Updated 4:47 pm April 16, 2020
The Town of Oak Bluffs has ordered a local mosquito, tick, and deer deterrent company to cease its spraying until the moratorium on construction and landscaping is lifted.
Oak Bluffs, via its health agent and town counsel, has argued that Oh Deer provides landscaping services, as opposed to pest control services, and therefore isn’t exempt from the local moratorium.
Mario Spindola, who owns the franchise, disagrees with the town and has hired an attorney. In emails to town officials and The Times, many of Spindola’s clients expressed dismay their yards wouldn’t be treated for ticks — concerned about the prevalence of Lyme disease and other tick-borne illnesses on the Island. What appears to be up for interpretation, is what constitutes an essential service — specifically, what constitutes pest control versus landscaping under the local moratorium.
In an April 10 email, Oak Bluffs health agent Meegan Lancaster sent a warning to Spindola.
“It has come to my attention that your business, Oh Deer, continues to operate despite the local moratorium on construction that runs to April 21st,” she wrote. “. . . Spraying for ticks would not be permitted due to the orders imposing a local construction moratorium.”
On the morning of April 14, Lancaster emailed Spindola again.
“I have confirmed with town counsel that your spraying activities are subject to the extended and supplemental local orders which were enacted on April 1, 2020. The orders read, ‘The construction activity order applies to all construction activity, work, and maintenance, whether interior or exterior, of any kind, all landscape activity, work, and maintenance of any kind, and all work involving workers in all trades and fields who enter buildings and residences to perform their functions (including, without limitation, house cleaners), which are banned until further order, with the exception of emergencies.’ (Emphasis added.) The town orders are available on the town’s website. The plain meaning of the emphasized text is clear: any landscaping type of service involving work on the grounds of residences and businesses, unless in response to an emergency, is prohibited under the town’s construction activity order, as supplemented. Work involving the application or spraying of yards and grounds, including repellants, falls within the broad phrase ‘maintenance of any kind.’ Routine prophylactic treatment to repel deer and ticks does not constitute an emergency. In our judgment, your work is excluded by the existing orders until April 21, 2020. Please cease all spraying activity immediately. Failure to do so may result in further action by the board of health including the imposition of fines.”
Later that day, the issue spilled into the Oak Bluffs selectmen’s meeting.
Spinola asked for an explanation as to why pest control companies and exterminators are allowed to work but his company is not. Lancaster did not offer up such an explanation. Instead, she simply said, “I referred it to town counsel and he agrees with me.”
Selectmen chairman Brian Packish asked Lancaster if proposed easements to the moratorium projected to take place after April 21 would allow Spindola’s company to be able to work. She said yes.
Packish suggested everyone wait and see. “We understand the health crisis,” he said. “We also understand the economic crisis and we appreciate your patience working with us.”
Many of Spindola’s clients remain mystified. “How is spraying for ants and termites and mice different from spraying for ticks, mosquitoes, and deer?” Edgartown homeowner Gail Croteau asked in an email to The Times.
In an email to the Oak Bluffs board of health and Oak Bluffs town counsel Ron Rappaport, Pam Scott and her husband, Martha’s Vineyard Hospital trustee Chris Scott, wrote that Oh Deer treatments are a hedge against Lyme disease. “We respectfully ask that you reconsider your interpretation of the emergency order of April 1 as it applies to this company,” they wrote. “There is an individual in our household with a compromised immune system and this applies to several of our neighbors as well. The organic treatments used by Oh Deer to control ticks and mosquitos are very important to our safety; contracting Lyme or other tick-borne diseases would be potentially extremely harmful and would certainly constitute an emergency. This company is not engaged [in] landscaping or maintenance; they are providing an insect control service similar to exterminators, who are exempt from the stop-work order. Town officials acknowledge that Oh Deer provides ‘prophylactic treatment to repel deer and ticks,’ not a beautification service. Please understand that these prophylactic treatments are akin to a vaccine, observing social distancing or wearing personal protective equipment, the aim of all of which are to prevent contracting a disease.”
Oh Deer seems to be subject to uneven enforcement. In Edgartown, there seems to be no issue with Oh Deer. “Edgartown board of health has had no interaction with Oh Deer in 2020,” Edgartown Health Agent Matt Poole emailed.
Whereas in Chilmark, where Poole serves on the board of health, issues have been raised.
On March 25, Spindola emailed Chilmark Police Chief Jonathan Klaren about tick spraying and expressed his belief it was an essential service. He provided Klaren a copy of his Massachusetts Department of Agricultural Resources pesticide license number (AL-0048661). In a letter from the commonwealth reviewed by The Times, the license is said to be valid through Dec. 31.
Spindola wrote it was a “critical time of the year” to spray for ticks and that his staff took precautions against the spread of the novel coronavirus “We are going to limit our hours, give a list of houses we will visit that day so you know what we’re doing if needed,” he wrote. “We as a business are taking all the necessary precautions for our employees and clients. We have staggered our arrival times for our employees so they are not overlapping at departure time in the morning. Trucks are being sanitized daily, etc. We are one employee to a truck and that same employee always drives the same truck. Additionally, we do not generally have contact with our clients. We do not go inside the house, outside only.”
That same day Chief Klaren responded, “I agree your business appears exempt under essential services,” he wrote. “As you know the town allows these essential services as long as recommended COVID-19 precaution protocols are taken,” Klaren wrote. “No need to send me a job list, I’ll share your email with my staff as well as the other Island police chiefs.”
On March 31 Chief Klaren wrote another email that back peddled in light of a position taken by the town’s board of health. Klaren stated it was “brought to my attention that the work you are conducting is not permitted by the Chilmark Board of Health under the emergency order.”
Klaren went on to write, “I would ask that you clarify your ‘essential service’ with the Chilmark Board of Health and receive their approval before conducting any further business in Chilmark. As you know this global pandemic is a serious health crisis and the Chilmark Police Department not only will follow the guidance of our local board of health we are glad to assist them with orders that they and the selectmen deem necessary.”
Spindola responded the same day, arguing that “Mass Agriculture and Pesticide Licensed Pest Control / Exterminators are [an] essential service and they are still currently working on the Island.” Spindola went on to suggest the board of health chair might be acting out of spite. “Can you forward and clarify where it says our work is not permitted? It was checked by several people. I don’t think it’s right to come after us out of spite because Katie [Carroll] does not like what we do. We fully understand the dangers of this global pandemic and are taking it very serious.”
Klaren’s reply simply suggested Spindola seek further guidance from the town health agent and the board of health.
Spindola emailed the board of health on the same day, March 31, and indicated he believed the service he provided was essential and protected. “First of all, this has nothing to do with spite so I’m offended by your comment, but will move past that at this time,” board of health chair Katie Carroll wrote. “We are all doing our best and learning as we go in a time of crisis in our community. We could move forward in a proactive way if you could please furnish your MA issued pesticide license to the Chilmark Board of Health for consideration…”
Spindola said he submitted his license to the Chilmark board of health on March 31 but didn’t receive a response until April 16, when health agent Marina Lent issued a letter informing him his spraying service was prohibited in Chilmark. Lent wrote that some of the reasoning for the prohibition was because the board of health believed Oh Deer’s spray product had a particular EPA exemption that might be classified it as a repellent. A similar argument was used by Lancaster.
Spindola’s clients in Chilmark have expressed frustration.
“It seems clear to me that spraying for deer and ticks is an essential part of a safe and healthy island, not just ‘routine maintenance,’” Betsy Sheerr wrote. “I join those who are hopeful that spraying will be allowed by the Board of Health. Tick infestation on the island, especially up-Island, has been an alarming concern in recent years, and continuing to spray will help the island move forward, not backward.”
“We support spraying for ticks as an emergency measure to prevent Lyme, babesiosis and other serious, sometimes life-threatening diseases,” Debbie Zetterberg wrote on behalf of herself and Stanley Startzell. “Four years ago I had Lyme and babesiosis, so having Oh Deer spray has prevented a recurrence of ticks and possible diseases. Oh Deer should be permitted to spray.”
“I understand the board of health has indicated that OhDeer is more like a landscaper than an exterminator,” Martha Solinger wrote. “That’s ridiculous. It is eradicating ticks just as my exterminator eradicated rodents and bugs in the house. They should not be subject to a close down order.”
Lent did not respond to an email seeking comment.
Baffled at the stances in Oak Bluffs and Chilmark, Spindola said some pest control companies come over to the Vineyard from elsewhere and many enter homes to do their work unlike his company. He continues to explore the matter with his attorney.