PITTSFIELD, Mass. — Despite the Board of Health's attempts to keep a tobacco retailer from moving into 730 East St., one might be coming.

 

The Board of Health had previously denied a tobacco license to Naveed Asif and Zameer Alhaq, who purchased the former O'Connell's on East Street in September 2015. The application had come right after the board opted to cap the number of permits, so there wasn't any new permits available.

 

Despite pressure from the mayor and city councilors, the Board of Health stuck to its regulations and denied the permit.

 

However, a new application from Rina Shah to run a gas station with a tobacco license may have legal standing. 

 

"It has always been the goal of this board to protect the youth of our city and this would be an enormous setback," board member Dominica D'Avella said.

 

The laws regarding the cap allows a company to transfer its permit from one location to another, should the permit still be active. Shah had previously leased the Getty station on South Street.

 

Her attorney, Andrew Hotchberg, said the South Street operations stopped on April 1, 2016. A few days later, he wrote to the Board of Health indicating that Shah still intends to use the license but is looking for a new location.

 

The decision to stop on South Street was because the company was forced to buy BP gas, which limited its ability to change prices to compete, and the lease cost became too much.

 

Shah began looking for a new location and on May 17, filed an application to lease the location once eyed for the Gas Man. That was within the 60-day period allowed to keep a license active. 

 

"It appears to be more of a relocation. We are making this relocation purely for financial reasons," Hotchberg said. "It is the same corporation, it is the same business, in a different location."

 

Attorney Ken Ferris, who represents the property owners Asif and Alhaq, said this lease agreement is one of the only options left for the two to recoup loses caused by the denial of the tobacco license. The two looking to open the Gas Man spent some $400,000 in the purchase and subsequent renovation of the building unaware of the tobacco cap.

 

"We've been struggling with trying to turn a calamity into some profitability that that location," Ferris said. "It is costing about $4,000 a month. We are not drawing any revenues from it."

 

Ferris feels the location is well on its way to becoming a blighted property. He added that there is already a tobacco retailer in East Street Video and Variety, operating in the same complex, so he doesn't believe another store would be adding to tobacco availability. 

 

Another regulation would have excluded the property, if the Board of Health had adopted the provisions earlier.

 

On Wednesday the board adopted restrictions on tobacco retailers within 500 feet of a school, preschools, or day cares. Kids Zone, a private day care, is just 350-feet away and with the definitions adopted Wednesday would exclude the site. But that doesn't go into effect until Nov. 1 and  the previous school definitions did not include day cares. 

 

"I just don't feel confident that we are on good grounds to do it," said board member Jay Green of the option to reject the permit. 

 

The board is now asking for legal council to weigh in on the interpretations. D'Avella says the board may still be able to deny the permit. 

 

The day care center was just recently one of the reasons why the Zoning Board of Appeals denied a special permit for a medical marijuana dispensary just across the street at 737 East St. Happy Valley Compassion Center was looking to turn the former Kentucky Fried Chicken into a dispensary but neighbors protested and the board decided that the use was detrimental to the neighborhood.

 

The Board of Health, however, doesn't have the authority to deny permits based on that standard. 

 

The Gas Man situation may not be the only hitch when it comes to tobacco permits. The Board of Health has to now consider exactly how it wants to set parameters on adult-only retail locations.

 

The tobacco regulations call for a restriction on the sale of flavored tobacco products, unless it is in a store classified as adult-only. In an adult-only store, minors would not be allowed in and the store cannot have another permits such as a food retail license.

 

Berkshire Pipe and Tobacco on Tyler Street in the last couple years purchased a former salon, which was operating in a storefront next to it, knocked down a wall and expanded the business. 

 

Now, however, with the restriction on flavored tobacco, the company is looking to build the wall back up, move all of the food projects to the former salon, and turn Berkshire Pipe and Tobacco into an adult-only tobacco store. 

 

"We are not moving anywhere. What we have in our store is moving all of the food product out," said Nipun Saluja, of Berkshire Pipe and Tobacco.

 

The move would create two stores - a convenience store and a tobacco store. The company is just looking to convert its tobacco permit to an adult-only one for the ability to sell flavored tobacco products.

 

Health Director Gina Armstrong is calling for clearer guidelines on what circumstances allow such a conversion. Armstrong said there are two permit holders currently looking to split their businesses into two - Berkshire Pipe and Tobacco being just one of those. 

 

The board said the two entities must be completely separate, but the process of doing so isn't very clear. The board was advised that each conversion would have to be treated as if the store was opening in another part of the city. 

 

"Permitting an existing establishment to essentially cut a hole in the wall, it completely undermines and waters down the separation of an adult only store," Green said.

 

A few board members suggested such applications are attempts to circumvent the regulations. But, the board advices Berkshire Pipe and Tobacco to file its applications and the board will consider it - whether that process means a conversion or a transfer will have to be determined later.