Monday, May 25, 2020

Guidance is one thing; law is another

Recently, the Board of Health of the City of Nashua NH recommended that the Board of Aldermen approve a new ordinance.  This ordinance, a reaction to the Covid-19 virus, is named Nashua Ordinance O-20-18, "Relative to Face Coverings."  The ordinance may be viewed at

Let me begin by saying that if someone wants to wear a mask because they feel that it would protect themselves from others, I’m fine with it.  If someone wants to wear a mask to protect others from themselves, I approve.  These are their personal choices.   

As “guidance”, the ordinance contains several good ideas.  But as a legally enforceable ordinance (obey or pay a fine, or possibly be brought to court), the ordinance fails.  There are far too many deficiencies that act as anti-business measures, and others that cause unnecessary confusion.

Keep in mind that this is a lawful ordinance, written and recommended by the Nashua Board of Health and approved by vote of the Nashua Board of Aldermen.  It therefore can be enforced by the Nashua Police department.  “The letter of the law” is how it must be enforced if it is to be fairly enforced.

So, let’s start with the requirement that every person must wear a mask in almost every circumstance in Nashua.  The City of Nashua will not be providing those masks.  Residents are expected to purchase them or purchase the materials needed to make one, or to use a cloth bandanna or some other non-medical approved material.  But the meaning is clear: purchase or otherwise obtain an object to conform to a new law.  NH RSA 31:39 provides that ordinances are enforceable through the use of legal means, from fines to a court appearance.

The PPACA required individuals to purchase insurance or pay a tax (originally it was a fine, but Justice Roberts would not have approved it if it was a fine).  In December 2019, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit determined that this “individual mandate” was unconstitutional.  Individuals may not be forced through an act of law to purchase something from the private sector.

Thus, the entire ordinance is unconstitutional on its face.  But let’s go further.

The preamble describes a mask as “cloth, fabric, or other soft or permeable material, without holes, that covers only the nose, mouth, and surrounding areas of the lower face.”  There is no specification for the kind of cloth to be used except for “without holes”.  Hence, any cloth – from gauze to nylon – fits this specification as “soft or permeable material, without holes”.  The specification is so imprecise that it fails on all counts to demonstrate how the mask “protects the spread of our respiratory droplets”.

In point of fact, the goal should be stated as “protects against the spread of our respiratory droplets”.  Let’s continue with the analysis.

Rule 2 requires the wearing of a mask in all areas in a business, whether inside or outside. 

This means that a mask must be worn when entering a bank.  Not only is this problematic, but many banks have signs upon entry requiring the removal of hats, sunglasses, and facial coverings.  The reason is obvious: security cameras need to see all of the faces of those entering the bank.

However, this ordinance makes no exceptions for banks.  If a bank asks a customer to remove their mask, the customer is immediately in violation of the ordinance.

The ordinance explicitly states that masks must also be worn inside government buildings.  Hence, a new driver license cannot be issued: the removal of the mask to take the picture would immediately put the new driver in violation of the ordinance.

Barber shops may not trim beards.  Beauty salons and cosmetic counters may not do facial makeovers – including for prospective brides.  And, for that matter, the same brides may not remove their masks during the marriage ceremony for their traditional “first kiss”.

And to make the point even more clear, congregants in the City of Nashua may not receive communion: removing a mask immediately puts them in violation of a city ordinance when they want to exercise a required religious rite.

Rule 3 allows outside seating for customers at restaurants.  However, there is no consideration for customers who, when permitted, would want to sit and eat inside the restaurant.  They must keep their masks on at all times.  This part of the ordinance seems to be aimed specifically at preventing restaurants from allowing customers to eat indoors.

As we can see, the goal as guidance fails when the guidance becomes a law-enforceable ordinance: it is impossible for business to proceed in a normal manner when normal behavior is not possible due to the threat of a fine or a court appearance.

Lastly, this ordinance has no end date, no sunset date, nor a test to determine when it will no longer be enforced.  It “shall continue in effect until rescinded by action of the Board of Health or the Board of Aldermen”.  Without an end date, a quorum of either board is required to permit normal business interaction to resume in the City of Nashua.  Not even the Governor of New Hampshire can rescind this order.  Hence, “normal” will not return in Nashua NH until the local city government determines that “normal” may resume.

The point here is a simple one: “Government is a hammer – and to a hammer, everything looks like a nail.”  The ordinance contains excellent ideas as guidance.  But it removes the ability of business owners to determine how they do business inside their own premises and removes individual choice.  Instead, it is anti-business and anti-choice at its core.  This is not “the American way”.

There was a protest against this ordinance outside Nashua City Hall on the evening of May 24th.  Among the dozens who showed up to show their disappointment at the Board of Aldermen and the Mayor was a veteran holding a sign that read “This is NOT why I served.”

1 comment:

  1. This is why I actually favor some kind of Constitutional Amendment - how, of course, is the question - that ALL LAWS must have tests / time horizons unless renewed.