Many members of the City Council called for the regulations to be revisited.
PITTSFIELD, Mass. — Economic development and health went head to head Tuesday night as members of the City Council pushed back against unwavering health officials.
For more than two hours the City Council peppered local and state health officials about tobacco regulations that were implemented in 2014. The issue is coming to a head now after a business was denied a tobacco retailer permit because the regulations limit the number of establishments selling the products.
Naveed Asif and Zameer Alhaq purchased the former O'Connell's gas station on East Street in 2015 and spent some $400,000 on the purchase and renovations. However, when the business owners had a representative ask the city's Office of Community Development about permits, they were not informed about the cap. Months later, they were informed they could not sell any tobacco products and were denied a waiver from the Board of Health.
The cap was a surprise for Councilor at Large Melissa Mazzeo, who said she didn't know about it. She was joined by two other city councilors and the mayor in asking the Board of Health to grant the permit anyway.
The Board of Health had stuck to its guns and denied the permit as part of the effort to reduce the number of tobacco retailers from the current 51 to 25. On Tuesday, Mazzeo led a charge from the bully pulpit of the City Council Chambers to push for the cap to be removed.
"What you are actually doing is hurting business owners and I think you are hurting Pittsfield in what we need right now," she said.
The City Council has no authority over Board of Health regulations. The health boards are required by state law and are given the authority to pass regulations that protect public health. Providing a presentation and then fielding questions, health officials held their ground saying the cap will ultimately help reduce smoking prevalence in the Pittsfield.
"We do have a tobacco problem in Pittsfield. It is a real issue for us," Board of Health Chairwoman Roberta Orsi said.
According to Tri-Town Health Director Jim Wilusz, Pittsfield has a 23 percent smoking prevalence rate, which is higher than the state average of 17; the adult smoking prevalence is 45 percent higher than the state average; and women smoking while pregnant is 150 percent higher. In 2013, 12 percent of high school seniors reported smoking more than one cigarette in the last month, he said, and there are five times the amount of tobacco retailers within a quarter mile of a school zone than elsewhere.
Tri-Town is funded by the state Department of Public Health to provide an array of tobacco control programs. The group runs compliance checks, requires employees selling the products to take an online certification, and guides the local Boards of Health in policy making decisions to combat secondhand smoke, youth smoking, and adult smoking. The state is slow to act on adopting tobacco laws and the local laws are what drive statewide action, Wilusz said. Most notably, it was local laws creating smoke-free workplaces in the 1990s that led to the state adoption such a law.
"The Board of Health does have the authority to pass local public health laws," Massachusetts Association of Health Boards Senior Staff Attorney Cheryl Sbarra said.
Donald "DJ" Wilson, of the Massachusetts Municipal Association, works with cities and towns to develop laws. He shares language and advises the best way to legally handle the laws. He said it is a neverending battle with the tobacco industry, which continues to find new and innovative ways to market to youth.
"We are constantly fighting this battle of them coming up with new products and us trying to stop them," Wilson said.
One of those ways to reduce teenage smoking is to reduce access. Pittsfield is one of many municipalities in the state to adopt caps.
But, many city councilors disagreed that a cap on the number of establishments would make any impact on reducing youth smoking, and the health officials admitted that they have limited data to support the claim that it does.
"Until we know that data is there to support that, I think what we are doing is hurting our community, not helping it," Mazzeo said.
Board of Health member Cynthia Geyer says while it will take years, or even decades, to see the outcomes of the policy, there is plenty of evidence to show that reducing access will lower smoking rates.
"Some times in public health, you need to use common sense and do the right thing," Geyer said.
She said there was no data collected in the 1970s to support that using seat belts would reduce death but "common sense" laws were still passed requiring seat belts and, in the end, the safety aspect was proven true. With the current opioid crisis, both prescriptions and cases of abuse have gone up simultaneously so it is safe to believe that more access is fueling the situation. And with tobacco, the concept is the same.
Ward 2 Councilor Kevin Morandi, however, says the focus should stay on the youth. He suggested the Board of Health and the city look at other laws — such as passing an ordinance that would penalize someone under the age of 18 for possessing tobacco products — instead.
Ward 4 Councilor Christopher Connell said he is in support of a law to raise the age to purchase the products to 21. But, he is against the cap because it drives business away. He said there are 24 convenience stores in the city each paying an average of $19,000 in taxes while putting people to work. He knows of a couple other business looking to come into the city that have since backed away because of the restriction.
A convenience store's model is based on some 30 or so percent on tobacco sales and the rest is made up of gas, food, and other sales, Connell said.
At least one councilor was in favor of the regulations. Ward 6 Councilor John Krol said reducing the number of retailers is one step in "changing the norms." He said fewer children will see the marketing or tobacco products in stores, which will ultimately help reduce the number of children smoking. He said billions of dollars are spent in marketing to children each year by big tobacco companies.
"It is a stacked deck against our young people," Krol said.
Focusing on the East Street gas station situation, Ward 7 Councilor Anthony Simonelli said by not granting a waiver, it was a "disgrace to the city" because it was the city's responsibility to inform the owners of the regulation.
"He wasn't told. I think we should take responsibility," Simonelli said.
Councilor at Large Peter White pointed out "inconsistencies" with the Board of Health's regulations and noted municipalities were creating different rules. Prospective business owners were expected to know about Pittsfield's regulations even when the permitting coordinator did not inform them. Further, Orsi had said the clerks are being given the training and held accountable — but violations in the owners' other stores outside of Pittsfield were held against them in the waiver appeal.
Councilor John Krol, on the left, voiced support for the Board of Health's efforts.
Ward 5 Councilor Donna Todd Rivers said the city is "sandwiched" between the needs of small businesses and public health. She asked that the Board of Health "step back" from its regulations and consider all of the impacts. Mazzeo called for a moratorium on the tobacco regulations until a more thoroughly thought out and discussed set of rules are developed.
"These regulations still need a lot of work," Mazzeo said.
The regulations are expected to be revised again. The new rules provide a 90-day period during which a license must be inactive and gives a business 60 days to sell the entire operation to someone who will operate in the same location before a permit is revoked
According to Board of Health member Jay Green, the language is intended to allow for current businesses to keep their permits with some leeway while restricting a "black market" for licenses to be sold among establishments. While the goal is to reduce down to 25, Green said that isn't expected for years.
Other changes to the regulations include raising the minimum age to purchase the products to 21, as 111 other cities and towns in Massachusetts have done, and ban the sale of flavored products.
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