Mayor Linda Tyer, as well as four city councilors, advocated on behalf of the businesses to be granted waivers. Their advocacy worked for Zuke's but not for Gas Man.
PITTSFIELD, Mass. — The Board of Health levied stiff penalties for a business owner who did not comply with tobacco permitting regulations and denied a new business the chance to sell tobacco.
A week after hearing testimony from the owner of Zuke's Soups and Variety on West Street and the proprietors of Gas Man on East Street, the board on Wednesday handed out its decisions.
Zuke's is facing a 90-day suspension and a $500 fine for being late in renewing its application and Gas Man was denied a permit, despite investing some $400,000 to purchase and start renovations on the property.
The board was unanimous in the Zuke's decision but was split by a 4-1 margin on Gas Man. Board member Jay Green was the only one voting against the denial, agreeing with the mayor and four city councilors that the city failed the prospective business owners.
Naveed Asif and Zameer Alhaq purchased the former O'Connell's on East Street in September 2015. Prior to the sale, real estate broker John Beniot went to the city's Office of Community Development, was put in touch with the city's permitting coordinator, and not once, he says, did anyone mention there was a cap on tobacco permits.
"They said everything was fine, there would be no problem," Asif said of early interactions with the city. "We were not aware of that law anywhere in Mass."
The sale went through and only months later when the Gas Man filed for a food permit did Health Director Gina Armstrong notice the tobacco aspect.
Armstrong called the two and informed them of the cap. But, tobacco accounts for some 30 percent of a convenience store's business and the two had already invested close to $400,000. They went to the Board of Health hoping for a waiver.
"The city must own its mistake. We did not adequately notify internal permitting departments," Mayor Linda Tyer told the Board of Health in asking for the waiver to be granted.
Tyer was joined by City Council President Peter Marchetti, and City Councilors Christopher Connell, Melissa Mazzeo, and Donna Todd Rivers, who all voiced support of the prospective business but for varying reasons.
Connell said there is a 23 percent increase in money spent per customer with tobacco products than without. The margin, he said, is 14.6 percent so the profits from selling the product even in the smallest of stores is enough to support a few jobs. He also questioned whether or not the cap was actually effective in its goal of reducing underage smoking.
Marchetti felt the debate was taking focus away from more pressing public health issues like the opioid crisis. And Mazzeo and Rivers both questioned the cap and voiced concern for the lack of communication to business owners.
"There are a lot of misunderstanding how the regulation is working, how it came to be, and how it is being communicated," Rivers said.
Mazzeo said last week that even she was not aware of the cap until recently, and that led Benoit to say it is unreasonable to ask an out-of-town prospective business owner to "ferret out" that information.
"I think it is a lot to expect someone from out of the area to ferret that out when city councilors don't even know about it," said Benoit, who asked about the permits just seven months after the Board of Health passed the cap.
The Board of Health, however, said profits shouldn't determine its decisions.
"It seems to me that there is an underlying assumption [among those in the audience] that the profits of a few overwhelm the health of the many," board member Steve Smith said, adding that if that's the case he wouldn't want to sit on the board.
The Board of Health adopted in 2014 a cap of 25 tobacco permits, half of the 50 that were currently in effect. With an average of 10 stores failing compliance checks by selling to underage persons a year, the cap is intended to limit the accessibility to cigarettes. The city has one of the highest smoking prevalence rates in the state.
"We've been progressive in moving forward in reducing access to youth," Chairwoman Roberta Orsi said, reminding the board the the focus of the board is on public health and not business.
Since the law was passed, the city actually increased the number of permits because the Board of Health granted two businesses, which were already under construction when the law was passed, permits. Since then, it has granted a waiver for anther business, which opened as a new business but in the same location and same type of store as the previous permit holder.
"I think there is still a misconception of what this cap on permits is all about," board member Cynthia Geyer said. "We have not reduced the number of permits at all. It's gone up by two."
Smith's fear is that if the board grants yet another permit, the flood gates would be open even more.
"This one fell through the cracks. Whatever we do six months down the road, that could be someone else who fell through the cracks and we're asked again to make an exception," Smith said.
The Gas Man is proposed to be located some 350 feet away from KidZone and Donald Turner, owner of East Street Video and Variety, handed in a petition with more than 100 signatures telling the board that there are enough tobacco retailers in that area already. He put the onus of finding out what permits are needed on the business owner.
"The city of Pittsfield did not drop the ball on this application. Do we have to have a department to hold your hand and take you through the steps? These are adults," Turner said. "We have to stop blaming City Hall for what happened in this case."
Green also questioned whether others will now come before the board saying they dropped their pursuit of a business because they knew about the cap and want a waiver.
But while Green agreed with the arguments to deny the waiver because of the proximity to a preschool, the existing tobacco shops in the area, and the intent behind the cap itself, he is also a former municipal administrator and he agreed with the mayor that "that process failed." He said it is the responsibility of the city to relay that information.
Dominica D'Avella, however, said the permitting should have started earlier. While Benoit may have inquired early in the process, the applications for the permits weren't begun until November, two months after the purchase of the property.
"I'm not willing to debate what conversations did or did not occur in a department," D'Avella said. "However unfortunate it may be, it seems the cart was put before the horse in this situation. The purchase was made in September and permits weren't pulled until months after."
For the Zuke's case, the answer was a little more clear cut. Elizabeth Zucco had missed the renewal dates twice — once in 2015 and once in 2016. By missing those dates, the permit is revoked and with the cap, it can't be renewed. Last year, she was given a 30-day suspension for being late and this year she was forced to ask for a waiver to get it back.
"Life happens. You had a lot of stress going on during that period but in light of the violations in the prior year it was difficult to understand how we could have a repeat situation this year," Armstrong said.
Zucco said last week that a number of things happened at once, from her store being robbed to the holidays, to tax season, and the application just slipped her mind. Zucco has been in business for 12 years running a restaurant on Dalton Avenue and then for the last six at Zuke's.
Since she's been without a tobacco license this time around, she's seen a 70 percent decrease in sales because she says customers come in for the tobacco but buy more when they are in there.
"We've been barely keeping our two part-time employees on," Zucco said.
After the hearing last week, she closed the business.
The board members seemed ready to impose yet another suspension but didn't feel it would be effective if the business is closed.
"I'm not willing to entertain this if the business is not going to be open," D'Avella said.
They are now requiring her to stay open for at least 25 hours a week during the duration of the 90-day suspension. Further, she is not allowed to apply for yet another waiver next year and she was fined $500. The suspension was effective as of March 4, when tobacco was removed from the store.
"I can't walk out of here completely eroding the enforcement provisions of this board," Green said advocating for the fine, which he at first suggested would be $1,000, and a harsh suspension.
Tyer advocated for a fine in the Zuke's case because convenience and food services are needed in that area of the city.
"The city also has a shared responsibility in ensuring we are doing our very best to help people succeed," the mayor said.
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