HomeMy WebLinkAboutCOM 0536.002 2010-2012 .JMt ^
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K.ANGEL PILAGO .•'(P•.••;,;� .+., , Phone: (808)323-4280
��°'4• • Fax: (808) 329-4786
Council Vice Chair"i,;�y'r �'
Council District 8—North Kona • Email: apilago @co.hawaii.hi.us
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HAWAII COUNTY COUNCIL
County of Hawai`i =_a
West Hawai`i Civic Center, Bldg. A :
74-5044 Ane Keohokalole Hwy. -
Kailua-Kona, Hawai'i 96740 r._� _
DATE: February 23, 2012
TO: Dominic Yagong, Chairperson --
and Members of the Hawai`i County Council
FROM: . Angel Pilago, Council Vice Chair
SUBJECT: Proposed Amendments to Bill No. 171, An Ordinance Amending Chapter 22 And
Chapter 35 Of The Hawai`i County Code 1983 (2005 Edition, As Amended)
Relating To Publication Dispenser Racks Located Within Established Business
Improvement Districts
Please find attached a proposed Draft 2 of Bill No. 171. Proposed Draft 2 of Bill No. 171 is the
result of recommendations made by the Office of the Corporation Counsel. A representative
from the Office of the Corporation Counsel will be available during deliberation to provide
further clarification on these significant revisions, as well as answer any other questions relating
to the proposed draft 2 for Bill No. 171.
The proposed amendments are illustrated below in Ramseyer format with respect to the contents
of Bill No. 171. Material to be deleted is bracketed and stricken through and material to be
added is underscored and bolded for emphasis. A copy of Bill No. 171, Draft 2, is attached.
1. The purpose section of Bill No. 171 is amended to read as follows:
"SECTION 1. Purpose.
The purpose in amending Chapter 22 and Chapter 35 is to provide that a Business
Improvement District through its District Association be allowed to install, maintain, and
manage publication dispensing devices located upon County streets and sidewalks within
an established Business Improvement District. Orderly placement and location of
publication dispensing racks would further the goal of enhancing the overall quality and
enjoyment of supplemental services within Business Improvement Districts such as
landscaping, lighting, pedestrian pathways, and signage, and would enhance the public's
experience, enjoyment, movement, and convenience within the boundaries of an
established Business Improvement District.
Comm. No. S-340. 2..
Serving the Interests of the People of Our Island Ref. To: C-Cru. tt l
Hawaii County Is an Equal Opportunity Provider And Employer lief, pate FEB 2 3 Z)IZ
Additionally, this ordinance proposes that a District Association of a Business
Improvement District be authorized to levy and collect Publication Dispenser Rack
permit fees [des] associated with the issuance of permits and promulgation of rules
for the use of publication dispenser racks within an established Business Improvement
District."
2. Section 22-1.2, Definitions, of Bill No. 171, is amended by amending the definition of
"Publication dispensing rack space permits"to read as follows:
'Publication dispensing rack space permits" means a [paid] publication
dispensing rack space allocation or reallocation invoice issued pursuant to chapter 35,
section 35-63 of this Code."
3. Section 35-60, Definitions, of Bill No. 171, is amended to read as follows:
"Section 35-60. Definitions.
As used in this article, unless another meaning is clear from the context, the
following terms shall have the following meaning:
"Authorized association" means a district association, as defined in section 35-1,
that has been issued a district-wide permit pursuant to chapter 22, article 3, division 3 of
this Code for the installation of publication dispensing racks.
"Authorized association-installed," "authorized association shall install,"
"installed by the authorized association," or words of similar import mean installation,
undertaken by or caused to be undertaken, by an authorized association.
"Director" means the director of the department of public works.
"District" means the business improvement district governed by a certain
authorized association.
"Insert," when used as a noun, means a publication dispensing rack insert.
"Install" includes construct, erect, fabricate and affix.
"Location" means a site designated by the director for placement of association-
installed publication dispensing rack enclosures.
"Permit" means a [paid] publication dispensing rack space allocation or
reallocation invoice issued pursuant to this article.
"Permit period" means the period for which spaces are allocated under section 35-
63(c).
"Permittee" means a person, organization, corporation, firm, association or
similar entity to [which] whom or to [whom] which a publication dispensing rack
permit has been issued pursuant to this article.
"Publication" means any written or printed matter, including but not limited to,
daily publications, real estate publications or periodical newspapers, and any visitor
information publications, but may exclude any "handbill" defined in rules adopted by the
[director] authorized association pursuant to section 35-71 if such rules provide that
handbills, as so defined, shall be excluded.
"Publication dispensing device" means any stand, box, rack or other device, other
than a publication dispensing rack enclosure or a publication dispensing rack insert, used
to dispense any publication. For purposes of this definition, a person shall not be deemed
a device.
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"Publication dispensing rack enclosure" or "enclosure" means a structure installed
by the authorized association in the district with spaces in which publication dispensing
rack inserts may be inserted.
"Publication dispensing rack insert" means a box, insert or rack with a clear
plastic face that is owned by a permittee, that is designed to be inserted into a publication
dispensing rack space, and that is constructed to hold and display a publication.
"Publication dispensing rack space" or "space" means an area within a publication
dispensing rack enclosure that is constructed to hold a publication dispensing rack insert
to display and dispense a publication.
"Publisher" means an owner or authorized agent of the owner of a publication.
The authorized association may adopt rules defining the term "owner" or "authorized
agent" for purposes of this definition.
"Reallocation" means an allocation of unallocated, abandoned or surrendered
spaces to a permittee that takes place during a permit period.
"Sidewalk" means that portion of a street between a curb line or the pavement of a
roadway, and the adjacent private or public property line, whichever the case may be,
intended for the use of pedestrians, including any setback areas acquired by the County
for road widening purposes.
"Unallocated publication dispensing rack space" means a publication dispensing
rack space that has not been allocated in the most recent allocation or reallocation."
4. Section 35-63, Publication dispensing rack space permits, of Bill No. 171, is amended to
read as follows:
"Section 35-63. Publication dispensing rack space permits.
(a) Any publisher desiring the use of a publication dispensing rack space in a
publication dispensing rack enclosure for purposes of dispensing a publication
therefrom shall submit an application for a publication dispensing rack space
permit to the authorized association. [For any one allocation, no more than one
application may be submitted for any publication. Only those publishers
submitting completed applications shall be eligible to obtain a publication
dispensing rack space permit.] The authorized association shall determine with
the approval of the director, the form of, and provide to interested persons copies
of, the publication dispensing rack space permit application form. [The authorized
association shall, prior to the earliest date established under subsection (c) on
copy of the form to each person who is a permittee as of that date, addressed to
the permittee at the last address on with the authorized association. The failure of
the authorized association to notify a permittee, however, will not excuse the
permittee from filing a timely application.
(b) The application for a publication dispensing rack space permit shall be submitted
by the publisher and shall include the following:
(1) The name, mailing address, phone number and, if any, the facsimile
number and e mail address of both the owner of the publication and the
applicant and the names under which the owner and applicant conduct
business, if any;
(2) The name, mailing address,phone number and, if any, the facsimile
number and e mail address of the individual person or persons who will
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have supervision of and responsibility for the use and maintenance of the
publication dispensing rack space and of any permitted publication
dispensing rack insert placed therein;
(3) The relationship between the owner of the publication and the applicant
and a statement of the applicant's authority to make the application on
behalf of the owner of the publication;
(1) The name of the publication for which the space is desired, a statement
verifying that the publication exists as of the date of the application, and a
copy of the publication for which the permit is desired;
(5) Any application fee established by the district association and approved by
the director;
(6) Proof of liability insurance, for the term of the permit, with minimum
policy limits of$300,000 for personal injury or death and $300,000 for
property damage, or with such higher limits, not to exceed $1,000,000 for
personal injury or death and $1,000,000 for property damage, as is
determined appropriate by the director based on the risk experience under
this article, naming the County as an additional named insured in the event
of personal injury or death or property damage caused by any negligence
of the permittee in the maintenance of any publication dispensing rack
space or any permitted publication dispensing rack insert. For purposes of
this section "negligence" also includes reckless, knowing or intentional
conduct; and
(7) Such other information as is requested on the form.
(c) For each publication to which any publication dispensing rack spaces are
reallocation, listing the date of the allocation or reallocation, the name of the
permittee, the name of the publication, the particular space or spaces assigned to
that publication under the allocation or reallocation, and the term of the permit.
(d) No permittee may be allocated or reallocated, or be issued a permit, for more than
one publication dispensing rack space at any one location for one publication.
(e) The publication dispensing rack space permit shall not be transferable. No permit
may be used to dispense a publication other than the publication named in the
permit. The authorized association may adopt rules for determining whether a
publication is the same publication as that for which the permit was issued and for
determining when a permit is deemed to have been transferred.]
[(#)]f The authorized association may establish by rules approved by director a permit
fee to be charged by the authorized association for each publication dispensing
rack space.
[(g)}f_cl The requirement that a copy of the publication be submitted with the application
is intended to ensure that the publication exists at the time of the application and
the [difector] authorized association may not deny a permit for any publication
based upon its content. No permit shall be issued for a publication that does not
exist at the time of the application.
[(h)]�The authorized association shall maintain a record of all publication dispensing
rack spaces that have been allocated or reallocated, the permittees to which the
spaces have been allocated or reallocated, and the publication permitted to be
dispensed from the spaces."
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5. Section 35-64, Method of allocation and reallocation of publication dispensing rack
spaces, of Bill No. 171, is deleted in its entirety, as follows:•[- • . . . . . • . • . . . . •• _
rack-spaees:
provide procedures for the allocation of publication dispensing rack spaces by
lottery or other method of random selection
(b) The authorized association shall, by rules approved by the director, determine and
provide procedures for the reallocation of publication dispensing rack spaces that
are unallocated, abandoned or surrendered by lottery or other method of random
selection.]
6. Section 35-65, Unallocated, abandoned or surrendered publication dispensing rack
spaces, of Bill No. 171, is deleted in its entirety, as follows:•[- :, . . . . . . • . . . . . • . • • •
rack-spaces.
(a) Any person desiring to use a publication dispensing rack space that is unallocated
or that has become available through abandonment or surrender to dispense a
publication may apply for the reallocation of such publication dispensing rack
spaces under section 35 63(c).
(b) The authorized association shall adopt rules approved by the director, pursuant to
section 35 72:
(1) To determine when a publication dispensing rack space has been
(2) To establish procedures relating to the abandonment or surrender of
publication dispensing rack spaces.
(c) When the authorized association makes an initial determination that a publication
dispensing rack space has been abandoned or surrendered, the affected permittee
shall be notified of the authorized association's initial determination and given an
opportunity to contest the initial determination. The authorized association shall
adopt rules approved by the director pursuant to section 35 71 relating to
notification of the authorized association's determination, the permittee's
opportunity to contest the initial determination, and the procedure and notification
requirements for the making of a final determination. Upon the final
So determined and the holder of the voided permit shall no longer be deemed a
permittee as to the space or spaces so determined.
(d) A permittee may surrender a publication dispensing rack space prior to expiration
of the permit for the space when the permittee no longer wishes to dispense the
(e) The authorized association shall maintain a record of unallocated, abandoned, and
surrendered spaces and may reallocate them pursuant to procedures set forth in its
approved rules.
{f) No person, including the person to whom a publication dispensing rack space has
been allocated or reallocated, may place an insert or any publication in the space
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- . . -•••--: to have been abandoned or surrendered,
until such time as the space has been reallocated, after which the permittee under
the reallocation may place its insert and publication in the space.]
7. Section 35-66, Installation, maintenance, and repair of publication dispensing enclosures,
spaces, and inserts, of Bill No. 171, is amended as follows:
"Section [3546135-64. Installation, maintenance, and repair of publication
dispensing enclosures, spaces, and inserts.
[Ea)] It shall be the responsibility of the authorized association to install, maintain, and
repair the publication dispensing rack enclosures, either directly or by contract
with a private contractor. Any cost for the installation, maintenance, and repair of
the enclosure shall be borne by the authorized association.
and repair any publication dispensing rack insert inserted into a space in a
publication dispensing rack enclosure for which it holds a permit. Any cost to
maintain the insert shall be borne by the permittee.]"
8. Section 35-67, Temporary dislocations, of Bill No. 171, is amended as follows:
"Section [35 67]35-65. Temporary dislocations.
(a) The authorized association may direct a permittee to remove copies of the
permitted publication and the permittee's publication dispensing rack insert from
a publication dispensing rack enclosure temporarily during any public, private, or
utility construction work conducted on the public sidewalk, the abutting roadway,
an adjacent building, or structure or to any utility, when the director determines
that the removal is necessary in the interest of public safety.
(b) The authorized association may also direct a permittee to remove copies of the
permitted publication and the permittee's publication dispensing rack insert from
a publication dispensing rack enclosure during any installation or repair work on
the publication dispensing rack enclosure.
[(c) The authorized association shall adopt rules approved by the director to provide a
partial rebate for publications temporarily dislocated under this section. The
director may also adopt rules relating to the temporary relocation of publications
that are dislocated under subsection (a)or(b)."]
9. Section 35-68, Prohibitions, of Bill No. 171, is amended as follows:
"Section [35-68]35-66. Prohibitions.
[Eat] The following prohibitions shall apply:
(1) Other than provided in this article there shall be no publication dispensing
device allowed and no person may install or direct another person to
install any publication dispensing device on any public property, sidewalk,
or right of way within the district.
(2) Any publication dispensing device installed in violation of this article shall
be subject to [removal by, and forfeiture to, the authorized association or
the director if not removed within five days of demand for removal thereof
by the authorized association or the director.] administrative
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enforcement including but not limited to removal, fines, cease and
desist orders and forfeiture in accordance with section 22-8.2 of this
Code.
(3) Unless otherwise designated by the director in writing, the authorized
forfeiture of the publication dispensing device.
(b) The following prohibitions shall apply to publication dispensing rack spaces,
publication dispensing rack inserts and publication dispensing rack enclosures:
(1) No person may move, remove, destroy, deface or detach any publication
dispensing rack enclosure unless directed to do so by the authorized
association or the director.
(2) No publication dispensing rack insert may be inserted within a space in a
publication dispensing rack enclosure, except pursuant to a current and
valid permit issued under this article. Any publication dispensing rack
insert so inserted without a current and valid permit shall be subject to
removal by and forfeiture to the director or a person or agency designated
by the director.
(3) No person may place any trash, rubbish or, without the approval of the
publication dispensing rack insert and copies of the permitted publication,
in a space in a publication dispensing rack enclosure.
(4) No person may move, remove, deface, or detach any publication
dispensing rack insert that has been inserted into a publication dispensing
rack enclosure under a current and valid permit without authorization of
the permittee or the authorized association.
(e) The authorized association shall adopt rules approved by the director, pursuant to
section 35 71 to establish procedures for giving notice of violations, and for the
removal and forfeiture of publication dispensing devices in accordance with
subsection(a), or of publication dispensing rack inserts in accordance with
subsection(b)."]
1CP. Section 35-69, Liability, of Bill No. 171, is amended as follows:
"Section [35-69]35-67. Liability.
The County shall not be held liable for the installation, maintenance, operation, or
management of any publication dispensing device within the district."
11. Section 35-70, Authorization to Issue and Collect Fines, of Bill No. 171, is deleted in its
entirety, as follows:
Any person violating any provision of section 35 68, any other provision of this
article, or any rule adopted pursuant to section 35 71, shall be subject to a fine of not less
than $100 and not more than $500 for each violation. In addition, for any permittee
violating any provision of section 35 68, any other provision of this article, or any rule
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reallocation of publication dispensing rack spaces under this article."]
12. Section 35-71, Rules, of Bill No. 171, is amended as follows:
"Section [35 71]35-68. Rules.
The authorized association shall adopt rules for the interpretation,
implementation[;] and administration [and enforcement] of this article, which shall be
subject to the approval of the director."
13. Section 35-72, Fees, of Bill No. 171, is amended as follows:
"Section [35 72] 35-69. Fees.
All fees [and fines] collected by the authorized association pursuant to this article
or the rules adopted pursuant to section 35-71 shall be accounted for in the financial
records maintained by the district board pursuant to section 35-19 and shall be deposited
into the account established for the district under this chapter. The financial records of
the [Association] authorized association including but not limited to all fees [and fines]
collected pursuant to this article shall be subject to review by the [County] public."
14. Section 35-73, Severability, of Bill No. 171 is amended by changing the numbering to
"Section 35-70."
KAP/ke
att.
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AN ORDINANCE AMENDING CHAPTER 22 AND CHAPTER 35 OF THE HAWAI'I
COUNTY CODE 1983 (2005 EDITION,AS AMENDED) RELATING TO
PUBLICATION DISPENSER RACKS LOCATED WITHIN ESTABLISHED BUSINESS
IMPROVEMENT DISTRICTS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Purpose.
The purpose in amending Chapter 22 and Chapter 35 is to provide that a Business
Improvement District through its District Association be allowed to install, maintain, and
manage publication dispensing devices located upon County streets and sidewalks within an
established Business Improvement District. Orderly placement and location of publication
dispensing racks would further the goal of enhancing the overall quality and enjoyment of
supplemental services within Business Improvement Districts such as landscaping, lighting,
pedestrian pathways, and signage, and would enhance the public's experience, enjoyment,
movement, and convenience within the boundaries of an established Business Improvement
District.
Additionally, this ordinance proposes that a District Association of a Business
Improvement District be authorized to levy and collect Publication Dispenser Rack permit fees
associated with the issuance of permits and promulgation of rules for the use of publication
dispenser racks within an established Business Improvement District.
SECTION 2. Chapter 22, article 1, section 22-1.2 of the Hawai`i County Code 1983
(2005 Edition, as amended) is amended to read as follows:
"Section 22-1.2. Definitions.
As used in this chapter unless otherwise specified:
[4 ] "Building" means a structure which is occupied for residential purposes or used as
a place of business.
"Business improvement district" or"district" means a district of land established by the
County pursuant to chapter 35 of this Code for providing and financing supplemental services
and improvements.
[(2)] "Corporation counsel" means the head of the County department of the
corporation counsel or its duly authorized representative.
[(3)] "Chief of police" means the head of the County police department or its duly
authorized representative.
[(4)] "Common driveway approach"means a driveway approach that is located along
the frontage of two or more properties and is used as an ingress or egress to said properties.
[(5)] "Director" means the head of the County department of public works or its duly
authorized representative.
"District association" means an association established pursuant to section 35-18 of this
Code.
"District-wide publication dispensing rack permit" means an exclusive permit issued
pursuant to article 3 of this chapter.
[(6)] "Driveway" means a road on private or public property giving access from a
private or public street to an established use on the property.
[(7)] "Driveway approach" means an area between the edge of the roadway and
property line of any County owned or maintained street that provides ingress and egress to an
abutting property.
[(8)] "Engineer" means a privately employed licensed professional civil engineer.
[(9)] "Finance director" means the head of the County finance department or its duly
authorized representative.
[(4-0)] "Official County street name" means a street name that has been adopted by the
council by duly promulgated resolution or by the planning director.
[(11)] "Person" or words importing persons, for instance, "another," "others," "any,"
"anyone," "anybody," and the like signify not only individuals, but corporations, firms,
associations, societies, communities, assemblies, inhabitants of a district, or neighborhood, or
persons known or unknown, and the public generally, where it appears, from the subject matter,
the sense and connection in which such words are used,that such construction is intended.
[(12)] "Planning director" means the head of the County planning department or its
duly authorized representative.
"Publication dispensing rack space permits" means a publication dispensing rack space
allocation or reallocation invoice issued pursuant to chapter 35, section 35-63 of this Code.
[(13)] "Roadway" means that portion of a County street, excluding shoulders, curbs,
gutters, sidewalks or other roadside drainage facilities, used exclusively by vehicular traffic.
[( -4)] "Sidewalk" means that portion of a County street defined by a vehicular
separation device such as a concrete, asphaltic concrete or rolled concrete curb that is intended
for pedestrian or other non-vehicular use.
[(15)] "Speed hump" means a gentle rise in the profile of the road that is used to
regulate the speed of a vehicle.
[( )] "Street"means the entire width between property lines of any County owned and
maintained street, avenue, road, alley, highway, lane, path or other place opened, improved and
established for the use of vehicles, pedestrians or both.
[(17)] "Vehicle" means every licensed or otherwise authorized device in, upon or by
which any person or property is or may be transported or drawn upon a roadway.
[(-1-8)] "Violator" means the property owner, lessee, or the person responsible for the
violation."
SECTION 3. Chapter 22, article 3, division 3, section 22-3.5 of the Hawaii County
Code 1983 (2005 Edition, as amended) is amended to read as follows:
"Section 22-3.5. Publication dispenser permits; application.
(a) The publisher, editor, distributor or seller of any newspaper or any other publication
may apply for a publication dispenser permit. Permit applications shall be submitted
upon a form designated by the director and shall include, at a minimum, the following
information and attachments:
(1) General applicant information, i.e. name, address, phone number.
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(2) A description and map of the location of the publication dispenser.
(3) The duration of time for which the permit is requested.
(4) The height of the publication dispenser.
(5) The width of the sidewalk that the dispenser will occupy and the clear
space that will remain on the sidewalk after the dispenser is in place.
(6) Written statements of consent from every property owner and lessee
directly fronting the proposed dispenser site.
(7) An agreement, to be approved by the corporation counsel, [b-y-whic-h] wherein the
applicant agrees to [indemnifies] indemnify, [defends] defend and [hells] hold
harmless the County of Hawai`i its officers and agents [thereof,] from all
claims, demands, suits, actions, or proceedings of every name, character,
and description [wl ] that may be brought against the County of Hawai`i for or
on account of any injuries or damages to any person or property received or
sustained by any person by or in consequence of any act or acts of the holder of
the permit for actions done under the permit.
(8) A certificate of insurance and proof of a public liability insurance policy approved
by corporation counsel naming as an additional insured, the County, its officers,
representatives, employees, and agents and covering any claim or liability for
damages, injuries or death resulting from any of the uses permitted hereunder.
The minimum amount of coverage under such policy shall be $1,000,000 per
occurrence. The policy and coverage shall be kept in force until the publication
dispenser is removed from the County street.
(b) Any district association of a business improvement district may apply for an exclusive,
district-wide publication dispensing rack permit. Permit applications shall be submitted
upon a form approved by the director and shall include, at a minimum, the following
information and attachments:
(1) The name of the business improvement district and the district association, copies
of its respective formation documents, and a certificate of good standing of the
district association.
(2) A map showing the proposed locations of the publication dispensing racks.
(3) An illustration showing the proposed design and maximum dimensions of the
publication dispensing racks and a description of the standards for the size,
design, color and material of publication dispensing rack inserts that publication
distributors may place within the publication dispensing racks.
(4) The rules that the district association proposes to adopt pursuant to chapter 35.,
section 35-71 of this Code, which shall contain a statement that any changes to
such rules shall be subject to the approval of the director.
(5) An agreement and acknowledgement by the district association that it will be
bound to comply, and will comply, with all provisions of chapter 35, article 8 of
this Code."
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SECTION 4. Chapter 22, article 3, division 3, section 22-3.6 of the Hawai'i County
Code 1983 (2005 Edition, as amended) is amended to read as follows:
"Section 22-3.6. Publication dispenser permit; criteria for granting; revocation.
(a) The director may issue a publication dispenser permit pursuant to section 22-3.5(a) for a
period not to exceed one year if all of the following criteria are met:
(1) The publication dispenser does not exceed four feet in height.
(2) The publication dispenser does not occupy more than one-fifth of the width of the
sidewalk and will leave a clear width of at least three feet.
(3) Written statements of consent are received from every property owner and lessee
directly fronting the proposed dispenser site.
(4) The applicant has executed an agreement to indemnify, defend and hold
harmless the County as provided above, to the satisfaction of the corporation
counsel.
(5) The applicant has submitted a certificate of insurance and proof of a public
liability insurance policy as provided above, to the satisfaction of the
finance director and the corporation counsel.
(6) The publication dispenser will not impede or endanger the public's use,
including persons with disabilities, of the sidewalk area or interfere with
vehicular sight distance at any intersection or driveway.
(b) The director may issue an exclusive, district-wide publication dispensing rack permit
pursuant to section 22-3.50b), which shall be valid until revoked, if all of the following
criteria are met:
(1) The proposed locations of the publication dispenser racks will in every
case leave a clear width on the sidewalk of at least three feet and will not
otherwise impede use by the public, including persons with disabilities, of
the sidewalk area or interfere with vehicular sight distance at any intersection
or driveway.
(2) The director has approved the proposed design and maximum dimensions
of the publication dispensing racks as well as the standards for the size,
design, color and material of publication dispensing rack inserts.
(3) The director has approved the rules submitted by the district association
pursuant to section 35-71, including all proposed fee amounts.
(4) The applicant has executed an agreement to indemnify, defend and hold
harmless the County as provided above, to the satisfaction of the
corporation counsel.
(5) The applicant has agreed in writing to comply with all provisions of
chapter 35 of this Code.
(c) A permit granted pursuant to this chapter may be revoked by the director if the location
and condition of the dispenser or dispensing rack of the permit recipient falls out of
compliance with the criteria set forth above or, for district association permit recipients,
the operations of the association fall out of compliance with any criteria or conditions set
forth in chapter 35.
(d) Following issuance of an exclusive, district-wide publication dispensing rack permit to a
district association, no further permits shall be granted for individual dispensers in such
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business improvement district and, upon expiration of any then-effective permit, the
permit holder shall immediately and permanently remove the dispenser from the sidewalk
or County property.
SECTION 5. Chapter 35 of the Hawai`i County Code, 1983 (2005 Edition, as
amended), is amended by adding a new article to read as follows:
"Article 8. Publication Dispensing Devices.
Section 35-59. Applicability.
The provisions of this article shall apply to publication dispensing devices, publication
dispensing rack enclosures and publication dispensing rack spaces located upon sidewalks and
other public property within a business improvement district for which the district association
has been issued a permit pursuant to chapter 22 of this Code.
Section 35-60. Definitions.
As used in this article, unless another meaning is clear from the context, the following
terms shall have the following meaning:
"Authorized association" means a district association, as defined in
section 35-1, that has been issued a district-wide permit pursuant to chapter 22, article 3,
division 3 of this Code for the installation of publication dispensing racks.
"Authorized association-installed," "authorized association shall install," "installed by the
authorized association," or words of similar import mean installation, undertaken by or caused to
be undertaken, by an authorized association.
"Director" means the director of the department of public works..
"District" means the business improvement district governed by a certain authorized
association.
"Insert," when used as a noun, means a publication dispensing rack insert.
"Install" includes construct, erect, fabricate and affix.
"Location" means a site designated by the director for placement of association-installed
publication dispensing rack enclosures.
"Permit" means a publication dispensing rack space allocation or reallocation invoice
issued pursuant to this article.
"Permit period" means the period for which spaces are allocated under section 35-63(c).
"Permittee" means a person, organization, corporation, firm, association or similar entity
to whom or to which a publication dispensing rack permit has been issued pursuant to this
article.
"Publication" means any written or printed matter, including but not limited to, daily
publications, real estate publications or periodical newspapers, and any visitor information
publications, but may exclude any "handbill" defined in rules adopted by the authorized
association pursuant to section 35-71 if such rules provide that handbills, as so defined, shall be
excluded.
"Publication dispensing device" means any stand, box, rack or other device, other than a
publication dispensing rack enclosure or a publication dispensing rack insert, used to dispense
any publication. For purposes of this definition, a person shall not be deemed a device.
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"Publication dispensing rack enclosure" or "enclosure" means a structure installed by the
authorized association in the district with spaces in which publication dispensing rack inserts
may be inserted.
"Publication dispensing rack insert" means a box, insert or rack with a clear plastic face
that is owned by a permittee, that is designed to be inserted into a publication dispensing rack
space, and that is constructed to hold and display a publication.
"Publication dispensing rack space" or "space" means an area within a publication
dispensing rack enclosure that is constructed to hold a publication dispensing rack insert to
display and dispense a publication.
"Publisher" means an owner or authorized agent of the owner of a publication. The
authorized association may adopt rules defining the term "owner" or "authorized agent" for
purposes of this definition.
"Reallocation" means an allocation of unallocated, abandoned or surrendered spaces to a
permittee that takes place during a permit period.
"Sidewalk" means that portion of a street between a curb line or the pavement of a
roadway, and the adjacent private or public property line, whichever the case may be, intended
for the use of pedestrians, including any setback areas acquired by the County for road widening
purposes.
"Unallocated publication dispensing rack space" means a publication dispensing rack
space that has not been allocated in the most recent allocation or reallocation.
Section 35-61. Publication dispensing rack enclosures.
(a) A publication dispensing rack enclosure in the district shall contain a minimum of two
publication dispensing rack spaces.
(b) Each publication dispensing rack enclosure shall be designed so that publication
dispensing rack inserts inserted therein may meet the standards for such inserts
established by the authorized association.
The authorized association shall label each space within each publication dispensing rack
enclosure for the purpose of identification.
(d) Nothing in this article shall be construed to preclude the authorized association from
installing additional publication dispensing rack enclosures to the extent authorized under
the authorized association's permit.
Section 35-62. Publication dispensing rack inserts.
The authorized association shall enforce standards for the size, design, color and material
of publication dispensing rack inserts that may be inserted into the authorized
association's publication dispensing rack enclosurespursuant to permit, which shall have
been approved by the director.
(b) No person may place anything other than:
a) A publication dispensing rack insert for which a permit has been issued and
meeting the standards established pursuant to subsection (a); and
(2) Copies of the publication permitted to be dispensed from the publication
dispensing rack insert into a space in a publication dispensing rack
enclosure.
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Section 35-63. Publication dispensing rack space permits.
Any publisher desiring the use of a publication dispensing rack space in a publication
dispensing rack enclosure for purposes of dispensing a publication therefrom shall submit
an application for a publication dispensing rack space permit to the authorized
association. The authorized association shall determine with the approval of the director,
the form of, and provide to interested persons copies of, the publication dispensing rack
spacepermit application form.
(b) The authorized association may establish by rules approved by director a permit fee to be
charged by the authorized association for each publication dispensing rack space.
c) The requirement that a copy of the publication be submitted with the application is
intended to ensure that the publication exists at the time of the application and the
authorized association may not deny a permit for any publication based upon its content.
No permit shall be issued for a publication that does not exist at the time of the
application.
(d) The authorized association shall maintain a record of all publication dispensing rack
spaces that have been allocated or reallocated, the permittees to which the spaces have
been allocated or reallocated, and the publication permitted to be dispensed from the
spaces.
Section 35-64. Installation, maintenance, and repair of publication dispensing enclosures,
spaces, and inserts.
It shall be the responsibility of the authorized association to install, maintain, and repair
the publication dispensing rack enclosures, either directly or by contract with a private
contractor. Any cost for the installation, maintenance, and repair of the enclosure shall be borne
by the authorized association.
Section 35-65. Temporary dislocations.
La,) The authorized association may direct a permittee to remove copies of the permitted
publication and the permittee's publication dispensing rack insert from a publication
dispensing rack enclosure temporarily during any public, private, or utility construction
work conducted on the public sidewalk, the abutting roadway, an adjacent building, or
structure or to any utility, when the director determines that the removal is necessary in
the interest of public safety.
(b) The authorized association may also direct a permittee to remove copies of the permitted
publication and the permittee's publication dispensing rack insert from a publication
dispensing rack enclosure during any installation or repair work on the publication
dispensing rack enclosure.
Section 35-66. Prohibitions.
The following prohibitions shall apply:
(1) Other than provided in this article there shall be no publication dispensing
device allowed and no person may install or direct another person to install
any publication dispensing device on any public property, sidewalk, or right
of way within the district.
(2) Any publication dispensing device installed in violation of this article shall be
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subject to administrative enforcement including but not limited to removal, fines,
cease and desist orders and forfeiture in accordance with section 22-8.2 of this
Code.
Section 35-67. Liability.
The County shall not be held liable for the installation, maintenance, operation, or
management of any publication dispensing device within the district.
Section 35-68. Rules.
The authorized association shall adopt rules for the interpretation, implementation and
administration of this article, which shall be subject to the approval of the director.
Section 35-69. Fees.
All fees collected by the authorized association pursuant to this article or the rules
adopted pursuant to section 35-71 shall be accounted for in the financial records maintained by
the district board pursuant to section 35-19 and shall be deposited into the account established
for the district under this chapter. The financial records of the authorized association including
but not limited to all fees collected pursuant to this article shall be subject to review by the
public.
Section 35-70. Severability.
If any provision of this article or the application thereof to any person or circumstance, is
held invalid, the invalidity shall not affect the other provisions or applications of this article
which can be given effect without the invalid provision or application, and to this end, the
provisions of this article are severable."
SECTION 6. Material to be repealed is bracketed and stricken. New material is
underscored. In printing this ordinance, the brackets, bracketed and stricken material and
underscoring need not be included.
SECTION 7. If any provision of this ordinance or the application thereof to any person
or circumstance, is held invalid, such invalidity shall not affect other provisions or applications
of this ordinance which can be given effect without the invalid provision or application, and to
this end, the provisions of this ordinance are declared to be severable.
SECTION 8. This ordinance shall take effect upon its approval.
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