Received via email 5.10.24:
Dear Mr. Bergman:
Our client, The RealReal, Inc. (“The RealReal”), submitted a letter to you on May 1, 2024 (the “May 1 Letter”) regarding the upcoming May 15, 2024 Town Council meeting and the Churchill Cigar Company’s compliance with its August 22, 2023 Declaration of Use Agreement.
Exhibit B to that May 1 Letter was a diagram to help show the proximity of the Churchill Cigar Company to The RealReal’s store at 329 Worth Avenue, Palm Beach, FL, but the version attached to the May 1 Letter was a draft and not the final version. To correct that, on behalf of our client we submit, as Exhibit 1 to this letter, a complete copy of the same May 1 Letter but with the correct Exhibit B that was intended to be attached to the previously submitted May 1 Letter.
Also, for additional context regarding the proximity of the front door of the Churchill Cigar Company front door and The RealReal’s store, we enclose as Exhibit 2 to this letter a photo showing the Churchill Cigar Company’s location as seen from near The RealReal store’s backdoor.
Very truly yours,
SSL LAW FIRM LLP
Sally Shekou, Esq.
EXHBITS:
1 May 1, 2024 letter with updated Exhibit B
2 Photo
Public Comment, Town of Palm Beach Admin
admin
12 months ago
Received via email 5.2.24:
Dear Mr. Bergman:
The RealReal operates a retail business at 331 Worth Avenue, Palm Beach, Florida, that sells luxury goods (our “store”). Our understanding is that on May 15, 2024, the Town Council will hold a Development Review meeting in which it will review the Bar/Lounge operations of the Churchill Cigar Company at 329 Worth Avenue, Palm Beach, Florida (“Cigar Bar”).1
We ask that the Planning, Zoning & Building Department review the Cigar Bar’s compliance with the Declaration of Use Agreement by the Town of Palm Beach and Churchill Cigar Company, dated August 22, 2023 (“Use Agreement”; enclosed as Exhibit A), and take action in accordance with Article VI of the Use Agreement.
Our store has been materially and adversely impacted by the operation of the Cigar Bar. The Cigar Bar allows indoor smoking, but the tobacco smoke from the business permeates beyond the Cigar Bar premises. The smoke emanating from the Cigar Bar not only fills the covered walkway separating the Cigar Bar and our store, but it also infiltrates our store. Exhibit B shows the proximity of the Cigar Bar to our store. The acrid smell of smoke emanating from the Cigar Bar is creating an unhealthy environment for our employees and patrons and is damaging the merchandise at our store, including by making our store’s merchandise smell like tobacco smoke. The merchandise sold at our store is on consignment and, as such, we must take special efforts to protect it. As a result of the invasive smoke created by the Cigar Bar, we have been forced to incur significant added costs cleaning the merchandise since the Cigar Bar opened.
Of even greater concern to us are the many complaints from our employees and customers who suffer from the impact of the secondhand smoke inside our store. We are deeply concerned about the negative health and safety impacts and the unsafe condition being created by the Cigar Bar’s failure to contain the cigar smoke within their space. This affects our business as well as our employees’ and customers’ comfort in our store. We have tried to mitigate the impact of the Cigar
Bar’s smoke on our store by purchasing expensive air scrubbers and filters, but this has not materially reduced the pervasive presences of smoke odor within our store. To date, we have spent approximately $2,600.00 on weather stripping, fans, and air purifiers.
Unfortunately, although we tried to address these issues directly with the Cigar Bar, the Cigar Bar has not taken the measures it can take to mitigate the issues. Article IV, section 1, of the Use Agreement granting the Cigar Bar license to allow smoking in its premises requires that the “door to the Bar/Lounge shall remain closed at all times unless being used for access” as a condition of the right to use the premises as a Cigar Bar. We are not certain that this measure would solve the problem completely, but employees at our store regularly see the Cigar Bar’s doors wide open, which allows the smoke to escape from the Cigar Bar and enter our store. After we asked the Cigar Bar operators to ensure that the doors remained closed, they addressed the issue for possibly a day, and then the doors were again left open regularly and for long periods in violation of the Use Agreement.
We recently had store employees track dates/times that they noticed that the Cigar Bar left its door open in violation of its Use Agreement, and in a recent span of just 10 days, store employees observed the Cigar Bar’s door being kept open in the mid to late afternoon on April 11, 16, 17, and 18, mostly from 3:00 pm until at least when store employees leave work and could no longer record their observation of the door, which is around 6:15 to 6:30 pm. On Sunday, April 21, store employees observed that the Cigar Shop’s door was left open all day. Even on the days or during the times that TRR employees did not record the Cigar Bar door left open, a strong smell of smoke still permeated the store. It is a problem every day.
As the TRR employee logs indicate, when the Cigar Bar leaves its door propped open largely coincides with the hours when the Cigar Bar’s immediate neighbor, the Via Roma Café, is closed, which is on Sundays and after 3 pm every other day of the week. We believe this is not a coincidence. Rather, we believe that (a) the Via Roma Café customers and employees have complained about the smell of the smoke and the Cigar Bar has made greater efforts to observe the use restriction in its Use Agreement when the café is open, (b) due to what appears to be at least some overlapping ownership interests in the Cigar Bar and the Via Roma Café2, such common owners are taking a greater interest in protecting the café and its employees and patrons from the smoke, and (c) the Cigar Bar ownership is aware of the problem (which, as mentioned above, we have also brought to their attention).
In addition to the direct and constant violations of the Use Agreement, we believe that as a result of the unreasonable infiltration of smoke into our store, the Cigar Bar is in violation of Town Code Section 22-272, “General Operation as Nuisance.” Section 22-272(a) states, “It shall be unlawful to operate any entertainment establishment in such manner as to annoy, injure or endanger the comfort, repose, health or safety of any considerable number of persons.”
Based on the foregoing, we believe that the Cigar Bar has violated the terms of its Use Agreement and is in violation of applicable health and safety codes. In an effort to be cooperative neighbors, we have attempted, on numerous occasions, to give the ownership an opportunity to remedy the issue, but they have been unable or unwilling to remedy their violations of the Use Agreement and our business has suffered as a result of their repeated violations.
The Cigar Bar should not be allowed to operate in a manner that negatively impacts neighboring businesses, like our store, and their patrons. Accordingly, we ask that the Town ensure the Cigar Bar’s compliance with the requirements of its Use Agreement and also impose additional, more stringent requirements on the Cigar Bar’s operations in order to stop the tobacco smoke from entering our store and impacting neighboring properties. If the Cigar Bar is unable to meet these requirements, then the Cigar Bar should not be allowed to continue an operation that is creating harmful, negative impacts on neighboring properties.
We look forward to your response and to the May 15, 2024 Town Council meeting.
Elizabeth Logie
Associate General Counsel
Received via email 5.10.24:
Dear Mr. Bergman:
Our client, The RealReal, Inc. (“The RealReal”), submitted a letter to you on May 1, 2024 (the “May 1 Letter”) regarding the upcoming May 15, 2024 Town Council meeting and the Churchill Cigar Company’s compliance with its August 22, 2023 Declaration of Use Agreement.
Exhibit B to that May 1 Letter was a diagram to help show the proximity of the Churchill Cigar Company to The RealReal’s store at 329 Worth Avenue, Palm Beach, FL, but the version attached to the May 1 Letter was a draft and not the final version. To correct that, on behalf of our client we submit, as Exhibit 1 to this letter, a complete copy of the same May 1 Letter but with the correct Exhibit B that was intended to be attached to the previously submitted May 1 Letter.
Also, for additional context regarding the proximity of the front door of the Churchill Cigar Company front door and The RealReal’s store, we enclose as Exhibit 2 to this letter a photo showing the Churchill Cigar Company’s location as seen from near The RealReal store’s backdoor.
Very truly yours,
SSL LAW FIRM LLP
Sally Shekou, Esq.
EXHBITS:
1 May 1, 2024 letter with updated Exhibit B
2 Photo
Received via email 5.2.24:
Dear Mr. Bergman:
The RealReal operates a retail business at 331 Worth Avenue, Palm Beach, Florida, that sells luxury goods (our “store”). Our understanding is that on May 15, 2024, the Town Council will hold a Development Review meeting in which it will review the Bar/Lounge operations of the Churchill Cigar Company at 329 Worth Avenue, Palm Beach, Florida (“Cigar Bar”).1
We ask that the Planning, Zoning & Building Department review the Cigar Bar’s compliance with the Declaration of Use Agreement by the Town of Palm Beach and Churchill Cigar Company, dated August 22, 2023 (“Use Agreement”; enclosed as Exhibit A), and take action in accordance with Article VI of the Use Agreement.
Our store has been materially and adversely impacted by the operation of the Cigar Bar. The Cigar Bar allows indoor smoking, but the tobacco smoke from the business permeates beyond the Cigar Bar premises. The smoke emanating from the Cigar Bar not only fills the covered walkway separating the Cigar Bar and our store, but it also infiltrates our store. Exhibit B shows the proximity of the Cigar Bar to our store. The acrid smell of smoke emanating from the Cigar Bar is creating an unhealthy environment for our employees and patrons and is damaging the merchandise at our store, including by making our store’s merchandise smell like tobacco smoke. The merchandise sold at our store is on consignment and, as such, we must take special efforts to protect it. As a result of the invasive smoke created by the Cigar Bar, we have been forced to incur significant added costs cleaning the merchandise since the Cigar Bar opened.
Of even greater concern to us are the many complaints from our employees and customers who suffer from the impact of the secondhand smoke inside our store. We are deeply concerned about the negative health and safety impacts and the unsafe condition being created by the Cigar Bar’s failure to contain the cigar smoke within their space. This affects our business as well as our employees’ and customers’ comfort in our store. We have tried to mitigate the impact of the Cigar
Bar’s smoke on our store by purchasing expensive air scrubbers and filters, but this has not materially reduced the pervasive presences of smoke odor within our store. To date, we have spent approximately $2,600.00 on weather stripping, fans, and air purifiers.
Unfortunately, although we tried to address these issues directly with the Cigar Bar, the Cigar Bar has not taken the measures it can take to mitigate the issues. Article IV, section 1, of the Use Agreement granting the Cigar Bar license to allow smoking in its premises requires that the “door to the Bar/Lounge shall remain closed at all times unless being used for access” as a condition of the right to use the premises as a Cigar Bar. We are not certain that this measure would solve the problem completely, but employees at our store regularly see the Cigar Bar’s doors wide open, which allows the smoke to escape from the Cigar Bar and enter our store. After we asked the Cigar Bar operators to ensure that the doors remained closed, they addressed the issue for possibly a day, and then the doors were again left open regularly and for long periods in violation of the Use Agreement.
We recently had store employees track dates/times that they noticed that the Cigar Bar left its door open in violation of its Use Agreement, and in a recent span of just 10 days, store employees observed the Cigar Bar’s door being kept open in the mid to late afternoon on April 11, 16, 17, and 18, mostly from 3:00 pm until at least when store employees leave work and could no longer record their observation of the door, which is around 6:15 to 6:30 pm. On Sunday, April 21, store employees observed that the Cigar Shop’s door was left open all day. Even on the days or during the times that TRR employees did not record the Cigar Bar door left open, a strong smell of smoke still permeated the store. It is a problem every day.
As the TRR employee logs indicate, when the Cigar Bar leaves its door propped open largely coincides with the hours when the Cigar Bar’s immediate neighbor, the Via Roma Café, is closed, which is on Sundays and after 3 pm every other day of the week. We believe this is not a coincidence. Rather, we believe that (a) the Via Roma Café customers and employees have complained about the smell of the smoke and the Cigar Bar has made greater efforts to observe the use restriction in its Use Agreement when the café is open, (b) due to what appears to be at least some overlapping ownership interests in the Cigar Bar and the Via Roma Café2, such common owners are taking a greater interest in protecting the café and its employees and patrons from the smoke, and (c) the Cigar Bar ownership is aware of the problem (which, as mentioned above, we have also brought to their attention).
In addition to the direct and constant violations of the Use Agreement, we believe that as a result of the unreasonable infiltration of smoke into our store, the Cigar Bar is in violation of Town Code Section 22-272, “General Operation as Nuisance.” Section 22-272(a) states, “It shall be unlawful to operate any entertainment establishment in such manner as to annoy, injure or endanger the comfort, repose, health or safety of any considerable number of persons.”
Based on the foregoing, we believe that the Cigar Bar has violated the terms of its Use Agreement and is in violation of applicable health and safety codes. In an effort to be cooperative neighbors, we have attempted, on numerous occasions, to give the ownership an opportunity to remedy the issue, but they have been unable or unwilling to remedy their violations of the Use Agreement and our business has suffered as a result of their repeated violations.
The Cigar Bar should not be allowed to operate in a manner that negatively impacts neighboring businesses, like our store, and their patrons. Accordingly, we ask that the Town ensure the Cigar Bar’s compliance with the requirements of its Use Agreement and also impose additional, more stringent requirements on the Cigar Bar’s operations in order to stop the tobacco smoke from entering our store and impacting neighboring properties. If the Cigar Bar is unable to meet these requirements, then the Cigar Bar should not be allowed to continue an operation that is creating harmful, negative impacts on neighboring properties.
We look forward to your response and to the May 15, 2024 Town Council meeting.
Elizabeth Logie
Associate General Counsel