  The Board of Health prohibits the installation of new on-site sewage disposal systems, except as indicated in § 155-86, Exemptions.
§ 155-85. Connection to municipal sewer.
  All buildings where municipal sewer is available will be connected to the sewer system upon determination of subsurface disposal system failure by a licensed system inspector or by order of the Lexington Board of Health or its agent.
§ 155-86. Exemptions.
  Exemptions to § 155-84 may be allowed under the following conditions:
A. Municipal sewer system is not available to the residence. Availability of the sewer system will be based on consideration of the following criteria, including but not limited to: access to the municipal sewer system, proximity to wetlands, geological characteristics of the area and easement requirements. If the pipe serving the building will have to extend more than 30 feet beyond the property line, or if costs for the sewer line exceed 10% of the assessed value of the property, the Board of Health will consider alternative proposals for on-site wastewater disposal for the site.
B. There is no increase in design flow to the system involved, or the owner can demonstrate that the public health is protected equally by a new or alternative system with increased design flows, compared with an older system at previous design flows.
C. The owner can demonstrate manifest injustice caused by connection to the municipal sewer system compared to the use of a standard subsurface disposal system or alternative system.
D. Placement of a sewer line conflicts with the state and town wetland protection laws or other regulation.
§ 155-87. System design.
A. General requirements. All new on-site sewage disposal systems allowed by the Board of Health shall meet, at a minimum, the standards set forth in Title Five of the State Environmental Code, 310 CMR 15.000, and all additional conditions required by the Board of Health to protect the public health.
B. Soil evaluations and percolation tests. Prior to the installation of all disposal systems, complete soil evaluations and percolation tests, as required by 310 CMR 15.000, shall be carried out. The Board of Health or its agent must witness, approve and sign the soil evaluation, and a copy of the study must be submitted to the Board of Health.
C. Garbage grinders. Garbage grinders may not be connected to a subsurface disposal system.
D. Private wells.
(1) Private wells for irrigation or drinking water must meet the following setback limitations from subsurface disposal systems:
(a) Septic tank: 75 feet.
(b) Soil absorption system: 150 feet.
(c) Distribution box: 75 feet.
(d) Building sewer: 50 feet.
(2) Where, in the opinion of the Board of Health, hazardous conditions exist, the above distances may be increased.
E. Subdivided lots. Subdivided lots must be connected to the sewer system.
§ 155-88. Groundwater determinations.
  For all inspections of subsurface disposal systems, a state-licensed inspector shall use the methods noted in 310 CMR 15.00 for seasonal high groundwater determinations. The Board of Health may, at its discretion, require additional tests to determine seasonal high groundwater levels.
§ 155-89. Installation.
A. No installation of an on-site sewage disposal system may be carried out without prior plan review and approval by the Board of Health.
B. System installers must be licensed by the Town of Lexington through the Board of Health. Licenses will be issued on an annual basis.
C. The Board of Health must approve all plans for on-site disposal system designs prior to system installation. Following completion of the system, and prior to issuance of a certificate of compliance, the installer must provide an as-built plan to the Board of Health for approval, to be kept on file for a minimum of three years.
D. Alternative systems. The Board of Health may consider alternative on-site disposal system designs to those described under Title Five of the Environmental Code. The Board of Health will approve only those alternative designs accepted by the Department of Environmental Protection.
E. The Board of Health may establish any special conditions necessary to ensure adequate protection of public health and safety and the environment and to ensure appropriate evaluation, inspection, maintenance, repairs and replacements. Such conditions may include, without limitation, flow limitations, monitoring, inspections, maintenance, testing and reporting requirements, a requirement that a certified operator operate the system and financial assurance mechanisms.
F. The Board of Health may also require additional information and studies to be performed at the site, or adjacent to the site, such as:
(1) Hydrological studies and calculations for the mean annual, ten-year and one-hundred-year storm incidents. High water determinations and the corresponding hydrological calculations for these events must be submitted.
(2) Water quality studies and analyses.
(3) Other studies and analyses related to the design and performance of the proposed system.
G. New construction. The Board of Health will not approve alternative systems for new construction unless the lot involved can also support a system that is fully compliant with Title Five of the State Environmental Code, without variance. The area on the lot where a standard septic system might be placed must not be built upon or covered with an impermeable surface.
§ 155-90. Fees.
A. Site and plan evaluations. The Board of Health shall assess fees for witnessing of soil evaluations and percolation tests, for system inspections and for outside expert review of preliminary and as-built plans. The owner of the lot, contractor or other agent required to comply with this regulation will be responsible for these costs.
B. System installers. The Lexington Board of Health will set fees for licenses that the Board will issue to system installers on a yearly basis.
C. Expert review. Upon request of the Board of Health, applicants seeking a permit to construct a new sewage disposal system shall deposit a sum specified by the Board of Health in a special account as described under Article VII, Establishment of Special Accounts, of this chapter. Fees and other expenses for the hiring of consultants, groundwater determinations, review of proposed designs, site evaluations and any other evaluations required by the Board of Health for review of the system design will be deducted from this account. Upon completion of the project, any remaining money will be returned to the applicant.
§ 155-91. System maintenance.
  All disposal systems must be pumped every three years. All cesspools must be pumped yearly. The septage hauler must submit to the Board of Health a report of the maintenance service, including the address at which the service was given, name of system owner, date and a description of the maintenance services provided.
§ 155-92. System inspections.
A. System failure.
(1) The Board of Health will find a system to be failing following an inspection by a state-licensed inspector and a determination that one or more conditions described in 310 CMR 15.303 or 15.304 of Title Five of the Massachusetts Environmental Code exists, or the Board of Health or its agent identifies one of the conditions described below.
(a) The system is in an environmentally sensitive area as defined in the town's septic management plan, or in a protected wetlands resources area as defined in the Wetlands Protection Act, MGL c. 131, § 40, and Chapter 130, Wetland Protection, of the General Bylaws.
(b) Placement of system within a one-hundred-year flood zone, based on the available flood profile data prepared by the Federal Emergency Management Agency (FEMA).
(c) The system was pumped out more than two times in a ninety-day period.
(d) Any other condition deemed by the Board of Health to require an upgrade, repair or replacement of the subsurface disposal system as allowed under 310 CMR 15.025.
(2) Minor repairs (e.g., replacement of cap or inlet tees) may be carried out with approval of the Board of Health.
B. Correction of failing systems. If the Board of Health determines that a system fails to protect the public health, the owner must repair, upgrade or connect the system to the sewer within a period designated by the Board of Health or within two years. Failure to comply with an order to correct a failing system may result in fines in accordance with MGL c. 111, § 31, 105 CMR 15.026(4) and Chapter 130, Wetland Protection, of the General Bylaws. Failure to comply with such an order may also result in the declaration of the property as uninhabitable, as defined under 105 CMR 410.750 and 410.83 1, Minimum Standards of Fitness for Human Habitation (State Sanitary Code, Chapter 11).
C. Inspection reports.
(1) Licensed system inspectors must submit inspection reports to the Board of Health within 10 working days after completion of the inspection.
(2) System inspectors must notify the Lexington Board of Health at least two business days prior to carrying out an inspection on a subsurface disposal system in the town.
(3) Failure to have an inspection carried out on a property as required by 310 CMR 15.300 may result in fines against the property owner under the provision of 310 CMR 15.026(4).
§ 155-93. System abandonment.
A. After connection of a home to the municipal sewer system, or if the Board of Health permits replacement of a system, the owner must abandon the original system. The homeowner must have the septic system or cesspool disconnected from the building it served in accordance with the State Plumbing Code and have the cesspool or septic tank destroyed or made unusable by filling in the tank. Metal tanks must be removed from the ground and disposed of by the homeowner or his or her representative. Building owners will be held responsible for final abandonment of the original subsurface disposal system.
B. At the time of system abandonment, both property owner and contractor must sign a Board of Health approved form attesting to completion of the system abandonment.
§ 155-94. Variances.
  The Board of Health may allow a variance to any provisions of these regulations when, in its opinion, the enforcement thereof would do manifest injustice and the applicant has proved that the same degree of environmental protection required by these regulations can be achieved without strict application of the particular provision.
§ 155-95. Definitions.
  As used in this article, the following terms shall have the meanings indicated:
ALTERNATIVE SYSTEMS -- Systems designed to provide or enhance on-site sewage disposal systems which either do not contain all of the components of an on-site disposal system constructed in accordance with 310 CMR 15.000 or which contain components in addition to those specified in 310 CMR 15.000 and which are proposed to the local approving authority and/or the Department of Environmental Protection for remedial, pilot, provisional or general use approval pursuant to 310 CMR 15.280 through 15.289.
BUILDING SEWER -- A pipe that begins outside the inner face of a building wall and extends to an on-site system or municipal or private sewer.
CESSPOOL -- A pit with open-jointed linings or holes in the bottom and/or side walls into which raw sewage is discharged, the liquid portion of the sewage being disposed of by seeping or leaching into the surrounding soils, and the solids or sludge being retained in the pit. Cesspools are nonconforming systems.
DEEP OBSERVATION HOLE -- An open pit dug to permit examination of the soils and to obtain data relative to the mean annual high groundwater elevation.
DISPOSAL SYSTEM INSTALLER -- A person, licensed in accordance with 310 CMR 15.019, who constructs, repairs or replaces an on-site subsurface sewage disposal system.
DISTRIBUTION BOX -- A level, watertight structure that receives septic tank effluent and distributes it in substantially equal portions to distribution lines in a soil absorption system.
FAILED SUBSURFACE SEWAGE DISPOSAL SYSTEM or FAILED SYSTEM -- A system that fails to protect public health and safety or the environment, as set forth in 310 CMR 15.303 or 15.304.
GROUNDWATER -- Water found in cracks, fissures and pore spaces in the saturated zone below the ground surface, including but not limited to perched groundwater.
HIGH GROUNDWATER ELEVATION -- As determined in accordance with 310 CMR 15.103, 15.104 and 15.107. For inland areas, the elevation above which, in eight out of 10 consecutive years, the groundwater table does not rise. This elevation is commonly, but not invariably, reached during the months of December through April.
MAINTENANCE -- All activities required to assure the effective and continuous operation and performance of an on-site system, including but not limited to solids and scum removal from the septic tank, re-leveling the distribution box and the upgrade of one or more of the system components, all as more fully described in 310 CMR 15.201 through 15.422.
NEW CONSTRUCTION -- The construction of a new building for which an occupancy permit is required or an increase in the actual or design flow to any nonconforming system or to any other system above the existing approved capacity. New construction shall not include replacement or repair of an existing building totally or partially destroyed or demolished if there is no increase in flow or no increase in flow above the existing approved capacity for any system.
ON-SITE SEWAGE DISPOSAL SYSTEM or SUBSURFACE DISPOSAL SYSTEM -- A system or series of systems for the treatment and disposal of sanitary sewage below the ground surface on a facility. The standard components of a system are: a building sewer; a septic tank to retain solids and scum; a distribution box; a soil absorption system containing effluent distribution lines to distribute and treat septic tank effluent prior to discharge to appropriate subsurface soils; and a reserve area. These terms also include tight tanks, shared systems and alternative systems. Unless the text of 310 CMR 15.000 indicates otherwise, these terms also include nonconforming systems.
RESERVE AREA -- An area of land with demonstrated capacity for subsurface sewage disposal on which no permanent structure shall be constructed and which is intended for siting of a replacement of the principal system should it fail.
SEPTAGE HAULER -- A person licensed by the Lexington Board of Health to remove septage from on-site sewage disposal systems and transport it to an approved disposal location in accordance with 310 CMR 15.500.
SEPTIC TANK -- A watertight receptacle to receive sewage from a building sewer which is designed and constructed to permit sufficient retention of wastewater to allow for the separation of scum and sludge and the partial digestion of organic matter before discharge of the liquid portion to a soil absorption system.
SOIL ABSORPTION SYSTEM -- A system of trenches, galleries, chambers, pits, fields or beds together with effluent distribution lines and aggregate which is installed in appropriate soils to receive effluent from a septic tank and transmit it to the soil interface for treatment in a biological mat and disposal to the underlying soils.
WETLAND -- Any land area or surface area so defined by the Massachusetts Wetlands Protection Act, MGL c. 131, § 40, and regulations promulgated pursuant thereto at 310 CMR 10.00 or pursuant to § 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1341, or as defined in the local bylaw.EN
ZONE II -- That area of an aquifer which contributes water to a well under the most severe pumping and recharge conditions that can realistically be anticipated, as defined in Massachusetts drinking water regulations, 310 CMR 22.02.
ARTICLE XIII, Food Establishments [Adopted effective 3-7-2000; amended effective 10-9-2001; effective 7-17-2002]
§ 155-96. Compliance with state and local regulations required.
A. All food establishments, as defined under 105 CMR 590.001, shall at all times maintain compliance with 105 CMR 590.000, Minimum Sanitation Standards for Food Establishments, State Sanitary Code, Article X, and all local health regulations.
B. All temporary food services, including charity events, church suppers, ice cream trucks and similar operations, shall comply with the regulations required for temporary food establishments under 105 CMR 590.030.
C. All food establishments holding a permit from the Lexington Board of Health will be required to attend trainings on food safety and related issues provided by the Lexington Board of Health.
§ 155-97. Violations and penalties; nonprofit corporations.
A. Failure to comply with all state and local health regulations may result in the imposition of fines in accordance with this article and Lexington Town Bylaws Chapter 1EN or suspension or revocation of a permit to operate a food establishment in the Town of Lexington.
B. The term "nonprofit corporation," as mentioned in MGL c. 94, § 328, shall refer only to charitable organizations such as religious organizations, food pantries, and charitable organizations and will not exempt other nonprofit organizations engaged in other types of business from the required permit fee.
§ 155-97.1.  Pest control.
  All food establishments, excluding temporary, mobile, packaged food and limited retail establishments, will maintain on the premises all reports from pest management services. These reports will be made available to Lexington Board of Health agents during inspections of the facilities involved.
ARTICLE XIV, Nuisances [Adopted 6-13-2000]
§ 155-98. Investigation and abatement.
  The Board of Health may investigate, at its discretion, specific conditions or nuisances that may be injurious to the public health as provided under MGL c. 111, §§ 122 to 127A, and under 310 CMR 7.00, Air Pollution Controls, and may order the abatement of any threat to the public health or nuisance found to exist in the Town of Lexington.
§ 155-99. Order to remove nuisance from private premises.
  The Board of Health shall order the owner or occupant of any private premises, as provided under MGL c. 111, § 123, at his or her own expense, to remove any nuisance, source of filth or cause of sickness found thereon within 24 hours, or within such other time as it considers reasonable after notice, and an owner or occupant may be fined for each day during which he or she knowingly violates such an order. Fines may be assessed for each provision of this regulation. In addition, failure to comply with this order may result in enforcement of the public health nuisance regulation in court.
§ 155-100. Atmospheric pollution.
  The Board of Health, under the authority of MGL c. 111, § 31C, may order any person or entity to stop activities leading to atmospheric pollution, including the emission of smoke, particulate matter, soot, cinders, ashes, toxic and radioactive substances, fumes, vapors, gases, industrial odors and dusts, which constitute a nuisance or a danger to the public health or that impair the public comfort and convenience.
§ 155-101. Maintenance of private ways.
  Any person or persons owning or having control of any premises abutting or on a private way, and having the right to use such a private way, shall, when ordered by the Board of Health in writing, and within the time specified in the order, remove or abate from that part of the private way adjoining such premises any substance, material or condition which is, or is likely to become, a hazard or injurious to the public health or a nuisance.
§ 155-102. Deposit of waste prohibited.
  No person or persons, corporation or firm shall place, leave or cause to be left or placed within the limits of the Town hazardous wastes, rubbish, garbage, swill, household trash, the body of a dead animal or fowl or any substance that is or is likely to become offensive or hazardous or to cause a nuisance. Yard waste must be disposed of only at a licensed facility, such as a composting site, or in a compost bin or device constructed for the decomposition of such matter.
§ 155-103. Agricultural uses.
  The odor from normal maintenance of livestock or the spreading of manure upon agricultural, horticultural or farming lands, or noise from livestock or farm equipment used in normal, generally acceptable farming procedures or from plowing or cultivation operations upon agricultural, horticultural or farming lands shall not be deemed to constitute a nuisance.
§ 155-104. Order to correct.
  An order to correct, pursuant to the enforcement of these regulations, shall be in writing and will be served personally on the owner, occupant or his authorized agent by any person authorized to serve civil process. In the absence of the owner or occupant, a copy of the order may be left at the last and usual place of abode of the owner, occupant or agent, if he is known and within or outside of the commonwealth, or a copy of the order may be sent to the owner, occupant or agent by registered mail, return receipt requested. If the order is directed against the owner and the owner is unknown or outside of the commonwealth, the Board may direct the order to be served by posting a copy of the order in a conspicuous place on 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 where the building or lot is situated.
§ 155-105. Removal of nuisance by town.
  If the owner or occupant fails to comply with an order to correct, the Board may cause the nuisance, source of filth or cause of sickness to be removed, and all expenses incurred thereby shall constitute a debt due the town.
§ 155-106. Collection of rubbish.
  No individual, firm, corporation or partnership that charges a fee shall collect rubbish from any dwelling or business establishment in the Town of Lexington without obtaining a permit from the Board of Health. The fees for all such registrations and permits will be set by the Board of Health. All trucks or vehicles used for transporting rubbish or trash shall be constructed and maintained as to prevent the escape of dust or litter while being conveyed to the disposal area. Nothing in this section shall be so construed as to prevent a householder from disposing of such material from his own household without a permit from the Board of Health provided he or she shall remove, transport or dispose of such material in a manner satisfactory to the Board of Health and in compliance with all applicable state and federal regulations pertaining to the waste involved.
§ 155-107. Right of entry.
  The Board of Health, its agents, officers and employees shall have the authority to enter upon privately owned land for the purpose of performing their duties for the administration and review of this regulation and may make or cause to be made such examinations, surveys or samples as the Board of Health deems necessary.
§ 155-108. Definitions.
  As used in this article, the following terms shall have the meanings indicated:
GARBAGE or OFFAL -- Refers to the animal, vegetable or other organic waste resulting from the handling, preparation, cooking, consumption or cultivation of food and containers and cans containing food or food waste.
RUBBISH -- Refers to combustible and noncombustible waste materials, except garbage or offal, including but not limited to such materials as paper and paper products, cartons, containers, boxes, rags, leather, packing materials, wood, bottles, glassware, cans, plastics and all recyclable materials.
TRASH -- Includes all materials defined as rubbish, excluding garbage or offal.
YARD WASTE -- Refers to grass clippings, weeds, hedge clippings, garden materials and branches.
ARTICLE XV, Asbestos Removal, Containment and Encapsulation [Adopted 1-9-2001]
§ 155-109. Conformance with state regulations required.
  All persons carrying out the removal, containment or encapsulation of any form of asbestos within the Town of Lexington, including asbestos fiber, vinyl asbestos tile, asbestos insulation, asbestos shingles or other materials or waste products in which the mineral asbestos is present, will conform to the practices and requirements set down in 453 CMR 6.00, The Removal, Containment or Encapsulation of Asbestos. This regulation establishes the licensing, training and work practice requirements for asbestos contractors and other entities engaged in asbestos-related work.
§ 155-110. Manner of removal and disposal.
  All asbestos waste material, or original material containing asbestos, including but not limited to vinyl asbestos tile and asbestos shingles, will be removed in such a manner as to prevent release of asbestos into the environment and will be removed and disposed of in a landfill approved for asbestos materials.
§ 155-111. Measures to prevent contamination.
  The Board of Health or its agent, acting under the authority of MGL c. 31C, may order the implementation of measures to prevent contamination of the environment from asbestos released in the process of removal or disposal or may issue a cease-work order until conditions on the work site are corrected.
§ 155-112. Actions by unlicensed individuals limited.
  Removal, containment or encapsulation of asbestos-containing materials by individuals not licensed by the State of Massachusetts will be limited to the removal of asbestos vinyl tile and of asbestos shingles. The removal or other treatment of all other asbestos-containing material by an unauthorized person or persons not licensed by the state for carrying out asbestos removal is prohibited.
§ 155-113. Violations and penalties.
A. Failure to adhere to these regulations will result in a fine of $100 for the first offense, $200 for the second offense and $300 for every offense thereafter.
B. The Board of Health reserves the right to terminate any asbestos removal operation in the Town of Lexington that, in its estimation, fails to observe the requirements of the state code regarding asbestos removal or which otherwise threatens the well-being and safety of the public.
C. Failure to comply with the provisions of these regulations or to comply with an order to correct will result in fines for each day a violation occurs, according to Lexington Health Regulations and Lexington Town Bylaws.
ARTICLE XVI, Bathing Places [Adopted 1-9-2001]
§ 155-114. Pools.
  All public and semipublic pools in the Town of Lexington shall conform to all requirements of 105 CMR 435.000, Minimum Sanitation for Swimming Pools, State Sanitary Code, Chapter V.
§ 155-115. Bathing beaches.
  All public and semipublic bathing beaches in the Town of Lexington shall conform to all requirements of 105 CMR 445.000, Minimum Standards for Bathing Beaches, State Sanitary Code, Chapter VII.
§ 155-116. Lifeguards.
  All semipublic and public pools and all bathing beaches will maintain a lifeguard as required by the Board of Health during all hours during which swimming is allowed. Swimming by members of an association or the public at any swimming or bathing facility without a lifeguard present will be allowed only after approval of a variance to these regulations by the Board of Health.
§ 155-117. Violations and penalties.
A. Failure to adhere to all requirements set forth in the state codes mentioned in §§ 155-109 and 155-110 above will result in a hearing before the Board of Health to consider suspension or revocation of a permit to operate a pool or bathing beach.
B. Failure to comply with the provisions of these regulations or to comply with an order to correct will result in fines for each day a violation occurs, according to Article XIV of this chapter and Lexington Town Bylaws.
ARTICLE XVII, Body Art Establishments and Practitioners [Adopted effective 7-30-2001; amended 1-16-2002]
§ 155-118. Purpose.
  Body art practitioners should demonstrate knowledge of and practice universal precautions, sanitation, personal hygiene, sterilization and aftercare safety measures to prevent the transmission of disease or injury to the client and/or practitioner. In advancement of these principles, the Board of Health of the Town of Lexington passes these rules and regulations for the practice of body art in the Town of Lexington as part of its mission to protect the health, safety and welfare of the public.
§ 155-119. Authority.
  These regulations are promulgated under the authority granted to the Board of Health under MGL c. 111, § 31.
§ 155-120. Definitions.
  As used in this article, the following terms shall have the meanings indicated:
AFTERCARE -- Written instructions given to the client, specific to the body art procedure(s) rendered, concerning how the client should care for the body art site, including information about when to seek medical treatment, if necessary.
APPLICANT -- Any person who applies to the Board of Health for either a body art establishment permit or practitioner permit.
AUTOCLAVE -- An apparatus for sterilization which utilizes steam pressure at a specific temperature over a particular period of time.
AUTOCLAVING -- A process which results in the destruction of all forms of microbial life, including highly resistant spores, by the use of an autoclave for a minimum of 30 minutes at 20 pounds of pressure (psi) at a temperature of 270° F.
BLOODBORNE PATHOGENS STANDARD -- OSHA Guidelines contained in 29 CFR 19 10.1030, titled "Occupational Exposure to Bloodborne Pathogens."
BODY ART -- The practice of physical body adornment by permitted establishments and practitioners using, but not limited to, the following techniques: body piercing, tattooing, cosmetic tattooing, branding and scarification. The term "body art" shall not include ear piercing, as defined herein, nor practices that are considered medical procedures by the Board of Registration in Medicine, such as implants under the skin, and are otherwise regulated as such.
BODY ART ESTABLISHMENT or ESTABLISHMENT -- A location, place or business (whether public or private) that has been granted a permit by the Board of Health pursuant to these regulations where the practices of body art are performed, whether or not for profit.
BODY ART PRACTITIONER or PRACTITIONER -- An individual who has been granted a permit by the Board of Health to perform body art in a body art establishment.
BODY ART SITE -- The specific area of the body in or on which any body art procedure is performed.
BODY PIERCING -- Puncturing or otherwise penetrating the skin of a client with pre-sterilized single-use needles and the insertion of pre-sterilized jewelry or other adornment into the opening. The term "body piercing" shall exclude ear piercing as defined herein.
BRAIDING -- The cutting of strips of skin of a person, which strips are then to be intertwined with one another and placed onto such person for the purpose of causing the incised and interwoven strips of skin to heal in such intertwined condition.
BRANDING -- The use of a heated material (usually metal) to the skin for the purpose of causing a serious burn to induce a pattern of scar tissue on the skin.
CLEANING AREA -- The location in a body art establishment which is used for the sterilization, sanitation or other cleaning of equipment used in the practice of body art.
CLIENT -- An individual who requests and receives a body art procedure(s) at a body art establishment.
CONTAMINATED WASTE -- Waste as defined in 105 CMR 480.000 et seq., Storage and Disposal of Infectious or Physically Dangerous Medical or Biological Waste (State Sanitary Code, Chapter VIII) and/or 29 CFR 1910.1030. The term "contaminated waste" shall include, but shall not be limited to, any liquid or semiliquid blood or other potentially infectious material; contaminated items that would release blood or other potentially infectious material in a liquid or semiliquid state if compressed; items on which there is dried blood or other potentially infectious material and which are capable of releasing these materials during handling; and sharps and any wastes containing blood or other potentially infectious materials.
COSMETIC TATTOOING (also known as "permanent cosmetics," "micro pigment implantation" or "dermal pigmentation") -- The implantation of permanent pigment in, on or around the eyes, lips and cheeks of the face.
DISINFECTANT -- A product registered as a disinfectant by the United States Environmental Protection Agency (EPA).
DISINFECTION -- The destruction of disease-causing microorganisms on inanimate objects or surfaces.
EAR PIERCING -- The puncturing of the lobe of the ear with a pre-sterilized single-use stud-and-clasp ear-piercing system.
EQUIPMENT -- All machinery, fixtures, containers, vessels, tools, devices, implements, furniture, display and storage areas, sinks and all other apparatuses and appurtenances used in the operation of a body art establishment.
EXPOSURE -- Contact of an eye, mouth or other mucus membrane, non-intact skin with potentially infectious matter, including but not limited to blood or other bodily fluids of another person.
HAND SINK -- A lavatory equipped with hot and cold running water under pressure, used solely for washing or disinfecting hands, arms or other portions of the body.
HOT WATER -- Water that attains and maintains a temperature of 110° to 130° F.
INSTRUMENTS -- Hand pieces, needles, needle bars, and other implements that may come in contact with a client's body or may be exposed to blood or other bodily fluids during any body art procedure.
INVASIVE -- Describes any body art procedure during which any instruments enter the client's body into or through the skin or mucosa, either by incision or insertion, or by any other means intended to puncture, break or otherwise compromise the skin or mucosa.
JEWELRY -- Any ornament inserted into a newly pierced area.
LIGHT COLORED -- A light reflectance value of 70% or greater.
MINOR -- Any person under the age of 18 years.
MOBILE OR TEMPORARY BODY ART ESTABLISHMENT -- Any trailer, truck, car, van, camper or other motorized or nonmotorized vehicle; a shed, tent or other movable structure; a bar, home or other facility; or a concert, fair, party or other event or temporary establishment used to conduct body art procedures.
OPERATOR -- Any person that individually, or jointly or severally with others, owns or controls a body art establishment but is not a body art practitioner.
PERMIT -- Approval of the Board of Health in writing to either operate a body art establishment or operate as a body art practitioner within a body art establishment. Said permit is exclusive of the establishment's compliance with other federal, state or local licensing or permitting requirements.
PERSON -- Any person, firm, partnership, association, corporation, company or organization of any kind.
PHYSICIAN -- An individual licensed as a qualified physician by the Board of Registration in Medicine pursuant to MGL c. 112, § 2.
PROCEDURE SURFACE -- Any surface of an inanimate object that contacts the client's unclothed body during a body art procedure or on which skin preparation of the area adjacent to and including the body art procedure is performed.
SANITARY -- Clean and free of agents of infection or disease.
SANITIZE -- The application of an EPA registered sanitizer on a cleaned surface in accordance with the label instructions.
SCARIFICATION -- Altering skin texture by cutting the skin and controlling the body's healing process in order to produce wounds, resulting in permanently raised wheals or bumps known as keloids.
SHARPS -- Any object, sterile or contaminated, that may intentionally or accidentally cut or penetrate the skin or mucosa, including but not limited to needle devices, lancets, scalpel blades, razor blades and broken glass.
SHARPS CONTAINER -- A puncture-resistant, leakproof container that can be closed for handling, storage, transportation and disposal of sharps and that is labeled with the international biohazard symbol.
SINGLE-USE ITEMS -- Products or items that are intended for one-time, one-person use and that are disposed of after use on each client, including but not limited to cotton swabs or balls, tissues or paper products, paper or plastic cups, gauze and sanitary coverings, razors, piercing needles, scalpel blades, stencils, ink cups, protective gloves, inks, dyes and pigments. All products applied to the skin, such as but not limited to body art stencils, applicators, gauze and razors, are single-use items.
STERILIZE -- The use of a physical or chemical procedure to destroy all microbial life, including highly resistant bacterial endospores.
TATTOO -- The indelible mark, figure or decorative design introduced by insertion of dyes or pigments into or under the subcutaneous portion of the skin.
TATTOOING -- Any method of creating a tattoo. This term includes all forms of cosmetic tattooing.
THREE-DIMENSIONAL (3D) BODY ART or BEADING or IMPLANTATION -- Placing, injecting or inserting an object, device or other thing made of matters such as steel, titanium, rubber, latex, plastic, glass or other inert materials beneath the surface of the skin of a person. This term does not include body piercing.
ULTRASONIC CLEANING UNIT -- A unit which removes all foreign matter from instruments by means of high-frequency oscillations transmitted through the contained liquid. Such unit must be approved by the Board of Health and must be large enough to fully submerge instruments in liquid.
UNIVERSAL PRECAUTIONS -- Includes hand washing; gloving; personal protective equipment; injury prevention; and proper handling and disposal of needles, other sharp instruments and blood and body fluid contaminated products. Pursuant to universal precautions, body art practitioners and operators and clients must assume that all human blood and specified human body fluids are infectious for HIV, HBV and other blood pathogens. The complete set of guidelines and controls is published by the Centers for Disease Control and Prevention (CDC) as "Guidelines for Prevention of Transmission of Human Immunodeficiency Virus (HIV) and Hepatitis B Virus (HBV) to Health Care and Public Safety Workers" in Morbidity and Mortality Weekly Report (MMWR), June 23, 1989, Vol. 38, No. S-6, and as "Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures" in MMWR, July 12, 1991, Vol. 40, No. RR-8.
§ 155-121. Exemptions.
A. Physicians who perform body art procedures as part of patient treatment are exempt from these regulations.
B. Individuals who perform ear piercings, as defined herein, and who are not otherwise body art practitioners or owners are exempt from these regulations.
§ 155-122. Restrictions.
A. No tattooing shall be performed on a person under the age of 18. No piercing of genitalia, branding or scarification shall be performed in the Town of Lexington.
B. Body piercing, other than piercing the genitalia, may be performed on a person between the ages of 14 and 18 if that person is accompanied by a properly identified parent, legal custodial parent or legal guardian who has signed a form consenting to such procedure. The parent or legal guardian must produce a valid photo identification and the minor must produce a valid birth certificate. Body piercing of persons who have not reached their 14th birthday is prohibited.
C. No body art shall be performed upon an animal, unless otherwise required by law.
D. The following body piercings are hereby prohibited: piercing of the uvula, tracheal area, neck, ankle, web area of the hand or foot, lingual frenulum (tongue web), clitoris, anus, eyelid (whether top or bottom) or gums; piercing between the ribs or vertebrae; any form of chest or deep muscle piercings, excluding the nipple; piercing or skewering of a testicle; "deep" piercing of the penis (piercing through the shaft of the penis); "transpenis" piercing in any area from the corona glandis to the pubic bone; "deep" piercing of the scrotum (piercing through the scrotum) or "transscrotal" piercing; and "deep" piercing of the vagina.
E. The following practices are hereby prohibited unless performed by a physician, as defined herein: tongue splitting; braiding; three-dimensional body art, as defined herein; tooth filing/fracturing/removal/tattooing; cartilage modification; amputation; genital modification; and inserting saline or other liquids into any part of the body.
F. No person shall establish or operate a mobile or temporary body art establishment.
§ 155-123. Operation of body art establishments.
  Unless otherwise permitted by the Board of Health, each body art establishment shall be constructed, operated and maintained to meet the following minimum requirements:
A. Physical plant.
(1) Walls, floors, ceilings, and procedure surfaces shall be smooth, durable, free of open holes or cracks, light colored, washable, and in good repair. Walls, floors, and ceilings shall be maintained in a clean condition. All procedure surfaces, including client chairs/benches, shall be of such construction as to be easily and thoroughly cleaned and sanitized after each client.
(2) Solid partitions or walls extending from floor to ceiling shall separate the establishment's space from any other room used for human habitation, food establishment or room where food is prepared, hair salon, retail sales, or any other such activity that may cause potential contamination of procedure surfaces.
(3) The establishment shall take all measures necessary to ensure against the presence or breeding of insects, vermin, and rodents within the establishment or within rooms adjacent to the establishment.
(4) The establishment shall have a minimum of 45 square feet of floor space for each practitioner.
(5) The establishment shall have an area that may be screened from public view for clients requesting privacy. Multiple body art stations shall be separated by dividers or partitions at a minimum.
(6) The establishment shall be well ventilated and shall contain an artificial light source equivalent to at least 20 footcandles three feet off the floor, except that at least 100 footcandles shall be provided at the level where the body art procedure is being performed and where instruments and sharps are assembled and in all cleaning areas.
(7) All electrical outlets in the establishment shall be equipped with approved ground fault (GFCI) protected receptacles.
(8) The establishment shall install at least one readily accessible hand sink for each procedure surface. Each hand sink should be equipped with wrist- or foot-operated controls and supplied with liquid soap and disposable paper towels stored in fixed dispensers.
(9) The establishment shall install at least one janitorial sink for use in cleaning the establishment and for proper disposal of noncontaminated liquid wastes in accordance with all applicable federal, state and local laws. Said sink shall be of adequate size and equipped with hot and cold running water under pressure and shall permit the cleaning of the establishment and any equipment used for cleaning.
(10) The establishment shall have a minimum of one toilet room containing a toilet and sink. The toilet room shall be provided with toilet paper, liquid hand soap and paper towels stored in a fixed dispenser. A body art establishment permanently located within a retail shopping center (or similar setting which houses multiple operations within one enclosed structure having shared entrance and exit points) shall not be required to provide a separate toilet room within such body art establishment if Board of Health approved toilet facilities are located in the building within 300 feet of the body art establishment so as to be readily accessible to any client or practitioner.
(11) The public water supply entering the establishment shall be protected by a testable, reduced-pressure backflow preventer installed pursuant to 248 CMR 2.10 et seq.
(12) The establishment shall have at least one covered, foot-operated waste receptacle adjacent to each procedure surface and in each toilet room. Each receptacle shall be emptied daily. Solid waste shall be stored in covered, leakproof, rodent-resistant containers and shall be removed from the premises at least weekly.
(13) The establishment shall have a sharps container for each procedure surface and each cleaning area.
(14) All instruments and supplies shall be stored in clean, dry, and covered containers. Containers shall be kept in a secure area specifically dedicated to the storage of all instruments and supplies.
(15) The establishment shall have a cleaning area. Every cleaning area shall contain an autoclave or other sterilization unit located or positioned at least 36 inches from the required ultrasonic cleaning unit.
(16) The establishment shall have a customer waiting area separate from any workstation, instrument storage area, procedure surface, cleaning area or any other area in the body art establishment used for body art activity.
(17) No animals of any kind shall be allowed in a body art establishment except service animals used by persons with disabilities (e.g., seeing eye dogs). Fish aquariums may be allowed in waiting rooms and in other nonprocedural areas.
(18) Smoking, eating or drinking is prohibited in the area where body art is performed, with the exception of nonalcoholic fluids ingested by clients during or after a body art procedure.
B. Requirements for single-use items.
(1) Single-use items, as defined herein, shall not be used on more than one client for any reason.
(2) After use, all single-use sharps shall be immediately disposed of in approved sharps containers pursuant to 105 CMR 480.000 et seq.
(3) Hollow bore needles or needles with cannula shall not be reused.
(4) All inks, dyes, pigments, solid core needles, and equipment used during body art procedures shall be specifically manufactured for performing body art procedures and shall be used according to manufacturer's instructions.
(5) Inks, dyes or pigments may be mixed and may only be diluted with water from an approved potable source. Immediately before a tattoo is applied, the dye to be used shall be transferred from the dye bottle and placed into single-use paper or plastic cups. Upon completion of the tattoo, these single-use cups and their contents shall be discarded.
C. Sanitation and sterilization measures and procedures.
(1) All nondisposable instruments used for body art, including all reusable solid core needles, pins and stylets, shall be cleaned thoroughly after each use by scrubbing with an appropriate soap or disinfectant solution and hot water. Thereafter, such instruments must be cleaned by an ultrasonic cleaning unit, as defined herein.
(2) After being cleaned, all nondisposable instruments used for body art shall be packed individually in sterilizer packs and subsequently sterilized in a steam autoclave, as defined herein and approved by the United States Food and Drug Administration. All sterilizer packs shall contain either a sterilizer indicator or internal temperature indicator. Sterilizer packs must be dated with an expiration date of at least six months after the date of use.
(3) The autoclave shall be used, cleaned, and maintained according to the manufacturer's instruction. A copy of the manufacturer's recommended procedures for the operation of the autoclave must be available for inspection by the Board of Health. The autoclave shall not have contact with workstations or areas frequented by the public.
(4) Spore destruction tests shall be performed monthly on the autoclave to demonstrate that it is capable of attaining sterilization. These tests shall be verified through an independent laboratory. Any documented failure of a spore destruction test by an autoclave may result in the nonissuance or revocation of a permit, as defined herein. All test records shall be retained by the operator for a period of three years and made available to the Board upon request.
(5) All instruments used for body art procedures shall remain stored in sterile packages until immediately prior to the performance of a body art procedure. After sterilization, the instruments must be placed in a tightly covered container (or in a sharps container, where applicable) and shall be stored in a dry, clean cabinet or shelf.
(6) All jewelry, as defined herein, must be made of surgical implant grade stainless steel; solid 14k or 18k white or yellow gold, niobium, titanium, or platinum; or a dense, low-porosity plastic, which is free of nicks, scratches, or irregular surfaces and has been properly sterilized prior to use.
(7) Sterile instruments may not be used if the package has been breached or after the expiration date without first repackaging and re-sterilizing.
(8) If the body art establishment uses only single-use, disposable instruments and products, and uses only sterile supplies, it is not required to have an autoclave.
(9) When assembling instruments used for body art procedures, the practitioner shall wear disposable medical gloves and take appropriate precautions to ensure that the instruments and gloves are not contaminated.
(10) Reusable cloth items shall be mechanically washed with detergent and mechanically dried after each use. The cloth items shall be stored in a dry, clean environment until used. Should such items become contaminated directly or indirectly with bodily fluids, the items shall be washed at a temperature of 160° F. or a temperature of 120° F. with the use of chlorine disinfectant.
D. Posting requirements. The following shall be prominently displayed:
(1) A disclosure statement, a model of which shall be available from the Board of Health. A disclosure statement shall also be given to each client, advising him/her of the risks and consequences of body art procedures.
(2) Contact information for the Lexington Board of Health.
(3) An emergency plan, including:
(a) A plan for the purpose of contacting police, fire or emergency medical services in the event of an emergency;
(b) A telephone in good working order shall be easily available and accessible to all employees and clients during all hours of operation; and
(c) A sign at or adjacent to the telephone indicating the correct emergency telephone numbers.
(4) An occupancy and use permit as issued by the Lexington Building Inspector.
(5) A current permit to operate a body art establishment.
(6) Each body art practitioner's permit.
E. Establishment recordkeeping. Each body art establishment shall maintain the following records in a secure place for a minimum of three years, and such records shall be made available to the Board of Health upon request:
(1) Establishment information, which shall include:
(a) Name of the establishment;
(b) Hours of operation;
(c) Owner's name and address;
(d) A complete description of all body art procedures performed;
(e) An inventory of all instruments and body jewelry, all sharps, and all inks used for any and all body art procedures. The inventory shall include names of manufacturers and serial or lot numbers, if applicable; invoices or packing slips may satisfy this requirement;
(f) A material safety data sheet, when available, for each ink and dye used by the establishment;
(g) Copies of waste hauler manifests;
(h) Copies of commercial biological monitoring tests;
(i) Exposure incident report (kept permanently); and
(j) A copy of these regulations.
(2) Employee information, which shall include:
(a) Full legal names;
(b) Date of birth;
(c) Home address;
(d) Home/work phone numbers;
(e) Identification photograph;
(f) Dates of employment;
(g) Exact duties;
(h) Hepatitis B vaccination status or declination notification; and
(i) Training records.
(j) CORI (criminal offender record information) on all employees at the establishment.
(3) Client information.
(a) Client information, which shall include:
[1] Client's name, age, and address;
[2] A copy of a valid photo identification;
[3] Date of the procedure(s);
[4] Name of the practitioner who performed the procedure(s);
[5] Description of procedure(s) performed and the body art site;
[6] A signed consent form pursuant to § 155-124D(2); and
[7] If the client is a person under the age of 18, proof of parental or guardian identification, presence and consent, including a photocopy of the photographic identification of the parent or guardian.
(b) Client information must be kept confidential at all times.
(4) Exposure control plan. Each establishment shall create, update, and comply with an exposure control plan. The plan shall be submitted to the Board of Health, which shall ensure that the plan conforms to the requirements of OSHA regulations, including but not limited to 29 CFR 1910.1030 et seq., OSHA Bloodborne Pathogens Standards. A copy of the plan shall be maintained at the body art establishment at all times and shall be made available to the Board of Health upon request.
§ 155-124. Standards of practice.
  Body art practitioners must comply with the following minimum health standards:
A. A practitioner shall perform all body art procedures in accordance with universal precautions, as defined herein.
B. A practitioner shall refuse service to any person who appears to a reasonable person to be under the influence of alcohol or drugs.
C. No practitioner shall use an ear-piercing system on any part of the client's body other than the lobe of the ear.
D. Health history and informed consent. Prior to performing a body art procedure on a client, the practitioner shall:
(1) Inform the client, verbally and in writing, that the following health conditions may increase health risks associated with receiving a body art procedure:
(a) History of diabetes;
(b) History of hemophilia (or other bleeding condition);
(c) History of skin diseases, skin lesions, or skin sensitivities to soaps or disinfectants;
(d) History of allergies or adverse reactions to pigments or dyes;
(e) History of epilepsy, seizures, fainting, or narcolepsy;
(f) Use of medications such as anticoagulants, which thin the blood and/or interfere with blood clotting; and
(g) Any other conditions such as hepatitis or HIV.
(2) Require that the client sign a form confirming that:
(a) The information specified in Subsection D(l) was provided;
(b) The client does not have a condition that prevents him or her from receiving body art;
(c) The client consents to the performance of the body art procedure; and
(d) The client has been given the aftercare instructions as required by Subsection K.
E. A practitioner shall maintain the highest degree of personal cleanliness, conform to best standard hygienic practices, and wear clean clothes when performing body art procedures. Before performing body art procedures, the practitioner must thoroughly wash her hands in hot running water with liquid soap, then rinse her hands and dry them with disposable paper towels. This shall be done as often as necessary to remove contaminants.
F. When performing body art procedures, a practitioner must wear disposable single-use gloves. Under no circumstances shall a single pair of gloves be used on more than one person. Gloves shall be changed if they become pierced, torn, or otherwise contaminated by contact with any unclean surface or object or by contact with a third person. The gloves shall be discarded, at a minimum, after the completion of each procedure on an individual client, and the practitioner's hands must be washed in accordance with Subsection E before the next set of gloves is put on.
G. The skin of the practitioner shall be free of rash or infection. No practitioner affected with boils, infected wounds, open sores, abrasions, weeping dermatological lesions or acute respiratory infection shall work in any area of a body art establishment in any capacity in which there is a likelihood that that person could contaminate clients, other practitioners, body art equipment, supplies, or working surfaces with body fluids or pathogenic organisms.
H. Any item or instrument used for body art that is contaminated during the body art procedure shall be discarded and replaced immediately with a new disposable item or a new sterilized instrument or item before the procedure resumes.
I. A practitioner's preparation of and care for a client's skin must comply with the following:
(1) Any body art site must be free of rash or any visible infection.
(2) Before a body art procedure is performed, the body art site shall be washed with soap and water and an approved surgical skin preparation.
(3) If shaving is necessary, single-use disposable razors or safety razors with single-service blades must be used. Blades shall be discarded after each use, and reusable holders shall be cleaned and autoclaved after use pursuant to § 155-123C. Following shaving, the skin and surrounding area shall be washed with soap and water. The washing pad shall be discarded after a single use.
(4) In the event of bleeding, all products used to stop the bleeding or to absorb blood shall be single use and discarded immediately after use in appropriate covered containers and disposed of in accordance with 105 CMRR 480.000 et seq.
J. Petroleum jellies, soaps, and other products used in the application of stencils shall be dispensed and applied on the body art site with sterile gauze or a similarly sterile applicator to prevent contamination of the original container and its contents. The applicator or gauze shall be discarded after a single use.
K. Aftercare instructions.
(1) The practitioner shall provide each client with verbal and written instructions on the aftercare of the body art site. The written instructions shall advise the client:
(a) On the proper cleansing of the body art site;
(b) To consult a health care provider for:
[1] Redness, tenderness or swelling at the body art site;
[2] Any rash;
[3] Drainage at or from the body art site; or
[4] A fever within 24 hours of the body art procedure; and
(c) Of the address and phone number of the body art establishment and the name of the practitioner involved.
(2) A model set of aftercare instructions shall be made available by the Board of Health.
L. Contaminated waste shall be stored, treated and disposed of in accordance with 105 CMR 480.000 et seq., Storage and Disposal of Infectious or Physically Dangerous Medical or Biological Waste (State Sanitary Code, Chapter VIII).
§ 155-125. Exposure incident report.
  An exposure incident report shall be completed by the close of the business day during which an exposure has or might have taken place by the involved or knowledgeable body art practitioner for every exposure incident occurring in the conduct of any body art activity. This incident report shall be filed within one business day with the Board of Health. Each exposure incident report shall contain:
A. A copy of the application and consent form for body art activity completed by any client involved in the exposure incident;
B. A full description of the exposure incident, including the portion of the client's body involved therein;
C. Instrument(s) or other equipment implicated;
D. A copy of the body art practitioner license of the involved body art practitioner;
E. Date and time of exposure;
F. A copy of any medical history provided by the involved client to the body art establishment or body art practitioner; and
G. Information regarding any recommendation to refer to a physician or waiver to consult a physician by persons involved.
§ 155-126. Injury and/or complication reports.
  A written report of any actual or alleged injury, infection complication or disease caused by a body art procedure shall be forwarded by the operator to the Board of Health, with a copy to the involved client, within one working day of its occurrence. The report shall include:
A. The name of the client involved;
B. The name and location of the body art establishment involved;
C. The nature of the actual or alleged injury, infection complication or disease;
D. The name and address of the involved client's health care provider, if any;
E. The name of the practitioner involved; and
F. Any other information potentially relevant to the situation.
§ 155-127. Complaints.
A. The Board of Health shall investigate complaints received concerning an establishment, operator or practitioner that may violate any provision of these regulations.
B. If the Board of Health finds that an investigation is not required because the alleged condition, act or practice does not constitute a violation of these regulations, then the Board shall notify the complainant in writing of its finding and the reasons on which it is based.
C. If the Board of Health finds that an investigation is required because the alleged condition, act or practice may constitute a violation of these regulations, the Board shall investigate. The scope of the Board's investigation shall be within the Board's discretion. If a finding is made that the condition, act or practice is in violation of these regulations, then the Board shall apply whatever remedy it deems to be appropriate and shall notify the complainant of its findings and remedies in writing.
§ 155-128. Application for body art establishment permit.
A. No person may operate a body art establishment without a valid permit from the Board of Health. The annual fee for the body art establishment permit shall be $150.
B. Applications for a permit shall be made on forms created by and available from the Board of Health. An applicant shall submit all information required by the form and accompanying instructions.
C. An establishment permit shall be valid from the date of issuance and for no longer than one year unless revoked sooner by the Board of Health. The applicant must renew the establishment permit prior to the end of the year term to ensure continuous operation of the body art establishment.
D. Where an establishment has maintained a valid permit for the duration of its year term and where the applicant seeks to renew such permit prior to the expiration of the original year term but the original year term expires while the renewal application is still pending before the Board of Health, the establishment may continue to operate while the renewal application is pending before the Board.
E. The applicant must provide, at a minimum, the following information to the Board of Health in order to be issued an establishment permit:
(1) Name, address, and telephone number of:
(a) The body art establishment;
(b) The operator of the establishment; and
(c) The body art practitioner(s) working at the establishment;
(2) The manufacturer, model number, model year, and serial number, where applicable, of the autoclave used in the establishment;
(3) A signed and dated acknowledgment that the applicant has received, read and understood the requirements of these regulations;
(4) A drawing, to scale, of the floor plan of the proposed establishment for a plan review by the Board of Health;
(5) An exposure control plan, as specified in § 155-123E(4) herein;
(6) Such additional information as the Board of Health may reasonably request.
F. A permit for a body art establishment shall not be transferable from one establishment or person to another.
§ 155-129. Application for body art practitioner permit.
A. No person shall practice body art or perform any body art procedure without first obtaining a practitioner permit from the Board. The annual fee for a practitioner permit shall be $100.
B. A practitioner shall be at least 18 years of age.
C. A practitioner permit shall be valid from the date of issuance and shall expire no later than one year from the date of issuance unless revoked sooner by the Board of Health. The applicant must renew his/her practitioner permit prior to the end of the year term to ensure continuous operation of the body art establishment.
D. Where a practitioner has maintained a valid permit for the duration of its year term and where the applicant seeks to renew such permit prior to the expiration of the original year term, but the original year term expires while the renewal application is still pending before the Board of Health, the practitioner may continue to perform body art procedures while the renewal application is pending before the Board.
E. An applicant for a practitioner permit shall provide his/her:
(1) Name;
(2) Date of birth;
(3) Residence address;
(4) Mailing address;
(5) Phone number;
(6) Place(s) of employment as a practitioner;
(7) Training and/or experience as set out in Subsection F below.
(8) Copy of a CORI (Criminal offender record information) check on the applicant.
F. Practitioner training and experience.
(1) In reviewing an application for a practitioner permit, the Board of Health may consider experience, training and/or certification acquired in other jurisdictions that regulate body art.
(2) Training for all practitioners shall be approved by the Board of Health and, at a minimum, shall include the following:
(a) A bloodborne pathogen training program (or equivalent) which includes teaching the proper methods for infectious disease control, waste disposal, handwashing, operating sterilization equipment, sanitization, disinfection, and sterilization; and
(b) Current certification in first aid and cardiopulmonary resuscitation (CPR). Examples of courses approved by the Board of Health include "Preventing Disease Transmission" (American Red Cross) and "Bloodborne Pathogen Training" (U.S. OSHA). Training/courses provided by professional body art organizations or associations or by equipment manufacturers may also be submitted to the Board for approval.
(3) The applicant for a body art practitioner permit shall provide documentation, acceptable to the Board of Health, that s/he completed a course on anatomy and physiology with a grade of C or better at a college accredited by the New England Association of Schools and Colleges, or by a comparable accrediting entity. This course must include instruction on the system of the integumentary system (skin). Such other course or program as the Board shall deem appropriate and acceptable may be substituted for the anatomy course.
G. A practitioner's permit shall be conditioned upon continued compliance with all applicable provisions of these regulations and a satisfactory criminal background report in accordance with Board of Health policies on this matter.
§ 155-130. Grounds for suspension, denial, revocation or refusal to renew permit.
A. The Board of Health may suspend a permit, deny a permit, revoke a permit or refuse to renew a permit on the following grounds, each of which, in and of itself, shall constitute full and adequate grounds for suspension, denial, revocation or refusal to renew:
(1) Any actions that put the health or safety of the public at risk;
(2) Fraud, deceit or misrepresentation in obtaining a permit, or its renewal;
(3) Criminal conduct, determined through a Massachusetts criminal offender record information (CORI) check, which the Board of Health determines to be of such a nature as to render the establishment, practitioner or applicant unfit to practice body art. Establishments and practitioners must obtain a Massachusetts CORI check for themselves and employees who have lived and worked in Massachusetts at any time after attaining the age of 17 (including temporary stays; for example, college) or lived and worked in any state contiguous with Massachusetts at any time after attaining the age of 17. For owners and practitioners whose permanent residence is not Massachusetts (out of state and international), information may be obtained from the applicant's local Chief of Police, or other local authority with access to relevant information, a criminal record check, or its recognized equivalent. If a permit is allowed to lapse for any period, a new criminal history check will be made. Sufficient evidence of such criminal conduct shall include criminal proceedings resulting in a conviction, guilty plea, or plea of nolo contendere or an admission of sufficient facts;
(4) Any present or past violation of these regulations;
(5) Practicing body art while the ability to practice is impaired by alcohol, drugs, physical disability or mental instability;
(6) Knowingly permitting, aiding or abetting an unauthorized person to perform activities requiring a permit;
(7) Continuing to practice or operate a body art establishment while his/her permit is lapsed, suspended, or revoked;
(8) Having been disciplined in another jurisdiction in any way by the proper permitting authority for reasons substantially the same as those set forth in these regulations; and
(9) Other just and sufficient cause which the Board of Health, in its discretion, may determine would render the establishment, practitioner or applicant unfit to practice body art.
B. The Board of Health shall notify an applicant, operator/owner or practitioner in writing of any violation of these regulations for which the Board intends to deny, revoke, or refuse to renew a permit. The applicant, establishment or practitioner shall have seven days after receipt of such written notice in which to remedy the violation. The Board may deny, revoke or refuse to renew a permit if the applicant, establishment or practitioner fails to remedy the violation after said seven days subject to the procedure outlined in § 155-132.
C. Applicants denied a permit may reapply at any time after denial.
D. Grounds for suspension of permit. The Board of Health may summarily suspend a permit pending a final hearing on the merits on the question of revocation if, based on the evidence before it, the Board determines that an establishment and/or a practitioner is an immediate, likely, and serious threat to the public health, safety or welfare. The suspension of a permit shall take effect immediately upon written notice to the permit holder of such suspension by the Board.
§ 155-131. Procedure for hearings.
A. The applicant, operator/owner or practitioner shall be given written notice of the Board of Health's intent to hold a hearing for the purpose of suspension, revocation, denial or refusal to renew a permit. This written notice shall be served through a certified letter sent return receipt requested or by constable. The notice shall include the date, time and place of the hearing and the applicant, operator/owner or practitioner's right to be heard. The Board shall hold the hearing no later than 21 days from the date the written notice is received.
B. In the case of a suspension of a permit as noted in § 155-130, a hearing shall be scheduled no later than 21 days from the date of the suspension.
§ 155-132. Severability.
  If any section, paragraph or part of these regulations is for any reason declared invalid or unconstitutional by any court, every other section, paragraph and part shall continue in full force.
§ 155-133. Relationship to other laws.
  Nothing in these regulations shall be construed to restrict, amend, repeal, or otherwise limit the application or enforcement of existing Town of Lexington bylaws or Commonwealth of Massachusetts laws.
§ 155-134. Noncriminal disposition.
  In accordance with MGL c. 40, § 21D, any person violating any provision of these regulations is subject to the penalties under Chapter 1, § 1-6 of the General Bylaws. Each day that a violation continues shall be deemed to be a separate offense.
§ 155-135. Effective date.
  These regulations shall be effective as of January 16, 2002.