Pittsfield Health Board comes down hard to uphold tobacco regulations


PITTSFIELD — The Board of Health came down firmly Wednesday in support of its toughened tobacco control regulations, despite pleas for waivers in two sales permit cases from four city councilors and Mayor Linda M. Tyer.

One business owner, Elizabeth Zucco, of Zuke's Soups & Variety, of 381 West St., did have a license revocation overturned, but with a 90-day suspension imposed and a $500 fine for twice failing to renew her annual license on time.

In the second tobacco license case, the board voted 4-1 to affirm its cap on new sales licenses by rejecting Naveed Asif and Zameer Alhaq, who had planned to open a convenience store and gasoline station at 730 East St.

The men contended they were unaware of the city's license cap, which was instituted in September 2014, even after a representative inquired at the city Community Development office about what they would need to open a convenience store.

Asif said after the vote that without the income from tobacco sales they will have to sell the property, which they had purchased prior to learning about the city regulation.

From his experience in business in Connecticut and eastern Massachusetts, he said he expected a large percentage of business to come from either tobacco sales or items purchased by customers coming in for tobacco.

Zucco's problem was different, in that her license to sell tobacco at the West Street store was revoked in late February after she failed for the second year in a row to renew her annual sales license by Jan. 1. She and attorney Kenneth Ferris reiterated their statements at a board meeting last week that the store had been robbed late in the year each time, and Zucco was distracted when failing to renew the license.

Zucco also contended she didn't understand that the license could be revoked permanently before receiving a notice from the city Health Department — following two written notices that her renewal and $200 fee were overdue.

Last year, the store's license was suspended for 30 days for failure to renew on time.

At the prior board meeting, councilors Christopher Connell and Melissa Mazzeo appeared to urge waivers for the two business owners, contending that the board's license cap policy was hindering economic development in Pittsfield, and that the tougher regulations were not yet well known or understood, even among some city officials.

On Wednesday, the two councilors appeared again, along with council President Peter Marchetti, Councilor Donna Todd Rivers and Mayor Tyer. Each spoke in favor of a waiver in the two cases.

The mayor said she supports the board's steps to reduce tobacco use, including the license cap, but in the case of the East Street store proposal the city "must own our mistakes." She said the men were not fully informed about the license cap, and all city departments apparently were not fully aware of the changes.

She said the circumstances were unique and "a really hard lesson" had been learned by all the parties. "I encourage you to consider a waiver," she said.

Tyer also promised to take steps to ensure the regulations are fully understood by all city officials and offered help in publicizing the rules. "We can never overcommunicate," she said.

Marchetti said he was "not here to pass judgment" on enforcement of the regulations, but noted that "this issue has raised the bar on emails" he and other officials have received from residents upset by the plight of the two business owners.

The council president said he wanted to talk instead about "perception and priorities," in that the perception seems to be that Pittsfield is unwelcoming to business in this case, and that the priority, he believes, should be on combating the city's opioid abuse crisis before focusing more on tobacco use.

Connell provided some updated figures on the high percentage of convenience store business linked to tobacco sales nationally — 32.4 to 38 percent — and also asked the board to research whether tobacco use declined significantly here after sales at pharmacies were banned by the board a few years ago, to determine whether there was a worthwhile effect.

Rivers said she also had received many calls about the issue and added that "emotions are high" among residents who aren't clear about the new requirements. She asked whether it might be "time to step back on this issue" and work with the council and other officials to determine whether the regulations should be revised.

"I believe the cap is a little aggressive going forward," Rivers said.

Board members reiterated that they are charged with protecting public health, not promoting business, and that the city is dealing with one of the highest rates of tobacco use among state communities and there are a higher number of tobacco sales licenses per capita in Pittsfield than in most areas.

They also noted that there were a number of meetings and hearings on the proposed changes before their adoption in September 2014 — with significant support in favor — and two high-profile cases in which waivers were granted to businesses in the planning stages when the new rules took effect. One was for the Big Y Express store.

Business owners likewise have a basic responsibility to investigate permit requirements before purchasing property or making other decisions, they said, adding that at some point the board has to uphold its cap regulation.

A set of further proposed regulation changes — including raising the legal age to purchase to 21 — is now posted on the Health Department's webpage on the city website with the changes highlighted in yellow.

The regulations will be the subject of a public hearing on May 4 and would take effect on Aug. 1 if adopted by the board.

Board member Jay Green noted Wednesday that, while there is a stated goal to reduce the number of sales outlets in Pittsfield from the current 51 to 25 over time, that is not likely to be approached anytime in the near future. He said there also are specific rules allowing the transfer of licenses to new owners when a business closes or changes hands — including new protections for license-holders in the current proposed revisions.

"I wish we had this input at our hearings in 2014 [when the regulations were adopted]," Green said. "I encourage everybody to read these regulations very carefully."

"To be fair, the City Council had every opportunity to know about this," Chairwoman Roberta "Bobbi" Orsi said at one point.

Board members Dr. Cynthia Guyer and Dominica D'Avella also noted that there is an apparent misconception that the board is aggressively reducing the number of licenses, when there has been no reduction since 2014, while two licenses were allowed shortly after the rules were adopted.

D'Avella said the current case differed in that the board was being asked to ignore its 2014 regulation by adding a new license, and she made a motion to uphold the cap policy.

Board members also said that a number of city residents have encouraged support for a hard cap on new tobacco licenses.

In addition, Donald Turner, who owns an East Street store and has opposed a waiver for the proposed new store as unneeded and unfair to current license holders who followed the regulations, contended that "the city did not drop the ball on this." The business owners, he asserted, were responsible by failing to learn what permit requirements are in place.

In rejecting a new license for Asif and Alhaq, the board voted 4-1, with Green opposed. He said he was unable to decide whether the city had failed to provide the businessmen with adequate information on permitting and should make an exception.

However, board member Steve Smith said the same issue of whether the city provided enough information could continually surface, always leaving the board in the position of being asked for a waiver.

"No matter what we do, the potential of that is out there," he said.

Health Director Gina Armstrong said during the discussion that she believes the city Community Development office also might find it impossible to advise an applicant of every permitting possibility in a single meeting, as apparently was the situation in this case, which leaves the bulk of the responsibility on a business owner to research those requirements.

There are now 66 Massachusetts communities that have a cap on tobacco licenses, board members have said, and information on such requirements is becoming widespread within the business community and among municipal officials statewide.

John Benoit, who brokered the business owners' purchase of the East Street parcel, a former O'Connell gas station site, said the men had no idea that the board had set a cap on the number of new tobacco licenses. He said he went to the Community Development office in early 2015 at the request of the owners to inquire about permitting requirements and the cap regulation was not mentioned, and officials there also seemed unaware of the requirement.

The owners had invested about $400,000 in the property prior to learning of the regulation, Benoit said.

In Zucco's case, board members noted that she has owned the store for six years and also owns a restaurant on Dalton Avenue, having been a business owner here for 12 years with no other major permitting issues.

However, they said sending a message was important and decided on a 90-day suspension from March 4 when the license revocation was imposed through June 4 and a $500 fine. Zucco also must agree in writing to meet future such requirements or face permanent loss of the license.

She said the store will be open during the suspension but with fewer hours of operation.

Contact Jim Therrien at 413-496-6247.

On the web ...

The entire tobacco regulation package can be viewed at www.cityofpittsfield.org/city_hall/health_and_inspections/tobacco_regulations.php


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