Board of Health

Office of the Board of Health City Hall 166 Boulder Drive – Suite 108 Fitchburg, Massachusetts 01420 978-829-1870 An organizational meeting was held on June 1, 2017 at 5:00 pm. Present were: Ian Murray, Chairman; Stephen Curry, Director; Sandra Knipe, R.N.B.S.N. Member; Dr. John Bogdasarian, M.D.; Michael & Mary Ann O’Farrell, 62 Old Deerfield Road; Jasmin Patel, Jani Patel, Anju Patel, South St. Variety; Amit Patel, Twin City Market; Sam Gandor, Johnny’s Service Station; Joan Hamlett, Tobacco Control; Eric Jack, Tobacco Control. May 4, 2017 Meeting Minutes Review & Approval: Sandra Knipe made a motion to accept the May 4, 2017 meeting minutes. Motion was seconded by Ian Murray. All were in favor. Motion carries. Ian Murray made a motion to adjourn the regular meeting of the Board of Health. Motion was seconded by Sandra Knipe. All in favor. Motion carries. Mr. Murray opened the meeting for the Public Hearing at 5:15 pm. Tobacco and Nicotine Delivery Hearing: Jasmin Patel, South St Variety 5:15: Ian Murray, Chairman opened the meeting. Jasmin Patel, South St. Variety is present per request of the BOH and wishes to dispute a violation. On April 27, 2017 (Citation #6903) of the Fitchburg BOH Tobacco Regulations Section F. Cigar Sales Regulated: 2. No person shall sell or distribute or cause to be sold or distributed any original factory-wrapped package of two or more cigars unless such package is priced for retail sale of $5.00 or more. Fitchburg BOH Tobacco Regulations Section G. Sale of Flavored Tobacco Products Prohibited: (Citation #6902) No person shall sell or distribute or cause to be sold or distributed any flavored tobacco product, except in smoking bars and adult only retail tobacco stores. Ms. Hamlett stated Mr. Patel was given a verbal warning on March 8 and a courtesy warning to remove the products from the shelves. The first ticket was issued on April 27, 2017 for $100.00 for a 1st offense, the second ticket was a 2nd offense for $200.00. Ms. Hamlett stated Mr. Patel did receive a copy of the rules and regulations and signed them, therefore the products should not have been on the shelf. Mr. Patel stated he doesn’t remember a warning issued on March 8, 2017 and is requesting a copy of the warning. Ms. Knipe stated Mr. Patel needs to educate his employees in the future so this doesn’t happen again. Ms. Hamlett recommended to the Board to continue the 7 day tobacco permit suspension for a period of 12 months, until June 1, 2018 providing that no other violations of the Regulation occur in the 12 month period. If there is another violation in the continued period the three fines totaling $600 will automatically be re-instated. Ms. Knipe made a motion to continue the 7 day tobacco permit suspension for a period 12 months until June 18, 2017 providing that no other violations of the Regulation occur in the 12 month period. If there is another violation in the continued period, the 7 day permit suspension will automatically be re-instated. The continuing of the permit suspension portion of the penalty does not affect the enforcement tolling period of any future violations. Motion was 2nd by Dr. Bogdasarian, all were in favor, and motion carries. Mr. Murray made a motion to adjourn the Public Hearing at 5:42. Motion was 2nd by Ms. Knipe. All in favor, motion carries. Mr. Murray opened the meeting for the Public Hearing at 5:45 pm. Tobacco and Nicotine Delivery Hearing: Sam Gandor, Johnny’s Service Station 5:45: Ian Murray, Chairman opened the meeting. Mr. Gandor is present per request of the BOH. Ms. Hamlett stated there was a warning issued to Johnny’s Service Station on March 8, 2018. Ms. Hamlett stated on April 27, 2017 Johnny’s Service Station was found in violation of Fitchburg BOH Tobacco Regulations Section F. Cigar Sales Regulated: (Citation # 6905); 2. No person shall sell or distribute or cause to be sold or distributed any original factory-wrapped package of two or more cigars, unless such package is priced for retail sale of at $5.00 or more. Fitchburg BOH Tobacco Regulations Section G. Sale of Flavored Tobacco Products Prohibited: (Citation #6904) No person shall sell or distribute or cause to be sold or distributed any flavored tobacco product, except in smoking bars and adult only retail tobacco stores. Ms. Hamlett feels Johnny’s Service Station isn’t taking the regulations seriously and not complying with the regulations. Mr. Jack stated he spoke with Mr. Gandor prior to the flavor ban being enacted and explained all the regulations. Mr. Gandor stated Mr. Jack came in and took out everything in the store then came back in and gave a ticket to the store for everything Mr. Jack left and told Mr. Gandor he could leave the blue. Mr. Gandor stated he doesn’t sell anything and never received a copy of any regulations and hasn’t signed anything. Mr. Gandor said he received a ticket for items he doesn’t even sell. Mr. Jack said the clerk signed the regulations and he does have a copy of that. Ms. Hamlett stated there are signs posting the actual prices for less than what they are supposed to be. He received a Flavor Ban violation and ticket because after the verbal and written warning, he still had flavor on the shelf and therefore a ticket was issued. Ms. Knipe made a motion for Mr. Gandor to pay for the fines if the fines aren’t paid by then there will be no permit issued. Ms. Knipe withdrew the motion. Dr. Bogdasarian made a motion that Mr. Gandor is responsible for the violation issued on March 8, 2017 and the two violations issued on April 27, 2017 that totaled $600 in fines as per the Violation Section of the Regulation of the Fitchburg Board of Health Restricting the Sale of Tobacco Products. Dr. Bogdasarian also motioned to continue the fines for a period of 12 months, until June 1, 2018, providing that no other violations of the Regulation occur in the 12 month period. If there is another violation in the continued period, the three fines totaling $600 will automatically be re- instated and the continuing of the fine portion of the penalty does not affect the enforcement tolling period of any future violations. The 7 day Tobacco Permit Sales permit suspension will start June 17, 2018. Ms. Knipe seconded Dr. Bogdasarian’s motion. Ms. Knipe would like to amend the motion that if there is another violation there it will not be brought back to the Board for a hearing. All in favor, motion carries. Mr. Murray made a motion to adjourn the Public Haring at 6:25 pm. Motion was 2nd by Ms. Knipe, all in favor. Meeting adjourned. Mr. Murray opened the meeting for the Public Hearing at 6:26 pm. Tobacco and Nicotine Delivery Hearing: Amid Patel, Twin City Market Mr. Patel is present per request of the BOH. Ms. Hamlett stated on April 27, 2017 (Citation #6900) was issued. The Fitchburg BOH Tobacco Regulations Section G. Sale of Flavored Tobacco Products Prohibited: No person shall sell or distribute or cause to be sold or distributed any flavored tobacco product, except in smoking bars and adult-only retail tobacco stores. On April 27, 2017 (Citation #6901) was issued. The Fitchburg BOH Tobacco Regulations Section H. Prohibition of the Sale of Blunt Wraps: No person or entity shall sell or distribute blunt wraps in Fitchburg. Mr. Patel stated he has stopped selling all the product and it’s been removed from the shelves and sent back in its original packaging and sent back to the company. Mr. Jack stated Mr. Patel was very cooperative and more than willing to let Mr. Jack inspect his entire store. Mr. Patel paid his violations. Dr. Bogdasarian made a motion that Mr. Patel is responsible for the two violations issued on April 27, 2017 and to continue the 7 day tobacco permit suspension for a period of 12 months, until June 1, 2018, as per the Violation Section of the Regulation of the Fitchburg BOH Restricting the Sale of Tobacco Products, providing that no other violations of the Regulation occur in the 12 month period. If there is another violation in the continued period, the 7 day permit suspension will automatically be re-instated. The continuing of the permit suspension portion of the penalty does not affect the enforcement tolling period of any future violation. Motion was 2nd by Sandra Knipe, all were in favor, and motion carries. Public Hearing Request meeting adjourned at 7:00 pm Mr. Murray opened the meeting for the Hearing Decision at 7:00 pm. Hearing Decision – 72 Old Deerfield Road – Michael & Mary Ann O’Farrell: Mr. O’Farrell is requesting a written decision signed by the members of the BOH on letterhead, also to include information the Health department is relying on because the Health department has submitted no evidence only opinions. Mr. Curry stated when a decision is made Mr. O’Farrell will receive a signed letter of decision. Mr. Curry stated Mr. & Mrs. O’Farrell petitioned the Board disputing that Mr. Burns did not cite violations of the Chapter 138 of the City Code and/or the Massachusetts State Sanitary Code and violations exist in the opinion of the O’Farrell’s. Mr. O’Farrell needs to present to the Board that a violation exists and prove to the Board that a violation does exist. Mr. O’Farrell feels Inspector Burns should have cited the leaves on the property at 72 Old Deerfield Road. Mr. Burn’s report he prepared on March 28, 2017 regarding an Inspection of 72 Old Deerfield Road stated he did not feel there was a violation therefore did not issue a citation. Mr. Curry suggested Mr. O’Farrell to go over his exhibits and get them on the record. Mr. O’Farrell distributed all exhibits for the record. Exhibit 1: Massachusetts State Sanitary Code 105 CMR 410.822 (A). Exhibit 2: Violation report issued by Inspector, Micheal P. Burns, March 28, 2017 Exhibit 3: Prepared excerpt of sections of Chapter 138 of the City Code Exhibit 4: Commonwealth of MA., Petition to Enforce the State Sanitary Code and Order of Notice pursuant to G.L. c.111, sec 127 C-H Exhibit 5: photographs taken by Inspector Matthew Bernard on April 27, 2017 Exhibit 6: parcels of land on Old Deerfield Rd Exhibit 7: Managing Ticks on Your Property by Kirby C. Stafford III, Ph.D., The Connecticut Agricultural Experiment Station. Exhibit 8: Entomological Society of America, “To Kill Ticks, target their animal hosts; Luring mice, chipmunks to contact insecticide shown to reduce nearby tick presence.” ScienceDaily, 16 March 2017 Exhibit 9: Rough tick season expected after mild winter, by Renee Chmiel, reported for News 8, News 8 published April 20, 2017 Exhibit 10: TickEncounter Research Center, July 14, 2013 Exhibit 11: Be on the lookout for ticks this spring, WTNH, news 8, WTNH staff, published April 17, 2017. Exhibit 12: Green Way Lawn, Tree & Shrub Care Co., Manchester NH. Exhibit 13: State Researchers testing new approach against ticks by Keith Kountz, WTNH News 8, and Published June 17, 2015. Exhibit 14: Reported Cases of Lyme Disease-Untied States, 2005. Exhibit 15: Lyme Disease in Massachusetts, A Report Issued by the Special Commission to Conduct an Investigation and Study of the Incidence and Impacts of Lyme Disease, February 28, 2013 Exhibit 16: Nation Lyme Disease Risk Map with four categories of risk Exhibit 17: Frequently Asked Questions about Lyme Disease, The Official Website of the Executive Office of Health and Human Services (EOHHS) Exhibit 18: TickEncounter Resource Center, University of Rhode Island Exhibit 19: Center for Disease Control and Prevention, Preventing Ticks in the Yard Exhibit 20: National Pest Alert, Ticks and Tick-Borne Diseases, United States Department of Agriculture Based on the Cornell Cooperative Extension factsheet: “Deer Tick: Detection and Management”, 1993 by Carolyn Lass, Dept. of Entomology, Cornell University. Exhibit 21: It’s tick time: Stephen Rich, UMASS Professor offers advice: The Center for Agriculture Food and the Environment, UMASS Amherst. Mr. O’Farrell stated he would like to put into evidence the list of rules 105 CMR 410.822 (A) of the State Sanitary Code. A copy of the code 105 CMR 410.822 (A) is submitted as Exhibit 1. According to Mr. O’Farrell 105 CMR 410.822 (A) states ‘at the time of the inspection, the inspector shall record all violations.” Mr. O’Farrell said this is not the case and Mr. Burns decided that is was not a violation and in the rear of 72 Old Deerfield Road. Mr. O’Farrell discussed Lyme disease as it related to ticks. The best way to control Lyme disease and ticks is to get rid of the leaves and debris and this is a preventative measure that a homeowner can take. Another article from the CDC for simple landscaping techniques that can help against tick population is to remove leaf litter (entered as Exhibit 19). Mr. O’Farrell stated he wants Mr. Burns or someone who represents the city to go back to housing court to the judge with the notice of violations or an addendum to it and say that these violations should have been included in the signed agreement. Mr. O’Farrell stated in the final sentence in Chapter 138, Section 7 (C) states “Any ambiguity or doubt in interpreting or construing any section, word or provision of this article shall be resolved in a manner so as to further the expressed intent of this article.” Mr. Murray stated they received interpretation for clarification from the City Solicitor on Fitchburg City Code Chapter 138-7 (C). This document will be entered as Exhibit 22. Exhibit 22: Legal Interpretation of Chapter 138, Section 7(C), by Christine M. Tree, Esq., Assistant City Solicitor. Dr. Bogdasarian asked if there is a definition of debris Mr. O’Farrell has provided. Mr. Curry stated the terminology in the Code is “unkempt”. There is no definition in the code of unkempt therefore it’s up to the determination of the Inspector interpretation which Mr. O’Farrell does not agree with Chapter 138-7 that the inspector has interpretation but there is a letter from Attorney Tree stating that the language in Section 7 is designed for the courts to determine if its constitutional or unconstitutional and has no bearing on what an inspectors interpretation is. After the code description in Attorney Tree interpretation letter (Exhibit 22) the second paragraph states “this section is directed to any court who may be interpreting the provisions of Chapter 138 of the City Code, and not to the inspectors who are enforcing it. Mr. O’Farrell further stated that it is clear what the City Council unanimously voted on with Chapter 138 in 2010 when it was adopted and showed the Board the Council Docket and Petition on how the code came to existence.. Mr. O’Farrell stated he feels the answer here is in the City Code which states the “nuisances such as dilapidated buildings, buildings with real estate covered with graffiti, buildings open to the weather or vagrants, real estate with overgrowth of vegetation creating blight, such nuisances on property also impair the Public Health. The photographs clearly show an overgrowth of vegetation. Ms. Knipe stated there was a court order issued for Mr. Tagan with deadlines for abatement of the property and Mr. Tagan did state on May 22, 2017 that he would take care of the fence. Ms. Knipe said Mr. Burns didn’t cite the leaves because he didn’t feel as though the leaves were a violation. Ms. Knipe made a motion that the pile of leaves is not a violation and Mr. Burns did not do anything wrong by omitting that on his list of violations. Motion was 2nd by Dr. Bogdasarian. All in favor, motion carries. Plumbing Variance Request Plumbing Variance Request – 356 Main Street  Bion, Inc. Mr. Curry stated there is a bakery going in on Main St that will be a wholesale only bakery (no walk in) and there is only one bathroom in the facility and they have asked that the Board allow the one bathroom. The Building Code states that less than 5 people in the building there only needs to be one bathroom, when they open to the public they need public bathrooms according to applicable code. The Building Commissioner has made a determination on this variance and does support the variance. Ms. Knipe made a motion to allow the Wholesale Bakery to allow one bathroom for the five employees with a condition if it does become open to the public they will have to add a bathroom facilities per applicable codes. Motion was 2nd by Mr. Murray. All in favor, motion carries. Mr. Murray made a motion to adjourn the meeting at 8:00 pm. Motion was seconded by Sandra Knipe. All in favor, motion carries. Meeting Adjourned at 8:00pm.