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John Benoit and Naveed Asif are asking the board for a waiver from the permit cap. Asif has already begun renovations to an East Street gas station unaware of the cap.

Pittsfield Health Officials Hitting Snags With Tobacco Permit Cap

By Andy McKeeveriBerkshires Staff
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PITTSFIELD, Mass. — It was on Dec. 10 when an armed robber stole money from Zuke's Variety.
Owner Elizabeth Zucco was worried about filing all of the reports, working with authorities to find the criminal, and provide the necessary accounting. She runs a restaurant in the city as well. She's a mother and was worried about Christmas. She had to get her tax documents in order.  With all that going on, she didn't file her renewal application for her tobacco license.
"Everything was coming in at once," Zucco said.
The problem, though, is that she also was late in renewing last year, and the Health Department suspended her license for 30 days. Her permit is now suspended again for noncompliance and because of laws imposed in 2014 limiting the number of permits allowed, Zucco might not be able to get it back.
"I was baffled that my tobacco permit would never be renewed," she said at Tuesday's Board of Health meeting. "I am completely embarrassed to be sitting here again over the tobacco license."
In July 2014, the Board of Health adopted a cap on the number of permits at 25 as part of sweeping changes to the tobacco laws. There are currently 51 permits issued, so Zucco can't apply for another one. Nor can any other entity looking to open a store sell tobacco products.
Nobody told that to Zameer Alhaq and Naveed Asif.
Those two recently purchased the former East Street gas station owned by O'Connells in the fall. The gas station needs to replace its underground storage tanks and that could cost over a quarter of a million dollars. Asif and Alhaq received all the building permits and began renovating the site into a convenience store and gas station with the convenience store aspect providing the revenue to replace the tanks.
In January, however, Health Director Gina Armstrong discovered the plans and informed Asif that he can't sell tobacco.
"By August of 2017, their business plan and the law required that it would really become a fully renovated gas station. They wanted to add the convenience store. It wouldn't be a renovated gas station without the convenience store because something has to pay for those renovations," said real estate agent John Benoit, who brokered the deal.
Benoit said he went to the Office of Community Development, spoke with the permitting coordinator to get all of the necessary paperwork in order. He says the office never said a word about the restriction on tobacco permits.
"We did realize that there could have been some information provided from the other city departments during this process. It appears that communication didn't take place," Armstrong said.
"However, I would think anybody purchasing a property in any city, they'd do their due diligence."
Both entities are now seeking waivers from the Board of Health to get permits. Alhaq and Asif have already invested money into the property and need the permit to be a viable business. And Zucco will go out of business if she can't continue to operate as she has for the last six years.
"We are just trying to prevent the deathblow to this store," Zucco's attorney Kenneth Ferris said.
City Councilor Christopher Connell worked 10 years in the convenience store business. He says 30 percent of sales in a convenience store is for tobacco products. He says convenience stores need those sales to survive. Zucco says the sales mean even more to her because customers stop in for that and then buy more. Without it, they go elsewhere.
"The city of Pittsfield cannot have another C store open unless we adjust those limits," Connell said. "We need as much business as we can get in the city. These stores do employ people, they provide some jobs."
Connell was joined by City Councilor Melissa Mazzeo, who is supporting waivers and for raising the cap. The two feel the restriction on the number of businesses is less effective in curbing teenage smoking than raising the age to buy the products — as has been considered by the Board of Health but never implemented. 
"The cap, we feel like, is really tight. We would really like to have more conversation about that number," Mazzeo said.
Mazzeo said she understands how there are many issues facing a retailer and the renewal could be late. And she says Alhaq and Asif's Gas Man on East Street is bringing a business to a blighted area — an area Mayor Linda Tyer even held a campaign stump in during the last election cycle to emphasis the importance of cleaning up blight.
Tri-Town Public Health Director James Wilusz has a different take. He said the cap is addressing a serious problem with smoking prevalence in the city and asked the board to uphold its position. 
He said the adult smoking prevalence here is 45 percent higher than the state average and smoking during pregnancy in Pittsfield is 250 percent higher than the state average. He said there have been 100 compliance check failures of businesses selling to minors, averaging 10 a year, since 2005.
"It was based on a public health reaction of prevalence," Wilusz said of the adoption of the law. "We encourage you to uphold your capping permit requirement."
Donald Turner owns East Street Video and Variety and he says there are plenty of tobacco retailers in the area and another one isn't needed. He said there are five licensees within a mile from him.
"We offer the same thing these two gentlemen are proposing to offer in the new store. I am 150 feet from that store," Turner said. 
And he said, the proprietors should have looked into the regulations first, "if you are going to spend all of that money on property, you should do your homework."
Benoit says he did his homework by going to the city's permitting coordinator. He said there are so few towns with caps on the number of permits so it is unexpected that there'd be one. He says he'd expect the Office of Community Development to tell him of such a rare case. He said he was "blindsided" when Alhaq told him about Armstrong's call.
"I'm not saying it's new. I've never heard of it. He's never heard of it ... and the permitting coordinator didn't know about it," Benoit said. "If he had known, he would have stopped."
John Barry is the architect of the East Street gas station and he didn't know either. 
Armstrong admitted that more could have been done to work with other departments to relay that information. 
With Zuke's, Armstrong said the permit expired on Dec. 31 and a reminder notice was sent on Dec. 4. On Feb. 8 the renewal fees weren't paid and another certified letter was sent to the business. On Feb. 24, the Health Department sent a notice to cease selling tobacco. On March 4, Wilusz said an employee denied a Tri-town health inspector access to the property. 
Ferris said the letters made no mention that the permit would be revoked for good and that the letters weren't going to her attorney or even her home address, but rather just to the business where mail could take longer to reach Zucco. She's kept up with all of her food permits and hasn't had a recent failure in compliance (there was one in 2010 and another in 2011). 
"The permanent loss of license is very severe. It just seems like a very draconian result for what's happened in this case. She just didn't file on time for a permit she already has," Ferris said. "Without the ability to sell tobacco, it is very likely that this store will go out of business."
Board of Health member Jay Green is an attorney and when his bar dues are up, he makes sure to pay them because that's his livelihood. He doesn't understand why if tobacco sales were so important to these stores, why the owners would be shirking on their responsibilities.
"All we are asking is for the permit fees to be turned in on time," Green said.
Chairwoman Roberta Orsi added, "business owners do have a responsibly to pay attention to these kind of things."
Board members didn't understand how Zucco could not grasp the severity of not complying with the laws when she had been brought before them last year for the same reason. 
"The permit expired Dec. 31. I have a hard time understanding you didn't understand the severity of the situation. You had a 30-day suspension last year," board member Dominica D'Avella said. "The bottom line is that you haven't read the regulations."
D'Avella said there are 50 other businesses, some of which were also hit during a spree of armed robberies, which renewed. 
The Board of Health placed the cap of 25 permits with the goal of reducing the number of retailers operating in the city. The effort is to reduce underage smoking.
The only two other times the Board of Health was asked for waivers it allowed them. Both the Big Y Express and Berkshire General Store were allowed to apply for permits (it is unclear if Berkshire General Store was ever granted one though). Coincidentally, earlier this year Big Y Express failed a compliance check and sold to a minor. 
Now if the Board of Health grants waivers for both the Gas Man and Zuke's the number of permits allowed will actually increase with the new gas station instead of decreasing as hoped a year and a half ago.
"At some point we have to draw the line. There are no excuses. As you can see, there is a demand for these permits," Green said.
The board will make a decision on those two cases next week. 

Tags: convenience store,   tobacco regulations,   

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