When the governors of Florida and Georgia announced that they would reopen their economies, the predictions of mass mortality were immediate. In April, a writer for The Atlantic hysterically labeled Georgia’s reopening plan an “experiment in human sacrifice.”

In the weeks that followed, the mortality surges never happened. 

Digging through COVID-19 mortality data this week, we noticed something that to our knowledge had not previously been highlighted. There have been fewer COVID-19 deaths in Florida, Georgia and Colorado combined (three states criticized for opening “too early”) than in New York nursing homes alone. 

The absence of a mortality surge is finally getting the attention of network TV news and other national media. ABC News’ lead medical reporter Eric Strauss tweeted on Thursday, “JUST IN: @ABC looked at 21 states that eased restrictions May 4 or earlier & found no major increase in hospitalizations, deaths or % of people testing positive in any of them. [SC, MT, GA, MS, SD, AR, CO, ID, IA, ND, OK, TN, TX, UT, WY, KS, FL, IN, MO, NE, OH.”

Politico Magazine on Thursday published a long essay on Colorado, “the blue state that gambled on an early reopening.” 

Colorado’s Democratic governor, Jared Polis, “moved to lift stay-at-home orders not only well before other Democratic-leaning states, but ahead of Republican-led Georgia, Florida and Texas,” Politico pointed out. And he had a plan. 

Polis, “instead of looking most closely at case and death counts, which lag behind the reality on the ground… focused on bringing down the virus’ transmission rate from one person infecting up to four others to one person infecting just one other person, which the state managed in April. As officials added thousands of temporary hospital beds, the governor also closely tracked the daily hospitalization rate, which had begun to slow by the time he made his April 20 announcement.”

Using realistic metrics that indicated how much of a public threat the virus was, Polis determined early that reopening could be done without causing an unmanageable surge in transmissions or hospitalizations.

The result? 

“An average of just 4.64 percent of people tested over three days ending Tuesday were positive for COVID-19. That’s the lowest since the state started tracking a three-day average of positive cases back on March 10,” Colorado Public Radio reported on Wednesday.

Colorado is still experiencing outbreaks in places like meat packing plants, prisons, a grocery store, and an office. But those outbreaks are not spiking overall transmission rates. “While outbreaks continue to occur, overall, the number of new cases reported to the state continues to drop,” the Colorado Public Radio report concluded.

Many Colorado businesses have been operating under capacity restrictions. But by identifying meaningful, reasonable metrics to guide the reopening, the state was able to begin its economic recovery early and eliminate some of the uncertainty for business owners. 

New Hampshire Gov. Chris Sununu has managed a difficult challenge with great skill and has listened to business owners, adjusting some regulations and guidance after seeing how harmful it could be. Bringing business and community leaders into the decision-making process by creating task forces has allowed a greater degree of citizen input and prevented some of the more restrictive regulations seen in other states.

Yet it is not clear what data are guiding New Hampshire’s approach and what the precise goals are. Business owners and employees remain frustrated because the state has offered little clarity on how emergency rules are to be lifted. 

Initially, the state’s emergency measures were focused on ensuring adequate hospital capacity in case of a surge of COVID-19 cases. The curve flattened weeks ago and the anticipated surge never happened. This week the governor ordered 10 of the state’s 14 overflow hospital sites closed.  

Yet the governor also extended his emergency order and the stay-home order this week. People see the numbers going down, the curve flattened, but emergency orders and restrictions remaining in place.

Asked on Tuesday what data the state is using to guide its decision-making, Health and Human Services Commissioner Lori Shibinette struggled to give a coherent answer. After being asked several times about the state’s declining infection rate, she seemed to say that the state’s goal was to prevent every long-term-care facility employee from getting infected.

“Those caregivers are part of our communities. So, as long as there’s still COVID circulating in our communities, there is always a risk of bringing it into a nursing home. And there is always a risk of negative outcomes,” she said. 

Ensuring that no long-term-care facility staff become infected cannot be the goal. It’s an impossible target. 

The governor on Friday offered some clarity, saying that “flattening the curve” to keep hospital capacity available remains the goal. With the curve already flattened, the state is striving to prevent a new surge from overwhelming the hospitals, he said.

The governor added in response to a question that the guiding data are the percent positive and the hospitalization rate. Yet state officials still have not explained exactly what the state’s target numbers are. 

Without clarity on the state’s targets, people will continue to be frustrated and anxious, and business owners will be unable to plan.

As the state’s own chart below shows, New Hampshire’s rate of positive COVID-19 test results has trended downward for weeks and is below 5%, about the same as Colorado’s. The state has 110 hospitalized COVID-19 patients, well below capacity. By any of the standard metrics, the state’s numbers have been trending in the right direction for weeks. 

 

Yet economically crippling restrictions on business and personal activity remain, imposing enormous costs. In April, the state counted 101,490 newly unemployed Granite Staters, for an unemployment rate of 17.2%. It’s worse up north. Coos County’s unemployment rate hit 22.6% and Carroll’s 24.3%. 

There’s little reason to believe that, say, Coos County retail and restaurant employees have to lose their jobs to protect the state’s vulnerable population, most of whom are elderly residents of long-term care facilities and individuals with co-morbidities. 

The overwhelming majority of New Hampshire’s coronavirus deaths (78%) have occurred in long-term care facilities, and 77% of deaths were associated with a cluster, meaning three or more cases in a single workplace or facility. 

Community transmission accounts for 20% of New Hampshire hospitalizations and 13% of deaths. Clearly, a vulnerable individual can contract the virus out in the community, get sick, and die. But the available data suggest that this risk is very low and that these individuals can be protected through less drastic measures.

Japan offers a case study. On Tuesday, Science magazine reported that Japan had ended its state of emergency, having achieved its public health goals without ever issuing a lockdown.

“It drove down the number of daily new cases to near target levels of 0.5 per 100,000 people with voluntary and not very restrictive social distancing and without large-scale testing. Instead, the country focused on finding clusters of infections and attacking the underlying causes, which often proved to be overcrowded gathering spots such as gyms and nightclubs.”

Japan lacks the legal authority to impose mandatory lockdowns, so instead it focused on educating the public about mask-wearing and avoiding the “three Cs”—closed spaces, crowds, and close-contact settings. 

These are specific, attainable, and goal-oriented guidelines. They are easy for the public to understand, and they allow business owners and employees to participate in the process. If the state publicized that the economy could fully open when X and Y metrics were met, and initiated a high-profile publicity campaign to encourage broad public participation in reaching those goals (by wearing masks, social distancing, not forming large crowds, etc.), everyone would have clear goals they could work toward together. 

Instead, the public remains in a state of suspense, waiting anxiously each week for new reopening guidelines segregated by industry. 

As we’ve recommended before, the state’s focus should be on encouraging socially responsible behavior. Many businesses that are closed or partially closed now can open responsibly, posing little risk of creating mass outbreaks, if the state devotes its resources to education, instruction, and assistance rather than categorical business lockdowns. 

The longer the state continues this slow lifting of restrictions, the worse the economic damage will be and the more frustrated members of the public will become.   

 

Typically, government regulations take a long time to implement and an even longer time to remove. In an emergency, though, both of those time frames are dramatically reduced. This week offered a case study in the perils of rapid regulation and the benefits of flexibility after rules are put in place.

On Monday, the state issued a guidance for the reopening of child care centers. It was the most rigid and inflexible in New England. Though most New England states — and the Centers for Disease Control and Prevention —have relied on recommendations to guide child care centers through coronavirus protocols, New Hampshire included several mandates. 

Child care directors immediately flagged those mandates as impossible to implement.

The state guidance, for example, stated that programs “must reduce group sizes and limit child care rooms to no more than 10 people total, including children and adults.” 

It further mandated that staff wear masks “at all times while at work” and that centers “consistently keep the same groups of children and staff together (i.e. do not float staff, do not move children between rooms/groups).”

That’s the type of regulation that sounds great to a public health official, but has obvious flaws. Child care providers pointed out to the Josiah Bartlett Center earlier this week that the rules would literally prohibit staff members from eating or going to the bathroom while at work. If staff members can’t cover for each other, there’s no ability for a bathroom break. 

The inflexibility of the rules drew a swift and widespread rebuke from child care operators, who flooded the governor’s office and the Department of Health and Human Services with complaints. The Bartlett Center published a story on Thursday pointing out that the mandates would make thousands of children lose their spots at New Hampshire child care centers. 

“We listened to folks over the last couple of days. We had a lot of input,” Gov. Chris Sununu said on Friday.

Lisa Cormier, director of St. Peter’s Home in Manchester, the largest child care center in the state, said the mandates were disappointing because they would do the opposite of what they were intended to do.

“The point was to make people more comfortable with child care so they would go back to work,” she told the Josiah Bartlett Center. “But instead, it’s cut us off at the knees.”

The governor on Friday said the new rules incorporated that feedback and focused on flexibility and availability.

“We want to make sure that child care is available, and we want to make it flexible,” he said.

In an emergency, regulations do not have to go through the normal regulatory process, which was clearly a problem with the initial child care guidance. The speed with which these rules were put in place, and the shortage of industry feedback, guaranteed a disaster if they were fully implemented.

The benefit of emergency rules, though, is that the lengthy rule-making process in place during normal times is not required for making adjustments. So the state was able to take input from child care operators and change the rules within five days. Normally, this would take months. 

The biggest flaw in the initial child care regulations was the refusal to trust providers to manage their own facilities based on state guidance. Mandates stem from an absence of trust. Thankfully, providers caused a stir and the state responded appropriately. That’s something for those in other regulated industries to remember.    

If the state regulations for reopening child care centers take effect as issued, 165 children at the state’s largest child care center would lose their spots and have to stay home. And they aren’t alone.

“St. Peter’s would lose 165 spots. That’s over half our enrollment,” Lisa Cormier, director of St. Peter’s Home on Manchester’s West Side, told the Josiah Bartlett Center. “People look at it from the financial standpoint, but it’s 165 children that now have no place to go.”

“The point was to make people more comfortable with child care so they would go back to work. But instead it’s cut us off at the knees. At St. Peter’s, it’s 165 kids, but it’s literally thousands across the state.”

The new child care guidance, issued Monday, imposes social distancing mandates that exceed the child care guidance issued by the U.S. Centers for Disease Control and Prevention as well as the regulations imposed by other New England states. They would be the most severe child care restrictions in the region. 

The CDC guidance consists largely of recommendations, not mandates. For example, the CDC recommends that sleeping mats be “spaced out as much as possible, ideally 6 feet apart.” It doesn’t mandate, or even recommend, maintaining six feet between children otherwise. 

Instead, the CDC recommends keeping kids in the same groups throughout the day and not mixing groups in common areas.

New Hampshire’s far more rigid guidance mandates that no more than 10 people, including teachers, be in any one room at any time, and that children be spaced at least six feet apart at all times whenever possible.

For day care operators that have been open throughout the emergency, like St. Peter’s Home, that means cutting class sizes by more than half. If a room has two teachers, it can have a maximum of eight students, down from around 20 before. 

The rules also require that children be seated at least six feet apart during meals and that they eat in the classrooms, not in a communal cafeteria.

“Our tables are four and a half feet,” Cormier said. “So, I’m not sure if they want them eating on the floor, if they think that’s more sanitary?”

The mandates forbid floating staff from one room to another, which means no staff member can cover for another for any reason throughout the day.

“it’s not going to let teachers take a break. It’s not going to let teachers go to the bathroom,” Cormier said.

A review of child care reopening rules in other New England states shows New Hampshire’s new rules to be the most restrictive and least flexible of those issued so far. 

Rhode Island and Connecticut mandate a 10-child maximum per room, but don’t contain as many additional mandates.

Vermont limits class sizes to 25 and recommends, but doesn’t mandate, six-foot distancing between individuals. Maine has issued a single-page guidance recommending basic sanitation and hygiene practices and relaxing some staff-to-child ratios. 

Massachusetts closed day cares during the initial shutdown, leaving only some designated emergency day cares open. Its rules for day care reopening have not yet been issued.

Day care operators were aware of the guidance in other states and were surprised that New Hampshire’s rules were so limiting. The state has been flooded with phone calls from day care operators this week, to the point that the state has suspended implementation of the rules (which were to take effect on Monday) and Gov. Chris Sununu on Wednesday said the state would consider revising them. 

“We’re e hoping that they’re going to go more toward Vermont, who is allowing 25 in a room,” Cormier said. 

“Those of us who’ve been open all along have struggled through for 10 weeks with no regulations, and all of a sudden what’s come out has been very difficult.”

Despite being open throughout the entire state of emergency, St. Peter’s has not had a single COVID-19 infection, Cormier said. The state Department of Health and Human Services did not return a request for information on how many COVID-19 cases have been associated with child care centers in New Hampshire. 

Child care centers generally have not been associated with large outbreaks of the disease. 

“We have not seen large numbers of cases in daycare centers of COVID, Deidre Gifford, acting commissioner of the Connecticut Department of Public Health, was quoted in the Connecticut Mirror as saying earlier this week. “They do report to DPH and it’s been a very, very small number of cases that we have seen.” 

New Hampshire’s day care guidance is a classic example of well-intentioned regulations creating needless hardship because regulators sought to impose mandates rather than offer help and guidance.

“At first there was a little bit of shock,” Cormier said. “I don’t think the intention was to cut day cares in half. I think it was just one of those things that looked better on paper than in reality.”

Consistent with our guidelines for reopening the economy, the Josiah Bartlett Center for Public Policy recommends rescinding the unworkable mandates and instead offering guidance on best practices. 

The point is to have child care operators improve their safety procedures so parents can get back to work. Imposing unrealistic and unnecessary mandates that send thousands of children home won’t achieve that. 

New Hampshire’s economy spent March and April of 2020 rapidly contracting. Cell phone data and reported restaurant and retail store revenue show that consumers voluntarily began staying home in the early March. Then on March 27 the governor issued a stay-home order and ordered “non-essential” businesses closed to in-person interactions.

That one-two punch put nearly 160,000 Granite Staters out of work in a matter of weeks. The state’s unemployment rate rose from less than 3% in March to approximately 15% in April, according to state figures released this week. 

Those numbers are not just statistics on a financial spreadsheet. Each application for unemployment benefits represents a real person who has been made idle involuntarily. 

Those Granite Staters — our friends, neighbors, and family members — have lost the ability to provide for themselves and their families. Some of their employers have stayed open with skeleton crews, some have closed temporarily, some permanently. 

New Hampshire’s economy is in serious long-term danger because roughly 96% of New Hampshire businesses are small businesses. Small businesses tend to have low cash reserves. A JP Morgan Chase study of nearly 600,000 small businesses in 2015 found that the median small business holds less than one month’s worth of cash reserves. A quarter hold less than two week’s worth. If small businesses remain closed by state order much longer, many won’t survive. 

Again, that’s not just a financial story. It’s a human one. Businesses provide the goods and services people need, and the revenue businesses generate pays the rent, the mortgage, the grocery bills, the gas bills, etc., for all of their employees. 

Free economic exchange is not a luxury to be disregarded in times of crisis. It is how Americans feed, clothe, and shelter themselves. It is how most of us define who we are. It is how people generate the business profits that fund scientific research and the tax payments that fund government services. It is, by itself, essential for the creation and maintenance of any prosperous and healthy society.  

Getting people back to work, then, ought to be an urgent priority for state and local policymakers. 

The government has a vital role to play in minimizing the possibility that a deadly new disease will overwhelm our health care system. But achieving that goal can and should be done in a way that produces the smallest possible negative impact on the economy. Here we suggest five ways to achieve both of those important goals. 

To reopen the economy with minimal risk to the health care system, government policy should follow five guidelines:

  1. Exercise the minimum intervention necessary
  2. Focus on safe practices, not categories of businesses
  3. Enable innovation and adaptation
  4. Reduce costs and burdens on employers & business owners
  5. Prioritize information and flexibility over control

Read the full report here: JBC Reopen Report

Addressing the first meeting of the Governor’s Economic Re-Opening Task Force, Gov. Chris Sununu said the state likely faced a gradual reopening over many months, not a quick lifting of restrictions within a few weeks. 

The task force’s job, then, is to craft a strategy that would “allow us to continually manage through the process as opposed to closing everything down and rewriting the playbook” if Covid-19 infections surge again in the fall or winter, the governor said.

Throughout the meeting, members discussed how to include all of New Hampshire’s industries. Two members stressed the importance of the arts to New Hampshire’s economy. The pressure on members to get certain industries listed as “essential” was obvious. 

Since the governor’s March 17 order that divided state businesses into “essential” and “non-essential” categories, people in industries categorized as “non-essential” have pressed hard to have their businesses recategorized. And who can blame them? For many, a forced closure for even a few more weeks, not to mention 18 months, is an economic death sentence.

It’s become clear that the “essential” vs. “non-essential” framework is deeply flawed. Adopted by governors nationwide, it’s a better fit for wartime production circa the 1940s. The effort to suppress the spread of the coronavirus does not fit that model very well.

The government isn’t forcibly converting the private sector to war-time production for the obvious reason that surviving a global pandemic does’t require quite the same sort of government direction and mobilization that defeating an enemy nation does. 

The task is not to turn our economy over to government control. It is to slow the spread of a virus. To do that, it isn’t necessary for the state to dictate which industries get to stay open. It’s necessary for people to behave in ways that minimize the spread of a virus. 

Anyone who’s shopped in the last month can see the problems with the current model. Grocers, classified as “essential,” sometimes implement responsible protocols and sometimes don’t. Grocery clerks are a top infected group, showing that safety practices are not always followed as rigorously as they might be. 

Artists and many small retailers, on the other hand, are forced to keep their doors closed even if they can responsibly clean their facilities and implement effective safety protocols.

A safe practices model that emphasizes behavior rather than industrial classifications is a better fit. 

Our counterparts at the Beacon Center of Tennessee have recommended that “any businesses that can maintain public health and safety guidelines should be allowed to open.”

That’s a much better framework to guide the reopening process. And it’s based on existing regulatory practices. 

Restaurants and hospitals, for example, have to meet lengthy checklists of health and safety standards. They are inspected, and if they meet the standards, they continue to operate. 

Rather than having the governor dictate which industries can and can’t open, a safe practices model would encourage and reward responsible behavior, including the widespread adoption of rigorous safety protocols throughout the economy.

Setting safety standards for businesses to meet could open much more of the economy while creating powerful incentives for the more widespread adoption of safe practices.

In the month before Gov. Chris Sununu ordered New Hampshire restaurant dining rooms closed, employment at New Hampshire full-service restaurants dropped by more than 8 percent (2,000 people), state figures show. In the month since the governor’s March 16 order, restaurant business has plummeted. State employment data are not yet available for those weeks, but industry insiders expect them to show catastrophic losses. 

Some New Hampshire restaurants already have gone out of business. Restaurant owners interviewed by the Josiah Bartlett Center in the last two weeks say things are bad and getting worse. If restaurants cannot reopen for in-person service in May, several said, the state can expect to see a wave of small-business closures.

A National Restaurant Association survey of restaurant owners nationwide found that 11 percent said they expected to close permanently within the next 30 days. Another 3 percent of those surveyed reported that they already had gone out of business. 

Restaurant revenue nationally is down by 50 percent for the year, according to data compiled by small-business software firm Wombly. That figure includes restaurants that specialize in take-out service, so the decline for dine-in restaurants would be even worse.

Full-service restaurants typically have low profit margins and high monthly expenses, including rent, insurance, taxes, and debt service on equipment. Reduced to take-out service only, many won’t survive if they can’t close the gap between their expenses and revenues. 

Anticipating that dining rooms are likely to remain closed beyond May 4, the Josiah Bartlett Center for Public Policy has drafted a list of policy recommendations to help full-service restaurants narrow their losses, and possibly return to profitability, so they can survive until the economy reopens. 

It’s important to understand that while on-premises service is halted by order of the state, other state laws and regulations prohibit restaurants from pursuing some potentially lucrative alternative sources of revenue. By temporarily relaxing some of these restrictions, the governor might be able to save numerous restaurants from closure, return some employees to work and reduce the burden on state services.

The policy changes listed below would help restaurants either bring in additional revenue or push back some expenses until later in the year, when dining rooms are expected to reopen.   

  1. Allow restaurants to sell beer in growlers. State law does not allow restaurants and bars to sell draft beer in growlers (large bottles, typically 64 ounces, with screw-on caps). With dining rooms closed, restaurants are sitting on thousands of dollars worth of draft beer inventory that they are prohibited by law from selling. The state lets restaurants sell draft beer for consumption on-site only. Keg beer has a short shelf life, so without an order allowing it to be sold for off-site consumption, some restaurants will be forced to pour out inventory worth tens of thousands of dollars. This waste is entirely unnecessary. An emergency order could allow restaurants to sell draft beer in their own growlers or to fill customers’ growlers after washing them in commercial washing machines. The order could require growlers to be transported out of reach of a vehicle’s driver.    
  2. Allow restaurants to sell mixed drinks in closed containers. The state objection to the curbside sale of mixed drinks is that drivers could open and consume the drinks while in the vehicle. But state law already allows patrons to transport open wine bottles from restaurants, provided the bottle is stored in a car’s trunk or out of the driver’s reach. Allowing restaurants to sell mixed drinks in closed, sealed containers, with the same distance-from-driver requirement that applies to opened wine bottles, could offer a significant sales boost for some restaurants without endangering public safety. 
  3. Allow restaurants to sell bottled liquor and wine. The Liquor Commission has let restaurants to return unopened liquor and wine, but only for store credit. That doesn’t help restaurants that need cash. State law allows restaurants to sell only opened liquor and wine, on premises. Temporarily allowing restaurants to sell unopened liquor and wine for take out would allow them to increase cash flow while reducing inventory. Though they wouldn’t be able to compete on price with state liquor stores, they could do a decent business from patrons who don’t want to drive all the way to a liquor outlet or who just want to support local restaurants. 
  4. Allow outdoor, in-person dining, subject to social distancing and other health protocols. Grocery aisles remain clogged with customers, many not wearing masks or following recommended social distancing procedures. Meanwhile, restaurant decks and patios where better health protocols can be enforced go unused. The state could let restaurants reopen outdoor dining areas subject to additional regulations, such as requiring restaurants to space tables at least six feet apart, disinfect tables and seats after each use, have staff wear masks, use disposable menus, and limit the size of parties and the number of customers allowed on site. Some restaurant owners suggested that they could make things work temporarily if the state cut their authorized seating capacity in half and banned large gatherings in lobbies.  
  5. Let restaurants defer rooms and meals tax payments. If restaurants could postpone their rooms and meals tax payments for 90 days, they could save some cash to help get through the emergency shutdown. Payments would still be made, but after business has picked up and more cash is coming in. 
  6. Municipalities can also help by letting restaurants defer property tax payments. 
  7. Give restaurants the same liquor and wine discount that grocers get. State law (RSA 178:28) grants grocers a 20% discount on the wholesale price of liquor and wine purchased from state liquor warehouses, but restaurants a discount of only 10%. Granting restaurants the same discount that grocers get will shave some of their costs when dining rooms reopen.

Restaurants operate on famously thin margins. Many will not survive a prolonged shutdown if the state continues to enforce regulations that prevent them from adapting to the forced closure of their dining rooms. Our recommended changes offer responsible adjustments that could keep many small businesses alive without creating additional risks to public health. 

A downloadable version of this brief is available here: Bartlett Brief — Restaurant Help During Shutdown 

By Andrew Cline

Ken Spilman usually spends early April preparing B’s Tacos for the season. This week, the food truck he’s owned for seven years sits idle as he waits out the coronavirus. 

“We’re hunkered down and we’re not going to get out there until the curve starts to go down,” he said.

He’s already lost lucrative event contracts, he told the Josiah Bartlett Center.

“The cancellations are right across the board. We’ve lost a significant amount. I have contracts that have now been either canceled completely or rescheduled. Two weddings that were planned, early summer weddings, and they’ve decided to wait a year.”

In the rapid economic contraction following massive business closures last month, local regulations prevent Spilman and other food truck owners from improvising new ways to find clients. 

“I can think of neighborhoods in Londonderry and Derry that if I announced I’m going to be at this location on Wednesday night for an hour, I’d do very well. It’d be a huge opportunity for us food trucks to go into certain neighborhoods. It’d be more local. I could serve my local community instead of going down to Massachusetts.”

But food trucks generally are not allowed in residential zones. 

“Licenses or site vending permits shall not be granted for vending within any residential district,” states Londonderry’s vendor ordinance. 

“You’d be surprised how many people have reached out to me and said, ‘why can’t you come to our neighborhood like an ice cream truck,’” Spilman said. “With social media today, you really could come to a neighborhood.”

Location restrictions keep food trucks out of large portions of commercial and industrial zones, too. Portsmouth restricts food trucks to private property and a public parking space downtown. Seven sidewalk spaces are reserved for food carts. The city bans food trucks from doing business on city streets, with the exception of exactly one downtown parking space this year. (The ordinance allows for three.) The parking space is auctioned to the highest bidder annually. By ordinance, the starting bid is $5,000. 

State law requires food vendors to get a state license ($50), which allows them to operate everywhere in the state. They remain subject to local regulations. Fifteen New Hampshire municipalities regulate where, when and how food trucks can do business. Food truck operators say the local regulations are highly restrictive and the fees expensive. 

This month, with Granite Staters ordered to stay home and non-essential businesses closed, ordinances prohibit food trucks from going where their customers are — homes, public parks and hospitals — and force them into deserted downtowns and big-box-store parking lots.

“They could be operating more freely,” Aaron Krycki, environmental health supervisor for the City of Manchester, said. 

“Rules aren’t designed to tell you what you can do,” Krycki said. “They’re designed to tell you what you can’t do.”

But for food trucks, local regulations are so broad that they often amount to a short list of places vendors may operate.

Manchester reserves Stanton Plaza on Elm Street, in front of the DoubleTree hotel, for food truck vendors. It lets truck owners bid on spaces at eight city parks. Vendors must get written permission to use any other public property — and most private property as well. 

The city’s regulations require vendors to obtain “written permission of the abutting landowner and/or tenant” to do business on private property, even their own.

In Manchester and many other municipalities, it is illegal to sell food from an on-street parking space even if your truck is fully licensed, inspected, fits in the space, and the meter is paid. 

Cities typically prohibit food trucks from doing business on public streets even if not obstructing traffic. Some, like Manchester and Keene, make exceptions for “frozen confections” vendors (ice cream trucks). 

There is not a single licensed mobile ice cream truck in Manchester, and there hasn’t been one in years, according to the city clerk’s office. So Manchester residents stuck at home during the state of emergency can’t even be cheered up by a visit from the ice cream man. 

Keene generally prohibits mobile food vendors from doing business on public property, including roads and parking spaces, with a few center city exceptions. 

“We do have some locations downtown on the sidewalk where we allow food carts to be. Five right now,” Assistant City Clerk Terri Hood said. “They go through clerk’s office to get permission to use the space. In addition to normal license, they have to have additional license agreement and small rental fee.” 

The fee is $250 for a one-year permit, she said. 

Ice cream trucks can roam most Keene neighborhoods (there’s a list of narrow streets they are not authorized to use). But food trucks cannot sell in any residential area unless invited to cater an event on private property.

Keene recently revised its parking ordinances so city officials could allow vending from parking spaces at their discretion. Vending is allowed in “parking spaces or parking lots as may be designated from time to time by the city….”

Among food vendors, Concord and Portsmouth have reputations for being prohibitively strict and expensive. 

“I won’t go to Concord because of how expensive it is,” Spilman, owner of B’s Tacos, said. 

Concord’s license costs $212. (Nashua charges $10 for a day, $25 for a week, or $100 for a year.) 

Concord prohibits food vendors everywhere except in the central business district “at locations approved by the Licensing Officer.” By ordinance, “approved locations are limited to Eagle Square and to four (4) within the public way.”

That’s it for the city. Even for authorized spaces, vendors must get “the written approval of the landowner and tenant in front of whose property and business the applicant intends to operate and the written permission of the majority of the two (2) adjacent businesses located on both sides of the proposed location.”

With so many restaurants downtown, that likely means getting the permission of a restaurant owner, which is highly unlikely. 

“In Concord, if you could set up in front of the State House, that would be great, but they’d never let you do that,” said Chris Kozlowski, the award-winning owner of Crescent City Kitchen, a mobile food trailer. 

Some cities make the restaurant protectionism even more explicit. Manchester bans food trucks from doing business within 50 feet of a restaurant that sells a similar product. A truck that sells hot dogs, for example, can’t operate on the street near a restaurant that also sells hot dogs.   

That provision is probably unconstitutional. In 1979, the Los Angeles Superior Court in People v. Ala Carte Catering Co. struck down just such a regulation as unconstitutional, calling it a “rather naked restraint of trade.”

In 2011, the Institute for Justice, a public-interest law firm, sued El Paso, Texas, over its ordinance prohibiting food trucks from operating within 1,000 feet of any restaurant, grocer or convenience store. Rather than face a trial, the city repealed the rule, acknowledging that it served no public health purpose. 

The Los Angeles case helped food trucks to flourish there. The city is considered by many foodies to be the birthplace of gourmet food trucks. Its regulations are cited as a model for other municipalities because they are focused on health and safety and largely avoid anti-competitive restrictions.  

Remarkably, New Hampshire municipalities have food truck regulations that can be more burdensome than those in New York City or L.A. Even when one city’s regulations are relatively easy to meet, the costs of complying with different rules in multiple places adds up.

“The hardest thing about New Hampshire is that it’s not state-based, it’s not county-based, it’s local rule,” Krycki, Manchester’s environmental health supervisor, said. “Every individual town can create a list of ordinances that can differ from one location to another.” 

Kozlowski, who operates in New Hampshire, Maine and Massachusetts, estimated that he spent roughly $1,500 on government fees in New Hampshire alone last year. 

“I have a wall full of licenses inside my trailer,” he said.

The paperwork can be duplicative too. 

“The thing with the hawkers and peddlers that blows my mind is that you have to get a background check with the state, and then they want another for the permit, so it’s just a tax grab,” Kozlowski said. 

Some municipal officials understand how burdensome the rules can be. 

“I think the biggest issue that these food trucks face, and a lot of the complaints I get, is finding an area. That’s tough,” said Stacy Disabato with the Manchester City Clerk’s office. 

Having fielded lots of queries about the lack of food trucks over the years, there is interest at City Hall in becoming more accommodating, she said. 

“Anything we can do to bring business here, we’re really interested in learning.”

In Rochester last month, city officials invited four local food truck operators to set up in normally prohibited public spaces so they could keep their businesses alive.

“With the Covid-19 situation, their events and catering gigs had all dried up,” Rochester City Manager Blaine Cox said. “Two of our food trucks had semi-permanent locations. One was at the Home Depot and another was at the Harley Davidson dealership, and they were closed.

“They were basically shut out. And at the same time, with the governor’s order, we had quite a number of fixed-base restaurants that shut down. They didn’t bother to go to takeout, they just shut down.

“We reached out to our food truck operators and said, we know your business is drying up. If you’d like to come downtown, we have space for you.”

The idea was to keep the city’s four registered food trucks in business. With one of the newer operators, it worked, Cox said.

“One of our food truck operators said, If you guys haven’t done this for us, we wouldn’t survive.”

Food truck operators say the burden of so many costly and varied local regulations makes it hard to work in New Hampshire. 

“It seems to me that other states have their ducks in a row,” Spilman said.

If municipalities do not begin lifting onerous restrictions, state legislation is possible. 

Earlier this year, Kozlowski and other food truck operators went to Concord to petition legislators to adopt uniform, statewide regulations. They say they would rather have one set of state rules and a single fee than 15 different local ordinances and thousands of dollars in fees. 

Other states have already acted. 

After fielding similar complaints for years, Arizona legislators in 2018 passed a statewide food truck licensing bill that limited local regulatory authority. That same year, Rhode Island adopted a similar law that exempts food trucks from local hawkers and peddlers licensing. 

If municipalities want to avoid a statewide law that overrides their own ordinances, Los Angeles and some other California cities offer useful models. Food trucks flourished in L.A. after the city repealed regulations that restrained trade. Cities such as Fresno wrote regulations that achieved public safety goals without being overly restrictive. 

A 2012 Institute for Justice report, Food Truck Freedom, offers a list of suggested policies that would remove needless barriers while maintaining health and safety standards. The following suggestions are put together from recommendations made by food truck operators and the IJ report. 

To make immediate changes, leaders in municipalities that have declared a state of emergency might be able to relax rules temporarily during the state of emergency. This short-term measure could let food truck owners serve immediate local needs and relieve them from the burden of complying with regulations that sequester them to now-vacant downtowns.

  1. Lower hawker and peddler fees. These fees should exist only to cover nominal paperwork costs, not to raise revenue or discourage applications. Fees that range into the hundreds of dollars are clearly unreasonable burdens that have no relation to actual application costs. 
  1. Remove “abutter approval” language that gives neighbors a veto over a food truck’s location. These rules have no relationship to public health or safety and are merely a restraint on doing business. 
  1. Remove any language that restricts food truck operation within a certain distance of a restaurant. These restrictions are likely unconstitutional and should be removed immediately. In any case, they harm consumers by giving established businesses a veto over potential competitors. They also hurt other local businesses by keeping popular food trucks, and the customers who seek them out, away.
  1. Allow food vendors to operate on public streets and sidewalks as long as they do not obstruct traffic. Instead of creating specific set-back distances, Fresno, Calif., simply requires that vendors not “obstruct the free movement of pedestrians or vehicles on any sidewalk.”
  1. Allow food trucks to do business in any metered parking space for the duration of the meter. This will free vendors to find the spots most convenient for customers while preventing them from taking a space all day. 
  1. Allow food trucks to operate on residential streets. These prohibitions sometimes are handled by zoning departments, which treat food trucks as if they are opening a permanent store in a neighborhood. They are not. Food trucks can take orders by apps or online, just as take-out restaurants do, and deliver directly to customers’ homes. They also can use apps and social media to respond to customers’ location requests. Instead of cruising streets like an ice cream truck, some food trucks can stop and vend for a few minutes or a few hours in neighborhoods at the request of residents.This would be an especially valuable service during a stay-home order. 
  1. Allow food trucks to operate on more public property, particularly in parks and parking lots. Though many municipal ordinances limit food trucks to a few public locations, city officials often retain the authority to open other spaces at their discretion. The result is a random, unpredictable, and changing list of extremely limited available spaces. Food truck vendor locations should not be subject to the whims of municipal employees. A better policy would be to open parks and off-hours parking lots as a rule. Scarce space, such as near public swimming pools in the summer, can be put out to bid. Manchester auctions food truck spaces at eight city parks. 
  1. Let vendors compete. Manchester prohibits two trucks of the same type from being at the same park. Because there are so few vendors (only eight food trucks bid for eight park spaces in 2019), it hasn’t been an issue recently. But in more popular parks it could hurt consumers once food truck business expands. Vendors often respond to trends (cupcakes, for example). A city might have multiple grilled cheese trucks but no burger truck one year, then four hot dog trucks the next year. There’s no public harm in having two taco trucks at the same park. Limiting options, though, could keep prices higher and reduce consumer choices. 

Andrew Cline is president of the Josiah Bartlett Center for Public Policy.

Download a pdf copy of this report here: JBC Food Truck Regulations.

 

WMUR’s Hometown Hero this week is Alexa Cannon, a Founder’s Academy senior who started delivering groceries to people after she lost her job. She’s one of many, from business owners to individuals, who have begun offering urgently needed services outside of traditional regulatory controls.

In normal times, government prevents a lot of this innovation and cooperation by requiring permission before people can enter the market with a good or service. (Think of the police shutting down children’s lemonade stands.) 

Why weren’t people making face masks for doctors, nurses, and patients before? Because they aren’t allowed to. 

The Food and Drug Administration, which regulates face masks and respirators, suspended its normal, shortage-creating regulations only on March 25.

Why weren’t private labs making Covid-19 tests in February, when the coronavirus was quickly spreading across the United States?

Because the CDC shared testing instructions on Jan. 28 but did not allow private testing until Feb. 29, costing the U.S. an entire month of widespread testing.

In New Hampshire, the governor had to issue emergency orders just to make sure doctors could provide health care services over the Internet, out-of-state doctors could practice in New Hampshire, pharmacists could make and sell their own hand sanitizer, and notary publics could offer services remotely. 

The state even prevents itself from innovating. To allow the transition to remote learning, the state Board of Education had to pass an emergency rule suspending the rule limiting remote learning to five days.

All of this comes from a presumption among lawmakers and regulators that the government always makes people safer by requiring approval before providers can enter the marketplace. 

That’s the impulse behind laws that make it a criminal offense to give haircuts without a license or build a treehouse without a permit. 

A distiller in Vermont got to the heart of the issue when he told the Valley News after transitioning to hand sanitizer production, “Legally, we kind of weren’t supposed to be doing this, but no one cares right now.”

The opposite presumption has come to be called “permissionless innovation.” Duke University economist Michael Munger defines it as “a strong presumption in favor of allowing experimentation with new technologies and with new business platforms that use those technologies.”

It is, Munger says, the most important concept in political economy. 

As he explains, “delays in processing ‘applications’ for permission to experiment sharply curtail the types and frequency of experiments that are possible.”

That’s exactly what we saw with the U.S. response to the spread of the coronavirus. Critical weeks were lost before the government figured out that we didn’t have time to wait for the normal regulatory process to play out. 

That normal process is not just a problem during emergencies. As Munger points out, it curtails experimentation and innovation all the time, making us less well off. 

The coronavirus pandemic is helping to expose many flaws built into our existing regulatory regime. A lot of regulations that prevent innovation and market cooperation are simply unnecessary. 

If the emergency is exposing needless state regulations in health care, imagine how many there are in all the other fields the state regulates. 

“The extraordinary government clampdown on economic life that we are enduring — in order to preserve hospital beds and the capacity of doctors and nurses — is the result, not just of the coronavirus, but of the severe restrictions on economic activity that have made our economy brittle and poorly-suited to adapt and respond to this natural emergency.”

That’s the important point economics professor Raymond Niles makes in a brief essay for the American Institute of Economic Research.

Governments are ordering business closures and social distancing to ration hospital beds and other health care resources for which previous government regulations had created supply shortages.

Niles cites state Certificate of Need laws, which ration health care resources by requiring state approval before providers can offer new services or buy new equipment, CDC and FDA regulations that have limited the supply of personal protection equipment (PPE), and licensing laws that prohibit doctors and nurses from working in other states.

“This is the context in which we face the coronavirus and it sets the stage for the subsequent choices we must make. Our government is not making the right choice of repealing these death-causing restrictions. It is only doing it in small, halting ad hoc steps and on a completely inadequate basis. The only proper choice for the government is to repeal all of these controls, or as many of them as possible, as quickly as possible.

“If the government did that, the explosion in entrepreneurial activity — in production of tests, vaccines, cures, hospital beds, innovative new treatments, and an abundance of PPE and other life-saving equipment — would be monumental and it would save thousands of lives.

“We are getting some of it, as doctors, entrepreneurs, manufacturers, and everyday people, with shackles on and maybe in some cases partially removed by government, struggle and produce. But we could be doing so much more.”

The shortage of PPE, ventilators, hospital beds and medical professionals has shown the need to reexamine reams of laws and regulations that have caused delays in responding to the coronavirus. New Hampshire legislators and regulatory boards ought to be making lists of such laws and rules to address as soon as possible.

 

 

On April 1, rents were due for the first time since Gov. Chris Sununu declared a state emergency on March 13. News organizations reported on Granite Staters struggling to pay rent after suffering significant income loss in March.

As communities come together to help each other through these difficult situations, it’s important to understand that renters in New Hampshire have been squeezed for decades by a problem identified years ago and never fixed: government-inflated rental rates.

Emergency aid and help from caring communities can provide short-term relief during the next few months. But long-term rent relief can come only by addressing the apartment shortage created by local government regulations. 

In 2002, a legislative commission created to study workforce housing concluded that local government regulations were making rents unaffordable for many families. (The commission’s report was titled “Reducing Regulatory Barriers to Workforce Housing in New Hampshire.”)

“Individual communities, each acting in its own economic self-interest, have disconnected the State’s local housing markets from the rest of our economy and created an artificial scarcity that has driven prices beyond the reach of a large and increasing number of working families,” the commission found.

In 2008, the Legislature tried to provide relief by passing a workforce housing law that required municipalities to create “reasonable and realistic” opportunities for workforce housing. 

Twelve years later, rents are still rising as municipal housing restrictions have continued to strangle the supply of rental units.  

Data collected by the New Hampshire Housing Finance Authority illustrate the problem. 

The average rent for a one-bedroom apartment in New Hampshire rose from $587 in 2000 to $1,055 in 2019. Had rents risen at just the rate of inflation, the price would be $871, or $184 less than the 2019 rate. 

The average rent for a two-bedroom apartment rose from $774 in 2000 to $1,347 in 2019. Had rents risen at just the rate of inflation, the price would be $1,149, or $198 less. 

Saving $198 a month on rent would come to $2,376 a year. Some people who can’t pay rent this month because their hours were cut or their employer closed might have been able to cover a payment that was $184 or $198 cheaper.

As the 2002 legislative report noted, rents are being pushed up by local government regulations that have created an artificial scarcity in the rental housing market. For decades, demand for apartments and multi-family homes has far outstripped supply. Not enough rental units are being built because local governments have made it extremely difficult to build them. 

That inescapable fact is reflected in the state’s shockingly low rental vacancy rate. A healthy apartment vacancy rate is around 5 percent. New Hampshire’s rental unit vacancy rate in 2019 was 0.6 percent. The rental vacancy rate for the United States at the end of 2019 was 6.4 percent, according to the Federal Reserve Bank of St. Louis. 

New Hampshire renters have been burdened for decades by regulations that have prevented the supply of rental housing from matching demand. In boom times, restrictions on the construction of rental housing give the appearance that growth is being limited at no cost. But the cost is always there, and it hurts the most during times like this when thousands of people are losing their jobs or having their pay reduced.

If New Hampshire communities want to be places where everyone can find a home, the supply shortage will have to be addressed.