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Board of Aldermen 5-21-2020 Page 20

Attorney Bolton

This amendment, the proposal will have to go back to the Board of Health. It is such a substantive change.
It doesn’t just change the penalty. It changes substantively what is required. The other thing is that is
doesn’t require to be on the person at the time. Certainly if one were able to s how it to a Police Officer or
whomever, it would probably prevent any summons. But it sets up an affirmative defense, if in fact,
summoned, | expect the Police would deal with that, if you showed up at the station the next day, or if you
showed up in Court and you were summoned to appear and had the documentation, they would dismiss
the case right there. So | am not sure it is as onerous as some might think. But we are trying to do things
in a hurry | gather and | just want everyone to know that this is a change from what the Board of Health
adopted. It will have to go back to the Board of Health before | can take effect.

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

Thank you. | want to make two comments. One is | would have a little bit of anxiety about making this
change anyways. Because the truth is if someone wanted to defy this order, all they have to say is | have
an existing condition. Not that | don’t believe that we should trust everybody who speaks, but that’s the
reality of the world. And | feel like we are setting ourselves up for failure and we are setting up the
restaurants and the retailers and so on who truly do want this. | have heard from a lot of them.

The other thing is, and | don’t know if there is any body here to answer this. But when we talk about the
face coverings of the nose and the mouth, it was brought up at another meeting today and | believe that it
was from someone at the Board of Health, that said when they think about the face covering for the nose
and the mouth, they exclude the check valve mask that some people like the fire fighters and so on had.
That that would not be the same because that expels the vapors and so on and the droplets. So | want to
know, maybe Attorney Bolton can answer this, does this sufficiently exclude those who want to have the
check valve masks. They do cover the nose and the mouth. They are covered in that respect but they
don’t stop the expelling of (inaudible).

Attorney Bolton

There’s a definition provided as to what face covering means for this purpose and it has to be made of
cloth, fabric, or soft permeable material without holes. It covers only the nose, mouth and surrounding
areas of the lower face”. My interpretation is valves of the sort being described would not meet that
definition.

Alderman Klee

That’s perfect, that’s what | just wanted to make sure that it did not — so it does exclude the ones with the
valve in them. And | appreciate that. And | do want to also express my concern if we just said that
basically anyone can walk up and say, “| have a medical condition”. And trust me, as a woman who had a
mother who was severely asthmatic, she would not be able to wear able to wear a mask. So | completely
understand and | know there are a lot of people and some on our Board that would have that issue. But |
don’t want to put that provision in.

Board of Aldermen 5-21-2020 Page 21

Alderman Lopez

Madam President.
President Wilshire

Alderman Lopez.

Alderman Lopez

| just wanted to second what Alderman Klee was saying. | would be concerned if we gave the opportunity
for someone to say or just verbally state that, “OH | have a medical condition therefore | can’t” because
your mileage varies greatly with the definition of medical professional or medical individual. And you can
state whatever you want to an officer on the spot. | do understand that it might be onerous for somebody to
carry proof of a medical condition requiring an exception to the face mask rule but | think number 1) if you
are not wearing a face mask either it is onerous to carry a face mask or it’s onerous to carry a piece of
paper saying you don’t need a face mask but there’s some equality there. And then, | think it puts our Law
Enforcement in unfair position to just say and anybody can deny the need for facemask without really
having to prove it. So if there’s already a stipulation in there that it can be provided at a later date, then |
think that’s reasonable.

President Wilshire

Further discussion on the motion to amend.

Alderman Jette

Madam Chairman?

President Wilshire

Alderman Jette.

Alderman Jette

Thank you. | am not going to support Alderman Tencza’s amendment, remembering that the Board of
Health has brought this to us as a recommendation for protecting the public, you know, not only the
employees who are working in the restaurants or the retail establishments, but the customers who are
going to these places. | mean, wearing a mask as | understand it, you both have to have a mask for it to be
really effective. And for people who cannot tolerate a mask, no one is forcing them to go to a restaurant or
retail establishment. You know if they cannot tolerate the mask, they have a choice of avoiding those
places and not going there in the first place. And, you know, as far as protecting the rest of the public, the
majority of people who can wear a mask, | mean allowing people who can’t tolerate a mask to be
unmasked is putting the rest of the population at risk. So | am not in favor of this amendment.

President Wilshire

OK anyone else on the amendment?

Alderwoman Lu

I'd like to speak to it please.

Board of Aldermen 5-21-2020 Page 22

President Wilshire
Alderwoman Lu.
Alderwoman Lu

Thank you. | just wanted to say that I’ve spoken with a lot of people in my area, my Ward. | read the
numerous e-mails we received and | just want to say that | really like that so many people took the time to
communicate with us about their feelings about this Ordinance. And | feel that it was pretty evenly for and
against. My feeling, | am going to vote for it and the reason why is that the employees have to wear masks
and that’s because they will protect us. And | think that in order to protect the employees, we need to
Legislate that people that come into the shops need to wear masks as well for the employees’ protection.
Thank you.

President Wilshire

Thank you, Alderman Lu, anyone else for the motion to amend by not having to show a medical reason.
Anyone? Seeing, none would the Clerk call the roll on the amendment?

A viva voce roll call was taken which resulted as follows:
Yea: Alderman Clemons, Alderman Tencza 2
Nay: Alderman O’Brien, Alderman Klee, Alderwoman Kelly,
Alderman Caron, Alderman Lopez, Alderwoman Lu,
Alderman Jette, Alderman Schmidt, Alderman Harriott-Gathright,
Alderman Wilshire 10
MOTION TO AMEND FAILED
President Wilshire
And that amendment fails. So we are back to the Final Passage or Ordinance 20-018 as amended.
ON THE QUESTION
Alderwoman Kelly
Alderman Wilshire, can | speak please?
President Wilshire
Alderwoman Kelly
Alderwoman Kelly

| appreciate the comments that have come through. | had a couple of comments that have now come and
gone. But | think that there have been a lot of voices in this and a lot of really great communication from
our City and | appreciate that. The Board of Health is recommending this so | am supporting this. We had
earlier discussions before the State did some of the things that they did. One of the things | am most
concerned about is we are, tourism is our number one industry here in New Hampshire. People are going
to start coming to our State and by all means | am not saying close our borders, but | think anything we can
do to make us safer and help our community get through this, it makes a lot of sense.

Board of Aldermen 5-21-2020 Page 23

That being said, | did not care for the amendment to make the first offense a warning. | think we need to
strike a balance where people will have to follow this. So | would like to move to amend and make the first
offense a written warning and the second a $100.00 fine.

MOTION BY ALDERWOMAN KELLY TO FURTHER AMEND O-20-018 FOR THE FIRST OFFENSE
RESULTS IN A WRITTEN WARNING AND THE SECOND OFFENSE A $100.00 FINE AND ANY OTHER
SUBSEQUENT OFFENSES

President Wilshire

The motion is to further amend by changing the $25.00 fine to a $100.00 fine.

Alderwoman Kelly

| said specifically said to make the first one a written warning.

President Wilshire

Oh I’m sorry yes, a written warning, ok.

Alderwoman Kelly

Thank you.

President Wilshire

You're welcome. So the motion is to have a written warning for the first offense and a $100.00 fine for the
second offense and subsequent — Alderwoman Kelly?

Alderwoman Kelly

Is that how it was originally intended if | could potentially ask that to Alderman Clemons through you.
Alderman Clemons

Yes.

Alderwoman Kelly

That’s fine.

President Wilshire

So it would be a $100.00 fine for a second fine and any subsequent offenses. Any discussion on that
motion to amend.

ON THE QUESTION
Alderman O’Brien

Madam President?

Board of Aldermen 5-21-2020 Page 24

President Wilshire

Alderman O’Brien.

Alderman O’Brien

Thank you — question to Corporate Counsel through the Chair if | may. What does, in this type of
circumstance, what does a written warning actually mean? | hate to say it like in St. Peter's Grammar
School, is it part of your permanent record? But the thing is will the Police compile this? So if a stop
received 2 or 3 of these, like with motor vehicles if you get a warning that is on record within Motor

Vehicles, is there bureaucracy attached to this or somebody to do the paperwork on a written warning is my
question.

Attorney Bolton

I’m sure the Police have no procedure for keeping track of warnings of Ordinance Violations. | think it’s up
to the discretion of individual Police Officers to give a warning. The next Police Officer won’t be aware of
what the previous Police Officer did as far as an individual. | cannot believe that there’s going to be any
money spent to keep an electronic record of warnings, be it written or oral for Ordinance violations like this.
Alderman Schmidt

Madam President?

President Wilshire

Alderman Schmidt?

Alderman Schmidt

Thank you. | honestly don’t think there should be any specific punishment on this Ordinance. | think if
someone is in a shop and they are refusing to wear a mask and the Police are called, | think it should be a
disorder. | think if they are being disorderly and | think the law will already manage that, rather than to put
all kinds of punishments in this. That’s just my opinion.

President Wilshire

Thank you, Alderman Schmidt. Anyone else?

Alderwoman Kelly

Can | reply, respond?

President Wilshire

Alderwoman Kelly?

Alderwoman Kelly

Yeah just | was wondering | mean | sort of agree with you Alderman Schmidt, but | would prefer something
to nothing. | was looking at what they do in Massachusetts as that’s been brought up a couple of times and
they do an up to $300.00 fine. So my number wasn’t just out of the air.

Board of Aldermen 5-21-2020 Page 25

President Wilshire

Alderwoman Kelly, what do you think about the written first offense if as the attorney stated, they are not
going to keep track of those offenses anyway. How would we know there was a first offense?

Alderwoman Kelly

| can take that off if we think it’s too much paperwork for the Police. | don’t think — we are definitely not
trying to be punitive to anybody specifically. | am concerned if it is just verbal warning and $25.00 that
makes it a lot easier for individuals to be a little bit more loose about it. Not much more than a parking
ticket.

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

Yes, | did support Alderman Clemons’ amendment for the first offense as a warning and so on, but after
hearing Attorney Bolton say that the Police will not have really a means of being able to do this, it seems
like a moot point to even have had that amendment to the point that Alderman Schmidt made that we, you
know, basically disorderly conduct kind of thing, and we already have something in place with that. | am
wondering if we should review the amendment. | don’t know if that would be possible or if something to do
— we are taking away the whole idea of this is to get people to do the right thing, and if they don’t give some
teeth to the Police as what Alderman Schmidt says, that it is a disorderly issue and let it go as that. | don’t
believe for one second that anyone is going to get a $1,000.00 nor do | believe that they are going to be
doing any jail time. So | am not sure where to go at this point but perhaps we should revisit the amendment
from Alderman Clemons.

President Wilshire

Ok Alderman Klee. We have an amendment before us for a written warning on the first offense and a
$100.00 for second offense and any subsequent offenses. That’s the Motion before us. Any further
discussion on the Motion to make that Amendment?

Alderman Tencza

Madam President.

President Wilshire

Alderman Tencza.

Alderman Tencza

Yes thank you, just briefly, you know my experience with the Police Department has been that any citizen
or most citizen contact that they have is reported someplace at the Police Department through their internal

transmission system. So it is easy enough for them to say, to radio in and say, “I’m with Joe Schmo here at
Shaw’s, he’s doesn’t have a mask, I’m giving him a warning”. | don’t think that would be sufficient for a

Board of Aldermen 5-21-2020 Page 26
written warning requirement, but | think the Police Department probably would be able to track fairly easily
first warning and then any subsequent warning if folks have a concern about that.

President Wilshire

Thank you, Alderman Tencza.

Alderwoman Kelly

Clarification please?

President Wilshire

Alderwoman Kelly?

Alderwoman Kelly

Alderman Tencza, are you saying that they wouldn’t necessarily need to have a written to do the protocol
you just suggested?

President Wilshire

Alderman Tencza.

Alderman Tencza

That’s my suggestion is that giving them a written ticket or something like this is one thing, but they can
keep an internal record of their contact with someone fairly easily just as they do when they pull someone
over or do field interviews with people on a regular basis.

President Wilshire

All set Alderwoman Kelly?

Alderwoman Kelly

Yes thank you.

President Wilshire

OK so the Motion to amend is for a written warning on the first offense, $100.00 on the second and any
subsequent offenses. Seeing no further discussion, would the Clerk call the roll on the amendment?

A viva voce roll call was taken which resulted as follows:

Yea: Alderman O’Brien, Alderman Klee, Alderwoman Kelly,
Alderman Lopez, Alderman Jette, Alderman Schmidt 6

Nay: Alderman Caron, Alderman Clemons, Alderman Tencza,
Alderwoman Lu, Alderman Harriott-Gathright, Alderman Wilshire 6

MOTION FAILED

Board of Aldermen 5-21-2020 Page 27

President Wilshire

And that Motion fails. The motion before us is for final passage of Ordinance O-20-018 as amended, further
discussion on that motion?

Alderman Klee
Madam President?
Alderman O’Brien
Madam President?
President Wilshire
Alderman Klee.
Alderman Klee

Thank you. | think I’d like to go back to Alderman Clemons’ amendment and | would like to ask to have it
removed.

President Wilshire

So you are making a motion to take out the amendment?
Alderman Klee

Yes, please, thank you.

MOTION BY ALDERMAN KLEE TO RECONSIDER ALDERMAN CLEMONS’ MOTION TO AMEND (187
OFFENSE — VERBAL WARNING; 2° OFFENSE - $25 FINE)

ON THE QUESTION

President Wilshire

To reconsider the amendment, ok. Anyone have any discussion on that.
Alderman Clemons

Yes, President Wilshire.

Alderman Harriott-Gathright

| need to...
President Wilshire

Ok Alderman Clemons?

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13

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.