Garcia's Deli broke deal, tribe says
By Nelson Sigelman
Published: November 25, 2009
The Wampanoag Tribe of Gay Head (Aquinnah) shot back hard at Paul Garcia, owner of Garcia's Deli in West Tisbury this week, in response to critical comments Mr. Garcia made after he unexpectedly shut his doors earlier this month.
Closed. And Garcia's, known as Back Alley's, is missed by up-Islanders. File Photo by Ralph Stewart Mr. Garcia operated the deli for seven years under the terms of a lease he signed with the tribe, which owns the property - commonly referred to as Back Alley's. On November 2, Mr. Garcia unexpectedly closed his business and blamed the tribe, which he characterized as dysfunctional and greedy.
"Mr. Garcia's assertions about the Wampanoag Tribe of Gay Head and his lease are ugly, derogatory and just plain false,"
Douglas Luckerman, a Lexington lawyer who represents the tribe, said in a two-page press release sent to The Times Tuesday, under the title, "Tribe sets record straight: Garcia has only self to blame."
Mr. Garcia broke his lease, "skipped out on tens of thousands of dollars he owes the tribe, and dissolved his corporation in order to make it harder for the tribe to collect the money he owes," Mr. Luckerman said in the press release.
"Despite the unfortunate circumstances surrounding the vacancy of the store, the tribe looks forward to working with the community in finding ways to make that space a productive and welcoming part of the community once again," Mr. Luckerman said.
In a telephone conversation Monday morning, Mr. Luckerman said the tribe had no inkling Mr. Garcia planned to close his business. He said tribal officials were not prepared to comment at the time because they were just as stunned as patrons of the business were by the sudden closure.
Mr. Luckerman said he could find no record that Mr. Garcia ever attempted to contact tribal officials as he claimed, or that he had sent certified letters that went unanswered by tribe officials.
Mr. Luckerman said Mr. Garcia "basically closed the store and disappeared without saying anything." He said the press release was an effort to set the record straight and respond to Mr. Garcia's comments, made in a story published in The Times.
Rent blamed
In a story published on November 5 ("Garcia's closes over rent hikes") just days after he closed his business, Mr. Garcia blamed his predicament on the tribe.
He said that under the terms of his lease, he paid the tribe monthly rent and a percentage of sales. He said the tribe had raised the rent each year. The final straw, he said, was an increase in the percentage from two to 3.5 percent.
Mr. Garcia said the tribe refused to negotiate the rent, or even talk about it. He said he had been unable to contact tribe chairman Cheryl Andrews-Maltais by phone or through certified letters.
Mr. Garcia said his annual rent was more than $60,000. The percentage of sales pushed that figure, he said, closer to $100,000.
Asked what he thought was behind the tribe's refusal to speak to him about the business, Mr. Garcia provided a harsh appraisal: "I just think they are incompetent. It's a dysfunctional operation that can't conduct business affairs."
The other side
Mr. Luckerman's press release, on behalf of the tribe, disputes Mr. Garcia's account and the notion that the tribe was unconcerned about the Mr. Garcia's business difficulties or the effect of the closing on the community.
"The tribe did negotiate with Mr. Garcia about his rent and about the percentage of his gross sales he pays the tribe. The amount he pays for his rent was set out in negotiations between the tribe and Mr. Garcia in 2002 and has not changed by one penny since then," Mr. Luckerman said. "The percentage of gross sales which Mr. Garcia pays to the tribe was renegotiated in June 2007, and that has not changed since. It appears that Mr. Garcia just does not like the lease terms to which he agreed.
"At no time after 2002 did the tribe change any term of the lease or impose additional terms on Mr. Garcia, as he has implied, without his complete agreement," he said.
Mr. Luckerman provided an account of the tribe's dealing with Mr. Garcia.
"In July 2002, the tribe and Mr. Garcia signed a five-year commercial lease for "Back Alley's" that included an option for Mr. Garcia to extend his lease for an additional five years. Typical for a commercial lease, the terms of the lease provided for both a base rent and additional rent in the form of a percentage of the business' 'gross sales.' Not only did Mr. Garcia understand in 2002 when he signed the original lease that the additional percentage could be increased to 3.5 percent, but he also agreed to those terms in July 2007, when he signed the five-year extension of the lease," Mr. Luckerman said.
According to Mr. Luckerman, the base rent for year six was $5,000 per month. For years seven to10, rent was to be adjusted annually to reflect a five percent increase from the previous year's base rent.
In March 2007, a few months prior to the end of his original five-year lease, Mr. Garcia notified the tribe of his intent to exercise his option to renew the lease for an additional five years Mr. Luckerman said. The tribe and Mr. Garcia spent the next three months negotiating the terms of the lease within the parameters outlined in the original 2002 lease.
On July 11, 2007, Mr. Garcia signed an agreement negotiated between him and his attorney and the tribe and its attorney, in which he agreed to pay an additional rent of 3.5 percent of gross sales for the term of the extended lease.
"The tribe has no record of a request by Mr. Garcia to renegotiate the terms of his lease," Mr. Luckerman said. "At no time did Mr. Garcia provide the tribe with a warning that he was in financial trouble or that he intended to close Garcia's Deli. He never notified the tribe that he intended to close his business, remove everything from the premises overnight and within days dissolve the corporation under which the deli operated.
"The closing of Garcia's Deli was a sudden and unexpected occurrence for the tribe; it was not something we wanted or anticipated."
Not so, says Mr. Garcia
Mr. Garcia responded to an email from The Times seeking a response to Mr. Luckerman's statement, which he described as "false and misleading."
Mr. Garcia said he received a notice to quit order late in the last year of his first lease. "We were told that we did not advise the tribe in writing of our intention to renew, six months prior to the lease expiration," Mr. Garcia said. "We had been telling Doug [Luckerman] and his assistant Nicole, as well as the then tribal chairman that we would renew, that we always intended to renew (who would terminate a lease in July?)."
Mr. Garcia said he was "stunned" by the notice to quit and called Mr. Luckerman. He said the tribe then decided to raise the rent and add a 3.5 percent gross sales levy as additional rent. "We objected vehemently to this and told both Doug Luckerman and Donald Widdiss (former tribal chairman) that this demand was too much, and we couldn't survive if they imposed it," Mr. Garcia said.
Monday, The Times contacted Tobias Vanderhoop, tribe administrator. Mr. Vanderhoop referred all questions to Mr. Luckerman.
Critical appraisal
The story of Garcia's demise generated 30 online reader comments, many highly critical of the tribe for its stewardship of the property located behind Alley's General Store.
"What a total waste again," Paul Adler wrote. "The up-Island residents need a place such as a Back Alley's. I suspect the tribe will now lose revenue for the next seven months, or longer, looking for a tenant, and the up-Island residents have one less store to shop at. We can't afford to loose any more shopping up-Island and how can the tribe afford to lose seven or more months of revenues? Something does not make sense here. Is it ignorance or greed, or something we are not aware of yet?"
"The Wampanoag tribe is responsible for its actions - as in greed, lack of communication, and in general, sending out a message to one and all - they are not interested in the community or the welfare of those who strive to make an honest living," a reader identified as Dawn said. "They need to reconsider their actions and to do the right thing."
"There is maybe another side to this? Perhaps the tribe will consider renting to a young tribal member just starting out and will forego the greed that they have learned from the white man," Deenah wrote.
Rocky road
In April 1998, the tribe leased Alley's General Store from the Martha's Vineyard Preservation Trust. It purchased Back Alley's café from former owner Howard Ulfelder in the spring of 1999.
The tribe opened Back Alley's as a café in summer 1999, selling sandwiches and baked goods. The doors closed abruptly in February 2001, when the manager left after differences with the tribe.
The facility remained vacant while the tribe sought someone to lease the business for a reported cost of $9,500 per month. Later the asking price was reduced to $8,000, according to interested parties.
In March 2002, the tribe backed out of an agreement to sell Back Alley's to the Martha's Vineyard Preservation Trust at the eleventh hour, following months of negotiations and confirmation from both sides that an agreement had been reached.
In June 2002, the Preservation Trust took over Alley's General Store from the tribe, which was in the final year of a five-year lease of Alley's.
In August 2002, the tribe concluded a deal with Mr. Garcia and Back Alley's reopened as Garcia's. The Preservation Trust retained the right of first refusal should the tribe decide to sell the Back Alley's property.
