ATHOL – The Selectboard almost unanimously denied an application from Nancy Tessier to sell alcohol-infused ice cream products in town.

Tessier is owner of Pop’s Sweet Harts, which sells ice cream and other frozen confections in several area communities. The board’s decision at the Tuesday meeting came despite a recommendation from Town Counsel John Barrett that it postpone voting until uncertainties on regulations for the sale of such items were cleared up.

Tessier told the board that these products are approved for sale in Massachusetts. Because it is infused, she explained that it’s not considered an alcoholic beverage.

“It’s more like sorbet,” she said. “It comes pre-packaged from the vendor I get all my ice cream from. They’re only five-ounce cups. I only sell one per person.”

Tessier then disputed an assertion made in a correspondence sent by a resident to town officials prior to the meeting that her 16-year-old son would be driving the truck from which the items are sold.

“He doesn’t even have a permit, so I don’t know where this came from,” she said. “My mother, my sister, and my niece, who are all residents of Athol, are all on my hawkers & peddlars permit.”

One contentious issue was getting approval from different towns to sell these products. Tessier said she has a permit in Gardner and has sold in the town for the last year. She’s also sold in Athol, though only with a permit for the ice cream truck, said town officials.

“My home base is Gardner and I got approval from Gardner,” she said. “I didn’t really understand why I had to go through every single town.”

Board member Rebecca Bialecki expressed concern that the products would be available to children as the Pop’s truck goes from neighborhood to neighborhood in Athol. Tessier said the items are sold only to patrons who show an ID confirming they are at least 21 years old. She added that no one under the age of 25 would be driving the truck, per the restrictions of her liability insurance.

“My concern is that even though you say you’re only going to sell to 21 and over, it’s going to be around town; that’s going to be a very easily-adapted product for children under 21 to get,” board member Brian Dodge said. “Maybe not 5 and 6-year-olds but 16, 17, 15-year-olds, it’ll be easier for them to get.”

Asked by Tessier why it would be easier for underage consumers to procure the product, Dodge said that not being in one place and serving people from different area—even with all the efforts not to sell to those underage—could still be a problem.

“The ‘alcohol’ word is to attract attention,” said Tessier. “Let’s be real. Are you going to eat one and get dunk; absolutely not. Do we have (people) in this Town Hall and members on this board who have tried it; absolutely. To each his own. But when you say ‘alcohol infused’…it attracts attention.”

Tessier said she does not have a big sign on her truck advertising the product. Instead, there is a relatively small decal discretely placed to indicate the items are for sale. She then explained that selling the alcohol-infused products helps increase profits, which in turn allows her to keep prices low for the items often purchased by children.

“I guess my concern is that there’s still an encouragement of alcohol use – that that is available to kids, in my opinion,” said Bialecki. “Years ago, they did away with candy cigarettes for similar reasons, because it encouraged smoking. There’s nothing dangerous about candy cigarettes, but it just encourages it.”

Barrett said there are mixed opinions from the state Alcohol Beverages Control Commission (ABCC). He suggested the board postpone a decision, as some at the ABCC have said these products aren’t allowed for sale under any circumstances.

“I spoke with general counsel this afternoon, and she said it is allowed because it’s not an alcoholic beverage,” said Barrett.

However, the board instead voted 4-1 to deny Tessier’s request for a permit to sell the items. Board member Kala Fisher was the lone dissenting vote.

“Thank you,” said a frustrated Tessier. “I’ll rethink licensing next year for Athol. You guys have lost a really good business.”

Greg Vine can be reached at gvineadn@gmail.com.

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