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Board of Aldermen 5-21-2020 Page 28

Alderman Clemons

Ok so my concern with taking out the amendment is (inaudible) | completely understand the wanting to
have disorderly conduct. So in other words, if a business has a policy or we have the Ordinance that says
you have to a mask on. And a person comes in and they refuse to wear a mask and not only are they just
refusing to wear the mask but they are being belligerent or they are throwing stuff or threatening people.
That to me is a separate crime and that’s a crime that’s already on the books. So | think in those particular
situations, even if we were to not pass this and a business had a policy where they required a mask and
somebody refused to wear it, | believe that the Police should be called down and have that person removed
from their property because they are violating the business owner or the property owner’s wishes. So my
fear in removing the warning is that if we do that, then we are leaving it up to a court to decide — well first
we are leaving it up to a court to decide if they are going to fine somebody. And two, we are clogging the
court. Now, again, if there is other disturbances and things like that, then you would call the Police anyway,
you know, for that.

My fear is somebody coming from Massachusetts who doesn’t know the rules or somebody coming from
Hollis or some other part of New Hampshire where they don’t have this. And they are innocent, they don’t
know, they come into Nashua and they are not aware of this. We want to educate people, we don’t want to
be punitive to people. So my thought is give people a warning and if they are a repeat offender, then they
are a repeat offender and we give them a small fine to make sure that they abide. But that’s my thoughts
so | won’t be supporting the motion to remove the amendment.

President Wilshire
Who was next?

Alderman Harriott-Gathright

Yes.
President Wilshire
Alderman Gathright.

Alderman Harriott-Gathright

| agree with Alderman Clemons with this issue. | would not be supporting that as well, removing the first
amendment. | do believe that there should be some type of, even though it is small, but it is still a penalty
attached to this Ordinance.

President Wilshire
Ok further discussion? Alderman Clemons?
Alderman Clemons

Thank you. Just to clarify, my concern is that if we remove this amendment, the penalty could be large, it
could be huge, it could be $500.00, it could be $1,000.00 and if we pass it like that we cannot guarantee
that that won’t be the penalty. So by putting in a warning and putting in the $25.00 we have a penalty. So if
the idea is, we don’t want a penalty, then we can make an amendment that there will be no penalty to this.
But | can’t imagine that that’s what we want to do either; so that’s why | suggested the warning and the
$25.00 was because | don’t want to see it be a punitive penalty on people who really didn’t know or
whatever the case may be.

Board of Aldermen 5-21-2020 Page 29

President Wilshire

Well | think Alderman Clemons that if we pass this Ordinance that there would be something that we could
put downtown or near the restaurants that say “Per NRO you have to wear a mask”. So even if you are
from out of town or from Nashua, most people will see that and realize that masks need to be worn. Ok
further discussion.

Alderman Lopez

Madam President, | had my hand up. Sorry.
President Wilshire

Alderman Lopez.

Alderman Lopez

| just wanted to point out that while | understand what Alderman Clemons is saying about people not
knowing and then coming to Nashua and finding out, if you set the fine too small no one is really going to
know about it versus if it is $1,000.00 then they are definitely going to know about the potential of that. But |
have a lot more faith in our Police Officers and our Judicial System, | think. Ad Attorney Bolton said, and
Chief Carignan did say that this would be very carefully managed, in the Public Health Meeting and that he
wasn’t going to have officers out looking for people. It was going to be more like if it was creating an issue
and to empower business owners. So | think leaving the concept of disorderly conduct intact is fair as
Alderman Schmidt suggested. And at the same time having a maximum penalty gives the Court System
and the Police the latitude to actually use their own discretion. Because |’d also hate to see a bunch of
people come and plan to pay $25.00 in order to make a demonstration or inconvenience others. Or just
because they can afford that easily and therefore, they can afford to flout laws that people who don’t have
money can't.

Alderman Klee
Madam President?
President Wilshire
Alderman Klee.
Alderman Klee

Thank you and | think Alderwoman Lu also had her hand up but the whole premise behind this is exactly
what Alderman Lopez had said. It is not to be punitive but we are a border State to Massachusetts. And
my anxiety, | had a major anxiety attack the weekend before the malls were opening up because | saw the
numbers of Lowell and Lawrence and while those numbers do seem to be going down, they are still the 3
highest. And knowing that we are kind of the Gateway to New Hampshire where people are going to be
coming to go on vacation and to do everything else such as that, | think as long as we have signage that
says “You cannot enter without a mask” we are letting them know that. And if we tell businesses that they
have to put that up in their window or recommend it or however it is that we want to do this, | think that’s a
good idea. | actually think we are building in a true punitive by saying a warning and then a $25.00 fine; it’s
almost making it mandatory. So | guess | do voter's regret when | voted for it the first time. | would rather
just leave it as is and make it more of a disorderly conduct type of thing. And while yes, we all Know that the
$1,000.00 fine is sitting there, | seriously doubt it is going to implemented so | don’t believe that someone is
going to be in harm’s way. And | just would like you to go through as clean and so on and | will stop talking
now. Thank you.

Board of Aldermen 5-21-2020 Page 30

President Wilshire
Alderwoman Lu.
Alderwoman Lu

Thank you. Through you to Attorney Bolton if | could. Does a store owner have the right to ask someone to
leave their store?

President Wilshire

Attorney Bolton.

Attorney Bolton

Most often the answer is yes if the patron ... | didn’t hear that.
Alderwoman Lu

Sorry. If they had a sign indicating masks required, would they have a right to ask a person to leave?

Attorney Bolton

Yes, in my answer to the previous question, under ordinary circumstances the proprietor, manager, of
business property can refuse to serve anyone. There are certain bad reasons which you cannot exercise
that right but in the case of a refusal to wear a mask if it is required by law or required by the property
owner, by the business itself, yes they can say these are our regulations, if you come into my store or my
restaurant, we are going to require you to wear a mask when you are in close proximity to others or there is
any likelihood you'll be in close proximity to others. Or we require to wear a mask at all times. Yeah and
then the store owner at that point, if the person refuses to comply and refuses to leave, that becomes a
criminal trespass.

Alderwoman Lu

Thank you. So the way | see this is somebody walks into a shop without a mask, they are asked to leave,
they leave, they are asked to leave because there’s an Ordinance in town that requires masks, they don’t
leave, they become disorderly or a Police Officer is asked to help and it doesn’t even have to become a fine
for violating that Ordinance. The person has become disorderly.

Attorney Bolton

As | have said before, typically arrests in these kinds of situations result not from the original violation but
from the escalation of bad conduct. So the breach of the peace, the criminal trespass, the assaulting a
Police Officer, the assaulting of the store manager, the resisting arrest. Any of those things are not unlikely
to become packaged together.

Alderwoman Lu
Thank you, Attorney Bolton. | hope those things don’t begin to happen too often. But my thoughts are just

who goes out in this climate and thinks maybe they don’t have to wear a mask somewhere. | don’t think
many people would be surprised to find that in an Ordinance.

Board of Aldermen 5-21-2020 Page 31

Attorney Bolton

OH — | have gotten more communications than the Board of Aldermen has about people who intend to do
that if this passes, “I will be going downtown, | will be NOT wearing a mask and | dare you to do something
about it”. I’ve gotten that type of communication. So | do expect there will be some testing of this.

Alderwoman Lu

My feeling, my point is that it won’t be harmless ignorance that causes this but maybe something else. | just
don’t think there are many people that are not aware of the need to wear masks. And | don’t know that we
have to belabor how it’s going to be addressed, because | think that our Police Officers do a really good job
of using their fine discretion. Thank you.

Alderman Klee
Madam President.
President Klee
Alderman Klee?
Alderman Klee

Thank you. | wanted to mention one other thing and | don’t know if it is germane to the amendment that
I’ve got sitting there. But kind of to answer some of the questions that have brought up, | have spoken to a
number of businesses. Now while | have not spoken to every business that we have in Nashua, the
businesses | have spoken to want this Ordinance to help support them. | can give you one instance, there
was one business that when retail was starting to open up, put a sign in their window that basically said,
“No Shirt, No Shoes, No Mask, No Service”. And they got phone calls that said, “you don’t have the right to
do that, it is my constitutional right” and so on. This is kind of being brought up to the Governor. And they
said to the Governor, you know, a lot of businesses would like this to be done and he said that he did not
want to mandate this but that he understood especially those cities and towns that were right on the border
of Massachusetts, he could see the need for it. He still did not mandate it but the businesses want it and |
think this is our way of also supporting the businesses by saying, “/Ve support those people that are frail
that want to go out of their house”. | mean the Governor said that those employees have to wear it so why
wouldn’t we want to protect those employees by us wearing them? And | can tell you, I’ve been in stores
where people are not doing social distancing and I’ve been to a different place where they are not doing
social distancing and they don’t have masks on. | find it very offensive because | always wear a mask. |
even walked out of a store today and got in the car and my husband said to me, “Why do you still have your
mask on” and | went, “I do?”. | am getting to the point now where it is almost becoming like putting on
lipstick, it’s just part of my — and | am claustrophobic so | have gotten past it. | just think we are doing it to
support businesses. | don’t want anything punitive to happen. And | pray that these people don’t come and
protest just because they can. We are a live free or die State but we also have to think about all of our
citizens. And | think that’s what this does. It is for caring for somebody else, not just myself but somebody
else.

President Wilshire

For the record, Alderman Dowd had joined us at 8:30. Any further discussion on removing the warning and
the $25.00 fine? Alderman Jette?

Board of Aldermen 5-21-2020 Page 32

Alderman Jette

If | could Madam President through you, if | could ask Attorney Bolton, when Alderman Kelly made the
motion to amend by providing for a written warning, you expressed some misgivings about that. How do
you feel about Alderman Clemons’ verbal warning? What are your thoughts on that?

Attorney Bolton

| think both the written and the verbal warning basically renders the entire thing unenforceable. | do not
think it will be easily proven that someone was given a warning, whether written or verbal for a prior
offense. | just don’t see careful enough records being kept; | don’t see one Police Officer knowing what
other Police Officers have previously done. So that’s my opinion, it renders the measure unenforceable,
written, or oral.

Alderman Jette

Can | follow up Madam President?
President Wilshire

Alderman Jette, yes.

Alderman Jette

So | am wondering what the purpose of the warning is, as contained in Alderman Clemons’ amendment.
Because as | understand it, you know, someone comes to a restaurant for example and is not wearing a
mask, | would assume that they would be told that there’s an Ordinance requiring that you wear a mask. |
understand that businesses have been provided through the State, free masks they can use in order to
protect their employees and their customers. So | kind of envision that if somebody shows up at a
restaurant not knowing that they need a mask that they would be told that they need a mask and if they
don’t have one, they would be handed one. If they don’t want to wear it, then they could leave. So | guess |
am inclined to vote in favor of eliminating the written warning part of this. | understand reducing the fine to
$25.00 or $100.00 to avoid the specter of a larger fine that some people might find offensive. | could
probably support something like that, but as far as this motion to reconsider Alterman Clemons’ motion | will
vote for that.

President Wilshire

Anyone else?

Alderman Clemons

President Wilshire? May | speak?

President Wilshire

Yes, Alderman Clemons.

Alderman Clemons

Thank you. So | don’t want to go down this road but apparently | see it going there. So Attorney Bolton
alluded to this earlier with the people contacting him saying that they will go downtown to violate the

Ordinance on purpose and things like that. The purpose of me making my amendment was two-fold, one is
| don’t think $1,000.00 and up to $1,000.00 is appropriate. Two, | really do believe that a warning system,

Board of Aldermen 5-21-2020 Page 33

giving somebody basically the benefit of the doubt is important. And | think that absent that in the
Legislation it gives too much leeway in my opinion.

But my concern is we are going to attract an element downtown and to City Hall that if we just make this
have the warning and the $25.00 fine, they might not feel that it is worth giving us as much attention. And
what | mean by that is | can see as other States have witnessed and even New Hampshire to some degree
up at the State House. | can see Nashua becoming a target of right wing folks who want to demonstrate
that they believe that this unconstitutional and | can see them demonstrating with their firearms and things
like that outside of City Hall because we are going to make Nashua a target for them to stand up for their
beliefs and their causes.

Now that’s fine, they have the right to do that. But as we are trying to pass things that make Nashua a
friendly place to do business and a friendly place to come downtown to eat and dine, bring your family,
things like that. If we have people like that protesting outside of City Hall every day, it is not exactly the
place that | want to go with my family and | might think otherwise to come to Nashua. So | really feel that
wee are putting ourselves on the map as a target if we make this have a fine up to $1,000.00 and no
warning. Whether or not the Police give a warning to everybody, or whether or not you know they are a little
bit more lenient, the fact of the matter is, if we leave in that potential, we are going to make ourselves a
target of these folks. Mark my words.

President Wilshire

Alderman Lopez?

Alderman Lopez

| think if we as Legislators signal to the Community that we are not going to make policy based on what’s
best for our Community and what Public Health Professionals and Doctors recommend and if we signal that
that will all take a back seat to anybody from anywhere coming and inflicting their views on our Community,
then that makes us a target rather than us trying to focus on the pandemic that is happening and the risk is
inherent in spreading diseases that is a biological fact versus a subjective possibility. | don’t think that a
warning or a smaller fine that is characterized publicly as intentionally to avoid a conflict is going to do
anything of the kind. | think you just signaled if there is a certain amount of escalation then policy will back
down to that. One of the principals of any kind of de-escalation is if you set a ground rule at the beginning
for good reasons, you don’t back down in the middle of the escalation. You stay consistent and you
continue because that was the rule that was set, otherwise you are following the escalation. So | can’t
necessarily see us as enacting an Ordinance where the Police have the latitude to say, “Ok well this is a
misunderstanding you didn’t know, but you do now so as long as you are willing to follow along with it then
the response can be minimal” versus a bunch of people coming deliberately to provoke a response. | think
limiting or neutering that response is irresponsible.

President Wilshire

All set Alderman Lopez?
Alderman Lopez

Yes.

President Wilshire

Alderman Dowd.

ORDINANCE O-21-050

BEIT FURTHER RESOLVED that upon recommendation of the Director of Public
Works and the Parking Manager, the Mayor may approve additional road closures, elimination
of on-street parking and creation of handicap spaces to accommodate outdoor dining locations.

This legislation shall take effect on March 15, 2021 and shall remain in effect until
midnight November 15, 2021. All ordinances or parts of ordinances inconsistent herewith are
hereby suspended while this ordinance is in effect.

The City Clerk is directed not to codify this ordinance in the Nashua Revised Ordinances
but to designate it as Covid-19 Emergency Measure No. (City Clerk to assign
appropriate number upon passage) and publish it and any subsequent emergency measures on the
city website.

LEGISLATIVE YEAR 2021

ORDINANCE: O-21-050

PURPOSE: Relative to temporary road closures and elimination of certain
on-street parking for use by restaurants for outdoor dining in
2021

ENDORSERS: Mayer Jim Donchess

Alderman-at-Large Ben Clemons
Alderman-at-Large Michael B. O’Brien, Sr.

COMMITTEE .
ASSIGNMENT: Committee on Infrastructure
FISCAL NOTE: The city owns the necessary barriers. Anticipated cost of

moving the barriers is approximately $80,000, and funding is
available in a F¥Y21 economic development escrow. Lest
parking revenue during this period is estimated to be between
$14,006 (low end based on trends from last year) and $57,000
(high end pre COVID-19). In addition, the reduction in
parking enforcement revenue is estimated to be approximately
$9,000.

ANALYSIS

Pursuant to RSA 47:17, this legislation approves the temporary closing of certain streets, the
elimination of certain on-street parking, and the creation and relocation of handicapped parking

to accommodate expanded outdoor dining areas for abutting restaurants during a certain time
frame in 2021.

Approved as to form: Office of Corporation Counsel

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February 3, 2021

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Page 1 of 4

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