PITTSFIELD — Owners of a West Street variety store and a proposed new convenience store on East Street have run afoul of the Board of Health's toughened tobacco sales regulations. The controls were set by the board to cap and ultimately reduce the number of tobacco sales licenses in the city.
Both owners claimed ignorance of the tobacco license requirements, which prompted expressions of frustration from health board members as they continue to struggle to fairly implement the new rules aimed at reducing tobacco use by teens.
After hearing pleas Wednesday for waivers over the pending loss or denial of tobacco licenses, which the owners said are critical to their businesses — and from two city councilors concerned about the cap on new licenses — the board postponed decisions until its next meeting on April 6.
Board member Jay Green said he heard compelling arguments for and against waivers for both businesses.
"I don't know that I'm prepared yet to make a decision. I want to reflect on this," he said.
Elizabeth Zucco, owner of Zuke's Soups & Variety, of 381 West St., and Naveed Asif and Zameer Alhaq, who plan to open a convenience store and gasoline station at 730 East St., appeared before the board for different tobacco-related issues.
Alhaq and Asif attended with John Benoit, who brokered their purchase of the East Street parcel, a former O'Connell gas station site. The businessmen said they had no idea the board had set a cap on the number of new tobacco sales licenses before buying the property and investing in preparing it for a new store and gas station.
This was a plea the board has heard on several occasions since the regulations established a cap on tobacco licenses 18 months ago. The goal is to reduce the current figure of 51 tobacco licenses in the city to 25 as stores go out of business and surrender licenses.
Like liquor licenses, transfers are allowed to a new business owner if approved by the board, and two were granted on Wednesday.
Board members stressed several times during the meeting that business owners have a responsibility to make themselves aware of all permitting requirements.
However, Benoit, who assisted Alhaq and Asif by inquiring at the city Community Development office about what permits they would require, said he was not told about the cap on sales licenses. Benoit added that officials do not seem to be aware that such licenses are a critical factor for a new business like this.
Architect John Barry, who worked on the store project, said he also was unaware of the license requirement, which he said had landed the prospective business owners "in an untenable situation" and makes them deserving of a waiver from the rule.
Health Director Gina Armstrong acknowledged that efforts to inform other city departments and the public of the consequences of failing to secure a sales license apparently fell short.
"In hindsight, more information should have gone out about the regulations," Armstrong said, adding that there is "an ongoing need" for continued conversation on the subject among officials, the business community and the public.
But board members also said that, despite some confusion over the regulations, the rules were developed during a public process that was well-attended and reported in the media, and the regulations are posted on the city website and elsewhere.
"Where is our line? Where is our cut-off?" Green said of considering a succession of waiver requests. He noted that if the two exemptions sought Wednesday were granted, the number of licenses would go up by one.
"You have a big task," Benoit said. "You have taken on a big task. You are changing a way of life."
Prior to the individual hearings, the board heard from city councilors Christopher Connell and Melissa Mazzeo who also argued that the cap on sales licenses is hindering business development by discouraging new convenience stores from opening in Pittsfield.
Connell, who previously worked for 10 years in the convenience store business, said tobacco sales typically account for a significant percentage of a store's business and help lure potential customers for other items.
"Today, a convenience store really can't survive without those tobacco sales," he said.
Mazzeo said that even as a public official she was not fully aware of the impact the sales license cap was having on business development before being contacted by constituents.
"The cap is really tight," she said. She advocated for more flexibility to encourage business growth.
As the board is currently considering revisions to its regulations — including raising the legal age to purchase tobacco to 21 — Mazzeo suggested the board take "a step back and look at the bottom line [cap] number" as well.
Board members noted that the regulations debate has often focused on the effects on business, but the health board is charged with protecting public health, and Pittsfield has higher than average rates of tobacco use.
In addition, the city is one of 66 in Massachusetts that have set sales license caps, and the trend is one people in the convenience store business should be cognizant of by now, they said.
Tri-Town Public Health Director James Wilusz, who has advised the board on tobacco regulation revisions, urged the board to maintain the license cap. He argued that the statistics on tobacco use show higher than average rates here and a need to discourage teens from taking up the habit before becoming hooked.
Zucco, who appeared with attorney Kenneth Ferris, went before the board for a different reason: She failed to renew her sales license on time in January for the second year in a row.
The Zuke's Soups tobacco sales license was suspended last year over the lapse, and Armstrong said a second occurrence resulted in the permanent loss of the license this spring.
The owner did not respond to an emailed notice that a renewal was due, she said, and also failed to respond to a follow-up registered letter, resulting in the license being permanently withdrawn.
Zucco requested the hearing after she said she belatedly realized the loss would be permanent.
She and Ferris said the store had been hit by robberies in December in each of the past two years, resulting in temporary "chaos" in her business and personal life, Zucco said, blaming the nonrenewal on the distractions.
"I am completely embarrassed to be sitting here again," she told board members.
Zucco added that she has operated the store for six years and has been a business owner for 12 years in the city, complying with licensing and permitting requirements on a routine basis except for the two instances.
While expressing sympathy for Zucco's plight, Green and Chairwoman Roberta "Bobbie" Orsi said there are other people seeking tobacco sales licenses who also say they see it as vital to the survival of store businesses.
Board member Dominica D'Avella told Zucco that, despite the importance of tobacco sales to the business and a prior license suspension for nonrenewal, "I have a hard time understanding that you didn't understand the severity of this situation."
Ferris acknowledged mistakes on Zucco's part but said losing the license permanently "seems a draconian result in this case."
On Wednesday, the board also approved sales licenses for two other businesses, both of which involved a transfer of an existing license to another business entity or owner for the same store location.
Gerald Ely had the license approved in his name for K&K Discount Liquors & Variety in a transfer from his father's name for the family-owned business.
Saurin Shah received a license for tobacco sales at a 1575 West Housatonic St. store, formerly known as Al's Smoke Shop. The business is being sold to Shah.
Board members noted that transfers — technically license surrenders under the new regulations and issuance of a new license — are specifically allowed and illustrate a business-friendly component of the new regulations.
Contact Jim Therrien at 413-496-6247.