When entrepreneurs Christian Rahn, Victor Quinn and Scott Radner chose Northampton as the home of their proposed hookah bar, The Den, they were fighting an uphill battle, even if they didn't know it yet. Massachusetts passed a smoke-free workplace law in 2004, exempting private clubs, hotels, nursing homes and "smoking bars, " establishments that get 51 percent or more of their revenue from tobacco sales. Some communities, including Northampton, chose to take the law further, requiring all workplaces to be 100 percent smoke-free.
In order to operate in Northampton, Rahn and his partners needed an exemption from the city's Board of Health, which they requested on April 17 at the board's monthly meeting. In a 2-1 vote, the board granted the exemption, surprising many, including Mayor Mary Clare Higgins. "It's a mystery to me, quite frankly," said Higgins in a June 19 Masslive podcast. "The Board of Health approved it, I'm not sure why they did… . I don't necessarily think it's wise, but that's what happened."
The exemption came with the condition that the owners meet certain requirements regarding signage and ventilation. The owners of The Den met all the requirements, which were stringent, according to BOH chairman Dr. Jay Fleitman: "The restrictions that we put on them were really rather draconian."
Those restrictions included providing specifications of the exact equipment to be installed; obtaining approval for the ventilation unit from the building or plumbing inspector; obtaining a letter of approval from the owner of the building; and submitting signage spelling out health concerns and age requirements.
At the May 22 BOH meeting, Rahn's group presented a letter of approval from the building owner as well as specs for the proposed ventilation system. The board voted on a motion to grant the exemption pending approval of the ventilation system by building inspector Anthony Patillo. Patillo sent Rahn an email June 11 accepting the proposed system.
Before making costly renovations (roughly $75,000 of which were mandated by the board, according to Rahn), Rahn requested the exemption in writing, a move which Fleitman says was the proper thing for Rahn to do.
"These fellows had requested that they have the exemption in writing, so we asked the city solicitor how exactly do we put that in writing," said Fleitman.
Xanthi Scrimgeour, a former member of the Board of Health and its current director, disagrees with Fleitman, believing instead that the owners' request of the exemption in writing proves that they knew they were asking for something they shouldn't be allowed to have.
"I think the owners knew they were on shaky ground from the beginning," said Scrimgeour.
Rahn says that the Board of Health told him that the minutes from the board meetings would act as a guarantee of the exemption which would be granted in writing once all of the stipulations were satisfied.
That is where the trouble began. According to minutes from the July 24 meeting, the BOH contacted City Solicitor Janet Sheppard, who was on vacation and didn't have time to review the exemption process. It wasn't until September that Sheppard weighed in, stating that any changes to the law would apply to all businesses and that a public hearing was necessary. (Sheppard didn't return a call from the Advocate seeking comment.)
Fleitman confirmed that the board contacted Sheppard about the exemption process back in April, and that she didn't mention the necessity of a public hearing until this fall.
"We contacted her," said Fleitman. "She didn't tell us that."
At the end of September, most of the required renovations were completed. The first of four building permits for The Den was granted on September 3, according to the city's website. The Den owners had been publicly promised the exemption and now the Board of Health appeared to be backpedaling.
"Essentially, [the Board of Health] had not previously sought legal advice on what exactly they would have to do to give me a permit, even though they voted to do so," wrote Rahn in a Nov. 7 email. "The city solicitor provided a written opinion six hours before the October board meeting& Upon receiving this written guidance, the chairman suggested that the board go about granting the exemption through these proper legal channels. The swing-vote board member interpreted this advice to mean that all the proceedings so far were 'null and void,' and that the question of whether or not to grant us the exemption must be reconsidered without taking into account our financial investment, or the fact that we invested this money in reliance with what the board had told us to do."
Though she already had acknowledged that the board was prepared to grant the exemption, Scrimgeour now claims the board was confused about what they were voting on.
"In the absence of a director we didn't have all the information we needed, " said Scrimgeour, referring to the position she now holds. "Perhaps there was a misunderstanding between voting on a one-time variance to actually changing city law& [The owners] came before the board for one thing and then asked for another& They as good businessmen know that's not how business is done& They know it's a tricky situation, having applied for and been denied to open businesses like this in other cities and towns."
"That is absolutely unfounded and untrue," said Rahn. "We have never applied in, or been turned down, anywhere else& Northampton was our first and only choice from the beginning."
Rahn also maintains that the board was fully aware of what they were voting on.
"When we approached the Board of Health in the very beginning, we were explicitly clear that what we needed was permission from them to operate in Northampton, according to the state regulations as per the hookah bar exemptions," he said. "After the original vote was made in our favor, the director [Scrimgeour, who was then a voting member of the BOH] came to the next meeting suggesting& that the board was voting on a tobacco permit and was not clear on what they had voted on. In response to this, the board members told her that they had not been voting on a tobacco retailer's permit (those are never voted on, just given out after the payment of a small fee) and were not confused about the fact that they had been voting on an exemption. They then made a motion to amend the previous meeting's minutes specifically to clarify that they had not been voting on the tobacco retail permit, but on granting an exemption to town law."
Although no motion to amend the minutes to reflect that clarification is recorded in the minutes of the May 22 meeting provided to the Advocate by the Board of Health, recent statements by Dr. Fleitman suggest that he was knew what he was voting on.
"The decision was made in the belief that individuals have a right to choose their behaviors for themselves, even if others might not like it, as part of what American society is," said Fleitman.
Rahn, Quinn and Ryder have suspended final cosmetic renovations pending a public hearing and the board's subsequent decision. The current circumstances surrounding the bar's opening are not ideal, according to Rahn, who would have liked to open The Den quietly, allowing to people to happen upon it by chance.
"We wanted it to be this cool, interesting spot, sort of hidden away. It adds to the atmosphere and the exclusivity," said Rahn. "We'd rather not have publicity of this kind, but at this point I think publicity is the only way… We as a couple of young entrepreneurs are not going to survive this without the support of the public."
The question now is whether the board should honor its initial promise and grant The Den the necessary exemption it needs to open, or follow the belated legal advice of the city solicitor, which includes holding a public hearing to allow citizens to weigh in on the issue.
The law, according to Scrimgeour, is what is most important: "I'm glad that three volunteer members can't just change a law on a whim. It's important that the legal process is followed& I want to make sure that we follow a legal process and the citizens are allowed input into the regulations in the city."
The law is important to Rahn as well. He believes that the Board of Health should be held accountable for its previous actions.
A public hearing on The Den is scheduled for Wednesday, November 12 at 5:30 p.m. in City Council Chambers behind City Hall.
