PITTSFIELD, Mass. — The Board of Health made a decision Wednesday it didn't want to make: It approved the transfer of a tobacco retail permit to a location it tried hard to disallow.

 

The board approved the transfer of Rina Shah's tobacco permit to 730 East St., a space being leased by Naveed Asif and Zameer Alhaq, who had been denied a permit for that exact location. The pair had purchased the former O'Connell's and intended to open "Gas Man" but late into the process, after spending hundreds of thousands of dollars, were informed about the city's cap on tobacco sales permits, which disallowed them from opening.

 

The Gas Man permit request was supported by city officials, including the mayor and city councilors, who took responsibility for the miscommunication and said the city should have been more clear about the law when Asif and Alhaq first proposed their project. But the Board of Health stuck to its guns despite the political pressure and denied the permit.

 

On April 1, Shah closed the store she ran on South Street and was looking for a new location. Since she already had a permit, she signed a lease and was able to transfer it to the Gas Man site. The timing of the transfer application came in time for the license to still be active and before the Board of Health strengthened rules to disallow vendors near day-care centers.

 

"We realize there was a hole in the regulations which we already fixed. We have to make a real unfortunate decision," Dominica D'Avella said. "This is not in the best interest of public health."

 

Shah's application was filed, and date stamped by the Health Department, on May 17, less than the 60 days of inactivity that would call for the license to be revoked. The cap was adopted in 2014 and allows for existing permit holders to relocate.

 

"Unless there is some other issue, the transfer can go through. We did do a similar transfer for a Cumberland Farms on Dalton Avenue," said Jay Green.

 

In October, the board adopted restrictions on retailers within 500 feet of a school, preschools, or day cares. Kids Zone, a private day care, is just 350 feet away and the new definitions would have would excluded the site. But the application was ahead of that, too.

 

The Board of Health considered the request last month but ultimately put it on hold to consult with legal counsel. After talking with both attorneys from the state and from the city, it was determined that the board had no legal ground to deny the permit.

 

"The general conclusion and consensus of all of them is that there's not a specific provision that disallows or speaks specifically to the relocation," Health Director Gina Armstrong said. "We do need to comply wit the 2014 regulations." 

 

The news is bad for Donald Turner, who has owned and operated East Street Video and Variety for 30 years. He was vocal in opposing the Gas Man application and returned to the board on Wednesday opposing the Shah's transfer as well. He asked the board not to take a position it didn't want to take but instead to "vote with your heart and conscience."

 

Despite the board's attempts to keep the location from selling tobacco because of the proximity to the day care, the board still supported the petitioner's efforts in restoring a blighted property.

 

"We hope that it looks nice and that with an active property, your client is able to be successful with it," Green told attorney Andrew Hochberg, who represented the petitioners.

 

In other tobacco-related business, Nipun Saluja, of Berkshire Pipe and Tobacco, is asking to turn his store into an adult-only tobacco retailer. He had previously purchased an adjacent storefront on Tyler Street, knocked down the wall and expanded. Now he wants to put the wall back up, move all of the food and candy products to one side and make the other all tobacco.

 

The Board of Health rules creates adult-only stores, which are allowed to sell more tobacco products — specifically flavored products — provided the establishment doesn't sell anything else that needs a permit. That, however, creates another hitch.

 

Saluja said he is moving all of the food over to the other side. But, he doesn't want to transfer the lottery there, which is permitted by the state. The local regulations essentially say stores can be adult-only if there is nothing else permitted to be sold — with food sales in mind especially. 

 

"We do not want to move the lottery to the food and candy because the lottery is an adult product," Saluja said. "The lottery is a product for adults only and it makes more sense to keep it with the adult products."

 

That is the only part of the guidelines from the department Saluja said he doesn't want to comply with and is asking for a waiver. That, however, won't be decided until the board's next meeting.

 

In other business, Armstrong said the Board of Health could be asked to take a vote on whether to allow a needle exchange program. The exchange program would be eyed to reduce the spread of hepatitis C, which has been growing because of intravenous drugs. Tapestry has previously presented to the Board of Health about it and will then be going to the City Council in the coming month.

 

Armstrong said by December the issue could be back before the Board of Health.

 

"I'm going to need some specific communication from the office of the mayor and the city council that says they endorse to feel comfortable making a vote," Green said.