Amid a COVID-19 outbreak fueled by the Delta variant, the Nantucket Board of Health voted unanimously Thursday afternoon to reinstate a mandatory indoor mask order for the island, effective immediately. The new mask order applies to all indoor areas on Nantucket that are open to the public, including retail businesses, restaurants, bars, performance venues, event spaces, churches and municipal buildings. The order does not apply to gatherings at private residences.
The emergency mask order comes as Nantucket health officials have reported 179 new cases of COVID-19 on the island since July 15, including several that were confirmed as involving the Delta variant. At least four of those patients needed to be transferred off-island by Medflight helicopter, including one who was fully vaccinated, due to COVID-19 symptoms severe enough to require a higher level of care. Meanwhile, multiple island businesses have closed over the past week after their employees tested positive for the virus.
As recently as Tuesday, Nantucket Health Department Director Roberto Santamaria said he did not intend to push for an indoor mask mandate, and advocated for vaccinations and personal responsibility. But on Wednesday the latest Nantucket wastewater sampling report, which monitors island sewage for the presence of the virus, showed a dramatic spike in its concentration. The levels would indicate the island having upwards of 40 new cases per day, and prompted yesterday’s emergency meeting.
To start his presentation to the appointed Board of Health yesterday, Santamaria first shared a quote from boxer Mike Tyson to help explain the island’s current situation: “Everybody has a plan until they get punched in the mouth.”
“I wanted to share this quote because it’s exactly what’s happening here,” Santamaria said. “It jumped from 10 (cases) a day last week, to 40 per day yesterday. So we felt that it was really important to move forward with a mask order at the minimum, and that we discuss the possibility of also a occupancy restriction.”
New occupancy restrictions that would have limited businesses to 75 percent capacity were considered by the board on Thursday, but it ultimately decided to postpone any vote on such limits. Board members requested that Health Department staff draft a recommendation that will be considered at a future meeting planned for the coming week.
Coming at the height of the summer season, the new mask order sent many island businesses into a full scramble to reimplement practices they had discarded in the spring when the state and town lifted all COVID-19 restrictions.
With regard to indoor restaurant, bar and dance venues, the Board of Health has ordered that customers “may only remove face coverings when seated at tables or at the bar. Patrons standing or ordering at the bar must be masked. Guests must be masked on indoor dance floors.”
Enforcement of the new order will be the responsibility of the Nantucket Health Department staff members, who have been authorized to issue penalties starting with a written warning for a first violation, as well as fines starting at $100 for a second offense, rising up to $300 for a fourth or subsequent offense. While police officers and firefighters are also able to enforce the mask order as agents for the Board of Health, it was not immediately clear whether they would be doing so. Exemptions to the new mask order, based on CDC guidance, include children under the age of 2, along with anyone with a disability or has trouble breathing, as well as performers provided they are physically distanced.
While many island businesses and organizations were still digesting the news last night and declined to share their reaction – including the Chamber of Commerce – at least one downtown restaurant and bar manager shared her concerns regarding enforcement.
“I’m not quite sure how they expect us to police this?” asked Rose & Crown general manager and partner Debba Pitcock. “Most people don’t even have masks now. And now we are going to be held accountable for people who don’t adhere to the new mandate. I policed this for a year and there was no help from the town to enforce it. Now I’m expected to enforce a rule immediately, with no time to re-educate customers and be possibly fined for noncompliance of patrons?
It’s going to be a shit show and I will guarantee we get zero help enforcing from the powers that be,” Pitcock added. “I spent 2020 being yelled at, coughed on and called every derogatory comment in the book enforcing the mask policy for the town with no help from them.”
Already there are calls for legal challenges to the town’s new mask order. Island resident Nickole Tara spoke at yesterday’s meeting, urging them to proceed with caution and stating that they were on shaky legal ground in even holding the meeting itself. Yesterday afternoon Tara said she would be mounting a legal challenge against the Board of Health decision.
“Without a state or federal emergency order/mandate in place, the town does not have the legal authority to make these types of pronouncements without giving the town notice of a meeting (3 weeks) and hearing public comment then contemplating a vote,” Tara told the Current. “The Health Department has cited an obscure town bylaw that is meant for use in situations of contamination (restaurant kitchens infecting patrons with food poisoning, etc). They are circumnavigating proper government process and acting as an appointed dictatorship.
“Let’s also remember, the health board is appointed, not elected,” she added. “And the restaurants who might want to speak out against this policy are muted because in large part they are at the mercy of their food/liquor licenses.”
In recent weeks as new COVID-19 cases began to climb, Santamaria and others in the town had resisted the idea of a new mask order, in part because they said it would require at least three weeks of public notice and hearings. Without Gov. Charlie Baker’s formal state of emergency, which expired in June, they believed a new mask order could not be implemented on an emergency basis. But on Wednesday, Nantucket’s town counsel KP Law, advised that Board of Health could in fact use a Massachusetts general law (Chapter 111, Section 122) to enact a mask order. KP Law attorney Gregg Corbo explained the rationale further during Thursday’s meeting.
“The standard is one of reasonableness, and as long as it (the order) is reasonably related to the protection of public health and the causes of sickness, it’s within the authority of the board to enact,” Corbo said.
Section 122 specifically states: “The board of health shall examine into all nuisances, sources of filth and causes of sickness within its town, or on board of vessels within the harbor of such town, which may, in its opinion, be injurious to the public health, shall destroy, remove or prevent the same as the case may require, and shall make regulations for the public health and safety relative thereto and to articles capable of containing or conveying infection or contagion or of creating sickness brought into or conveyed from the town or into or from any vessel.”
While the question of occupancy restrictions was punted to the Board of Health’s next meeting, two members – Malcolm MacNab and Meri Lepore – expressed support for limiting capacity at licensed island establishments.
“An occupancy cap is sending the right message that will remind people not to have big crowds inside,” MacNab said, citing the estimates of an island . “It’s the right thing to do at this particular time given the craziness of this island at this time.”
“We know that it does work,” Lepore said of occupancy limits. “It’s not shutting everything down, which I don’t think we should do. But we know there have been a number of restaurants and other places where people congregate that have been shut down because of exposures.”