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Home My WebLink AboutCOM 0401.005 1996-1998 ~MtY Oi 4~ ~Jip~- Stephen K. Yamashiro Richard Wurdeman Mayor Corporation Counsel ~IR,o1,N'r ~I.DLCIT~'~J D~ ~tt~Mit OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Streee, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961.8251 • Fax (808) 961.8622 31 July 1997 OPINION NO. 97-1 c n On c? Dominic Yagong, Chair and ~ Members - Public Works and Parks Committee _ Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 ' SUBJECT: SIGN VARIANCE REQUEST (Discrimination in Enforcement) Dear Chair Yagong and Members: In your letter of July 24, 1997, you asked for recommendations and comments on the request of the Jose Business Trust for a variance which would permit the continuing display of flags or banners at International Motors in Kona. Pursuant to Section 3-5 of the Hawaii County Code, the Council may grant a variance to an applicant for a sign permit, upon a finding that enforcement would work a hardship upon the applicant and that granting a variance would not be contrary to the spirit and purpose of this article and the public interest. Such a finding is within your discretion, and it would not be appropriate for me to interfere with that discretion by suggesting the result. There are some facets of this case that disturb me. Mr. Van Pernis, in his letter accompanying the request for a variance, argues that flags are not signs, and that the failure to cite other similarly situated violaters constitutes "discrimination". Is a Flao a Sian? The County Code, §3-2(8) defines a sign as: {,+smrn. Stir. ~'.~Q.~_.~_ F9a Nn. A~'~,._,.,.. HsY. T~: + ""anted- r~yP[~ n_. 1>a.~ AUG 0.4 Dominic Yagong, Ch, 31 July 1997 Page 2 "Sign" means any sign, device, figure, painting, drawing, message, placard, poster, billboard, ground sign, wall sign, roof sign, illuminated sign, projecting sign, temporary sign, marquee-sign, awning, canopy, and street clock, and includes any announcement, declaration, demonstration, display, illustration, or insignia, used to advertise or promote the interests of any persons when it is placed out of doors on real property on buildings or structures on real property or buildings in view of the general public. While the word flag or banner is not separately enumerated in this definition, we believe that the use of such generic words as "device" clearly encompasses flags. Additionally, the special provisions for "temporary banners", HCC §3-2(9) 3-32(b), demonstrate a clear intent to include banners or flags within the Ordinance. Does the Failure to Enforce the Ordinance against other Car nPaiprs Constitute a Denial of Egual Protection of the Law? in his letter of July 13, 1997 to the Committee Chair, the attorney for the applicant alleges that "the County has not significantly enforced Chapter 3 as to numbers of signs or flags". He goes on to leap to the conclusion that such a failure constitutes the favoring of one competitor another, and might be actionable. The test for showing discriminatory enforcement of the law can be found in State v Kailua Auto Wreckers Inc. 62 Haw. 222 (1980). What must be shown is intentional or purposeful discrimination, that is deliberately based upon an unjustifiable standard such as race, religion or some other arbitrary classification. The mere showing that others have not been prosecuted, or that there is a laxity in enforcement, is not sufficient. I i at 227. While it is doubtful that such a showing could be made in this case, the practice of basing code enforcement entirely upon complaints, as seems to often be the case in this County, is troubling. While there is not unanimity of opinion on this point, the Courts in New York State have pointed out that such a practice results in the "surrender to private parties and interest groups who without constraint may manipulate the law for purely private purposes." People v. T. S. Klein Corn., 381 NYS 2d 787, 790 (Misc 1976). And therefore result in a denial of constitutional protection. Dominic Yagong, Ch 31 July 1997 Page 3 In Fav's Incorporated v. New York State Department of Health, 645 NYS 2d. 995 (Misc 1996), where enforcement of the prohibition of the sale of tobacco products to minors relied wholly on complaints lodged by an anti-smoking activist group, the court went even further, finding that, no matter how praiseworthy the intention, an impermissible delegation of govermental authority had occurred. A contrary result was reached in Provo v. Hansen, 585 P.2d. 461 (Ut 1978), a case involving an injunction from housing more than the permitted number of students in one dwelling. Even there, however, a dissent by the Chief Justice strongly criticized the practice of permitting known violations unless the neighbors object. I i at 463. In any event, this case, as it involves conduct not readily visible to the passerby, is plainly distinguishable. As pointed out by the Court in Klein (supra at 790), some cases are impracticable to enforce by government initiation. Where, however, as in sign violations, the alleged violation is "open and notorious, it is the obligation of the legally instituted enforcing body to establish some adequate method to ensure that the guarantee of equal protection under the law...is met." Ibid at 791. To summarize, while I do not believe that the applicant has established the case for discrimination in enforcement of the sign ordinance, the present reported practice of responding only to complaints is fraught with danger. Should the requested variance be denied, it is strongly recommended that enforcement be undertaken against the other violators in the area, some of which are named by the applicant. To close our eyes to the obvious, and proceed against only one of a known group of violators, merely because someone complained, is "an unseemingly state of affairs openly inviting discrimination and harassment of one group by another". People v. Acme Markets, 334 NE 2d 555, 558 (NY 1975). Sincerely, ~KICHARD D. WURDE N: Corporation Cowl`s RDW:1679Lbre