Pedal tour operator heads to court over lemon

Kayla Paige Besse, owner of Shift Drink Salem, poses with her brand new pedal pub, which she says - in a lawsuit - turned out to be a lemon. JAIME CAMPOS/Staff photo 

SALEM — A Salem woman who spent months convincing city and state officials to let her operate a pedal-powered "pub" that would allow patrons to drink beer as they made their way past various historic and scenic sights in the Witch City has now gone to court. 

In a suit filed late last month in U.S. District Court, Kayla Paige Besse is seeking damages from the New York company that sold her the vehicle - which turned out to be a lemon. 

She estimates in the suit that she was on track to have earned at least $150,000 in net revenue from her fledgling business, "Shift Drink Salem," during this year's tourism season, and likely more in subsequent years if she could start operating in the springtime.

Instead, she's scrambling to figure out whether she will be able to convince officials to give her another shot next year, and find another company to provide a vehicle, her lawyer said. 

The vehicle, which looks like a mashup of a tourist trolley and a fitness center, is powered by the legs of its passengers, with a backup motor. It cost Besse just under $58,000 to purchase from a company called Bavista, in Buffalo, New York. 

That's where a man named Ken Szal started Buffalo Pedal Tours in 2014. 

Szal has a fleet of similar vehicles, and now also operates a party tour boat business, according to his website. 

Here in Massachusetts the business model is slightly different. Riders would be allowed to bring their own beverage to drink - supervised by an employee - while they pedal. The concept, Besse told city officials, weeds out those who just want to drink. 

The concept was new to Salem and so novel that the City Council had to take a vote on it, granting Besse permission to operate the tour on a trial basis for a year to see how it worked out. 

It didn't, her lawyer, John Markham, said in an interview -- but it was through no fault of her own. 

"This wasn't just having the rug pulled out from under her," said Markham. "It was like a truck running over her in front of everyone." 

After getting approval from the City Council for a one-season trial run, Besse took delivery of the pedicab from Szal, began hiring staff, and started selling tickets online.  

She also decided to unveil the pedicab to family, friends, customers and the media for a test drive around Salem. It was also a chance for her to make sure she knew how to use the vehicle - since, the suit alleges, Szal never followed up on a promise to send an instructional video. 

The vehicle was pushed from a storage area out onto the street, and passengers took their seats on the sides.

The pedals froze, the suit says.

"Nothing worked," according to the complaint.

"The launch of this promising business was a failure that played out in public," Markham said in the suit.

"It was terrible," he said Tuesday. "She was really humiliated."

Markham said that when she reached out to Szal, "he was not in any hurry to get it fixed." 

Markham said Szal told her it would take 90 days to replace the motor -- even though she hadn't mentioned the motor as an issue -- and said if she tried to hire someone local to try to fix it, she would essentially void the warranty. 

That put her out of business, Markham said. She returned the vehicle and was refunded the purchase price. She refunded customers who had booked rides. 

Markham called it "dumbfounding" that Szal was not more responsive, suggesting it would be in his interest to create greater demand for the vehicles. 

Szal did not return a message seeking comment. 

The suit seeks damages for breach of contract, unfair and deceptive practices in violation of the state's consumer protection law, and negligence. 

Courts reporter Julie Manganis can be reached at 978-338-2521, by email at jmanganis@salemnews.com or on Twitter at @SNJulieManganis. 

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