Pittsfield councilors grill health officials over tobacco regulations


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PITTSFIELD — Several city councilors on Tuesday urged the Board of Health to modify its tough new tobacco control regulations, which include a controversial cap on new tobacco sales permits that some believe hinders economic development.

The often sharp questioning, which at times resembled that of a congressional committee investigation, continued for about nearly three hours of a three-hour, 40 minute council meeting. Health board members and other tobacco control officials had previously given a presentation — at the request of two councilors — on the reasoning behind the permit cap and other recent or proposed city tobacco regulation changes.

Councilor at large Melissa Mazzeo and others were critical of board members for denying a sales permit in early April to two out-of-town businessmen who purchased a gas station site on East Street and began renovation work before learning of the sales permit cap.

"I beg you to reconsider," Mazzeo said.

Noting that it was determined the businessmen were not specifically informed about the cap during a visit to the city Community Development office, she added, "I think we really owed it to that business to give him [a cap waiver]."

Mazzeo also called for a moratorium on any new tobacco regulation and for meetings involving other city officials to examine the regulations in place and a new set of revisions the board is considering for adoption on Aug. 1.

"Please step back and focus on this a little," said Ward 5 Councilor Donna Todd Rivers asked the health board members.

"I hope we all understand that we are speaking on behalf of our constituents," Rivers said, adding that the potential impact on economic development should be considered, along with the question of "what is reasonable" in the regulations.

She said it appears small-business owners are being caught between a worthy board goal to combat the effects of tobacco use, particularly on city youth, and the reality of a limited number of a sales permits.

Ward 4 Councilor Christopher Connell, who with Mazzeo had requested the meeting with the health officials, again stressed the significant impact on total store sales revenue from tobacco, which he said averages from 32 to 38 percent of nongasoline sales at convenience stores nationally.

Connell said some chain convenience stores — including Cumberland Farms — have looked at opening new stores in Pittsfield, sometimes in underserved areas of the city, but they would not do so because the business couldn't get a permit.

The issue goes beyond lost tax revenue, he said, as the typical store also supplies a number of jobs. Connell recommended setting a permit cap that is two or three more than the current 51. He noted that North Adams recently took such a step.

Board Chairwoman Roberta "Bobbie" Orsi, other board members, Health Director Gina Armstrong; James Wilusz, of the Tri-Town Health Department and director of the regional tobacco control program, of which Pittsfield is a member, and two officials working on tobacco-related issues statewide, gave the background on efforts to restrict tobacco use in Massachusetts and in the city.

Information given in the presentation and a lengthy backup packet is posted on the city's website along with the council's May 10 agenda. The Health Department also has posted the city's tobacco regulations and proposed new revisions.

Wilusz, who has acted as an adviser to the health board in revising its regulations, said the emphasis has been on preventing youth from starting to use tobacco and reducing the level of use among adults.

Berkshire County, he said, has an adult smoking rate 15 percent above the state average, with North Adams the highest in the state, at 28 percent, and Pittsfield at 23 percent.

Looking at a range of health-related statistics that are compiled for each county, Berkshire County ranks 11th of 14 in Massachusetts, Wilusz said.

"We do have a tobacco problem in Pittsfield," Orsi said.

In enacting tougher regulations over the past four years, the board also has cited a higher-than-average density of sales outlets in Pittsfield.

Cheryl Sbarra, senior staff attorney for the Massachusetts Association of Health Boards, said that, like Pittsfield, boards around the state have been adopting stricter tobacco control regulations in recent years to fit their communities. She said the role falls under a board of health's duty and authority to protect public health.

Pittsfield adopted a cap on new permits in 2014, setting a desired goal of reducing that figure over time to 25 as licenses are retired from the current 51. However, as board member Jay Green told councilors, the number has not gone down. The board has been flexible in dealing with new businesses seeking permit transfers, he said, including two that requested new permits just prior to the enactment of the cap figure.

"I think we know that 25 is really symbolic," Green said. "It [the number of permits] is not likely to go down."

Connell and others noted, however, that the policy effectively prevents a business owner from opening a new store and obtaining a permit, including purchasing an existing sales permit and opening a store elsewhere in the city.

Several councilors asserted that the board should have been granted the owner of a proposed convenience store/gas station on East Street a sales permit, contending the cap discourages economic development and paints the city as anti-business.

"I haven't heard a single one of my constituents say they thought that was reasonable," said Ward 7 Councilor Anthony Simonelli. "I think this was terrible; I think it was a disgrace for the city of Pittsfield You couldn't work with him?"

Orsi and Armstrong said the board decided that the businessmen, who had operated stores in other communities, failed to "do due diligence" for opening a business by learning about required permits prior to purchasing the East Street site and beginning renovations for a convenience store/gas station.

The men said they don't believe the store could be profitable without a tobacco permit, and said they would have to abandon the business plan.

Although city planning officials didn't specifically mention the permit cap for tobacco, they did suggest to a representative of the businessmen that they seek a pre-development conference with city officials, which wasn't done, Armstrong said.

The board also felt it had to set a precedent, Orsi said, believing there would always be someone who could argue they weren't aware of the 2014 regulation. During their discussion prior to denying the new permit, board members noted that they had made two highly publicized exceptions since adopting the cap on new permits and decided that had to end at some point.

Orsi previously also questioned whether the city should base future economic development plans on tobacco sales, and board members have noted during meetings that their role is not development but protection of public health.

The health officials were asked why raising the legal age to purchase to 21 — which the board intends to adopt and which none of the councilors questioned — would not be a more effective method of reducing youth smoking.

The health officials said no one regulation is likely to reduce tobacco use by youth and adults. The cap "is only one strategy; it is part of a process," Orsi said.

Questions also focused on whether it could be statistically shown whether new tobacco regulations have been effective.

Sbarra said that "it is going to take years" in some cases to determine whether tobacco-use rates have declined, but she said there is evidence that certain regulatory steps, such as reducing exposure to second-hand smoke or banning smoking in public places, have been effective.

Health board member Dr. Cynthia Guyer said, "Sometimes you just have to use common sense" in enacting regulation, even though the statistical evidence of a benefit is not yet known. She likened the situation to the use of seat belts, which only proved their worth statistically after they were required in vehicles.

She added that there is evidence of such effects as a possible reduction in the rates of opioid addiction with a reduction in tobacco use, as most addicts are also addicted to smoking.

Ward 6 Councilor and council Vice President John Krol applauded the health board for "looking at the big picture" in trying to reduce the exposure of youth to tobacco products, relentlessly pushed on them by the tobacco industry.

Echoing a comment by Guyer on hoping to stay current with "a cultural shift" in how tobacco is regulated, Krol said of the regulations, "This is about changing the norms."

Ward 3 Councilor Nicholas Caccomo said that, in addition to the regulation's effect on economic development, the city also should consider the billions spent nationally on health care and the lost work time related to tobacco use.

On Wednesday, Mayor Linda M. Tyer said of the lengthy debate: "I think there were very strong feelings on both sides, and each got a full airing of the issues. I would like to see both sides take a step back now and see if there is any common ground."

The mayor said she still believes, as she stated at a Board of Health meeting, that the East Street business plan should have been granted a waiver, based on the owner not being aware of the permit cap.

The health board was expected to vote on a new set of regulation revisions at its next meeting, including hiking the age to purchase from 18 to 21 and banning flavored tobacco products, to become effective on Aug. 1. But the officials said Tuesday that a delay is being considered.

Contact Jim Therrien at 413-496-6247.


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