HomeMy WebLinkAbout2002-5-15BOARD OF HEALTH
TOWN OF NANTUCKET
MINUTES —MAY 15, 2002
SUPERIOR COURT ROOM
MEMBERS OF THE B.O.H. IN ATTENDANCE: Mr. Spriggs, Mr. Soverino, Mr. Fee,
MEETING CALLED TO ORDER:
1. CONCERNS FROM THE PUBLIC: None noted.
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2. NEW BUSINESS =�
A. Discussion of smoking deck enclosure for the Chicken Box
Mr. Spriggs - Richard Ray, do you want to lead off?
HO Ray - I'm afraid I'm at a bit of a disadvantage because I really don't know what is proposed.
There's been nothing presented to me in any form of written statement.
John Jordan - representative of the Chicken Box introduces the principals of the corporation,
Mr. Norton, Mr. Fox and Mr. Jordan. He notes that they have appeared before this Board on two
occasions and before the ZBA on one occasion. On each, they proposed a 612 sq. ft. deck, 5 foot
boarded walls with approximately one -foot lattice space on top, and a roof top to it. Have
received approval from the ZBA. Two weeks ago, they tried to get building dept. approval. Mr.
Dunn denied the deck construction — indicated his interpretation of the deck as a room — also
indicated Mr. Ray might have concerns. My clients showed Richard Ray the plan — he interpreted
that it was a room, not a deck. Richard Ray's interpretation is inconsistent with the zoning by-
laws, ZBA's decision was down to a ground cover issue, the smoking warrant article, nor
anywhere in state's building code.
Background - photo of outside Chicken Box one year ago Memorial Day when smoking warrant
was not in effect shows lots of people outside waiting to get in - hundreds will be smoking out in
the street every week, liability to us and safety concern for the town, as well as a noise issue. The
design of the deck roof plane an important part in the discussion of noise. The roof will provide a
muffling effect. Nowhere within the zoning by -laws is there any support that this constitutes a
room. The ZBA addressed this issue and found it did not constitute ground cover - no
requirements for electrical plugs, insulation, none of the things that would make it an enclosed
structure. Warrant article for no smoking drafted extremely broadly, expansive warrant
article, there are exemptions in the article (lists several), suggests carved out areas for smoking.
What the deck is trying to do is separate from the public the smokers. Lastly, I combed state
building code in great detail and can't find anything that supports interpretation of Mr. Ray.
Found something to the contrary, Ch. 8 of the state building code 780 CMR 805.4, rooms and
enclosed areas, reads requirements for rooms or enclosed spaces, stating that rooms must have
partitions extending from floor to ceiling. Chicken Box doesn't have this. Health inspector
concerned that smoke will build up there. We intend to provide (build) a ventilation system to aid
in removal of the smoke. We designed the deck to address safety, noise and be consistent with
zoning by -laws, warrant article and state building code. We ask that some guidance be given to the
Board acting as the Health Department before we build the deck.
Mr. Spriggs - Would anybody else like to speak?
Skip Cabot - Chairman, Skip Cabot from the Muse. We have had a deck for
five or six months, working great, keeping people off the streets, keeps the smokers happy, it's
an integral part of the business, college kids don't come here anymore, business is tough, put
the deck in and smoking deck is working well. Having a problem with the Health Inspector.
Richard Ray interprets law a little different than I do. We have side curtains. Richard Ray gave
us a ticket for somebody smoking on our smoking deck. Told us to take one side panel down.
Need device to detect air flow. There was good air flow going from the deck. I'm appealing my
ticket. We have to solve my problem re the interpretation.
Mr. Spriggs - We are going to a different area. Anybody else? Mr. Richter?
Mr. Richter - Thank you. Questions decks as presented by the people in front of the Board
tonight; something that looks like a duck, quacks like a duck, must be a duck; it sounds like an
enclosed structure. Where do we draw the line on adding decks with roofs and high side walls?
Will people be looking to add windows to decks, for example. Address the health needs of
employees and general public exposed to this. Ventilation systems have not been proven to work
in any way, shape or form. Exposed people to hazards of smoke. Any studies done
guaranteeing safety of public and employees? Main thrust of what was brought before the town,
the smoking warrant voted on by majority of Nantucketers ; asks BOH to take under consideration
what is being asked for tonight and understand the ramifications.
Mr. Spriggs - I understand your concerns re windows, it goes into another area regarding the
code. The statements re the employees - no service on the deck -only the person smoking is on
the deck.
Mr. Richter - 1/3 of it is open on 3 sides, approximately 2/3 isn't, just to clarify.
Mr. John Jordan - only patrons who choose to be in smoking area - walls are that high to address
concerns re passing alcohol over the deck, or people trying to get in via the deck.
Mr. Spriggs - Anybody else want to speak, Mr. Ray?
HO Ray - Unfortunately, the Chicken Box was given 7 days to make a proposal that I'm given
about 7 min. to respond to. However, I think I can do this. Refer to position paper in front of the
Board - Article adopted at annual town meeting to further regulate use of tobacco products within
restaurants, bars on Nantucket by prohibiting use of tobacco on the interior of all bars &
restaurants, quotes "indoor" definition by American Heritage dictionary and definition of
"enclosed ". I believe we have an enclosure in both establishments, however, Chicken Box
proposes a gap between ceiling and walls, not a wide -open deck. To bring up the room in
question and criteria a small modification, i.e., opening a window or using lattice work at top still
constitutes a room. Therefore, I don't believe smoking should be permitted on the deck. I have
proposed to Chicken Box that they have two options - leave the room on the deck structure and
remove the walls to 42" on all sides - that would allow air passage, or leave walls up high and
remove the roof except for 25 percentage factor of deck sq. footage over the door so when it rains
the smokers can still be under small partial roof , 25% roof for rain protection. Don't think
there's any establishment that can permit only smokers to use smoking deck - middle of summer
at night, people, whether smokers or not, will be looking to go out on the deck. Puts non- smokers
in a second- hand smoke environment, and this is what the article at town meeting was proposed
to not allow.
Mr. Spriggs - Richard, two things: Last thing - re non — smokers, being on deck with smokers,
then that is a violation? That is their choice, number 2, the purpose for the roof keep the rain and
snow off and under what authority are you rejecting this? HDC approved this as a deck, and
Zoning Board of Appeals approved this as a deck, and Board of Selectman approved them to
extend their liquor license as a smoking deck w/o any liquor service out there. Definition of
room,- what law are you quoting as to defining this deck as a room? Those are my questions.
HO Ray - If you look at proposal, it's a floor, a ceiling and one totally solid back wall and 3 other
walls, that is a room.
Mr. Spriggs - That is your opinion
HO Ray - There is no definition anywhere for a room. There are definitions for interior and
enclosed. Everybody here knows what a room is. A room is a ceiling, a floor and 4 walls.
Mr. Spriggs - I think we all have defined opinions of what a room is. This didn't answer all my
questions, but Matt has some questions.
Mr. Fee - Neighbors were happy there was a roof - didn't want to look out deck and see people
yelling and screaming all night. Are you saying 42 "? How about 48" with 2' lattice, so
people can't pass beer through?
HO Ray - Not comfortable with lattice - a prohibitor of air flow- and building code says average
deck rail is 42 ".
Mr. Soverino - Richard, I'm thrilled with town employees that demonstrate new abilities on a
regular basis, the ability to be into airflows, exchanges of air, etc. , glad as a taxpayer to have you
on board. The applicants have proposed 5' walls, you're coming back w/42 "? Engineering
background & codes you're basing it on?
Building Code is specific - allows applicant to decide to label rooms however they like; decks,
porches, covered porches, etc. If it were a room, it would have to have insulation, wires, etc. This
is a deck, a covered deck. The two feet at the top, l' lattice, l' open, is an engineering judgment on
their part. I don't feel you can tell them it won't have adequate air exchange — you're not an
engineer and this exceeds your authority. I feel as it stands, with the opening, it's got to allow air
to go through there.
HO Ray - Base my knowledge on what's happening on the cape (Yarmouth), they did not base
them on scientific fact because it's a burgeoning field. In Yarmouth, their health care practices
are to allow as much ventilation as possible on the deck. It's the Board's prerogative to make up
their own mind.
Mr. Spriggs - Barry, you have something to contribute?
Mr. Barry Rector - Yes, I'm surprised at the antagonistic attitude the Board has taken lately,
especially with the Public Health Officer, as he is the expert for this island in terms of public
health. No one on the Board has ever designed any sort of airflow standards nor are they
certified public health engineers. I ask that you respect the information presented by the public
health officer and the information from the Board of Yarmouth. Asks Board not to base their
decision on perception, he supports a deck, but setting dangerous precedent for future applicants,
but it should be designed as a deck using the standards for a deck. May use lattice for privacy .
HDC, ZBA are not skilled in concept of public health, only on a design standard. Keep your
minds on public health.
Mr. Soverino - Richard, thank you. I'm not knocking you as an individual. I know you do a great
job. We have a responsibility, and we can't wait for standards to be developed. I believe you're
not a design engineer.
Mr. Spriggs - Should have been done before it that was a problem, nowhere have I seen your
definition of a room, that this deck is a room.
Mr. Fee - Ten years ago restaurants put in scrubbers in airflow, etc. to take care of airflow and it
did not really take care of it. With respect to HO Ray's concerns, would you be able to live with
4', 2', 1' as opposed to what you have now?
Mr. Jordan - We're trying to address the issue of non - smokers out with smokers with a ventilation
system.. I don't know if there's any basis for the 42" requirement, versus what it is now. If HO
Ray brings expert in for airflow and we have to comply with that we'll do what we have to do.
Mr. Fee - Can you go to 42" with 2' lattice to come halfway, so that there's more airflow? Like to
address issue tonight.
Mr. Jordan - I'll talk with my client, but we would have to go through whole process again - taken
us a long time to get to where we are - don't want a summer full of people on street Reluctant to
agree to something that is vague about air flow.
Mr. Fee - Hate to see you build it, then cut it down.
Mr. Jordan - If we have to do it to comply, we will.
Mr. Spriggs - Matt, they did go through HDC, and HDC approved it. It might be September
before they could get on the calendar again.
Mr. Fee - I think it would be an amendment to the HDC, and get in in about a week or two.
Mr. Soverino - I'm not an HVAC expert, have role as fire inspector, consider this more public
safety issue - so people don't fall off deck or passing alcohol off deck; occupancy issues i.e.
patrons per sq. ft. , if walls too low, then people sneak in. I think we should move on and support
this.
Mr. Soverino - Make motion to overrule recommendation of Health Director and reassert BOS
approval of the application as approved by the ZBA.
Mr. Fee - Second the motion.
Mr. Spriggs - I'll accept that discussion. Mr. DeRensis can we add to that motion the fact that
can we instruct the Building Department to sign off on the issuing of the Building Permit?
Mr. DeRensis - No.
Mr. Spriggs - Okay, we have a motion. Tim, about airflow, would the deck flooring allow airflow
through floor?
Tim Soverino - Yes.
Mr. Spriggs - All those in favor of the motion, say Aye.
Unanimous decision
HO Ray - One other question, with regard to Mr. Cabot's solid plastic walls from floor to ceiling
— what is the Board's position on that ?
Mr. Spriggs - That's a different thing, we can talk about that.
Mr. Soverino - Question, it sounded to me like the curtains down on 2 sides not 3, true?
Mr.Cabot - Richard told us to remove a whole plastic triangle sheet on 1 side, then removed 3
plastic panels on another wall. When he came out to issue ticket, one wall was up, there was a
huge air flow. Walls were up that day, it was wrong to ticket us, took it to District Court to
appeal. He gave me another ticket.
Mr. Spriggs - I agree with HO Ray on sidewalls. I have issues with chaise lounge and coffee
table etc., and when we issued it, there was to be no furniture at all in that room.
Mr. Cabot - There are no set standards here. That's a Board of Appeals issue.
Incumbent upon BOH & you people to figure out what they're going to fine people for. There is
no set standard here.
Mr. Spriggs - He's asking for that now. (referring to HO Ray).
HO Ray - I agree almost w/ Skip. 2 solid wood walls, awning over whole deck down to end of
wall & another side w/3 clear plastic sheets. Visited - 2 plastic sides down, 1 up Asked them
(felt it was enclosure), asked them to remove plastic, they didn't, I fined them. 2"a time out there
found same situation but with the open space covered w/ plastic strip to floor, totally enclosed
structure. I fined them. My question is — is solid plastic surface, is it indeed wall? We have
asked Seagrille and Schooners to roll up their plastic walls if they are allowing smoking out there.
They have done so with no problem. This appears to be the only problem I'm having with clear
plastic walls. If the Board wants me to acquiesce on this, then that is the Board's prerogative.
Mr. Cabot - It all comes down to a scientific standard for airflow. I'm telling you there's tons of
air going through, and he's saying there's not enough. Board has to figure out how we're going to
define proper airflow, otherwise I'll keep getting tickets and keep appealing them.
Mr. Fee - How may pieces of plastic are there?
Mr. Cabot - He told us to take 1 panel down on the far side. 3 panels on the far side, 1 was rolled
up - removed 1 permanently - 3 on the other side - will be a moot point in 2 weeks when it's
warmer.
Mr. Fee - Can we say 2 out of 4 have to be down? Will that work, Richard?
HO Ray - I don't believe so; but it is the Board's prerogative to do that.
Mr. Fee - Are you going to fine him if he keeps 2 out of 4 down?
HO Ray - If the Board tells me no, I'll abide by the Board.
Mr. Soverino - Closing comment - Long standing establishment going through expense & work to
create a smoking room for their customers. We're making it tough on them, Richard & that's
going against the grain. We should recognize efforts they've made to clean up their
establishments, if they want to create a smoking room, sorry a smoking deck, I think we should
applaud that.
Mr. Spriggs - Comment?
Mr. Fee - Yes, We can't get down to how many walls, etc. Mr. Ray has a distinguished record of
public health service, BOS or the BOH can abide by Mr. Ray's judgment. Everybody has to
practice a bit of restraint. If you people are trying to push the envelope in providing a smoking
deck, then we're going to have a problem.
Mr. Cabot - I resent that remark. We spent 10,000 -15, 000 on a new deck and 200,000 for
handicap bathrooms; this is money we won't recover. We are trying to provide a service for our
customers. I didn't want to build that stupid smoking deck, the town told me to. I hate smoking,
too. Richard Ray doing great job but he's being tough on us.
Mr. Fee - I'm sorry you resent my comment, but when you're putting up 4 walls & blocking it all
up, it makes if difficult for Mr. Ray to make a proper determination.
Mr. Spriggs - Richard, we have to give you some guidance.
Mr. Fee - Make a motion that 2 out of 4 in the winter, and rolled up completely in the summer &
that would be sufficient to achieve both goals.
Mr. Spriggs - Do I hear a second?
- Second, for discussion.
Mr. Fee - Could we say 50% instead of 2 out of 4? That way it will apply to all covered awnings.
W. Soverino - I'd like to give RR some guidance for all that he comes across.
Mr. Spriggs - Matt, are you through?
Mr. Fee - Yes.
HO Ray - I understand why Skip Cabot doesn't care for the 50% in that the 4 sides are a little
misleading — 3 of these sides are floor to ceiling and about so wide. The fourth side, which I had
him remove the top roof piece, 2' one end goes down to a point. I f you look at 50 %, more than 1
of these big curtains would have to come down.
Mr. Fee - That wasn't my intent, I was trying to make it easy.
Mr. Spriggs - One more statement.
Mr. Cabot - There has to be a scientific way for someone to come out & check airflow, rather than
say take this curtain down or this wall down.
Mr. Spriggs - That was one of the things I was going to do after we resolved this. We have a
motion on the floor. Then I will make my statement.
Mr. Cabot - If that goes through, I will get fined everyday.
Mr. Fee - I want to set something up so that won't happen.
Mr. Spriggs - Let's vote on a motion.
All those in favor of Matt's — no?
Mr. Fee - I don't want to vote on it if we haven't solved it.
Mr. Spriggs - Let's vote it down.
Mr. Soverino - I will tell you what we should do, Mr. Chairman, let's table any action on this until
we can all look at this deck and give it further study and ask the BOH to give HO some guidance
on this subject and BOH not to fine Mr. Cabot.
Mr. Spriggs - I don't agree with that but..
Mr. Soverino - Suggest BOH adopt rules and regulations on what is permissible and what is not- a
general application. By -laws adopted by the town, and general laws of the Commonwealth
authorize BOH to regulate smoking any way they see fit. You have power, why not do
something systematic and thought through rather than a case -by -case basis?
Mr. Spriggs - That's where I was going to go. My suggestion is to ask Health Director to find
out nationally or wherever he can, a set of air flow regulations we can use consistently, and that
would be down the road, but for this summer and since the smoking only went into effect in
September, haven't experienced what we're experiencing now, can we ask that he be a little
lenient this summer & in the fall come up with a regulation on how to measure air flow in all
circumstances so we can be consistent.
HO Ray - You can certainly order me to do that, yes.
Mr. Spriggs - Okay.
Mr. Cabot - One more comment. Richard Ray can come in & if he sees someone smoking in the
establishment, fine, he can ticket me, but this smoking deck thing...
Mr. Spriggs - Skip, we understand what your position is. We're trying to get beyond that - do
we have a motion on the floor?
Mr. Soverino - A Comment; to come up with air exchanges, airflow in areas that we're building
for smokers seems to defy the rationale. All the standards for exchanges of air are for public
places that used to allow smoking. Building a deck - we're allowing areas, patios for people to
have a cigarette without standing in the street & now we're worried about changing the air in that
space — it seems we're going in the wrong direction. If people choose to go into this patio or deck
to have a cigarette, a change in the air is the last thing we should be worried about.
Mr. Spriggs - It's not as much a change in the air as much as an airflow, but we have a motion on
the floor. If the presenter wants to withdraw it?
Mr. Fee - I'll withdraw the motion.
Mr. Spriggs - Second? Alright. In the meantime can we agree as BOH that Richard Ray be
lenient this summer and figure out how we can measure the flow and come back after next fall
sometime with a suggestion, not necessarily a regulation.
Mr. Soverino - Some draft regulations?
Mr. Spriggs - Yes.
Mr. Spriggs - Would somebody make that a motion?
Mr. Soverino - Move that BOH establish draft regulation be presented at the September BOH
meeting for this BOH to consider and that Mr. Cabot has volunteered to work w/Richard Ray to
get those draft regulations put forward.
Mr. Spriggs - Draft regulations for smoking decks?
Mr. Soverino - Correct.
- Motion seconded.
Mr. Spriggs - All those in favor or any discussion?
Aye.
Mr. Spriggs - Those opposed? Unanimous 4 -0.
HO Ray: On another more positive note, 27 tobacco compliance checks were performed on
Nantucket checking retail establishments to see if they'd sell to a minor. We had one sale. This
business community should be applauded. That individual will be fined.
Mr. Spriggs - Yes, that's good news, any other BOH business?
Mr. Soverino - To Richard Ray, I wholeheartedly support your efforts and dedication but this
time you may have been too passionate than I agree with.
HO Ray - I am trying to do the job to the best of my ability keeping public health in mind at all
times.
Mr. Spriggs - BOH meeting adjourned.