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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.

Board of Aldermen 5-21-2020 Page 34

Alderman Dowd

Yes, | am sorry | am joining the meeting late, the Planning Board got delayed because of a technical
difficulty and we just went through the School Portion. So if | could have Ms. Lovering please read the
amendment that we are addressing now. | understand the comments but I’d like to know exactly what the
wording is of the amendment.

Susan Lovering, City Clerk

The amendment that passed earlier was to include a first offense as a warning and a second offense and
any subsequent offenses to be a $25.00 fine.

President Wilshire

And the current motion is to rescind that amendment that we already voted on.
Alderman Dowd

Ok thank you.

President Wilshire

Thank you. Alderman Klee.

Alderman Klee

Thank you so much, Madam President. | wanted to make two comments. One is | wholeheartedly agree
with what Alderman Lopez said about if we start making Legislation based on threats or fear that someone
is going to protest what we do, then we might as well just put everything on the ballot or just not even be
here. It renders us impotent in so many ways. The other thing | wanted to mention is that the United Way
and | have been working with them since Monday. Right in front of City Hall, they have been giving away
hundreds and hundreds of masks. The first day, | know we gave 750 masks. We have been giving them to
anybody who comes, three per person to the family; they have now expanded that. Starting on Tuesday,
they are going to be at Railroad Square and City Hall giving away masks. The businesses do have masks
and | am sure that many of them want to do it. | don’t think if someone showed up without a mask they
would be turned away; | am sure the business would have something. | am telling you we are flanking both
ends of Main Street to make sure that people have masks. The United Way has completely stepped up
incredible in helping in this way. So | don’t think the fact that someone doesn’t have a mask is going to
become an issue. But | want to say very strongly that we can’t give in to the possibility of threats. And |
mean no disrespect to Alderman Clemons, but | do have two comments and one is that just passing this
Ordinance alone with or without a fine, with or without a warning, in my opinion is still going to bring those
same people out. To be honest with you, in some respects this was instigated by a Facebook post that
said that this was ridiculous and so on. So again, | mean no disrespect, | am just being very honest. Thank
you.

Alderwoman Kelly
Alderman Wilshire.
President Wilshire

Alderwoman Kelly.

Board of Aldermen 5-21-2020 Page 35

Alderwoman Kelly

Yes thank you. | wanted to address something that was said a couple of comments ago about giving
people the benefit of the doubt, | trust our Police. | trust them to have that wherewithal when they are
interfacing with people, that’s what they do all the time, they are a great force. So | think that’s sort of a
moot point. And then the last thing | would say is | think the intent of this from the Board of Health and in
general, | think the Board here understands is that we want to make it easy to wear a mask and not so easy
not to wear a mask and that is it. We want to make it easy for you to help support people like myself, I’ve
got a baby, | have asthma, people on the Board are like that; your neighbor, your friend who is over 55. It
is not a hard thing to put a mask on and we are making it very easy to get them. You can come to City Hall
and get them. There is a whole group that is distributing cloth masks if you need them. That is all.

President Wilshire

Anybody else? The motion is to reconsider the amendment by removing the warning and the $25.00 fine.
Ok so that’s the motion, would the Clerk call the roll?

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

Yea: Alderman Klee, Alderwoman Kelly, Alderman Dowd,
Alderman Caron, Alderman Lopez, Alderwoman Lu,
Alderman Jette, Alderman Schmidt, Alderman Wilshire 9

Nay: Alderman O’Brien, Alderman Clemons, Alderman Tencza,
Alderman Harriott-Gathright 4

MOTION CARRIED

President Wilshire

And that Motion carries. We are back to the original Ordinance, for final passage. Alderman O’Brien?
Alderman O’Brien

Thank you, | would like to thank everybody for their discussion on this and the various different motions that
were presented. But in my communication with people down on Main Street in particular, what is our
responsibility of Aldermen? Really not to punish but to educate and the thing is now we are right back to
square zero and we are talking a $1,000.00 fine. If you really want to get the quills up of the porcupine, you
poke him with a stick. And | think in this case, we have. The $1,000.00 fine granted | agree with Attorney
Bolton in his assessment and many of course it won’t probably really get that far. But | think it would our
duty to be practical with it so therefore that is why | supported Alderman Clemons’ point of view.

However, the ends to justify the means. We are talking about a virus that has debilitating effects and
coming from my Fire Department background, if you lived in a single family home and you chose not to
have a smoke detector, well you were foolish, but your home was your castle that was your choice. But in
the situation of a duplex, your actions could definitely affect somebody else. So weighing the balance of
this particular Ordinance, although | am very disappointed to see that there was some lightening that was
not voted for on this and we are back to the $1,000.00 fine and its potential, | am going to support this
Ordinance because | feel that we need to protect the weakest among us, people away from this terrible
virus. Again disappointed, but | am going to support the motion.

President Wilshire

Alderman Dowd?

Board of Aldermen 5-21-2020 Page 36

Alderman Dowd

Yes. | would have been more in the favor of the motion or the amendment if there was no warning because
who is going to track the warnings? And | don’t think that’s practical. First of all, | don’t think the Police are
going to be walking around trying to fine somebody because they don’t have a mask. | think | heard when |
first came on that the issue is going to be we are backing up the businesses who the Board of Health has
said, if you want to be in business, you have to require masks. If we back up the Board of Health and
somebody pushes their way into a restaurant or a store refusing to wear a mask. They are not going to be
fined for not wearing a mask. They are going to be fined for trespassing or disorderly conduct which has a
different type of fine structure, and maybe even an arrest. So if people want to stay six feet from people
and they are not in a restaurant or a store and they don’t want to wear a mask, fine. Let them. But if they
get within six feet or people or if they are downtown and they want to go in a restaurant or a store, at least
for the time being, they need to wear a mask. That’s my opinion. | would support something that reduced
the fine structure because $1,000.00 is a pretty steep fine, but | really don’t see the Police going around
and fining people because they don’t have a mask on.

President Wilshire

Anyone else? Alderman Lopez?

Alderman Lopez

| just want to reiterate that the — my understanding and Attorney Bolton please correct me if | am wrong, the
Ordinance stipulates up to $1,000.00, it doesn’t stipulate $1,000.00 so a lot of room for discussion there?

President Wilshire
Ok, Alderman Schmidt.
Alderman Schmidt

Thank you. | just wanted to make it clear that nobody is going to force people to go into shops. If you need
something from a shop, you can pick it up curbside, you can have it delivered. This isn’t like we are trying
to force these on to people. It will be their choice and it is for safety of the other person, that’s why you wear
the mask, not for yourself, but for the other person. And | really only wanted to say one more thing, there
were 9 more deaths in New Hampshire yesterday. Thank you.

President Wilshire
Thank you. Alderman Jette?
Alderman Jette

Thank you, Madam Chairman. If | could through you again call upon Attorney Bolton, you know | — and |
am sure we all have received many e-malls from people on this issue, pretty much evenly divided on one
side or the other. But the people against this Ordinance and very passionately against and | want
everybody to know that | read all of your e-mails and | have received some phone calls. | must say | don’t
think I’ve received as much communication about a proposed Ordinance until back when the Tobacco 21
was an issue.

But some of the people who are against this Ordinance seem to basically have two major objections in
different degrees but they fall into two categories. One if that they don’t think masks are effective and that
they are not going to do any good. And | must say that | rely upon our medical professionals on the Board
of Health to guide us in that regard. They are the people with the expertise, they have determined that this

Board of Aldermen 5-21-2020 Page 37

rule that they are — this is not something that the Board of Aldermen came up with. This is the Board of
Health who is asking and who wants to implement this rule and they are asking the Board of Aldermen to
approve it. So | bow to their expertise. If they say this would be an effective way of reducing the amount of
exposure to this virus, then | believe them and | support them in that.

The other category of objections to this are that they are questioning whether or not the Board of Health
and the Board of Aldermen in Nashua have the authority to impose this Ordinance to begin with — that is it
unconstitutional, that is a violation of people’s rights. | would ask Attorney Bolton if he could comment on
the authority of the Board of Health and the Board of Aldermen to enact this Ordinance and whether or not
that violates people’s constitutional rights.

Attorney Bolton

New Hampshire is what is known as a Dillon’s Rule State, which essentially means that the localities, the
cities, and towns, have only such power as the State Legislature has granted them. In this case, the State
Legislature has granted cities the authority to enact health-related, Ordinances, rules regulations and by-
laws. That’s RSA 47:17. Now in Nashua pursuant to the City Charter, which was also originally adopted
by the State Legislature, in Section 79 of that Charter, provides that the Board of Health shall have control
of and attend to all matters and perform all duties relating to Public Health and shall perform such special
duties as may be imposed upon them by Ordinance or by the General Statute of the State. Now as part of
that duty, the Board of Health is granted the authority to make such rules and regulations relating to the
Public Health as int their judgement the Public Health and Safety may require.

All such rules and regulations shall be subject to the action of the Board of Aldermen approving the same.
And that extends into Charter Section 81. So that is what you are doing here tonight, considering whether
you are going to approve a Regulation already enacted by the Board of Health. So | don’t believe there’s
any question that there’s been a proper delegation by the State Legislature of the authority to make rules,
regulations that the Board of Aldermen then adopt by Ordnance for the betterment of the Public Health.
Now we have loads and loads of Public Health related laws all over this country. There are laws requiring
shoes and shirts in restaurants and in stores selling food; those are laws. If this was unconstitutional, that
would be. There are laws concerning the safety of food, there are laws concerning the wearing of head
coverings by people who work in kitchens of restaurants. There are laws concerning requiring screens to
separate the condition of the kitchen from infestation by insects. There are laws requiring cleanliness in
restaurant kitchens. There are laws concerning alcohol consumption in restaurants. There are laws
concerning the disposal of rubbish and waste and leftover food from restaurants.

It is inconceivable to me that all of these other laws can be held to be constitutional and a face covering
requirement in the face of a pandemic which has now killed nearly twice as many people as we lost in all
the years of the Vietnam War. All we have to do to pass constitutional muster is to have a reasonable goal,
it's reasonably achievable by the measures we are undertaking. Reasonable goal is to try to reduce the
spread of the Coronavirus. I’m not a doctor, I’m not an epidemiologist. The people on the Board of Health
who are doctors and in their discussion of this last week talked about the medical literature that they had
read and they believe that this would be effective to reduce the spread of this virus. | don’t think there is a
serious constitutional question at all.

Alderman Jette
Thank you.
Alderman Dowd

You are on mute.

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