HomeMy WebLinkAboutCOM 0878.001 1998-2000 r. 'x{V ae M� •
J. CURTIS TYLER, III �,a�,; Bus: (808) 326 -5684
Council !Wernhera -s.s Fax: (808) 326 -5697
District 8 (North Kona) q etyler4rinterpae.net
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HAWAII COUNTY COUNCIL
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MEMORANDUM
TO: Chairman James Arakaki & Members of the Hawaii County Council
FROM: J. Curtis Tyler, Council Member .J\, v111v L\
DATED: September 19, 2000 �
SUBJECT: 2001 HSAC LEGISLATIVE PACKAGE
Pursuant to the guidance of HSAC Vice President Smith (Communication No. 878), I am submitting
five proposals for inclusion in the 2001 HSAC Legislative Package.
Proposal 1: Exempts the counties from the General Excise.Tax law.
Proposal 2: Extends State tort liability to the counties by requiring the State to defend and immunize
a county against all damages in any civil action against a county for alleged negligence,
wrongful acts, or omissions of persons employed by a county as lifeguards and
designated to provide lifeguard services at a designated state beach park under an
agreement between the State and a county.
Proposal 3: Limits a county's liability for hazardous recreational activities.
Proposal 4: Redefines "government agency" as it applies to publication of public notices. Current
law requires all government agencies to use one source of publication for published
public notices. Amendments to the current law will resolve conflicts with our Hawai`i
County Charter.
Proposal 5: Relates to the Public Service Company Tax. As a result of the counties beginning to tax
the real property of public utilities, it is suggested that HSAC support legislation which
will reduce the Public Service Company Tax rate to one equal to the maximum general
excise tax rate under Chapter 237, HRS. (This proposal has not been drafted yet.)
JCT /GM /jh Comm. No, 8 76.001
Attachments MT
No,
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Ref. Tot Wit MOO 1
Kona Council Office: 77 -6399 Nalani Street • Suited 04 • 'Kailua -Kona • Hawaii • 967 098Pat 5e 2 0 . Zaria
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JAMES Y. ARAKAKI t
w AARON S.Y. CHUNG
Chairman & Presiding Officer y — BOBBY JEAN LEITHEAD - TODD
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LENINGRAD ELARIONOFF
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AL SMITH ': K 5, i n a /JULIE JACOBSON
Vice Chairman 4; p.= n �j� t NANCY PISICCHIO
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ecp "IL.' 2 J. CURTIS TYLER, III
COUNTY COUNCIL 7 "C jF
rd )U1 1 DOMINIC YAGONG
County of Hawaii
Hawal'1 County Building
25 Aupuni Street
Hilo, Hawai'i 96720
September 20, 2000
James Y. Arakaki, Chair
Hawai'i County Council
25 Aupuni Street
Hilo, Hawai'i 96720
RE: Communication No. 878: 2001 HSAC LEGISLATIVE PACKAGE
Pursuant to Section 1(e) of Rule 4 of the Rules of Procedure of the Council of the County of
Hawai'i, this written request is submitted with my approval that the above - referenced matter be
waived from the Committee on Finance to the full Council for immediate action. In reviewing
this matter, timely approval is crucial. It is therefore advantageous that approval is granted and
the matter placed onto the next Council agenda for review. However, in the event this request is
denied, for whatever reason, I understand the matter shall be referred to the Committee on
Finance for placement on its future agenda.
Sincerely,
c
Aaron S.Y. Chung, Chair /
Committee on Finance
Ap.roved /Date/Waive to Council: Disapproved /Date /Refer to FC:
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Are
Jo Or . Ara !PC, Chair . James Y. Arakaki, Chair
Haw. 'i County Council Hawai'i County Council
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REPORT TITLE:
Counties; GET Exemption
DESCRIPTION:
Exempts the counties from the GET law.
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A BILL FOR AN ACT
• RELATING TO EXEMPTING THE COUNTIES FROM GENERAL EXCISE TAX.
HE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
1 SECTION 1. Chapter 237, Hawaii Revised Statutes, is amended
2 by adding a new section to be appropriately designated and to
3 read as follows:
4 " §237- Exemption of sales and proceeds of sales to
5 counties. Any provision of law to the contrary notwithstanding,
6 all sales, and the proceeds of all sales, to any county shall be
7 exempted and excluded from the tax imposed pursuant to this
8 chapter."
9 SECTION 2. New statutory material is underscored.
10 SECTION 3. This Act shall take effect upon its approval.
11
12 INTRODUCED BY:
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REPORT TITLE:
Tort Liability
DESCRIPTION:
Extends State tort liability to include indemnification of
counties against damages arising from the operation of certain
beach parks by a county. (SD2)
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A BILL FOR AN ACT
RELATING TO COUNTY TORT LIABILITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
1 SECTION 1. Section 662 -1, Hawaii Revised Statutes, is
2 amended by amending the definition of "employees of the State" to
3 read as follows:
4 " "Employees of the State" includes officers and employees of
5 any state agency, members of the Hawaii national guard, Hawaii
6 state defense force, and persons acting in behalf of a state
7 agency in an official capacity, temporarily, whether with or
8 without compensation. "Employees of the State" also includes
9 persons employed by a county of this State as lifeguards and
10 designated to provide lifeguard services at a designated state
11 beach park under an agreement between the State and that
12 county[.] or at any beach park operated by that county under a
13 license or lease from any state agency or pursuant to an
14 executive order of the governor."
15 SECTION 2. Section 662 -16, Hawaii Revised Statutes, is
16 amended to read as follows:
17 " §662 -16 Defense of state employees[.]; immunity of
18 counties. The attorney general may defend any civil action or
19 proceeding brought in any court against any employee of the State
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1 for damage to property or for personal injury, including death,
2 resulting from the act or omission of any state employee while
3 acting within the scope of the employee's employment. The
4 employee against whom such civil action or proceeding is brought
5 shall deliver within the time after the date of service or
6 knowledge of service as determined by the attorney general, all
7 process or complaint served upon the employee or an attested true
8 copy thereof to the employee's immediate superior or to whomever
9 was designated by the head of the employee's department to
10 receive such papers and such person shall promptly furnish copies
11 of the pleadings and process therein to the department of the
12 attorney general.
13 No judgment by default shall be entered against a state
14 employee based on a cause of action arising out of an act or
15 omission of such employee while acting within the scope of the
16 employee's employment unless the department of the attorney
17 general has received a copy of the complaint or other relevant
18 pleadings and a period of twenty days has elapsed from the date
19 of such receipt.
20 The attorney general [may also] shall defend and the State
21 shall immunize a county against all damages in any civil action
22 or proceeding brought in any court against a county based on
23 [an]:
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1 (1) An allegedly negligent or wrongful act or omission of
2 persons employed by a county as lifeguards and
3 designated to provide lifeguard services at a
4 designated state beach park under an agreement between
5 the State and a county[.] or at any beach park operated
6 by that county under a license or lease from any state
7 agency or pursuant to an executive order of the
8 governor; or
9 (2) A natural condition existing at a beach park referred
10 to in paragraph (1) or any natural or unnatural
11 condition of the beach and ocean adjacent to the beach
12 park.
13 The attorney general may also defend any civil action or
14 proceeding brought in any court against any provider of medical,
15 dental, or psychological services pursuant to contract with the
16 department of public safety when the provider is sued for acts or
17 omissions within the contract's scope of work."
18 SECTION 3. Statutory material to be repealed is bracketed.
19 New statutory material is underscored.
20 SECTION 4. This Act shall take effect upon its approval.
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REPORT TITLE:
Counties' Liab /Hazardous Act
DESCRIPTION:
Limits counties' liability for hazardous recreational activities
including animal riding, hiking, off -road motorcycling, hang
gliding, rodeo, sport parachuting, among other activities, except
when death or injury occurred as a direct result of county's
failure to warn when the county had actual knowledge of
physically hazardous conditions, or physically hazardous
condition not known or would not have been known to reasonably
prudent person, or for gross negligence, recklessness, or wilful,
wanton, deliberate conduct.
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• A BILL FOR AN ACT
RELATING TO LIMITED LIABILITY FOR COUNTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
1 SECTION 1. Chapter 46, Hawaii Revised Statutes, is amended
2 by adding a new section to be appropriately designated and to
3 read as follows:
4 " §46- Counties' liability limited for hazardous
5 recreational activities. (a) Neither a public entity nor a
6 public employee is liable to any person who participates in a
7 hazardous recreational activity, including any person who assists
8 the participant, or to any spectators who knew or reasonably
9 should have known that hazardous recreational activity
10 created a substantial risk of injury to themselves and were
11 voluntarily in the place or risk, or having the ability to do so
12 failed to leave, for any damage or injury to property or persons
13 arising out of that hazardous recreational activity.
14 For the purposes of this section, "hazardous recreational
15 activity" means a recreational activity which creates a
16 substantial (as distinguished from a minor, trivial, or
17 insignificant) risk of injury.
18 "Hazardous recreational activity" includes:
19 (1) Animal riding, including equestrian competition,
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1 archery, bicycle racing or jumping, mountain bicycling,
2 boating, canoeing, diving, hang gliding, hiking,
3 kayaking, motorized vehicle racing, off -road
4 motorcycling or four -wheel driving of any kind,
5 orienteering, pistol and rifle shooting, rock climbing,
6 rocketeerinq, rodeo, spelunking, sky diving, sport
7 parachuting, paraglidinq, body contact sports (i.e.,
8 sports in which it is reasonably foreseeable that there
9 will be rough bodily contact with one or more
10 participants), skateboarding, inline skating, roller
11 hockey, surfing, trampolining, tree climbing, tree rope
12 swinging, waterskiinq, white water rafting, and
13 windsurfing. For the purposes of this paragraph,
14 "mountain bicycling" does not include riding a bicycle
15 on paved pathways, roadways, or sidewalks;
16 (2) Any form of diving into water from other than a diving
17 board or diving platform, or at any place or from a
18 structure where diving is prohibited and reasonable
19 warning thereof has been given.
20 (b) In a claim by a person against a county alleging
21 personal injury or death that occurred when the person was
22 participating in, assisting, or observing a hazardous
23 recreational activity on county -owned or controlled property, the
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1 county shall be liable only if the injury or death occurred as a
2 direct result of the county's:
3 (1) Failure to warn when:
4 (A) The county had actual knowledge of a physically
5 hazardous condition, sufficient time to warn
6 against the condition, and failed to do so; and
7 (8) When the physically hazardous condition was not
8 known to the person and would not have been known
9 to a reasonably prudent person participating,
10 assisting, or observing the same hazardous
11 recreational activity;
12 (2) Gross negligence, recklessness, or wilful, wanton, or
13 deliberate conduct;
14 (3) When permission to participate in the hazardous
15 recreational activity was granted by the county for a
16 specific fee. For the purposes of this paragraph, a
17 "specific fee" does not include a fee or consideration
18 charged for a general purpose such as a general park
19 admission charge, a vehicle entry or parking fee, or an
20 administrative or group use application or permit fee,
21 as distinguished from a specific fee charged for
22 participation in the specific hazardous recreational
23 activity out of which the damage or injury arose.
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1 (c) Nothing in this section shall limit the liability of an
2 independent concessionaire, or any person or organization other
3 than the public entity, whether or not the person or organization
4 has a contractual relationship with the public entity to use the
5 public property, for injuries or damages suffered in any case as
6 a result of the operation of a hazardous recreational activity on
7 public property by the concessionaire, person, or organization."
8 SECTION 2. This Act does not affect rights and duties that
9 matured, penalties that were incurred, and proceedings that were
10 initiated, before its effective date.
11 SECTION 3. New statutory material is underscored.
12 SECTION 4. This Act shall take effect upon its approval.
13
14 INTRODUCED BY:
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REPORT TITLE:
Public Notice; Counties
DESCRIPTION:
Redefines "government agency" for purposes of the public notice
requirement by not including the counties except for state
procurement code and purchase of health and human services. The
redefinition would allow counties to select its own rather than a
state - selected publication in which to place a public notice.
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A BILL FOR AN ACT
RELATING TO COUNTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
1 SECTION 1. Section 1 -28.5, Hawaii Revised Statutes, is
2 amended to read as follows:
3 " §1 -28.5 Publication of notice.(a) Notwithstanding any
4 other statute, law, [charter provision, ordinance,] or rule to
5 the contrary, whenever a government agency is required to give
6 public notice or to publish notice, the notice shall be given
7 only as follows:
8 (1) For statewide publication:
9 (A) In a daily or weekly publication of statewide
10 circulation; or
11 (B) By publication in separate daily or weekly
12 publications whose combined circulation is
13 statewide; and
14 (2) For county -wide publication, by publication in a daily
15 or weekly publication in the affected county.
16 Additional supplemental notice may also be given through Hawaii
17 FYI, the State's interactive computer system.
18 (b) For purposes of this section, the comptroller pursuant
19 to chapter 103D shall determine a publication for all government
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1 agencies to enable the public to go to one source of publication
2 for published public notice by a governmental agency on each
3 island.
4 (c) Whenever a public notice is published in a newspaper or
5 other publication described in subsection (a), proof of the
6 publication shall be the affidavit of the printer, publisher,
7 principal clerk, or business manager of the newspaper or other
8 publication or of the designated agent of the group that
9 published the notice.
10 (d) This section shall not apply to notices required by
11 chapters 103D and 103F.
12 (e) For purposes of this section, "government agency" means
13 each department, board, commission, or officer of the State [or
14 any of its political subdivisions.] and does not include any of
15 the counties unless this section shall apply to notices required
16 by chapters 103D and 103F."
17 SECTION 2. Statutory material to be repealed is bracketed.
18 New statutory material is underscored.
19 SECTION 3. This Act shall take effect upon its approval.
20
21 INTRODUCED BY: