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Board of Aldermen 05-14-2019 Page 28

Alderwoman Melizzi-Golja

To Attorney Bolton, that same paragraph, if we inserted “no person 21 or older or business”.

Attorney Bolton

You could do that.

Alderwoman Melizzi-Golja

And that would get rid of ....

Attorney Bolton

That would get rid of the liability for one 16 year old providing it to another 16 year old.

Alderwoman Melizzi-Golja

Or an 18 year old providing it to a 15 year old.
President Wilshire

So are you making that an amendment.

Alderman Lopez

May | ask a question first? Would that contradict any existing State Law about having tobacco on
school property or anything like that?

Attorney Bolton

| don’t think so but | don’t know every single State Law there is. But it’s quite clear that the current
State Law gives municipalities to have stricter rules governing the sale and distribution of nicotine
products. So | would say that the suggestion by Alderwoman Melizzi-Golja is unlikely to contradict any
existing State Law.

Alderwoman Kelly

In terms of the amendment that was just brought up, part of this legislation was talking about making
sure that there wasn’t access for people who are not legal and shouldn’t have it. If we take out “sell,
distribute, or provide” that would still allow people to then pass it on. | know that someone in the
chamber was talking about 61.5% of high schoolers get it from someone who is legal other than a
parent. So | worries that this just cuts it off at its knees even more so than it already has already.

Alderman Klee

Yes | think it’s a gallant effort for everybody to try to get this passed with the minimum pain to the youth
of the City but with each one you are doing, | have been hearing over and over again that it’s the 18
year olds that are getting it to the 16 year olds and it’s this and that and so on and in the school. Every
change that you make you are just watering it down more and more so | have to ask what the sincerity
of this is, other than just to get it passed. | don’t know, enough said, | am sorry.

Board of Aldermen 05-14-2019 Page 29
Alderman Jette

The purpose of doing this is to raise the age from 18 to 21. The State Law currently prohibits “no
person shall sell, give or furnish or cause or allow or procure to be sold, given or furnished tobacco
products, e-cigarettes or liquid nicotine to a minor’. Ok? So the State Law already prohibits a 16 year
old giving it to another 16 year old you know? So it’s already there, | mean what this was trying to do
was raise the age to 21. You know if we said “no person over 21 shall sell, distribute” I’m fine with
that, but it would still be, | guess it would allow people who are 20 to give a cigarette to someone who
is 19 but they couldn’t give to someone under 18, | mean that’s the current State Law. So | have no
problem with the change, | just want to point out that the current law that we have, the amendment
doesn’t really, it doesn’t make it illegal, it is already illegal for someone to give cigarettes to somebody
under 18. So saying or changing our thing to say it only applies to people over 21, you know, would
eliminate the 20 year old giving it to the 18 year old, but they still couldn’t give it to the younger kids.
That’s already illegal and that’s State Law, we are not changing that.

Alderman Clemons

Thank you. So | proposed this change and some of it came from myself, some of it came from
Alderman Jette and some of it came from Alderman Laws who is not here. Sometimes on these
things, what I’ve learned in this because you are always learning something you know? | used to think
and I’ve run on before many campaigns in the past that compromise is a great thing and itis. But
there are some issues where, and this is one of them, and I’ve learned this where it is just not possible.
There’s just too many what ifs and what have you’s and different scenarios and | don’t want a, | mean,
you could either pass this as it is all or nothing or as Alderman Klee had pointed out, at what point are
we watering this down to just why are we, we are basically, all we are saying is that you are not going
to be able to sell to somebody who is under the age of 21 basically in the City of Nashua. And at that
point, well why? So you know so | proposed this and | put feelers out there in the community. Now
certainly we’ve been contacted as Aldermen by constituents, | have. I’ve gotten many phone calls, e-
mails, even got a couple letters of people writing to me on both sides of the issue. They want it, they
don’t want it, they don’t want the compromise, they like the compromise. | put a post out there on the
Nashua Civic Sounding Board just to kind of get a feeler as well for this compromise, and | have to say
that it was 3 to 1 against it. And | have to say that of all of my talking to everybody that I’ve talked to
about this, it’s 3 to 1 against doing this.

Now the answers vary as to the reasons why, they are almost universal on the other side. So on the
one, it’s definitely a health issue and that’s what is cited to me and also that is going to stop youth
smoking or at least make it harder and | get that, it probably would. On the other side of the 3 to 1,
there are various things that are said, one is it is unenforceable, it is going to hurt those in the lower
socioeconomic groups which we have tried to address here, it’s not worth the City’s time, it’s not worth
the Police time, it is State issue, it is a freedom issue, it’s a liberty issue. You know 18 year olds are
adults, if you can carry a gun at 18 you should be able to smoke a cigarette. I’ve heard everything.
Even despite and this was out there, this was me saying to the public this is what | can present, what
do you think and 3 to 1. It was no. And yet my gut still tells me that it is probably in the interest of
those that are our youth to do this because | think that there is value there in it so long as we are not
violating anybody’s rights who is already got that right.

However, after having this discussion this evening, after having this discussion with the community,
seeing the chaos that this legislation has created just here in this chamber alone, | can’t do it, | can’t
support it, | tried, | tried my best. But you know sometimes you listen to what your constituents have to
say and you let them make the decision and on this one, you know, I’ve done my best, I’ve thrown my
best out there. But you know | am going to let my constituents talk to me and for the ones who have
contacted me, it is 3 to 1 against this, so | am going to vote no.

Board of Aldermen 05-14-2019 Page 30

Alderwoman Kelly

You keep calling on me as I’ve had a comment to the previous one so | apologize. I’m having a hard
time with the continual changes on this is what! was going to say. | appreciate that the Aldermen
around the horseshoe want to try to make this work but | think there are unintended consequences to
making quick changes. Like for example what you recommended with the under or over 21 does it
make it that convenience stores can no longer have an 18 year old be their cashier at that point
because they won’t be able to sell the tobacco products? And that’s just thinking about it in a flash of a
moment but | also agree that we are continuing to water this down and water this down. | was in
support of the original if we continue to water it down it is just for headlines.

Alderman Jette

| don’t know how many people responded to your civic sounding board survey Alderman Clemons but
the Nashua Telegraph did an online survey and there were close to 800 people who responded and
there was 63% in favor of raising the age to 21 and 37% against so | don’t know if you are looking to
assess the feeling of your constituents, | don’t know if that is information that helps you or not but | just
thought | would point that out to you.

Alderman Lopez

| propose the latest amendment and | think Alderwoman Melizzi-Golja did as well because we were
following the suggestion that we compromise and address issues as they were. We just had our
sincerity questioned which | object to because all of the State Reps here promise they are going to
handle this, have not done that and are unilaterally opposed under any condition. We just entertained
an entire month delay when we could have just voted on this the previous meeting because an
amendment was agreed to be proposed that was not proposed at that meeting despite my explicit
comment that it should be. So we went through the whole committee process and we still
compromised so | don’t think our sincerity needs to be questioned, | think it stands for itself. We are
trying to reduce the number of cigarettes that are in the hands of children. We have an actionable step
that we can take right now. People’s vote and people’s actions speak much more loudly than their
words do.

So we can generate whatever statistics we want or we can choose whatever studies we want, the
position for supporting this, those are coming from National Studies those are coming from peer
reviewed academic studies. The sounding board does not meet that muster, if you think it does, again
that speaks for itself. But! think our intentions are clear on this and watering it down is unfortunate, |
think in trying to be civil and trying to recognize what people are saying they are feeling, we have
wandered away from the path and | think at this point we do just have to call it like it is and let people
stand up for what they really believe in with their actions.

Alderman Tencza

Thank you I’m not sure we have necessarily heard anything new tonight that we haven’t heard in the
past, | don’t necessarily think that there’s been chaos thrown into this debate because these are all
points that have been brought up by people. And | don’t agree that this has been watered down. |
think Alderman Jette has listened to what people’s concerns were with his original proposal, he’s been
thoughtful about the amendments, he’s worked with other people in bringing them forward to the
Committee. To say that it’s watered down and it’s not going to have any effect on helping curb youth
smoking, | just don’t think that is correct. | think we are trying to make it more difficult for tobacco,
tobacco products to get in the hands of 18 to 21 year olds and | think that with a minor amendment we
could still accomplish that.

As far as what is going to happen in Concord, it may happen, it may not happen who knows what the
legislature is going to do. And Alderman O’Brien is right, it’s not just the House, it’s the Senate, it’s

Board of Aldermen 05-14-2019 Page 31

also the Governor and whether the Governor is going to sign a bill that potentially is going to reduce
the amount of revenue that the state brings in from smoking taxes which is unfortunately something we
have to consider here. And that’s a long process and that’s a process that’s not going to happen
overnight. But this hasn’t been watered down, | mean | don’t think people’s positions are going to
change on this ordinance moving forward. It seems to me we can work this out tonight and take a vote
on it one way or another.

Alderman Klee

Yes | wanted to address something that Alderman Kelly had said. | don’t think there would be an issue
if someone were under 21 selling it because we do allow these people to sell alcohol so | think it would
kind of work within that same thing. They probably at 16 can’t do it but | think 17 in the grocery stores
and so on. So | don’t think that’s really an issue but | admire you bringing that up as a concern and so
on. As far as the Chantix and Nicorette Gum and so on | would hope that wouldn't fall within this, but it
is a possibility; it does refer to it as tobacco product. | don’t know if those fall within the category of
tobacco product and | would hate to hurt somebody who was trying to go through some type of
cessation. And again, | do think we are watering it down and truthfully there is no compromise.

And Alderman O’Brien did bring up the fact, oh I’m sorry, Alderman Harriott-Gathright brought up the
fact that the members here are from the House and not of the Senate and to say that we have not
done anything in the House | think is unfair. | have promised to go forward in September as | know
some of the others have. To say that we have done nothing to this point, we sat and did wait for the
Senate to come forward; perhaps we shouldn’t have, maybe we should have put in our own as | am
going to do. But! do think that is unfair attack and so on. | just don’t want to see this bubble in
Nashua and | agree | think it is time to move this question forward and vote on it.

Alderman Clemons

| only wanted to quickly just address that | wasn’t questioning anybody’s sincerity here and I’m not sure
where that came from. | understand and | appreciate the poll that Alderman Jette said to me but | am
talking about the constituents that reached out to me directly. And the ones that bothered to reach out
to me directly are 3 to 1 against this, even the compromise. Sometimes and again | am going against
what | feel is the right thing to do because in this one I’m going to listen to my constituents, it’s what,
l’ve you know, we’ve debated it and tonight, I’m sorry but there are just too many things that
unfortunately, we can’t address it all. There’s always an exception to the rule, | live by that. And
unfortunately the rule here is too much for me and we are better off letting the State handle it.

Alderman Schmidt
This is such a tough decision | wish it was really easy and it’s not. There’s only one thing that is a real
loser for me on this bill and it’s that children will be punished. | do not want to see that; | don’t think

kids should get in the system, | think that’s wrong and if that was gone | would love this, otherwise, |
cannot vote for it.

Alderman Gathright

| have a question first, the State Law is there a penalty associated with that do you know?
Attorney Bolton

Yes. I’m not sure of the level of the fine.

Alderwoman Melizzi-Golja

Alderman Jette is checking.

Board of Aldermen 05-14-2019 Page 32

Alderman Gathright
Ok.

Attorney Bolton

If it’s a violation then it would be $1,200.00 that’s a guess.
Alderman Harriott-Gathright

While he is looking that up there is one other statement | wanted to make was and this is one of the
issues that came out of this situation here. It was a parent of a 14 year old that followed them to the
store, watched an older kid go into the store buy it and come back out and give it to her son. Now as a
parent, she should have called the Police, that’s what she should have done, that didn’t happen. So
then it became another issue here. But as parents and | have a 14 year old and somebody is giving
them something that they shouldn’t? | ‘m going to call the Police and every last one of us should.

President Wilshire

Did you have an answer Alderman Jette?

Alderman Jette

Yes so the State Law is currently 18 prohibits “no person under 18 shall purchase, attempt to
purchase, possess or use any tobacco product, e-cigarette, or liquid nicotine”. And for people who
possess or use, “any minor who violates this section shall be guilty of a violation and shall be punished
by a fine not to exceed $100.00 for each offense or shall be required to complete up to 20 hours of
community service for each offense or both. Where available punishment may also include
participation in an education program”. And I’m not done for the sale and distribution of tobacco
products, e-cigarettes or liquid nicotine to minors, “fines shall not exceed $250.00 for the first offense,
$500.00 for the second offense and for the third offense the commission shall issue a letter of warning
and administrative fine ranging from $500.00 to $1,500.00. In addition the license to sell tobacco
products by the manufacturer, wholesaler, sub-job or retailer shall be suspended for 10 consecutive
days and not exceeding 30 consecutive days”. And it continues for the fourth offense it’s 40
consecutive days and the fines can go up to $3,000.00. So it increases for the business that sells or
distributes.

Alderman Harriott-Gathright

My comment to that is that obviously | am not sure why it hasn’t been enforced then. So we are
starting down | guess another way to make Nashua enforce what is already a law here in our own little
way of making it a little bit less of something, | don’t think that’s the way for us to go. | really believe if
this is the Law for the State then it needs to be dealt with as a State not as a City. And I’m glad you
gave me all that information because | have problems with that and | think | will tackle that.

Alderman Schmidt

If it already State Law we certainly don’t need it in this then, is that correct?

Alderman Klee

Just adding on to what Alderman Jette said yes it is RSA 126-K:4 which is the Sale, Distribution of
Tobacco Products, E-Cigarettes or Liquid Nicotine to Minors and Prohibited. And | did bring this up

Board of Aldermen 05-14-2019 Page 33
during the Personnel Administrating because that was one of my kind of issues is that we’ve made the
fines much lower, now the State does say “up to” so it could be $0. It does not have to be $250.00 it
does not have to be $500.00 they put the words “up to $250.00”. The third offense does start with a
letter and so on and it becomes tougher and tougher. | think the way that this was intended, | don’t
know | wasn’t there when they wrote it back in 1997 all the way to 2010, but | do think it was for the
sales and distribution via a store and so on and not going from an 18 to a 16 year old. So in all
fairness | think that’s what this statute is. The youth access to and use of tobacco products is RSA
126:K:2 and that one talks about exactly what the tobacco is and so on and discusses more of the
wholesaler and the vending machines and so on. Just for clarification.

Alderman Dowd

Yeah | don’t think anybody’s decision is going to change by anything more that’s said so | make a
motion to move the question.

President Wilshire

The question is for final passage as amended.
Alderman Clemons

Roll call.

President Wilshire

Roll call on move the question? We have a motion before us to move the question? All those in
favor?

MOTION BY ALDERMAN DOWD TO MOVE THE QUESTION
MOTION CARRIED

President Wilshire

The Motion before us is for final passage as amended by roll call, further discussion on that motion?
Would the Clerk please call the roll?

Yea: Alderman Dowd, Alderman Lopez, Alderwoman Kelly, Alderman Jette, 6
Alderwoman Melizzi-Golja, Alderman Tencza

Nay: Alderman O’Brien, Alderman Harriott-Gathright, Alderman Klee

Alderman Caron, Alderman Schmidt, Alderman Clemons,

Alderman Wilshire 7
MOTION FAILED
Alderman Clemons

Move for indefinite postponement.

MOTION BY ALDERMAN CLEMONS FOR INDEFINITE POSTPONEMENT

Board of Aldermen 05-14-2019 Page 34

ON THE QUESTION

Alderman Lopez

| object to indefinite postponement because again a month ago when certain promises were made and
concessions were made the point was raised that not all the Aldermen were here and | know that
Alderman Laws was particularly interested in this legislation but was unable to address it due to family
emergency.

Alderwoman Kelly

Forgive me if this out of order, I’m still learning, but | know this hasn’t been an easy piece of legislation,
it hasn’t been an easy debate, we’ve heard a lot from both people on both sides of the issue. | know
that Alderman Clemons has stated that 3 to 1 that’s what he heard: that was not my experience, |
heard more people in favor than against. And | know I’ve had a hard time kind of gauging where
people are with that, so as possible compromise | would move to put the amended Ordinance on the
ballot as a binding question and let’s just put our money where our mouth is and ask the City how they
feel about it.

President Wilshire

OK. Attorney Bolton?
Alderwoman Kelly

Can | do that.

President Wilshire

| don’t know how to answer that.

Attorney Bolton

| don’t think you can put it on the ballot as a binding question, you can put it on as a non-binding
question. But | think some more thought ought to go into what it is that you want on the ballot and how
we should phrase the question. We recently went through something where we put something on the
ballot that was a snap decision similar to what this would be and | think tabling it and letting us work
out how that would work if anyone is truly interested in doing something like that, | think would be a
better idea than just voting to do it tonight.

President Wilshire

My next question Attorney Bolton is | Know we’ve been running up against deadlines to get the
vacancy question on the ballot. This would run into a similar issue | assume.

Attorney Bolton

No there’s not as much to go through on something like this, you don’t have to send it to State officials
and get it vetted up there or anything like that.

Alderman Jette

| have a parliamentary inquiry, forgive me for my ignorance, but what is the effect of indefinite
postponement and if that fails what is the status, | mean the motion was defeated.

Board of Aldermen 05-14-2019 Page 35
President Wilshire

It was defeated. Indefinite postponement would mean we can’t bring this matter up again in this term.
We could bring it up next year in January.

Alderman Jette

And if the motion for indefinite postponement fails then it could be brought up again.

Attorney Bolton

It is still before the Board, you have not disposed of it.

Alderwoman Kelly

So | would like to just follow up with Attorney Bolton. If there is anything from a counsel perspective
that you see currently that you feel uncomfortable with I’d love to hear it because | feel like we’ve
talked about it a lot. | mean what might change, what could change, why would it change from how
many times have we talked about this, 6 times?

Attorney Bolton

Well you probably wouldn’t put every word of this whole ordinance on the ballot, it’s rather long. You’d
have to propose a way to summarize it. And then are you in favor of an ordinance that would do, x, y
and z. So | think that is what needs work.

Alderwoman Kelly

Ok follow up if | may? Could we move to put it as a non-binding on the ballot pending working out the
wording?

Attorney Bolton

| think the better thing to do would be to table it and then come back and adopt what we are actually
going to put on the ballot.

Alderwoman Kelly

Thank you.

Alderman Lopez

In an additional effort to provide more transparency | have also asked at the Committee level and |
sent an e-mail to you and Ms. Lovering asking that e-mails that were directed to the entire Board of
Aldermen be included in the minutes of an agenda so | would like to repeat that claim during a public
meeting. | feel like people are e-mailing the entire Board of Aldermen expecting that to be read and
recognized and it doesn’t seem like everybody is recognizing that.

Alderman Klee

Yes two items, | do agree with Alderman Lopez about that Alderman Laws is not here. But even if he
were here and were to have voted it would have been a tie and a tie would kill this. The other thing
about indefinite postponement is it goes to the end of the term; technically the end of the term is the
end of this calendar year. So it only precludes it from coming back up this calendar year where we can

Board of Aldermen 05-14-2019 Page 36

take care of other business, see what the State had to do and so on. So | agree with the indefinite
postponement.

Alderman Clemons

lve had many conversations and | respect Alderman Laws and one of the points | made originally to
put this back in committee originally was because there wasn’t a lot of people here and Alderman
Laws was the one that pointed out to me that he didn’t agree with that because we have a quorum
policy for areason. So with respect to my Alderman-at-Large colleague that is not here, | would take
his word that he told me which is “we have a quorum for a reason”. So you know the other thing that |

want to mention too, not sure what you mean by what somebody meant by e-mails being sent to the
entire Board but I’ve never e-mailed the entire Board on this particular subject.

Alderman Lopez

Can | clarify as a point of personal privilege? The public has been e-mailing us letters, | assumed you
were getting them in your e-mail. But that’s another reason why these should be on public record so
that if somebody is trying to e-mail the whole Board and not everybody is receiving them or reading
them, now at least the public knows their letter was heard and it is part of the record.

President Wilshire

OK. So I’m not even sure where we are, what the motion is before us, it’s indefinite postponement, ok.
Alright.

Alderman Kelly

Can | move to table?

MOTION BY ALDERWOMAN KELLY TO TABLE
ON THE QUESTION

President Wilshire

You can move to table it’s not debatable.
Alderman O’Brien

Parliamentary inquiry and | agree but true parliamentary inquiry, we had a vote and so the vote went
down so how can you table something that failed?

Attorney Bolton
It’s still before the Board, you don’t take action by a motion failing to pass.
Alderman O’Brien

Parliamentary inquiry again, that means that it would have to be re-brought up to the Board in order for
it to be tabled?

Attorney Bolton

No it has not been disposed of by the Board at this meeting. No motion has been successful. You
have to adopt, you have to pass a motion to dispose of a matter. You failed to adopt the motion for

Board of Aldermen 05-14-2019 Page 37

final passage. There was a motion to indefinitely postpone, then there’s a motion to table which takes
privilege over the motion to indefinitely postpone and it is perfectly in order and it’s not debatable.

Alderman O’Brien

Roll call on tabling yes.
President Wilshire

Will the Clerk please call the roll?

Yea: Alderman Lopez, Alderwoman Kelly, Alderman Jette,
Alderwoman Melizzi-Golja, Alderman Tencza, Alderman Schmidt 6

Nay: Alderman O’Brien, Alderman Harriott-Gathright, Alderman Dowd,
Alderman Klee, Alderman Caron, Alderman Clemons, Alderman Wilshire 7

MOTION FAILED

Attorney Bolton

Now you are back to indefinite postponement. Roll call on that? That is debatable, so the motion
before us is for indefinite postponement.

Alderman Dowd

| am going to support this because nothing is going to happen between now and the end of the year
and maybe the State will do something; I’d like to see what action the State takes. If we put something
on the ballot, that will happen in November, we couldn’t take action probably until January anyway.

So | will vote to indefinitely postpone and hopefully given the circumstances that happens if it does
end up on the ballot, we will see what the public thinks and take action accordingly. If it is

overwhelming that they want us to pass something and the State hasn’t done anything, then | think it’s
incumbent upon this Board to pass something. If it says “no” then it dies.

Alderwoman Kelly

Just point of clarification if we indefinitely postpone it, it won’t be on the ballot.
President Wilshire

Right.

Alderman Lopez

We can put anything on the ballot that we want though so we could ask for example “Do you believe
sales of tobacco products should be restricted to people 21 and older’.

Alderman Dowd

Response from Attorney Bolton on that? If we vote to indefinitely postpone does it kill any chance of
being on the ballot.