New Hampshire’s severe housing shortage continues to drive prices to record highs and put rentals and single-family homes out of reach for many families. 

  • The median price of a two-bedroom rental in New Hampshire has risen 24% in the last five years and 43% since 2011, reaching a record high of $1,498 a month (including utilities) this year, the New Hampshire Housing Finance Authority’s annual rental survey has found. 
  • The median price of a two-bedroom rental rose 6% last year, and the price for all rentals rose 7%. 
  • In Hillsborough and Rockingham Counties, the median rent is more than $1,600 a month (including utilities). 
  • The vacancy rate for two-bedroom apartments is down to 0.6% and the rate for all units is 0.9%. (A healthy vacancy rate is around 5%.) In every county, the vacancy rate is below 1% for two-bedroom units and below 2% for all units. No New Hampshire county has had a vacancy rate above 4% for all units since 2017. 
  • The percentage of New Hampshire two-bedroom rental units considered affordable to the median-income renter household (meaning the household would spend no more than 30% of its income on rent) is just 13%.
  • Single-family home prices are also hitting records. The median home price in Rockingham County hit $509,850 in June. Statewide, it hit $409,000.
  • In 2012, homes spent an average of more than 125 days on the market. In June, homes spent an average of 18 days on the market. 
  • In 2012, there was a more than 10-month supply of inventory for single-family homes. In June, it was down to 1.2 months. 

 The state’s housing shortage is not new. It’s been a well-known problem for decades. It has persisted despite numerous state-level efforts to address it. But those efforts, often focused on housing subsidies or task forces, have made little impact. The Housing Appeals Board, the most promising recent reform, just started its work this year. And its focus is on enforcing existing laws and rules to ensure that local governments don’t overstep their legal authority.

The shortage persists, and has become worse, because it is largely a product of local regulations that restrict housing development. Local ordinances often outlaw small homes on small lots, severely restrict mixed-use development, and make it nearly impossible to build multi-family buildings even in areas where they are allowed. 

The cumulative result over many decades is a massive shortage of housing. Estimates vary, but the shortage generally is pegged at approximately 20,000 housing units. The newly formed New Hampshire Council on Housing Affordability identified a critical need for 13,500 housing units by 2024. 

Whatever the actual number is, filling the need will be no less challenging than it has been in recent decades — as long as local governments continue to needlessly restrict new home construction and deny needed developments at the urging of a handful of anti-housing activists. 

New Hampshire’s six-year run of business tax cuts should have made the state’s corporate income tax rate the second-lowest in New England. But a funny thing happened along the way. New Hampshire was joined by an unexpected rival. 

When the succession of cuts began in 2015, New Hampshire’s Business Profits Tax (BPT) rate was 8.5%, making it the third-highest corporate income tax in New England. Only Maine’s 8.93% rate and Connecticut’s 9% rate were higher. 

After the passage of the current state budget, New Hampshire’s BPT rate is down to 7.6%, a 10.5% cut in six years. (Legislators cut the Business Enterprise Tax by 27%.)

That makes New Hampshire’s rate lower than the top rate in Vermont (8.5%), Maine (8.93%) and Massachusetts (8%). 

But Connecticut, beset with fleeing businesses and a dwindling population, took measures to stop its own bleeding. It reduced its corporate income tax rate from 9% to 7.5%. 

Rhode Island’s rate has remained at 7% the entire time.

(Maine and Vermont have graduated corporate tax rates. Maine’s lowest corporate tax rate is 3.5%. Vermont’s is 6%.)

Because Connecticut lowered its corporate income tax rate by 1.5 percentage points, New Hampshire’s rate wound up moving down only one place, rather than two, among the New England states. 

This helps to illustrate an important point. States don’t act in a vacuum. 

Businesses aren’t trapped inside any jurisdiction’s borders. It’s a free country, and they can move if they find another location more hospitable. Which they sometimes do. Just ask California.

If each state could erect its own iron curtain, just imagine how high corporate and personal tax rates would be. 

But because it’s a free country, states sometimes find it in their best interest to lower rates to make themselves more attractive. 

That’s why Connecticut and New Hampshire weren’t the only places to lower corporate tax rates in the last six years. A few examples:

  • New York lowered its rate from 7.1% to 6.5%. 
  • Washington, D.C., dropped its rate from 9.4% to 8.25%. 
  • Florida cut its rate from 5.5% to 4.4%. 
  • Iowa slashed its rate from 12% to 9.8%. 
  • North Carolina cut its rate in half, from 5% to 2.5%. 

Some lawmakers prefer to ignore other states and pretend that corporate tax rates are simply a lever for raising revenue from existing businesses. Raise the lever, raise the revenue. Lower the lever, lower the revenue.

But people inside and outside a state’s borders react when those levers are raised or lowered. That’s a big reason why state tax rates change. 

This year, five states states have reduced business tax rates. Ten states have reduced individual income tax rates. The total number of states to reduce either business or individual income taxes is 11, not 15, though, as some states reduced both. 

Some notable examples:

  • Indiana decreased its corporate income tax rate from 5.25% to 4.9%
  • Idaho reduced its corporate income tax rate from 6.925% to 6.5%, retroactive to Jan. 1.

These follow numerous changes made last year, from Arkansas eliminating its top income tax bracket to Tennessee eliminating its tax on interest and dividends to New York eliminating and Illinois reducing its capital stock tax.

It’s true that some states raise rates. New Jersey added a new top corporate tax rate, going from 9% in 2015 to 11.5%. Of course, New Jersey also has earned the title of “Most Moved From State” for three years running (and it’s particularly good at losing higher-income people). In a free country, mistakes will be made. 

And in a free country, states compete for people, entrepreneurs and businesses. 

Freedom made New Hampshire an economic marvel. Recognizing that people are free to live wherever they want, state policymakers for decades have focused on making the Granite State as attractive as possible.

It has worked beautifully. New Hampshire’s economic growth has surpassed every other New England state’s, and the national average, since the late 1970s.

With a booming economy came a growing population, which has enhanced the state’s quality of life and kept New Hampshire from becoming Vermont — a dying state that pays people to move there. 

When people are free, there’s a limit to how bossy a state can be. And there are rewards for offering people more personal, political and economic autonomy. 

New Hampshire has figured this out. Other states are catching on, just as technology has made Americans more mobile than ever before.

The competition is not over. It’s just beginning. 

Since the beginning of February, unvaccinated individuals have accounted for 99% of New Hampshire’s COVID-19 cases and 98% of deaths, according to state data. The numbers indicate how extremely effective vaccines have been at fighting COVID-19 in the state.

From February 1 through June 23, the state recorded 33,703 COVID-19 cases, according to the state’s Joint Information Center, part of its Emergency Operations Center. Of those, only 349 involved people who had been fully vaccinated. That’s 1.03% of the total.

During the same period, 236 people have died from COVID-19. Only five of those were fully vaccinated. That’s 2.1% of the total.

Only 15 fully vaccinated individuals have been hospitalized for COVID-19 in New Hampshire,  according to the Joint Information Center.

Because of the way the state tracks hospitalizations, an exact percentage breakdown for hospitalized patients is not possible. The state records whether a patient was hospitalized at the time the case was reported to the state, but not whether hospitalization was required later. However, the state does track how many vaccinated people have required hospitalization for COVID-19 at any point. That number has totaled only 15. 

The Joint Information Center sets February 1 as the approximate date by which Granite Staters began to become fully vaccinated. 

A University of New Hampshire poll released Thursday reports that 25% of Granite Staters say they probably or definitely will not get the vaccine. 

Among that group, 56% say they don’t believe it will be effective at stopping them from getting COVID. 

The state data show that, contrary to this view, the vaccines are highly effective at reducing the risk of infection, serious illness and death from the coronavirus. 

The state figures also are similar to national data released last week. An Associated Press analysis of COVID-19 data from May found that 99.2% of COVID-19 deaths in the United States were among unvaccinated people. 

The difference between the 99% and 98% rates for New Hampshire cases and deaths, respectively, is not statistically significant, Beth Daly, chief of the state Bureau of Infectious Disease Control, said. (Dr. Daly’s comment was received after press time and was added to this story after publication.)

“The numbers are not really statistically different because you are comparing a small number (236) to a larger one (33,703).

“This is an issue of small numbers when you compare a denominator of tens of thousands to a denominator of just a few hundred. The confidence interval of 5 divided by 236 is from <1% to 5%, so the 1% observed in the calculation of 349 divided by 33,703 is not statistically nor meaningfully different from the proportion of deaths.

“To say it another way,  the proportion of vaccine breakthrough infections is statistically the same/no different from the proportion of vaccine breakthrough deaths. They are also not substantively different.”

 

The U.S. Supreme Court on Monday declined to hear New Hampshire’s lawsuit challenging the constitutionality of a Massachusetts rule taxing non-resident remote workers. The decision puts remote workers anywhere in the world at risk of having their incomes permanently taxed by the state where their employer is located. 

“It’s hard to see a limiting principle that would restrain states from taxing remote workers going forward, particularly given the Biden administration’s brief to the court arguing that states have the authority to do that,” Josiah Bartlett Center for Public Policy President Andrew Cline said. 

The Biden administration argued in a brief to the court that because remote workers benefit from government services provided to their employers, a “telecommuting employee’s physical location thus need not map precisely onto the location of the governmental services needed to support that employee’s work.”

Massachusetts’ rule was intended to be temporary for the duration of the COVID-19 emergency. However, six states already have permanent rules that tax the incomes of telecommuters who work from home for their own convenience. The Supreme Court’s decision to let Massachusetts’ rule stand not only keeps these rules in place, but could encourage the further expansion of remote worker taxation.

New York, Connecticut and four other states have what are known as “convenience of the employer” (COTE) rules that tax remote workers’ incomes if they work out-of-state for their own convenience, rather than out of necessity. 

Under these rules, if a remote worker has to work in another state, his or her income is not taxed. But if the worker chooses to work in another state purely for his or her personal convenience, the income is taxed. Arkansas, Connecticut, Delaware, Nebraska, New York, and Pennsylvania had COTE rules before the pandemic. The Tax Foundation has a good COTE explainer here

The Supreme Court’s refusal to hear New Hampshire’s case leaves such COTE taxation of remote workers intact. But it also has the strong potential to encourage blanket remote worker taxation under the Biden administration’s theory that states may tax any employee of a company located within their borders because state services benefit both the company and all of its employees.

The Biden administration’s brief could even prompt local governments to tax remote worker incomes. It specifically mentioned local services such as roads and fire protection as justifying the taxation of remote workers. 

Refusing to hear New Hampshire’s case does not mean that the issue is settled, Edward Zelinsky, professor at the Benjamin Cardozo School of Law in New York City, told the Josiah Bartlett Center. 

“I am disappointed that the Supreme Court would not hear this case but the Court’s denial is the beginning not the end of the process,” Zelinsky said. “It will now be necessary for individual taxpayers to start their own challenges to New York’s and Massachusetts’ unconstitutional taxation of remote workers. I am confident that these challenges will soon begin.”

Professor Zelinsky has sued New York over a similar remote taxation policy. He filed an amicus brief in New Hampshire’s case. The states of Connecticut, Hawaii, Iowa and New Jersey also filed briefs supporting New Hampshire. 

Writing in March for the American Bar Association, two Louisiana attorneys argued that a U.S. Supreme Court ruling on remote taxation is needed because the increasing prevalence of remote work is likely to generate more competition among states for revenues generated by the incomes of remote workers. 

“If states continue to struggle with declining tax revenues in 2021 and 2022, there will likely be even fiercer competition for those tax revenues between states where the employer and its primary offices are located and those whose residents, prior to the pandemic, regularly commuted to those states for work.”

Gov. Chris Sununu has signed the 2022-23 state budget that the Legislature passed on Thursday. Here are three key takeaways for those looking for a quick take on the state’s two-year spending plan. (We did a longer summary here.)

  1. TAX CUTS     With this budget’s business tax rate reductions, legislators have reduced the Business Profits Tax by 10.5% and the Business Enterprise Tax by 27% since 2015. Raising the filing threshold for the Business Enterprise Tax from $200,000 to $250,000 provides further tax relief for small businesses. These modest changes should help New Hampshire become more economically competitive. Though the state is rated as having a top ten business tax climate, it still has high corporate taxes. New Hampshire’s combined state and federal business tax burden is ranked 15th in the country by the Tax Foundation and lately has ranked higher than Massachusetts, Connecticut and Rhode Island. 
  2. EDUCATION FREEDOM ACCOUNTS     The budget makes New Hampshire the 10th state to adopt an Education Savings Account program. The bill’s Education Freedom Accounts would let families with incomes of no more than 300% of the federal poverty level use their state adequate education grant to open a savings account for approved educational purchases. The Josiah Bartlett Center’s analysis projects that approximately 966 students would use an EFA in its first year and 2,335 in the second year. Local school district enrollment would decline by a projected average of 2.65 students (0.8%) in the first year and 6.63 students (2%) in the second year. Taxpayers would save approximately $1.85 million in the first year and $4.8 million in the second year. 
  3. SPENDING     The budget reduces the General and Education Fund baseline spending by about $172 million, or 3.1%. Budget writers increased from 22% to 30% the portion of Meals and Rooms Tax revenue that goes to local governments and created a dedicated fund for this purpose. Reserving this $188 million in revenue for local governments makes it unavailable for state use in the future, effectively lowering General Fund baseline spending. The budget ratchets state baseline spending down a bit after a decade of spending increases.

The final House-Senate compromise added to this year’s state budget was a deal to give the Legislature more power during a declared state of emergency. This was an issue of heated debate, as many legislators thought the House and Senate needed a more active role in governing during a state of emergency. The compromise doesn’t go as far as some House members wanted, but it does enhance legislative authority in some important ways.

The Legislature’s existing emergency powers

Under existing law (RSA 4:45), both the governor and the Legislature have the power to declare a state of emergency. The Legislature can exercise this power by passing a concurrent resolution of both the House and Senate.

Once a state of emergency is in effect, the Legislature has the power to terminate it by passing a concurrent resolution in each chamber. 

One might have thought that the Legislature was powerless to act once an emergency had been declared. That is not the case. If a majority of legislators believes a state of emergency is no longer justified, or never was, it can convene and vote to end the emergency at any time. 

If the Legislature votes to end a state of emergency, the governor has the authority to declare “a new emergency for different circumstances.” That is, once the Legislature has ended a state of emergency, the governor cannot declare the same emergency for the same reasons again. Any new emergency would have to be based on “different circumstances.”

What the Legislature doesn’t have the authority to do under existing law is repeal a specific emergency order other than the emergency declaration itself. This was a big frustration for some House Republicans during the COVID-19 emergency. It also doesn’t have a process in place for reviewing states of emergency. It can convene itself at any time, but there is no calendar or schedule in place to generate periodic reviews automatically. 

Emergency powers enhanced in the budget

The Committee of Conference amendment rewrites RSA 4:45 to enhance legislative emergency powers in three specific ways.

  1. It requires the governor to notify the House and Senate of “impending” emergency orders “as soon as practicable” and to “provide a description of such orders.” This notification requirement ensures that legislative leadership will be informed prior to a declaration of emergency.  
  2. It gives the Legislature the power to terminate “any emergency order” in addition to the emergency declaration. This creates essentially a line-item veto for the Legislature. The General Court can keep a state of emergency in place but rescind any particular emergency order it doesn’t like. Currently, its only option is to repeal the state of emergency itself. Under the proposed change, legislators could partially co-manage an emergency by negotiating with the governor over the orders it would like to see. With the power to repeal any order, lawmakers would have a significantly increased say in what orders are made. 
  3. It requires the governor to call a legislative session 90 days into a state of emergency, and then every 90 days for the duration of the emergency if it lasts longer than the first 90 days. At each of these sessions, the Legislature is required to vote by concurrent resolution on whether to terminate the state of emergency. This forces a legislative vote every 90 days on whether to maintain or repeal a state of emergency.

These changes are not as comprehensive as some House members would have liked. But they elevate the General Court’s role during a state of emergency from spectator to co-manager. 

When PepsiCo opened the first Pizza Hut in the Soviet Union in 1990, one challenge the company had was convincing Soviet bureaucrats that the cooks didn’t need to be trained chefs. 

“This is something the Russians don’t understand,”Andrew Rafalat, Pizza Hut’s regional director for the Soviet Union and Eastern Europe, told The New York Times in 1990. ”You don’t want trained cooks. You want kids off the street. Within a few weeks, they are the best pizza cooks in the world.”

Obviously, New Hampshire isn’t close to being the Soviet Union. (Burlington, Vt., is another story.) But New Hampshire is not as “live free or die” as Granite Staters would like to believe. 

Too many laws and ordinances here would look familiar to the Moscow bureaucrats who thought pizza cooks ought to be highly educated, credentialed and government approved. 

Recent legislation offers multiple examples.

Current law requires bars and restaurants to apply to the Liquor Commission for permission to serve drinks in common spaces such as sidewalks or parking lots, then also get permission from their local government. 

There’s no need for this double approval. Permission from the local government, is enough. Yet it took a global pandemic to convince lawmakers that this requirement should go.  

When the pandemic hit, already short-staffed nursing homes couldn’t fill positions to assist nurses because there weren’t enough licensed nursing assistants. 

Imagine telling the family of a nursing home patient that you’re sorry, but their loved one has to go with less care because the state has decreed that no care at all is better than care from someone who lacks the most prestigious credential. 

It took an emergency order to allow nursing homes to hire and quickly train unlicensed nursing assistants (called temporary health partners) to work under the supervision of licensed nurses. 

Senate Bill 155, which a committee of conference approved with amendments on Monday, would fix those and some other burdensome regulatory requirements.

Senate Bill 133, also approved by a committee of conference on Monday, addresses a few other occupational licensing laws. One fix is to open a path to licensure for the temporary health partners allowed in SB 155. 

Anyone who worked as a temporary health partner for at least 100 hours as a result of the pandemic would be considered as having completed a nursing assistant training course and would be eligible for licensure as a nursing assistant.

Associate teachers at child day care centers would get a similar break if SB 133 becomes law. The bill would allow 30 hours of “documented life experience” to substitute for 30 hours of “training in child growth and development.”

Also getting a break would be small restaurants and cafes. State law requires licensed food service establishments to have a “Certified Food Protection Manager.” The bill would let the CFPM (that doesn’t sound Soviet at all) for small operations be on call. 

The bill also would include psychologists in the list of medical professionals who can engage in telemedicine. (It’s crazy that this wasn’t allowed before.)

Then there are kids’ lemonade stands. Licensing kids’ lemonade stands would seem like a Moscow idea. But local municipal ordinances that require food vendors to obtain permits or licenses usually don’t have an exemption for children selling soft drinks in their own yards. 

Though there have been no news stories of police shutting down kids’ lemonade stands in New Hampshire, technically the stands are illegal if ordinances don’t specifically exempt them.

That’s why House Bill 183 would create a state-level exemption for children age 14 and younger who sell soft drinks from their own property. It establishes under state law that the only permission kids need to set up a lemonade stand is from their parents. (The House concurred with the Senate version last week and awaits Gov. Chris Sununu’s signature.)

These small changes would make New Hampshire a bit freer by slightly reducing the level of government permission needed for certain commercial practices. Other bills have addressed other areas where the pandemic revealed certain regulations to be entirely unneeded, even harmful. 

And yet, as this legislative session winds down, it’s remarkable how little has changed. The state of emergency is over. The pandemic is receding. But the state’s thick net of rigid regulations remains largely intact. 

Most changes were made on the margins. There was no comprehensive rewriting of occupational licensing laws or business regulations. Even after a wave of restaurant closures, lawmakers couldn’t bring themselves to allow cocktails to go. Massachusetts will legalize to-go restaurant cocktails before New Hampshire does. 

State laws and local ordinances remain run through with the presumption that people can’t figure out how to engage in economic activity safely unless they first obtain government permission and government-mandated training. 

A lot of good changes have been made. But we still can’t let go of the notion that 424 legislators should tell the pizza parlor how to make pizza. 

When Gov. Chris Sununu announced the end of the statewide mask mandate on April 15, the seven-day rolling average of positive COVID-19 cases was 411.6, the number of positive cases in the state was 3,763, and 130 people were hospitalized with COVID-19. 

By June 8, the number of known COVID-19 cases had declined by 91% from April 15, hospitalizations had declined by 78%, and the seven-day average of new cases had declined by 88%. 

Only 28 people were hospitalized on June 8, and only 322 known cases existed in the state.

Going back to the height of the pandemic in New Hampshire, the drop is even more dramatic. 

  • The number of new infections has dropped by 97.5% from its December 3 peak.
  • The seven-day rolling average of infections has dropped by 94% from its December 8 peak.
  • Hospitalizations have dropped by 92% from their January 1 peak. 
  • The seven-day rolling average of COVID-19 deaths has dropped by 88% from the peak, which was reached on both December 26 and January 7. 

Vaccinations have changed the state of the pandemic in New Hampshire, dramatically reducing the number of hosts for the virus to infect, and providing protection to the most vulnerable populations. 

Nearly 60% of the state’s population has received at least one vaccine dose and 50.7% have been fully vaccinated, according to the state’s COVID-19 dashboard.

By any measure, the COVID-19 public health emergency in New Hampshire is over. 

Gone with it are the justifications for a state of emergency.   

When Gov. Sununu declared a state of emergency on March 13, 2020, his executive order stipulated the following concern (among others), that “if COVID-19 spreads in New Hampshire at a rate comparable to the rate of spread in other countries, the number of persons requiring medical care may exceed locally available resources, and controlling outbreaks minimizes the risk to the public, maintains the health and safety of the people of New Hampshire, and limits the spread of infection in our communities and within the healthcare delivery system.”

The declaration stated that “under RSA 4:47, III, the Governor has ‘power to make, amend, suspend and rescind necessary orders, rules and regulations’ to carry out emergency management functions in the event of a disaster beyond local control.”

State law does give the governor those powers — when there is a state of emergency. 

RSA 21-P:35 VIII defines “state of emergency” as “that condition, situation, or set of circumstances deemed to be so extremely hazardous or dangerous to life or property that it is necessary and essential to invoke, require, or utilize extraordinary measures, actions, and procedures to lessen or mitigate possible harm.”

Though COVID-19 still exists in the state, its presence no longer presents a situation so extremely dangerous that “it is necessary and essential” to invoke “extraordinary measures” to mitigate the harm. 

Further vaccinations will continue to reduce infections, hospitalizations and deaths. 

When a state of emergency ends, all of the emergency orders end with it. Many of those orders nullified regulations that were never needed and that interfered with both medical and business innovations. Rules limiting pharmacists’ scope of practice, preventing hospitals from hiring unlicensed helpers, preventing telemedicine and the practice of medicine by retired physicians, and preventing businesses from adapting by offering sidewalk dining or alcoholic beverages to go are just a few of the regulations lifted by emergency orders.

Because these and other allowances would disappear as soon as the emergency ends, the governor might have an interest in keeping the state of emergency in place a little longer until pending legislation making such emergency orders permanent is adopted. For example, a bill is pending that would let restaurants continue outdoor dining in common areas such as public sidewalks. If the emergency is lifted before that passes, restaurants would have to close those popular outdoor seating areas immediately. 

But the threat that prompted the emergency declaration last year clearly is gone, and prolonged extensions of the state of emergency no longer can be justified.

Summer weather is here, and restaurants from Portsmouth to Hanover are opening up for outdoor dining on streets and sidewalks. But unless the Legislature acts, those popular outdoor seating areas are in jeopardy when the state of emergency expires. 

State law doesn’t expressly allow holders of liquor licenses to add service in common areas, such as public sidewalks or parking lots. The relevant statute (RSA 178:24) addresses expansion of service into areas license holders control, but not into public spaces.

On May 31, 2020, Gov. Chris Sununu allowed restaurants to offer outdoor dining under Exhibit C of Emergency Order 40. (Local approval is required if the expansion is into a shared space, such as a sidewalk.)

The purpose was to give restaurants a chance of surviving the pandemic. People stopped going to restaurants when the pandemic hit last year, then the governor ordered indoor dining rooms closed. When they opened back up, people were reluctant to return. Allowing outdoor dining was intended to authorize restaurants to serve their customers in a way that is common in many other parts of the world, but not in New Hampshire. 

(We use the common term “outdoor dining” here, but really what the state’s regulating is the service of alcohol.)

Of course, the big question is: Why does state law interfere with sidewalk dining (drinking) in the first place? Why not just clarify that liquor license holders are not prohibited by the state from expanding into common spaces?

Senate Bill 155, as amended by the House, would do that. 

The House-passed version states that “a licensee may expand into a shared space, such as a sidewalk or street, with the approval of local officials.” The Senate version extended the temporary allowance for outdoor dining for another two years.

For the House amendment’s permanent authorization to become law, the Senate would have to agree to the amendment. The bill could come before the Senate for a vote on Thursday. 

In addition to allowing outdoor dining for liquor license holders, SB 155 would codify several other provisions contained in Gov. Chris Sununu’s COVID-19 emergency orders.

  • It would create a new legally recognized medical occupation called a “Temporary Health Partner,” which is essentially a nurse’s aid. When the pandemic hit, hospitals were short-staffed but could not bring in unlicensed assistants just to help with simple tasks. This would let medical providers hire helpers who would work under a nurse’s supervision. 
  • It would authorize the emergency medical licensure of various types of medial professionals, such as doctors who let their licenses expire within the last three years, and nursing students. 
  • It would let pharmacists sell COVID-19 testing kits and administer the tests. 
  • It would let out-of-state pharmacies providing investigational drugs to New Hampshire patients to be licensed as mail-order pharmacies temporarily for COVID-related reasons.
  • And it would let summer camps that temporarily closed for COVID-related reasons maintain their status under local ordinances as a continuously operating camp. It basically prevents their grandfathered status from being revoked because they closed during the pandemic. 

The bill offers a nice introduction into the world of unneeded state regulations. It would remove just a few of the many state laws that prohibit the private sector from serving customers in ways that lawmakers of the past either did not anticipate or did not want to allow, for whatever reason.  

If it passes, sidewalk dining could become a permanent part of New Hampshire life.

Temperatures are expected to hit 90 degrees in much of New Hampshire this week. The state’s largest school district closed Monday on account of the heat. Other school districts are letting out early. What will kids be doing? Some of them are sure to set up lemonade stands. Technically, that would be illegal in many communities unless the children obtain a permit first.

It’s not that communities specifically target kids’ lemonade stands. It’s that municipal ordinances that require permits to sell food or drinks typically don’t contain exemptions for children. 

In other states, police have been called to shut down unlicensed lemonade stands. Stories in recent years from Colorado, Texas and New York received national news coverage, which prompted legislators in New Hampshire and other states to propose laws exempting child-operated soft drink stands from local permit requirements.

House Bill 183 would do that in New Hampshire. It has passed the House and Senate in different forms and is back for consideration in the House, which meets on Thursday. 

The House version exempted people up to age 18 who sell soft drinks from municipal vendor permit requirements. 

The Senate version exempts people under the age of 14 who “are selling soft drinks on family owned or leased property.” 

(The “soft drink” language is intentionally broad enough to cover children who might sell apple cider, powdered sugary drinks, canned soda or other soft beverages instead of lemonade.)

Under the Senate amendment’s language, children selling lemonade on public property (say, at a sports field, basketball court or public park) would still have to obtain a permit if a municipality required one. 

Both the House and Senate versions of the bill met with strong opposition. In the House, 163 members voted against it. On the other side, 10 senators voted against it. 

A major argument against the bill was that no one could produce a case of police shutting down a child’s lemonade stand in the state. Therefore, it was argued, the bill isn’t needed. 

However, the lack of a publicized arrest lemonade or stand shut down does not mean that police interactions aren’t happening. It likely means that officers are exercising their discretion and letting legal infractions slide. 

Several years ago, the author of this story had a police officer stop at his child’s lemonade stand to ask if we had a permit (we didn’t) and to inform us that we probably needed one. But he didn’t order us to shut down the stand. 

The argument that police have not enforced the law is no defense of the law. Having permit requirements that no one intends to enforce is folly, not good governance. What’s the point of keeping broad and enforceable regulations if no one ever intends to enforce them? 

The obvious answer is that municipal officials intend to reserve the power to enforce these ordinances at their discretion should they encounter a situation in which they feel the need. In other words, they intend to enforce these ordinances selectively, rather than apply them uniformly. That is a recipe not only for sewing distrust of government, but also for biased policing.  

The New Hampshire Municipal Association in fact testified against HB 183 by simultaneously arguing that municipalities “are not going to try and regulate kids lemonade stands” and that municipalities would regulate the stands on a case-by-case basis “if kids are doing something that is unsafe and the police should be able to come along and ask them to move,” as described by the committee hearing transcript.

Keeping a broad ban on unlicensed lemonade stands in place on the off chance that police might one day need to tell kids to stop doing something unsafe (something unrelated to the sale of lemonade) offers an extremely weak case for keeping such bans in place. 

License and permit requirements often are drawn too broadly, and legislators legislators are taking notice. For example, it has long been a criminal offense for anyone to cut hair without a state license, even if doing it at home on one’s own friends and family members. 

Legislators recognized this problem (after the Josiah Bartlett Center pointed it out) and this year passed a bill to decriminalize unlicensed hair cutting that isn’t done for money. 

Local food vendor permit requirements often go too far as well, covering children who sell drinks from their own yards. 

House Bill 183 would prohibit these municipal food vendor permits from applying to minors under the age of 14 who sell soft drinks from property their family owns or leases. It is narrowly drawn so that it still allows municipalities to control vending on municipal property and when done by high school students. 

It is one of the bills House members could take up at their session on Thursday. It will be interesting to see if it continues to meet such strong opposition during this week’s heat wave.