PITTSFIELD, Mass. — After two violations of its tobacco retail license, the managers from Cumberland Farms on First Street say tobacco products will not be sold at all unless the customer has identification.
The city is imposing a $350 fine on the convenience store but is holding the seven-day suspension in abeyance, meaning it will be enforced only if there is another violation.
Health Director Gina Armstrong said there was a violation in March 2017 and that in November 2018, the U.S. Food and Drug Administration ran a compliance check and found another violation. Lastly, the Tri-Town Health Department found a violation in January of this year.
Armstrong said the violations included selling to minors and having clerks not certified to sell tobacco products doing so. She isn't sure what the FDA violation is because that data hasn't been released.
Nonetheless, there are two violations to the license and by code that would require a seven-day license suspension and a $350 fine. A third violation would result in a 14-day license suspension and a $500 fine.
Cumberland Farms appealed the violation. The managers didn't deny the violations but outlined a series of mitigating steps it had taken to ensure it doesn't happen again.
Regional Manager Thomas Coupack said the biggest thing was that they've taken the discretion of whether to ask for identification or not away. He said in the point of sale system there was an option to just click "of age" for products requiring identification that was used to speed up the process. That has now been disabled so clerks have to scan an identification or, if it is faded and won't scan, hand punch the birthday into the system.
"We've disabled that 'of age' ability. It will stop somebody from overriding the system," Coupack said.
He said the policy was implemented immediately when the company got the letter informing them of the violation. He said the policy does create issues with lines and with people who do not have identification cards. But, he said in other stores it has been implemented there hadn't been other violations.
A second aspect is that the employees weren't trained. Armstrong said it isn't just that one particular clerk sold tobacco products without being certified to do so but that "only a small percentage" of employees working for the company in Berkshire County had completed the required Tri-Town Health Department training.
"I feel like the employees are going through the motions," Armstrong said, saying it feels like the attitude in the company is one that doesn't take the training seriously.
The company said most of that was due to IT issues. District Manager Ross McGowan said Tri-Town's training program was linked into Cumberland Farm's training system. But, when employees would click into it, the program would fail. On Cumberland Farm's side, it marked the program as done but Tri-Town's side would still say incomplete.
McGowan said the company is working with the IT department to correct the issue but in the meantime held classes for everybody without a certificate. There is only one employee remaining at the First Street store without certification and McGowan said until that person completes the training, he will not be able to run the register.
He later questioned the efficiency of the training. Tri-Town's training has much that goes through YouTube and he said Cumberland Farms has to have its internet secured. He said it is complicated to secure such information as credit cards while still being able to connect with something like YouTube. He said the company moved to tablets to get the training done at one point but the secure connection remained an issue.
He said often it led to asking employees to do it from home. But, they aren't getting paid for it and they have to have internet.
"It is very difficult for an hourly wage person to get through," he said.
He said each employee has to go through some two hours of training to pass. He questioned why he couldn't have it done in a classroom setting to train multiple employees at a time, rather than each individually.
"I want my team members trained. I want them to have the right tools in the toolbag when they get to the register and have to make a decision," McGowan said but said Tri-Towns is not that user-friendly and he suggests other options to make it quicker and easier.
Armstrong refuted the technology aspect saying companies have been able to have employees take the course at Tri-Town Health or training have been made available closer to the store.
"In the past, accommodations have always been made," Armstrong said.
Nonetheless, company officials said 45 percent of their business is tobacco sales and often those who purchase tobacco products buy other items as well. They said a seven-day suspension of the licenses would make a huge economic impact to the store.
In September, the Board of Health upheld a seven-day suspension for Thing or Two Variety. But, in that case, the board hadn't felt like the owner had taken it seriously. In this case, however, the company had made an effort to ensure was done properly.
Board of Health member Brad Gordon suggested an abeyance option as one that recognizes the effort Cumberland Farms put in but also keeps the enforcement of the Health Department in place. The fine will also remain in place. Armstrong agreed that abeyance would be fitting for such a situation and the rest of the board agreed.
Should there be a third violation, the store would be slapped with a 21-day licenses suspension and a $500 fine.
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