HomeMy WebLinkAboutCOM 0393.176 2012-2014 Murashige, Laura
From: Eric Weinert [ericdrakeweinert @gmail.com]
Sent: Monday, November 04, 2013 8:29 AM
To: counciltestimony @co.hawaii.hi.us
Subject: Bill 113 Testimony from Farmers And Ranchers United - Hawai'i
Attachments: N R 10-31-2013(MayorvetoesBill2491)att.pdf --
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P.O. Box 59, Pepeekeo, HI 96781 n
Testimony re: Bill 113, Draft 3
November 3, 2013
Dear Chair Yoshimoto and Members of the Hawai'i County Council:
Aloha!
We wish to respectfully voice our opposition to Bill 113, Draft 3 and urge you not to
adopt this bill. We also wish to encourage the Hawai'i County Council to thoughtfully
consider an alternate course of action in lieu of legislation – a dispute resolution
process bringing together stakeholders in agriculture to explore protocols to promote the
agreeable co-existence of conventional and organic farming practices on our island.
As production farmers and ranchers long involved in supplying fresh produce and meat to
island markets, we care deeply about the future of agriculture in Hawai'i. We strive to
produce safe, healthy, nutritious and affordable food for our fellow citizens. We
diligently comply with many federal and state regulatory requirements and will continue to
do so.
From long experience, we know that an agricultural livelihood is a challenging proposition
in Hawaii. Island farmers are subject to plant pests year-round, high feed, fertilizer
and energy costs, shipping monopolies, limited irrigation supplies, and many other
hardships. We all pay a high cost for imported food. This expense is acutely troubling
for the 47, 731 county residents now receiving food stamps. Despite these challenges, it
remains our fervent goal to make our food supply self-sufficient and sustainable.
We submit that Bill 113 is unnecessary, unwise and, in all likelihood, illegal. We invite
you to carefully read the legal opinion (attached to this testimony) released by Mayor
Bernard Carvalho and the Kauai County Attorney last week. It provides a thorough,
thoughtful review of the legal issues that prompted Mayor Carvalho to veto Bill 2491. We
believe Bill 113 is similarly flawed. It violates Hawai'i' s Right to Farm statute. It
violates the Commerce Clause. As regulatory policy, it contradicts the implied preemption
of GMO crop testing and cultivation by the federal government and the State of Hawai'i.
Bill
113 further violates equal protection under the law as provided by the 14th Amendment. For
these and other reasons, we will be forced to contest Bill 113 in court if it is adopted.
Already, we have consulted with local and national law firms about this course of action.
Comm. 3q3 . I
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Ref. Date 11 "
This is not something we wish to do. We believe there is a far better way for our County -
and its many stakeholders in agriculture - to proceed. We should be sitting at the table
talking. We have a lot in common on this island. We're all family farmers. We all want
diversified agriculture to succeed. We all want to be good neighbors and good stewards of
the land. Some of us - notably, papaya growers in Puna - have grown a transgenic crop for
14 years. Others simply wish to keep their options open. We see crop-specific research
that aims to prevent catastrophic blights like banana bunchy top virus, orange greening
and tomato wilt. We don't know if genetic engineering will provide disease-resistant
varieties in the future, but if it does, we want the freedom to fully examine and utilize
that option.
We also recognize the concerns of certified organic growers and those seeking
certification. We'd like to calmly discuss how varied planting schedules, buffer zones and
other means might address their concerns.
We do not believe the selected cultivation of GMO crops needs to be a divisive issue. We
think we should first give peace a chance. We urge the County Council to see the merit in
that dialogue and to support it before adopting any legislation.
We urge the County Council to step back from this bill and instead seek a win/win
solution. What makes our society work - and unique - is our tolerance, our appreciation
of our differences, our lokahi, and our aloha.
We stand ready to participate in a purposeful, non-political dialogue to achieve that
solution. Please support that effort first and foremost.
Mahalo!
Eric Weinert on behalf of Farmers and Ranchers United - Hawai' i
2
BERNARD P. CARVALHO, JR. GARY K. HEU
Mayor Managing Director
COUNTY OF KAUA`I
OFFICE OF THE MAYOR
News Release
For Immediate Release: October 31, 2013
BETH TOKIOKA,DIRECTOR OF COMMUNICATIONS
Tel (808)241-4900
Fax(808)241-6877
Mayor vetoes Bill 2491
LIHU`E — Mayor Bernard P. Carvalho, Jr. has vetoed Bill 2491, Relating to Pesticides
and Genetically Modified Organisms, which was passed by the County Council on October 16.
"I have always said I agree with the intent of this bill to provide for pesticide use
disclosure, create meaningful buffer zones and conduct a study on the health and
environmental issues relating to pesticide use on Kaua`i," stated the Mayor. "However, I believe
strongly that this bill is legally flawed. That being the case, I had no choice but to veto."
The Mayor has released the opinion on 2491 drafted by the Office of the County
Attorney, which was delivered to him on October 24.
"Since receiving the opinion I've spent hours and hours understanding the points raised
and questioning our attorneys on the legal issues," he said. "While I believe a veto is
necessary, we can and will find legal means to address these important health and safety
issues."
(more)
Mayor vetoes Bill 2491
October 31, 2013
Page 2 of 2
In his veto message, the mayor urges the council to move forward quickly on funding the
joint fact finding study group, which is the first step toward conducting an environmental public
health impact study (EPHIS). The study could be recommended via a resolution that is slated
for next week's council agenda. He also describes actions being taken by the Governor and the
State Department of Agriculture to address buffer zones and pesticide use notification.
"I truly believe in my heart that Kauai can accomplish anything through cooperation,
collaboration, and by working together in the spirit of aloha," said the mayor. "This does not
invalidate the hard work that has gone into the crafting of 2491. We are moving forward and we
will continue to move forward with or without the bill."
The full text of the mayor's message, along with the attorney's opinion can be found on
the county's website: www.kauai.gov.
Bernard P. Carvalho,Jr. If M6' Gary K. Heu
Mayor f D ry+�' Managing Director
OFFICE OF THE MAYOR
County of Kaua`i, State of Hawaii
4444 Rice Street,Suite 235,Lihu`e,Hawaii 96766
TEL(808)241-4900 FAX(808)241-6877
October 31, 2013
Honorable Jay Furfaro, Chair
And Members of the Kauai County Council
4396 Rice Street
Lihu`e, Hawaii 96766
Re: Bill 2491, Draft 2
Dear Chair Furfaro and Councilmembers:
Aloha! Your deliberations on the referenced bill have been closely followed by me and
members of my administration. Along with you, we have listened through hours of testimony,
pored over volumes of emails, letters, studies, legal citations and data, and have engaged in
numerous discussions with a wide range of stakeholders over the issues related to Bill 2491.
Public and private outcry for me to either pass the bill or veto the bill has been continuous since
the council's vote to approve the bill in the early morning hours of October 16. Since the
measure was delivered to me for action the following day, I have engaged in more due diligence
and more than a fair amount of soul searching. In addition, a comprehensive legal review of the
bill as amended has taken place.
Today I have come to a decision. My decision is to veto Bill 2491.
I do not make this decision lightly, and I know that it will be controversial. However, I believe it
is the right thing to do given the circumstances before me.
First, I want to make clear that I agree fully with the general intent of this bill. I believe there
should be pre-and post-disclosure of pesticide use, and that buffer zones of some meaningful
kind should be established in conjunction with disclosure. I also believe that the study as
proposed is the most important piece of this legislation,as it can better guide us to the best
decisions relating to buffer zones and other needed protections.
An Equal Opportunity Employer
Bill 2491,Draft 2
October 31, 2013
Page 2 of 4
However, one of the issues with Bill 2491 as it stands today is that it does not directly address
pesticide buffer zones. Instead criminalizes the growing of any kinds of crops on agricultural
land regardless of whether or not pesticides are used on said crops. It also contains other legal
flaws,which I will address in this communication. The bottom line is, I cannot in good
conscience support this measure.
As I have said all along, I truly believe that we could have accomplished these goals faster and in
a legally sound manner by working cooperatively with the state,which has clear legal authority
over buffer zones and pesticide disclosure. A deferral would have given us time to make
something happen through the current regulatory framework, and I still believe that could have
been accomplished in a timely manner.
Based on the legal opinion provided to me by the county attorney, it is evident that Kaua`i does
not currently have the legal authority to enact most of what is contained in 2491.
While there are those who think that legal concerns should not prevent me from allowing Bill
2491 to become law, I cannot escape the fact that I am the chief executive officer of the County
of Kaua`i. As such, I have taken an oath of office to uphold the laws of the County of Kaua`i,
the State of Hawai`i and the United States of America. Therefore, it would be a dereliction of
duty for me to allow the bill to become law when its legality is so questionable.
Let me be clear: the opinion speaks not to whether 2491 is good for our community or bad for
our community; rather, it speaks to whether or not this bill is legally defensible.
There is much to agree on within Bill 2491, but we must follow a correct and legal path toward
reaching our goal of protecting the health and safety of our community. I do not believe 2491 is
the correct and legal path, and therefore I believe it is my responsibility to veto the bill.
Permit me to briefly summarize the legal points that are most troubling:
• Existing federal and state law appears to impliedly preempt the county from enacting its
own pesticide laws. Implied pre-emption is the principle that federal or state law can
supersede or supplant state or local law, if the local law stands as an obstacle to
accomplishing the full purpose and objectives of the overriding superior law. In this
case,the State of Hawai`i Department of Agriculture has been given authority by the
federal government to regulate pesticides. Our attorneys explain that the state pesticide
law is a complex and comprehensive regulatory framework that"indicates a purpose to
occupy an entire field of regulation,"thereby pre-empting a local authority from enacting
such laws. In the opinion, our attorneys state that"a reviewing court would likely find
that Bill No. 2491 stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of the legislature under the Hawai`i Pesticides Law."
Bill 2491, Draft 2
October 31, 2013
Page 3 of 4
• Bill No. 2491 will also likely be challenged as an invalid exercise of the County's police
power, an invalid exercise of the County's ability to regulate public nuisances, and/or a
violation of the Hawaii Right to Farm Act's prohibition against any public official
"declaring" such fanning operations a nuisance. The Right to Farm Act states "[no] court,
official,public servant,or public employee shall declare any farming operation a
nuisance for any reason if the farming operation has been conducted in a manner
consistent with generally accepted agricultural and management practices. There shall be
a rebuttable presumption that a farming operation does not constitute a nuisance."
These legal arguments and others have been discussed during the council proceedings, and are
underscored by numerous instances of case law across the country, with two in particular
originating from Hawai`i: In re Application of Anamizu(City and County of Honolulu) and
Citizens Utilities Co. v. County of Kauai.
A third legal issue has surfaced with the council's decision to move implementation and
enforcement from the Department of Public Works to the Office of Economic Development
(OED). The County's Charter, like the United States Constitution and the State of Hawai`i
Constitution, contemplates a separation of power, with each branch having its own functions.
The council has legislative power. The mayor has executive power. OED is an agency within
the executive branch with the mission to "create economic opportunities"; it is not a regulatory
agency. With this bill,the council would be in violation of the Charter by assigning new
functions to OED. Charter Section 6.02, specifically says that the mayor may assign new
functions to existing agencies. The council's invasion into the executive branch with this bill not
only runs contrary to the Charter, it also highlights the separation of power's purpose as a
safeguard, given that OED is not equipped to manage the bill's requirements.
What I've presented is just a cursory view of the main legal questions that have led me to decide
that I must veto this bill. In order to be fully transparent,I am releasing the county attorney's
opinion in its entirety. Our community is deeply divided over 2491 and we can't allow that to
continue. It is my hope that after reviewing the opinion,the reasons for this action will be clear,
and we can then focus on finding common ground and moving forward.
In the interest of finding that common ground, I would like the council to know that it is my
intention to support the resolution calling for an environmental public health impact study
(EPHIS). We would like to begin working with the council as soon as possible to identify funds
that can be used to get the EPHIS joint fact finding study group underway.
Bill 2491, Draft 2
October 31, 2013
Page 4 of 4
Additionally, the State Department of Agriculture has been working with the five companies that
would be impacted by this bill on voluntary pesticide disclosure and buffer zone guidelines. We
anticipate an announcement of the product of their efforts in two to three weeks. Governor
Abercrombie has informed me that he will be seeking funding for additional inspectors that
could service Kauai
These efforts are positive steps forward in realizing the goals of the bill,until the EPHIS is
complete and its recommendations can be adopted by the appropriate parties.
In conclusion, I would like to state that, despite this veto, I absolutely believe that the spirit of
2491 will be implemented on Kaua'i in accordance with applicable federal, state and county laws
and regulations. It would be my preference to achieve the goal through cooperation and
understanding,instead of through adversarial legal action. That is the true Kaua`i way, and
would be an accomplishment worthy of all of our sincere effort.
Respectfully submitted,
s
Bernard P. Carvalho,Jr.
Mayor
cc: Al Castillo, County Attorney
att: Office of the County Attorney's Written Legal Review/Opinion Regarding Proposed
Draft Bill 2491 as amended(Tracking No. 13-1250),dated October 24,2013
COUNTY OF KAUAI
OFFICE OF THE COUNTY ATTORNEY
CONFIDENTIAL
Attorney-Client Communication
n for Attorney work-Product
DO NOT DISCLOSE
October 24, 2013
TO: Bernard P. Carvalho, Jr., Mayor
FROM: Mauna Kea Trask, Deputy County Attorney
SUBJECT: Memorandum Requesting Copy of Office of the County Attorney's Written
Legal Review/Opinion Regarding Proposed Draft Bill No 2491 as
amended (Tracking No. 13-1250)
Request
In your memorandum dated October 14, 2013 you requested:
(1) Legal advice pertaining to the legality of Bill No. 2491 in its current form;
(2) What, if any, legal issues arise in the assignment of the regulatory
requirements of Bill No. 2491 to OED?.
This office defines "legality" similarly to "legal sufficiency" in that it is taken to
mean the proposed bill contains all the requisites necessary to create a valid bill or
ordinance. A finding of"legality does not mean that a judge cannot or will not declare
the ordinance void or illegal as a judge may interpret the relevant statutes, case law
and/or facts,differently from the interpretation given by this office today or the ordinance
may be applied unconstitutionally or in a manner that may render it susceptible to
challenge. Conversely a finding of "illegality" does not mean a reviewing court will not
apply the law differently and or evaluate the facts and circumstances in such a way as
to render the ordinance legal.
This opinion is based on the current state of the law and the facts and
circumstances as known to the County Attorney's Office at the time of rendering this
opinion. If the facts or circumstances as understood and or the law should change said
changes may affect the advice and conclusions contained herein.
TABLE OF CONTENTS
Page
I, Introduction 1
a. Agriculture in Hawaii and Regulation Thereof 1
b. Regulation of Pesticides 4
c. Regulation of"Genetically Modified Organisms" 7
II. Legal Issues 9
a. Compliance with Charter Requirements
of Bills/Ordinances 9
b. General Authority to Enact Relating to County's
Police Power and Regulation of Nuisances 10
i. Police Power 10
ii. Hawaii Law on the Police Power 11
iii. General Law on Nuisances 12
iv. Hawaii Law on Nuisance 13
c. Validity 14
i. Generally 14
ii. Validity of Police Power Regulations 18
iii. Validity of Nuisance Laws 24
d. Preemption 25
i. Federal Preemption 25
ii. State Preemption 26
1. Preemption by State Statute 30
2. Express or Implied Preemption 32
ii
TABLE OF CONTENTS
Page
3. Lack of Conflict 33
4. Ordinances Imposing Criminal Penalties 34
iii. Preemption in Hawai'i 35
Ill. Specific Challenges Pertaining to Bill No. 2491 37
a. Compliance with County Charter Requirements
Pertaining to Bills/Ordinances 37
b. Whether the County Has the General Authority
to Enact Police Power Regulations and
to Regulate Nuisances 39
i. Police Power 39
ii. Nuisance 39
c. State and Federal Preemption Issues Applicable
to Bill No. 2491 41
i. General Preemption Issues Pertaining to
Portions of Bill 2491 42
ii. General Preemption Issues Pertaining to
Portions of Bill 2491 Addressing
Genetically Modified Organisms 47
d. Challenges Facing Bill No. 2491:
Section 22-22.3, Definitions 48
e. Challenges Facing Bill No. 2491:
Section 22-22.4, Mandatory Disclosure of
Pesticides, and Genetically Modified Organisms 49
i. Pesticides 49
ii. Genetically Modified Organisms 51
iii
TABLE OF CONTENTS
Page
f. Challenges Facing Bill No. 2491:
Section 22-22.5, Pesticide Buffer Zones 53
g. Challenges Facing Bill No. 2491:
Section 22-22.6, Environmental and Public Health Impacts Study
(EPHIS) 56
h. Challenges Facing Bill No. 2491:
Section 22-22.7, Penalties, and
Section 22-22.8, Rulemaking 57
i. Challenges Facing Bill No. 2491:
Application of Kauai County
Charter Section 6.02 57
IV. Conclusion 66
iv
I. Introduction
In order to provide a factually accurate context to the instant Bill, the Office of the
County Attorney has conducted extensive legal and historical research on agriculture in
Hawaii and its regulation. The following is a summary of both the historical context of
the agricultural industry in Hawaii and current Federal and State regulatory scheme
pertaining to pesticides and GMO products in the United States and the State of
Hawaii:
a. Agriculture in Hawaii and Regulation Thereof.
Historical Overview of Agriculture in Hawaii.
The history and development of agriculture in Hawaii can basically be
understood as progressing through six general stages. The first was pre-contact
agriculture, followed by; provision of provender for seafaring vessels; sandalwood;
support for the whaling industry; large plantation agriculture; and presently, scientific
agriculture. Although very different from one another, each one of these agricultural
stages was important to the Hawaiian economy and each had a substantial effect on the
history of the Hawaiian Islands and its people.
Pre-contact agriculture was the basis of Hawaiian society and was regulated
under the "kapu" system. Because there was no need for the development of a currency
based economy and without the western concept of land ownership the agricultural
industry supported the indigenous political structure. In the Hawaiian Islands agriculture
was conducted differently on lands where there were streams of water and on dry lands.
On lands supplied with running water agriculture was easy and could be carried on at all
times. Malo, David, Hawaiian Antiquities "Mo'olelo Hawaii", 1838. Pg. 204, ch. 39,
paragraph 2. On the "kula" lands, such lands as were dry and inaccessible to water
except from irrigation, farming was a laborious occupation and called for great patience,
being attached with many drawbacks. On some of these were grubs, or caterpillars, or
blight, hauoki (frost), or kahe (freshets), or the sun was too scorching, besides which
there were many other hindrances." Malo, David, Hawaiian Antiquities "Mo'olelo
Hawaii", 1838. Pg. 204, ch. 39, paragraph 3. Pre-contact agriculture lasted
approximately 1,028 years from 750 AD to 1778.
From approximately 1778 to 1800 Hawaiian agriculture supported the native
population as well as provided provender for seafaring vessels. The publishing of the
official account of Captain Cook's last expedition in 1784 marked Hawaii's entrance into
foreign commerce and the foreign marketplace. Fur traders stopping in the islands on
their way from the American North West to China wrote in 1792 about what a happy
discovery Hawaii was as they were able to restock their ships with provender and
refresh their crew with island hospitality. E. Joesting, A Pictorial History of Hawaii,
Bishop Museum Press, 1969. As in Cook's time, the early traders could purchase
provender for trinkets. But the Hawaiians learned fast: by 1800 every foreigner was
complaining about the high cost of living in the islands." E. Joesting, id.
1
The next agricultural development came with the establishment of the
sandalwood industry. Beginning with a rocky start in 1791 sandalwood quickly became
the largest industry in Hawaii. Once traders distinguished true Hawaii sandalwood they
found an eager market for it. In 1805-1807 Canton imported approximately 119,970 lbs.
of sandalwood, from 1811 — 1812 Canton imported 2,537,498.80 lbs. O.A. Bushnell, A
Pictorial History of Hawaii, Bishop Museum Press, 1969. The best years of the
sandalwood trade were between 1810 — 1818. Understanding the value of the product,
Kamehameha I put a Kapu on the trees and made trading in sandalwood a royal
monopoly. O.A. Bushnell, Id. After Kamehameha's death in 1819, Liholiho,
Kamehameha II, permitted the high chiefs to share in the sandalwood trade. The eager
chiefs conserved neither trees nor people and as a result whole villages of commoners
were driven into the mountains to cut sandalwood and to carry the logs to the seashore.
Within a few years both resources were depleted: thousands of commoners were dead
from exposure, famine, and disease; and the "golden trees" were almost exterminated.
By 1830 good sandalwood was difficult to find; by 1844 the scrawny remnants were no
longer marketable." O.A. Bushnell, Id.
During the sandalwood years the whaling industry also thrived in the islands.
From 1830 to 1844 the time it took a whaling ship to take its catch increased from 2
years to three to four years. Whalers would break up the long voyage by stopping over
in Hawaii two times a year as they followed the whale pods to northern and southern
waters. This bi-annual pit stop had a "healthy" effect upon the kingdom's economy."
New businesses were established for supplying the whaler's needs; a corps of
carpenters, blacksmiths, and sail makers were attracted to the ports. Agriculture was
stimulated and cattle ranches were started. O.A. Bushnell, Id.
In 1835, with the leasing of a thousand acres of land in Koloa Kauai by
Kauikeaouli (Kamehameha ill) to Ladd and Company, the plantation agricultural
industry began. Nothing could overstate the effect that large plantation agricultural had
on Hawaii and its people. At the time Ladd and Company claimed that their Koloa
experiment was the most important cause of the constitution of 1840, the first
constitution of Hawaii. By 1847 eleven plantations across the kingdom exported almost
300 tons of raw sugar compared to the 4 tons in 1836.
In 1855, Alexander Liholiho, Kamehameha IV, in a plan to stem the cataclysmic
decrease of the Hawaiian population, asked the Hawaii legislature to support his plan to
reinvigorate the Hawaiian population by encouraging commerce and agriculture,
improving harbors and roads, building better schools to better prepare the healthy for
life in the modern world, and establishing hospitals to care for the sick. By 1864
plantations had become so successful that there were not enough Hawaiian workers to
work them. Thus with the support of Kamehameha IV, in 1865 the first wave of 522
Chinese contract laborers came to Hawaii to work the plantations.
By the late 1800s plantation agriculture was the most powerful economic and
political force in Hawaii and it was these precise business interests, with the support of
the U.S. military, that illegally overthrew the independent nation of Hawaii in 1893.
Pub.L. 103-150, 107 Stat. 1510, S.J.Res. 19, enacted November 23, 1993. These
2
same plantation magnates formed the new Republic of Hawaii which shortly became a
territory of the U.S. via the passage of the Newlands Resolution in 1898. By the turn of
the century sugar was still king in Hawaii. However, other crops like pineapple and
coffee were also thriving. So, with hope farmers attempted numerous other ways to add
to the islands economy. O.A. Bushnell, Id. Indefatigably they tried to produce exportable
rubber, sisal, tobacco, copra, and exotic fruits. O.A. Bushnell, Id. Inevitably hit by high
labor costs, bad weather, foreign competition, or hordes of pests, both animal and
vegetable, they failed. O.A. Bushnell, Id. Sugar companies or the waiting jungle took
over their plantations. In 1934, with the passage of the Jones-Costigan act, Hawai'i
agricultural exports were subject to new deal quotas imposed by the U.S. Congress.
This depression era legislation applied federal control to agricultural production and had
a negative impact both on business and Hawaii's perception as being treated as
second class citizens even as a U.S. territory. O.A. Bushnell, Id. The Jones-Costigan
act coupled with the effect of the Massie case arguably lead to the establishment of
Hawaii as the fiftieth state in 1959.
Throughout the mid 1900s agriculture dominated the Hawaii economy. However,
even then further expansion was expected to slow because of increasing land costs,
even on relatively un-crowded neighbor islands; themed to import expensive high
protein feed for cattle and poultry, the reluctance of the population to forsake cities for
farms; unreliable and costly inter-island transportation facilities and always the bane of
the farmers existence, fluctuation in price. O.A. Bushnell, Id. In order to combat these
factors the agricultural industry in Hawaii looked to science to keep the industry viable.
By the 1970s Hawaii agriculture was considered the most scientifically advanced in the
world. O.A. Bushnell, Id. Utilizing geneticists, physiologists, plant pathologist etc.,
Hawaii agriculture was able to maintain its viability in the face of increasing competition
from domestic and foreign producers, and rising costs of land, machines and labor at
home. O.A. Bushnell, Id. However, by the late 1980s the large plantation era in Hawaii
agriculture was pau. In an effort to anticipate what agriculture would look like in the
future Hawaiian planters back then looked to the benefits of science. "Farms of the
future," they said, "probably will be less numerous, but bigger, more mechanized, and
more scientific." O.A. Bushnell, Id.
Today Hawaii's agriculture industry is "economically" dominated by large
scientifically based agricultural research farming operations. This agricultural industry
takes advantage of the Hawaiian climate and its many growing cycles and is now very
profitable in the islands. Although the popular support of science based agricultural has
retracted over the past twenty years, it is in arguable that the state of the present
agriculture industry was anticipated to occur in Hawaii and was expected to be the
specific form of agriculture in Hawaii at this time.
Regulation of Agriculture in Hawaii.
A viable and robust agricultural industry in Hawaii has been legally declared to
be in the best interest of the public and support thereof is established public policy. See
Hawaii State Constitution Article 11, section 3, Agricultural Lands; H.R.S. 226-7,
3
Objectives and policies for the economy--agriculture ; and the Hawaii Right to Farm
Act, H.R.S. 165-3 Declaration of public purpose.
Because of the strong policies and legal support for agricultural pursuits in
Hawaii, both primary and accessory agricultural uses and developments that pertain to
the planting, cultivating, harvesting, and processing of crops; and the farming or
ranching of any plant or animal species are generally allowed on agriculturally zoned
lands without any required permit both at the state and county levels. This is reflected in
HRS chapter 205 and the County of Kauai Zoning Ordinance ("CZO").
The County regulates uses and developments of agricultural land via its' zoning
power as stated in HRS 46-4. According to HRS 46-4, "zoning in [Kaua'i] means the
establishment of districts of such number, shape, and area, and the adoption of
regulations for each district to carry out the purposes of[HRS 46-4]." In establishing or
regulating the districts, the statute states, "full consideration shall be given to all
available data as to soil classification and physical use capabilities of the land to allow
and encourage the most beneficial use of the land consonant with good zoning
practices". See HRS 46-4. It should be stated that according to Ordinance 935, section
8-2.3 both intensive agriculture and orchards and nurseries are generally permitted
uses within agriculture zoned lands. Furthermore under HRS 205-2 (d) (1) agricultural
districts shall include: activities or uses as characterized by the cultivation of crops,
crops for bioenergy, orchards, forage, and forestry." Currently no laws in the State or
County exist that prohibit either the growing of crops or the conducting of other
agricultural pursuits within agriculturally zoned lands.
What this means is that there are no restrictions on the growing of crops with or
without the use of pesticides, herbicides, or fungicides. The definition of agricultural
activity is broad in scope and does not create a distinction between crops on which
pesticides, herbicides, or fungicides can be used. As such, under the current zoning
laws in the State of Hawaii, agricultural land can be used for agricultural activities,
regardless of pesticides, herbicides, or fungicides. Buffer zones on the planting of crops
would impose the kind of restriction that would conflict with valid, traditional laws, and
the stated goal of having a viable and robust agricultural industry in Hawaii.
b. Regulation of Pesticides
In the United States, the Federal Environmental Protection Agency (EPA) and
the states (in the State of Hawaii, the State Department of Agriculture) regulate
pesticides via registration, licensing and use statutes. Both the EPA and the states
receive their authority to regulate pesticides under the Federal Insecticide, Fungicide
and Rodenticide Act (FIFRA). Additionally, under the Federal Food Drug and Cosmetic
Act (FFDCA), EPA establishes tolerances (maximum legally permissible levels) for
pesticide residues in food. Under the Endangered Species Act (ESA), the EPA protects
endangered and threatened plants and animals (listed species) and the habitats upon
which they depend. The ESA requires the EPA to ensure that any action they
authorize, fund, or carry out, will not likely jeopardize the continued existence of any
4
listed species, or destroy or adversely modify any critical habitat for those species.
EPA's Endangered Species Protection Program (ESPP) helps promote the recovery of
listed species. The ESPP is a program designed to determine whether pesticide use in
a certain geographic area may affect any listed species. If limitations on pesticide use
are necessary to protect listed species in that area, the information is relayed through
Endangered Species Protection Bulletins.
Federal law requires, before selling or distributing a pesticide in the United
States, that a person or company must obtain registration, or license, from EPA. Before
registering a new pesticide or new use for a registered pesticide, the EPA must first
ensure that the pesticide, when used according to label directions, can be used with a
reasonable certainty of no harm to human health and without posing unreasonable risks
to the environment. To make such determinations, the EPA requires more than 100
different scientific studies and tests from applicants. Where pesticides may be used on
food or feed crops, the EPA also sets tolerances (maximum pesticide residue levels) for
the amount of the pesticide that can legally remain in or on foods.
States have authority under Section 24(c) of FIFRA to add uses to pesticides
based on special local needs. States may not register new active ingredients under
Section 24(c). Other federal agencies or an authorized state official may request that
the EPA allow the use of an unregistered active ingredient or an additional use for a
registered pesticide to respond to emergency conditions under Section 18 of FIFRA for
a specific period of time. The EPA may approve or disapprove this request. The
Section 18 database includes records for all Section 18 Emergency Exemptions
received by the EPA.
The Pesticide Registration Improvement Act (PRIA) of 2003 establishes pesticide
registration service fees for registration actions in three pesticide program divisions:
Antimicrobials, Biopesticides and Pollution Prevention, and the Registration Divisions.
The process that the EPA follows to register pesticides revolves around the
protection of human health and the environment. The EPA has several programs in
which pesticides are reviewed to meet such health and safety standards, including re-
registration, tolerance reassessment, registration review, and special review. In 2006,
The EPA initiated a new program called registration review to reevaluate all pesticides
on a regular cycle. The program's goal is to review each pesticide's active ingredient
every 15 years to make sure that as the ability to assess risks to human health and the
environment evolves and as policies and practices change, all pesticide products in the
marketplace can still be used safely.
The Federal Food, Drug, and Cosmetics Act (FFDCA) as amended by the Food
Quality Protection Act of 1996 (FQPA) called for reassessing existing tolerances
(maximum limits for pesticide residues in food) and tolerance exemptions to ensure that
they meet the safety standard of the law. The EPA integrated re-registration and
tolerance reassessment to accomplish the goals of both programs most effectively. The
law required the EPA to give priority to the review of those pesticides that appear to
pose the greatest risk to public health, and to reassess nearly 10,000 tolerances. The
5
EPA had completed more than 99% of tolerance reassessments by the end of 2006.
The EPA may initiate the Pesticide Special Review process when it discovers that the
use of a registered pesticide may result in unreasonable adverse effects on people or
the environment. Unlike the re-registration and registration review processes, the
special review process usually involves intensive review of only a few or just one
potential risk concern. The review involves evaluating existing data, acquiring new
information and/or studies, assessing the identified risk, and determining appropriate
risk reduction measures.
States may be delegated primary enforcement responsibility for pesticide use
violations under FIFRA. The states have this authority when they have adopted and are
implementing pesticide use regulations or when they have entered into a cooperative
agreement with the EPA for specific pesticide enforcement. Due to the implementation
of HRS Chapter 149A the State of Hawaii has primary enforcement authority of
pesticide regulation under FIFRA.
In the State of Hawaii, the state Department of Agriculture (DOA) is the state
agency with the authority to regulate pesticides under HRS Chapters 141 and 149A.
Under the authority of HRS Chapter 149A the DOA regulates Pesticide Licensing and
Sales, Pesticide Use, and provides for Violations, Warning Notice, and Penalties
pertaining to non-compliance with HRS 149A. HRS Chapter 149A also creates an
advisory committee composed of but not limited to the chairperson, or the chairperson's
designated representative, who shall head the committee and one representative each
from the Department of Health, Department of Land and Natural Resources, University
of Hawaii College of Tropical Agriculture and Human Resources, sugar industry,
pineapple industry, Hawai'i Farm Bureau Federation, pesticide industry, structural pest
control industry, an environmental organization, a citizen group, and a landscape
professional. The advisory committee shall advise and assist the departments in
developing or revising laws and rules to carry out and effectuate the purposes of HRS
Chapter 149A and in advising the departments in pesticide problems.
In July, 2013, HRS § 149A was amended to include a new section regarding
restricted use pesticide reporting to the Hawaii State DOA. See Act 105, H.B. No. 673.
The purpose of the Act is to address the potential public health and environmental
issues related to pesticides by requiring: the online publishing of certain restricted use
pesticide records, reports, or forms; and a study of other states' reporting requirements
for certain pesticides. The new section also requires the legislative reference bureau to
conduct a study on pesticides that includes: whether other states impose any type of
reporting requirements on pesticides that do not fall within the definition of a restricted
use pesticide; and if so, the details of the reporting requirement and any other relevant
information, to the extent ascertainable. There is no language in HRS Chapter 149A
expressly prohibiting the various Hawaii counties from regulating pesticides, nor is
there any express language in HRS Chapter 149A granting counties the authority to
regulate pesticides.
Pursuant to the authority of HRS Chapter 149A-33 the DOA has promulgated
Administrative Rules under Title 4, subtitle 6, Chapter 66. Pursuant to HAR § 4-66-1
6
the objectives of these administrative rules are to, "implement the requirements of
Chapter 149A which provides for the registration, licensing, certification, record keeping,
usage, and other activities related to the safe and efficacious use of pesticides."
Pursuant to HAR §4-66-3 the head of the Division of Plant Industry, Hawaii State DOA,
or any officer or employee to whom authority has been duly delegated is authorized to
administer and enforce the provisions of the HARs. Therefore, the counties are not
expressly prohibited, nor are they expressly authorized to regulate pesticides under the
current set of administrative rules.
c. Regulation of"Genetically Modified Organisms"
Regulation of GMO crops in the United States at the Federal level is divided
among three regulatory agencies: the EPA, the Food and Drug Administration (FDA),
and the U.S. Department of Agriculture (USDA).
The FDA is responsible for regulating the safety of GM crops that are eaten by
humans or animals. In 1992, the FDA issued Policy Statement 22984 ("Statement
22984") regarding "[flood for human consumption and animal drugs, feeds, and related
products: Foods derived from new plant varieties." Statement 22984 was a clarification
of the FDA's interpretation of the FFDCA, with respect to new technologies to produce
foods, and reflected FDA's current judgment based on new plant varieties then under
development in agricultural research. The FDA promulgated Statement 22984 to
ensure that relevant scientific, safety, and regulatory issues are resolved prior to the
introduction of such products into the market place. In Statement 22984 the term
"genetic modification" (GM) means the alteration of the genotype of a plant using any
technique, new or traditional. The FDA chose to use the term "modification" in a broad
context to mean the alteration in the composition of food that results from adding,
deleting, or changing hereditary traits, irrespective of the method. For this reason the
FDA considers the term "Genetic Engineering" (GE) to be the more precise term to
describe plants that have been modified using modern blo-technologies compared to
those modified through traditional means.
According to the policy established in 1992, FDA considers most GM crops as
"substantially equivalent" to non-GM crops. In such cases, GM crops are designated as
"Generally Recognized as Safe" under the FFDCA and do not require pre-market
approval. If, however, the insertion of a transgene into a food crop results in the
expression of foreign proteins that differ significantly in structure, function, or quality
from natural plant proteins and are potentially harmful to human health, the FDA
reserves the authority to apply more stringent provisions of FFDCA requiring the
mandatory pre-market approval of food additives, whether or not they are the products
of biotechnology.
In 1997, the FDA established a voluntary consultation process with GM crop
developers to review the determination of"substantial equivalence" before the crop is
marketed, such as assessing the toxicity and allergenicity of the gene product and the
plant itself. If the data in the food-safety assessment are satisfactory, the FDA notifies
the developer that marketing of the crop may proceed.
7
The EPA also regulates biopesticides, including Bt toxins, under the FIFRA. If a
crop is genetically engineered to carry a gene for a Bt toxin, EPA requires the developer
to conduct a food-safety analysis to ensure that the foreign protein is not allergenic and
verify that the toxin is safe for the environment.
The USDA's Animal and Plant Health Inspection Services (APHIS) regulates GM
crops under the Plant Protection Act of 2000. The Act defines "plant pests" as
organisms that cause disease, injury, or damage to plants or plant products, including
viruses, bacteria, fungi, and parasitic plants. GM plants are regulated under the Plant
Protection Act if they were created through gene transfer with Agrobacterium
tumefaciens, which is considered a plant pest, or if they incorporate DNA from a plant
pest (such as a terminator gene).
The USDA regulates GM plants either under a permit or a notification process.
For simple field trials of a Bt crop, such as Bt corn, the notification process is used,
which is usually a formality. The company gives APHIS notice of the trial and agrees to
follow certain rules, and USDA usually signs off. In contrast, field trials of GM crops that
entail a higher risk, such as those that are highly outcrossing or that remain in the
ground for a long time, require a permit. For field trials of GM crops that produce
pharmaceutical or industrial chemicals, a permit is always required. The permitting
process is more or less extensive, requiring either an Environmental Assessment or an
Environmental Impact Statement.
When a company decides that it wants to commercialize a GM crop and produce
seed for farmers to grow, it can petition APHIS for deregulated status. This process
requires submitting risk-assessment data to demonstrate that the crop does not pose a
plant-pest risk. The relevant data must be made public and include susceptibility to
disease and insect pests, weediness, effects on non-target organisms and beneficial
organisms, and the risk of gene flow to wild or weedy relatives. After the 2000
ProdiGene incident, USDA adopted the policy that pharma crops entail inherent risks
and hence require a higher level of scrutiny than other GM crops. As a result, pharma
crops are not eligible for deregulated status but must remain under permit even at the
commercial stage.
According to the Plant Protection Act of 2000 7 U.S.C. § 7701, et seq. (PPA), the
U.S. Congress has found that the detection, control, eradication, suppression,
prevention, or retardation of the spread of plant pests or noxious weeds is necessary for
the protection of the agriculture, environment, and economy of the United States.
Furthermore, Congress has found that biological control is often a desirable, low-risk
means of ridding crops and other plants of plant pests and noxious weeds, and its use
should be facilitated by the Department of Agriculture, other Federal Agencies and
states whenever feasible. The PPA provides that the Secretary of the Department of
Agriculture may issue regulations "to prevent the introduction of plant pests into the
United States or the dissemination of plant pests within the United States." 7 U. S. C.
§7711(a). Pursuant to that grant of authority, APHIS promulgated regulations that
presume genetically engineered plants to be "plant pests"—and thus "regulated articles"
8
under the PPA—until APHIS determines otherwise. However, any person may petition
APHIS for a determination that a regulated article does not present a plant pest risk and
therefore should not be subject to the applicable regulations. APHIS may grant such a
petition in whole or in part.
In the State of Hawaii, the state Department of Health regulates food and food
safety under HRS Chapter 328. Currently, there are no Hawaii state laws pertaining to
GM, GE, or GMO products.
II. Legal Issues
The Office of the County Attorney has determined that the following legal issues
will generally apply to the bill in its current form; (1) compliance with County Charter
requirements pertaining to bills/ordinances; (2) whether or not the County generally has
the authority to enact police power regulations and to regulate nuisances; (3) if the
County does have the general power to regulate under the police power and nuisances,
whether the specific draft bill is a valid exercise of said powers specifically as they
pertain to this bill in its current form; and (4) whether or not the draft bill is preempted by
federal or state law.
Some of the individual sections of the draft bill contain nuanced issues that
specifically pertain to that section and will be discussed individually regarding said
sections.
a. Compliance with Charter Requirements of Bills/Ordinances.
Bill No. 2491 seeks to use the County's police power and its authority to regulate
public nuisances in order to address public concerns pertaining to the agricultural
activities of large GMO companies located on Kauai.
Pursuant to the Kauai County Charter section 4.02 B., "every ordinance shall
embrace but one subject, which shall be expressed in its title." Pursuant to Kauai
County Charter section 4.02 C., "[n]o bill shall be so amended as to change its original
purpose. Every bill, as amended, shall be in writing before final passage." This rule is
in accord with other, similar jurisdictions. According to American Jurisprudence,1 the
law on the "one subject rule" is as follows:
The rule in some jurisdictions is that a municipal ordinance must contain only a
single subject.2 The term "subject" as used in such provisions is given a broad
and extended meaning to allow the legislative municipal body full scope to
include in one act all matters having a logical or natural connection. If all parts of
an act relate directly or indirectly to the general subject of the act, it is not open to
American Jurisprudence is an encyclopedia of United States law, produced by West.
2 State ex rel. Tomasic v. Unified Government of Wyandotte County/Kansas City, Kan., 264 Kan. 293,
955 P,2d 1136 (1998).
9
the objection of plurality.3 An ordinance violates this proscription only when it
contains subjects which are so dissimilar as to have no legitimate connection.4
A statute and a city charter providing that an ordinance or resolution cannot
contain more than one subject, which is to be expressed in the title, has been
held inapplicable to a proposed ordinance and, thus, could invalidate an
ordinance proposed by initiative petition only after it was passed by the
electorate, such that the one-subject rule did not provide a basis for invalidating
the initiative petition.5
56 Am. Jur. 2d, Municipal Corporations, Etc., § 290.6 It may be stated as a general
proposition that the expression of subject in the title of an ordinance is sufficient if it calls
attention to the general subject of the legislation. It is not necessary that the title refer to
details within the general subject, nor those which may be reasonably considered as
appropriately incident thereto, and the title is sufficient if it is germane to the one
controlling subject of the ordinance. The crucial test of sufficiency of title is generally
found in the answer to the question: Does the title tend to mislead or deceive the people
or the municipal board as to the purpose or effect of the legislation, or to conceal or
obscure the same? If it does, then the ordinance is void; if not, it is valid. Territory v.
Dondero, 21 Haw. 19, 1912 WL 1627 Haw.Terr. 1912, citing 28 Cyc. 379, 380.
In the Furubayashi case the court held: "It is sufficient if the title of an ordinance
fairly indicates to the ordinary mind the general subject of the act, is comprehensive
enough to reasonably cover all its provisions, and is not calculated to mislead; but an
act which contains provisions neither suggested by the title, nor germane to the subject
expressed therein, is, to that extent void." Territory v. Furubayashi, 20 Haw. 559.
(1911).
b. General Authority to Enact relating to County's Police Power and
Regulation of Nuisances
i. Police Power
"The 'police power' is the power of a government body to impose laws and
regulations or enact ordinances that are reasonably related to the protection or
promotion of the public health, safety, or welfare." 56 Am. Jur. 2d 369. "In exercising
its police power, a local legislative body has broad discretion and power.' While the
police power has limits, it is very broad,8 both in determining what the public welfare
requires and fashioning legislation to meet the need." 56 Am Jur. 2d 370, citing Blue
3 Tanner v. City of Boulder, 158 Colo. 173, 405 P.2d 939 (1965).
4 State ex rel. Tomasic v. Unified Government of Wyandotte County/Kansas City, Kan., 264 Kan. 293,
955 P.2d 1136 (1998); ACI Plastics, Inc. v. City of St. Louis, 724 S.W.2d 513 (Mo. 1987).
5 State ex rel. Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of Elections, 115 Ohio St. 3d
437, 2007-Ohio-5379, 875 N.E.2d 902 (2007).
6For purposes of this opinion, all citations to American Jurisprudence 2d Edition shall be to the particular
section known as "Municipal Corporations, Etc." unless otherwise noted.
7(H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444, 12 A.L.R.4th 835 (Tenn. 1979).
8 (St. Charles County v. St. Charles Sign & Elec., Inc., 237 S.W.3d 272 (Mo. Ct.App. E.D. 2007).
10
Sky Bar, Inc. v. Town of Stratford, 203 Conn. 14, 523 A.2d 467 (1987); Village of Brady
v. Melcher, 243 Neb. 728, 502 N.W.2d 458 (1993); Ebach v. Ralston, 469 N.W.2d 801
(N.D. 1991).
Although broad, "[m]unicipalities' statutory police powers are strictly construed.9
Any doubt concerning the existence of a particular police power is resolved against the
municipality.10 To determine what police power a municipality is granted by the
legislature, the court looks to the plain, ordinary, and popular meaning of the statutory
language." 56 Am. Jur. 2d 373, citing Welsh v. Centerville Tp., 1999 SD 73, 595
N.W.2d 622 (S.D. 1999).
"The police power, while broad, is subject to constitutional limits.11 Even though a
municipality has broad authority when it acts under its police powers, it exceeds this
authority if it violates any direct or positive mandate of the constitution." 56 Am. Jur. 2d
374, citing Ventenberos v. City of Seattle, 163 Wash. 2d 92, 178 P.3d 960 (2008). "The
police power does not lessen the protections contained in the United States
Constitution,12 nor does it authorize ordinances that render state constitutional
provisions nugatory." Id., citing Trinen v. City and County of Denver, 53 P.3d 754 (Colo.
App. 2002).
ii. Hawaii Law on the Police Power
In Hawaii no constitutional provision provides that the counties have any explicit
powers relating to legislating on public health safety and welfare or"police power", only
that the counties, "shall have and exercise such powers as shall be conferred under
general laws." Hawaii Constitution Article 8 Section 1.
The Hawaii State Legislature has conferred under general laws the authority to
legislate pursuant to the police power with very clear qualifications. FIRS § 46-
1.5, general powers and limitation of the counties, [s]ubject to general law, each county
shall have the following powers and shall be subject to the following liabilities and
limitations:
(13) Each county shall have the power to enact ordinances deemed necessary
to protect health, life, and property, and to preserve the order and security of the
county and its inhabitants on any subject or matter not inconsistent with, or
tending to defeat, the intent of any state statute where the statute does not
disclose an express or implied intent that the statute shall be exclusive or uniform
throughout the State.
9 Olesen v. Town of Hurley, 2004 SD 136, 691 N.W.2d 324 (S.D. 2004); Lamare v. North Country Animal
League, 170 Vt. 115, 743 A.2d 598 (1999).
10 Welsh v. Centerville Tp., 1999 SD 73, 595 N.W.2d 622 (S.D. 1999) (with regard to an ordinance
regulating feedlots); K N Energy, Inc. v. City of Casper, 755 P.2d 207 (Wyo. 1988).
11 Town of Georgetown v. Sewell, 786 N.E.2d 1132 (Ind. Ct. App. 2003); Kelley v. Story County Sheriff,
611 N.W.2d 475 (Iowa 2000); Biggers v. City of Bainbridge Island, 162 Wash. 2d 683, 169 P.3d 14
(2007).
2 City of Kansas City v. Jordan, 174 S.W.3d 25 (Mo. Ct. App.W.D. 2005.)
11
Under the Kauai County Charter Section 2.01. Powers. To promote the general
welfare and the safety, health, peace, good order, comfort and morals of its inhabitants,
the county shall have and may exercise all powers necessary for local self-government,
and any additional powers and authority which may hereafter be granted to it, except as
restricted by laws of this State. Section 2.01 also recites the same qualifications as
stated in HRS 46-1.5 (13), which is essentially a prohibition when preemption or conflict
occurs.
So long as the ordinance is related to public safety, health and welfare, the
ordinance falls within scope of police power of state. State v. Ewing, 914 P.2d 549, 81
Hawaii 156 (1996). The police power of the State is broad and extends to the public
safety, health, and welfare. See State v. Lee, 55 Haw. 505, 513, 523 P.2d 315, 319
(1974) (holding statutes "reasonably related to the preservation of public health, safety,
morals or general welfare of the public" are within the State's legitimate exercise of the
police power); see also State v. Lee, 51 Haw. 516, 465 P.2d 573 (1970); State v.
Diamond Motors, Inc., 50 Haw. 33, 429 P.2d 825 (1967). So long as the ordinance is
related to these objectives, the ordinance would fall within the scope of the police
power.
iii. General Law on Nuisances
"A municipality may exercise its police power by adopting ordinances to declare
and prevent nuisances."1 "Anything that is detrimental to health or that threatens
danger to the persons or property within a municipality may be retarded and dealt with
by the municipal authorities as a nuisance."14 A municipality may "provide criminal
penalties for their violation." City of Virginia Beach v. Murphy, 239 Va. 353, 389 S.E.2d
462 (1990). "Abatement of nuisances, as a means to promote the public health, safety,
and welfare, is a valid goal of the municipal police power."15 "That power is often
specifically given to municipalities by their charters or by state law."16
"The focus of an ordinance dealing with nuisances, such as junkyards, is on the
health, safety, and welfare of the general public, and thus such an ordinance is
distinguishable from zoning ordinances, which allow preexisting nonconforming uses,17
or are subject to different due process requirements."18 "However, a municipality does
not have the authority, under its police power, to punish conduct that is a private
nuisance." Murphy, 239 Va. 353, 389 S.E.2d 462.
13(Goodenow v. City Council of Maquoketa, Iowa, 574 N.W.2d 18 (Iowa 1998); Hartford v.Womens
Services, P.C., 239 Neb. 540, 477 N.W.2d 161 (1991).
14 56 Am. Jur. 2d 392, citing City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368, 128 A.L.R. 350
(1940).
s 56 Am. Jur. 2d 392; citing (Gosnell v. City of Troy, III., 59 F.3d 654 (7th Cir. 1995); Rental Property
Owners Ass'n of Kent County v. City of Grand Rapids, 455 Mich. 246, 566 N.W.2d 514 (1997).
16 56 Am. Jur. 2d 392, citing City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368, 128 A.L.R. 350
(1940); Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 283 III. Dec. 559, 808 N.E.2d 525 (2d Dist.
2004); Heesan Corp.v. City of Lakewood, 118 Wash.App. 341, 75 P.3d 1003 (Div. 2 2003).
i7 Saint Thomas Tp. Bd. of Sup'rs v.Wycko, 758 A.2d 755 (Pa. Commw. Ct. 2000).
18 56 AM. Jur. 2d 392, citinq(City of Green Ridge v. Kreisel, 25 S.W.3d 559 (Mo. Ct. App.W.D. 2000).
12
A local legislative body may enact an ordinance declaring that previously lawful
activity will thereafter be deemed a nuisance; such legislation will be upheld against a
constitutional challenge if it comes within the police power in the sense that it has a real
and substantial relation to the public health, safety, morals, or general welfare of the
public, and is neither unreasonable nor arbitrary. Litva v. Richmond, 172 Ohio App. 3d
349, 2007-Ohio-3499, 874 N.E.2d 1243 (7th Dist. Jefferson County 2007).
iv. Hawaii. Law on Nuisance
The State Legislature has specifically granted the County of Kauai to regulate
smoke, dust, vibration, or odors which constitute a public nuisance pursuant to HRS
§46-17. Section 46-17, "Regulation of certain public nuisances," provides:
Any provision of law to the contrary notwithstanding, the council of
any county may adopt and provide for the enforcement of ordinances
regulating or prohibiting noise, smoke, dust, vibration, or odors which
constitute a public nuisance. No such ordinance shall be held invalid on
the ground that it covers any subject or matter embraced within any
statute or rule of the State; provided that in any case of conflict between a
statute or rule and an ordinance, the law affording the most protection to
the public shall apply, with the exception that:
(1) An ordinance shall not be effective to the extent that it is
inconsistent with any permit for agricultural burning granted by the
department of health under authority of chapter 342B, or to the extent that
it prohibits, subjects to fine or injunction, or declares to be a public
nuisance any agricultural burning conducted in accordance with such a
permit; and
(2) An ordinance shall not be effective to the extent that it is
inconsistent with any noise rule adopted by the department of health
under authority of chapter 342F. [L 1974, c 158, §2; am L 1978, c 120, §1;
am L 1994, c 5, §1; am L 1999, c 265, §21
Id. "Nuisances are classified into public nuisances and private nuisances, or sometimes
as both public and private. The latter are sometimes called mixed nuisances." Territory
v. Shull Fujiwara, 33 Haw. 428 (1935).
"Public nuisance is created where acts or series of acts produce common injury
or is subversive of public order, decency, or morals, or constitute obstruction of public
rights, or affects rights enjoyed by citizens, notwithstanding number, as part of public."
Marsland v. Pang, 5 Haw. App. 463, 701 P.2d 175 cert. denied, 67 Haw. 686, 744 P.2d
781 (1985). "A nuisance is not a public nuisance unless it is in a public place, a place
where the public frequently congregates, or a place where members of the public are
likely to come within the range of its influence." Littleton v. State, 66 Haw. 55, 656 P.2d
1336 (1982).
13
"If the act or use of property is in a remote and unfrequented locality, it will not,
unless malum in se, be a public nuisance, but if the nuisance affects a place where the
public has a legal right to go, and where the members thereof frequently congregate, or
where they are likely to come within its influence, it will be a public nuisance." Littleton
v. State, 66 Haw. 55, 656 P.2d 1336 (1982).
According to Black's Law Dictionary 959 (6th ed. 1990) malum in se is defined as:
an act that is "wrong in itself," in its very nature being illegal because it
violates the natural, moral or public principles of a civilized society. In
criminal law it is one of the collection of crimes which are traditional and
not just created by statute, which are "malum prohibitum." Example:
murder, rape, burglary, and robbery are malum in se, while violations of
the Securities and Exchange Act or most "white collar crimes" are malum
prohibitum.
c. Validity
i. Generally
Generally, jurisdictions around the country agree "that local government units
have only such powers as are granted to them by the state, either in their charters or in
general laws, and an ordinance enacted without authority is void and without effect."19
"Indeed, a municipality is powerless to enact ordinances except as authorized by
statute, and ordinances not in conformity with the municipality's enabling statute will be
deemed void." White Deer Tp. v. Napo, 985 A.2d 745 (Pa. 2009). "In addition, a
municipality cannot adopt ordinances or resolutions which infringe the spirit of state law,
expressly contradict a statute, or are contrary to the legislative intent underlying a
statutory scheme." 56 Am. Jur. 2d 302, citing Id. at §§ 315 to 317.
"In determining the validity of a local ordinance, the inquiry is twofold: whether
the local government had the power to enact the ordinance; and, if so, whether the
ordinance is consistent with the constitution and general law of the state."2D
"Motivation does not play any role in analyzing whether a municipal ordinance exceeds
a municipality's home rule powers under the state constitution." Mendenhall v. Akron,
117 Ohio St. 3d 33, 2008-Ohio-270, 881 N.E.2d 255 (2008).
"The validity of an ordinance must be judged solely by the facts in existence at
the time of its passage." 56 Am, Jur. 2d 302, citing Silver Shores Mobile Home Park,
Inc. v. City of Everett, 87 Wash. 2d 618, 555 P.2d 993 (1976).
19 56 Am. Jur. 2d 302, citing Perry Park Water&Sanitation Dist. v. Cordillera Corp., 818 P.2d 728 (Colo.
1991); Harris v. DeSoto, 80 Haw. 425, 911 P.2d 60 (1996); Bivens v. Grand Rapids,443 Mich. 391, 505
N.W.2d239 (1993); Providence City Council v. Cianci, 650 A.2d 499(R.I. 1994).
20 56 Am. Jur. 2d 302, citing Beachfront Entertainment, Inc. v. Town of Sullivan's Island, 379 S.C. 602,
666 S.E.2d 912 (2008); Municipal Ass'n of South Carolina v. AT &T Communications of Southern States,
Inc.. 361 S.C. 576, 606 S.E.2d 468 (2004).
14
In determining validity, we must also consider reasonableness. "A municipal
ordinance must be reasonable; that is, it must be fair, general and impartial in
operation21, and must achieve legitimate governmental objectives."22 "Municipalities
may rely, in part, on appeal to common sense, in enacting an ordinance." Corn. v.
Jameson, 215 S.W.3d 9 (Ky. 2006). "Sufficient clarity required of an ordinance in order
to be enforceable is a criterion of reasonableness."23 "Furthermore, a municipal
ordinance may not be arbitrary,24 '[e]ven if the city ordinance's ban on phosphate in
commercial fertilizers had an effect on interstate commerce, the ordinance had a
rational basis, as required by the Commerce Clause, since the ordinance was designed
to improve the water quality of the area's lakes and rivers,'25 and must be reasonably
related to some manifest evil." Lighthouse Shores, Inc. v. Town of Islip, 41 N.Y.2d 7,
390 N.Y.S.2d 827, 359 N.E.2d 337 (1976) (noting that such evil needs only to be
reasonably apprehended); Homes Unlimited, Inc. v. City of Seattle, 90 Wash. 2d 154,
579 P.2d 1331 (1978). "As long as the municipal ordinance is reasonable, that is, it is
not arbitrary, the existence of a more reasonable ordinance is irrelevant" 56 Am. Jur.
2d 303, citing New Jersey Shore Builders Ass'n v. Township of Jackson, 199 N.J. 38,
970 A.2d 992 (2009).
"The validity of a city's attempt to exercise police power by the enactment of
municipal ordinances for the protection of public health, safety, morals, and public
welfare depends upon whether such ordinances are clearly arbitrary and unreasonable
having no substantial relation to public health, safety, morals, or public welfare." 56 Am.
Jur. 2d 303, citing City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851 (N.D.
19811; Downing v. Cook, 69 Ohio St. 2d 149, 23 Ohio Op. 3d 186, 431 N.E.2d 995
(1982). "Where reasonable minds may differ as to whether a particular ordinance has a
substantial relationship to the protection of the general health, safety or welfare of the
public, there exists an issue of fact which would authorize the passage of the ordinance,
and the ordinance must stand." Id., citing Price v. City of Junction, Tex., 711 F.2d 582
(5th Cir. 1983).
With the above considerations in mind, we must next consider reasonableness in
the context of penalties. "Whether a penalty prescribed for the violation of an ordinance
is so unreasonable as to render it void depends upon its relation to the seriousness of
the offense interdicted. Ordinances have been held void where such penalties are
21 56 Am. Jur. 2d 303, citing Rollins Environmental Services (FS), inc. v. St. James Parish, 775 F.2d 627,
84 A.L.R. Fed. 895 (5th Cir. 1985); Porter v. City of Atlanta, 259 Ga. 526,384 S.E.2d 631 (1989);
Cascade Motor Hotel, Inc. v. City of Duluth, 348 N.W.2d 84_(Minn. 1984).
22 56 Am. Jur. 2d 303, citing Rollins Environmental Services (FS), Inc. v. St. James Parish, 775 F.2d 627,
84 A.L.R. Fed. 895 (5th Cir. 1985).
23 Barton v. H.D. Riders Motorcycle Club, Inc., 131 N.H. 60, 550 A.2d 91 (1988).
24 56 Am. Jur. 2d 303, citing Four County (NW) Regional Solid Waste Management Dist. Bd. v. Sunray
Services, Inc., 334 Ark, 118, 971 S.W.2d_255 (1998) (an enactment by a local government is not arbitrary
if there is any reasonable basis for the enactment); City of Duluth v. Sarette, 283 N.W.2d 533(Minn.
1979 ; John v. State, 577 S.W.2d 483 (Tex. Crim. App. 1979); Hart Health Studio v. Salt Lake County,
577 P.2d 116 (Utah 1978); Croplife America, Inc. v. City of Madison, 373 F. Supp. 2d 905 (W.D.Wis.
2005 , order amended, 2005 WL 1467501 (W.D.Wis.2005)and affd, 432 F.3d 732 (7th Cir. 2005)
25 56 Am. Jur. 2d 303, n. 5.
15
excessive in view of the offenses which they seek to punish."26 "In other cases,
municipal ordinances have been upheld as valid over the objection that the penalties
prescribed were so unreasonable as to render them void." Id., citing Geurin v. City of
Little Rock, 203 Ark. 103, 155 S.W.2d 719 (1941); Melconian v. City of Grand Rapids,
218 Mich. 397, 188 N.W. 521 (1922).
In addition to being reasonable, "ordinances must be general in their nature and
impartial in their operation, in order to be valid."27 "All in all, they must not be
discriminatory28 in favor of one person or class of persons over others,29 and must
operate equally upon all persons who come or live within the corporate limits, as well as
for their equal benefit and protection."30 "Nevertheless, an ordinance cannot be
declared invalid merely because it works a hardship in a particular case;31 as long as
they affect all similarly situated persons equally." 56 Am. Jur. 2d 305, citing Bizzell v.
Board of Aldermen of City of Goldsboro, 192 N.C. 348, 135 S.E. 50, 49 A.L.R. 755
(1926); Shinn v. Oklahoma City, 59 Okla. Crim. 433, 61 P.2d 1126 (1936).
Despite all of the above considerations, "[a]n ordinance which fulfills the
requirements of certainty and definiteness still may be deemed constitutionally infirm if
its prohibition is overbroad, restricting constitutionally protected conduct.s32 Also, "the
fact that an unconstitutional ordinance is limited in geographical scope does not make it
any less an abridgement of guaranteed constitutional rights." Boraas v. Village of Belle
Terre, 476 F.2d 806 (2d Cir. 1973), judgment rev'd on other grounds, 416 U.S. 1, 94 S.
Ct. 1536, 39 L. Ed. 2d 797 (1974).
"Generally, a municipal ordinance must be framed in terms sufficiently clear,
definite, and certain, so that an average person after reading it will understand when he
or she is violating its provisions."33 "While certainty is necessary in order for an
ordinance to meet the test of reasonableness,34 an ordinance which is susceptible of
26 56 Am. Jur. 2d 304, citing Edwards& Browne Coal Co. v. Sioux City, 213 Iowa 1027, 240 N.W. 711
1932); Kist v. Butts, 71 N.D. 436, 1 N.W.2d 612, 138 A.L.R. 1206 (1942).
7 56 Am. Jur. 2d 305, citing Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176 (1938); Construction
and General Laborers Union Local 563, AFL-CIO v. City of St. Paul, 270 Minn. 427, 134 N.W.2d 26
K1965).
6 56 Am. Jur. 2d 305, citing McCulley v. City of Wichita, 151 Kan. 214, 98 P.2d 192, 127 A.L.R. 312
(1940); Construction and General Laborers Union Local 563, AFL-CIO v. City of St. Paul, 270 Minn. 427,
134 N.W.2d 26 (1965).
29.56 Am. Jur. 2d 305, citing Standard Oil Co. of N.J. v. City of Charlottesville, 42 F.2d 88 (C.C.A. 4th Cir.
1930); Construction and General Laborers Union Local 563, AFL-CIO v. City of St. Paul, 270 Minn. 427,
134 N.W.2d 26(1965).
3° Id., citing Construction and General Laborers Union Local 563, AFL-CIO v. City of St. Paul, 270 Minn.
427, 134 N.W.2d 26 (1965); Appeal of White, 287 Pa. 259, 134 A. 409, 53 A.L.R. 1215 (1926).
31 Id., citing City of Louisville v. Fischer Packing Co., 520 S.W.2d 744 (Ky. 1975); von Tiling v. City of
Portland, 268 A.2d 888 (Me. 1970)
32 56 Am. Jur. 2d 305, citing Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976); Profit v. City
of Tulsa, 1978 OK CR 9, 574 P,2d 1053 (Okla. Crim. App. 1978).
‘356 Am. Jur. 2d 308, citing Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976); Garten
Enterprises, Inc. v. Kansas City,219 Kan. 620, 549 P.2d 864 (1976); Town of Freedom v. Gillespie, 120
N.H. 576, 419 A.2d 1090 (1980); People v.Waterloo Stock Car Corp., 89 Misc. 2d 922, 392 N.Y.S.2d 839
(County Ct. 1977); City of Seattle v. Rice, 93 Wash.2d 728, 612 P.2d 792 (1980).
56 Am. Jur. 2d 303.
16
any reasonable construction which will sustain it will not be declared void for
uncertainty."35 "Thus, a mere failure to define a phrase in an ordinance does not by
itself render the ordinance defective." 56 Am. Jur. 2d 308, citing A merican Legion,.
Field Allen Post No. 148 v. Town of Windham, 502 A.2d 484 (Me. 1985).
The test when an ordinance is challenged on the ground of vagueness is whether
its language can be understood by a person of normal understanding."36 "Vagueness
in the constitutional sense is not mere uncertainty, but means that persons of ordinary
intelligence are obliged to guess as to what conduct the ordinance proscribes.37 "In
determining whether an ordinance is void for vagueness, the inquiry must be made in
regard to whether the ordinance gives a fair warning to those persons potentially subject
to it and whether the ordinance adequately guards against arbitrary and discriminatory
enforcement."38
"The standard by which it is determined whether an ordinance is vague is
whether the ordinance gives a person of average intelligence a fair warning of a
prohibited act in definite language." 56 Am. Jur. 2d 309, citing, Trice v. City of Pine
Bluff, 279 Ark. 125, 649 S.W.2d 179 (1983). "In scrutinizing an ordinance for
vagueness the court focuses on the words of the ordinance itself, to extrapolate its
allowable meaning." Id., citing Washington Mobilization Committee v. Cullinane, 566
F.2d 107 (D.C. Cir. 1977). "In determining whether a civil or criminal ordinance is
sufficiently clear that persons affected can determine what the law requires of them, the
same rules of construction apply as would apply to the interpretation of a statute."39
"Only a reasonable certainty is required,40 and a vagueness challenge may be met by a
resort to the common and generally accepted meaning of the statutory language itself, if
such meaning is discernible."41 "The fact that"marginal" factual situations may arise
under an ordinance does not, in itself, render the enactment vague." Id., citing City of
St. Petersburg v. Waller, 261 So. 2d 151 (Fla. 1972).
Revisiting the concept of penalties, "[tjhe penalty or punishment imposed by an
ordinance must be certain and definite, and an ordinance will be declared invalid where
the penalty it prescribes is not certain."42 "Nevertheless, as a general rule, it is deemed
proper for penal ordinances to leave a margin for the discretion of the court within
35 56 Am. Jur. 2d 308, citing State v. Sanner Contracting Co., 109 Ariz. 522, 514 P.2d 443 (1973); Paal v.
Village of Wells, 305 Minn. 252, 232 N.W.2d 808 (1975); Liberman v. Cervantes, 511 S.W.2d 835 (Mo.
1 974).
36 56 Am. Jur. 2d 309, citing State v. Harris, 309 Minn. 395, 244 N.W.2d 733(1976); Bitts, Inc. v. City of
Seattle, 86 Wash. 2d 395, 544 P.2d 1242 (1976).
37 Id., citing City of Spokane v. Douglass, 115 Wash. 2d 171, 795 P.2d 693(1990).
38 56 Am. Jur. 2d 309, citing Naprstek v. City of Norwich, 545 F.2d 815 (2d Cir. 1976); Cardarella v. City
of Overland Park, 228 Kan. 698, 620 P.2d 1122(1980).
98 Id., citing Flipside, Hoffman Estates, Inc.v. Village of Hoffman Estates, 639 F.2d 373(7th Cir. 1981),
judgment rev'd on other grounds, 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982).
40 56 Am. Jur. 2d 309, citing Profit v. City of Tulsa, 1978 OK CR 9, 574 P.2d 1053 (Okla. Crim. App.
1978).
41 Id., citing Ashton v. Brown, 339 Md. 70, 660 A.2d 447 (1995); 41 Kew Gardens Road Associates v.
Tyburski, 70 N.Y.2d 325, 520 N.Y.S.2d 544, 514 N.E.2d 1114 (1987).
4` 56 Am. Jur. 310, citing Arnett v. Cardwell, 135 Ky. 14, 121 S.W. 964 (1909); Town of Jonesboro v.
Kincheloe, 148 Tenn. 688, 257 S.W. 418, 32 A.L.R. 1367 (1923).
17
certain specified limits." 56 Am. Jur. 310, citing Arnett v. Cardwell, 135 Ky. 14, 121
S.W. 964 (1909). "An ordinance which does not fix a maximum penalty, although it
prescribes a minimum, and thus leaves to the court the power in its discretion to impose
any penalty in excess of the minimum, is void for uncertainty." 43
Although there are instances in which an ordinance may be partially or wholly
void, "[g]enerally, the partial invalidity of an ordinance does not necessarily make the
remaining provisions of the ordinance ineffective."44 "An invalid portion of a statute or
an ordinance will result in the entire statute or ordinance being void only when it is such
an integral portion of the entire statute or ordinance that the enacting body would have
only enacted the legislation as a whole." 56 Am. Jur. 2d 313, citing Kittery Retail
Ventures, LLC v. Town of Kittery, 2004 ME 65, 856 A.2d 1183 (Me. 2004). "However,
whether a partial invalidation is appropriate depends on the intent of the city in passing
the ordinance and whether the balance of the ordinance can function independently."45
"In this regard, a separability provision—that is, a provision in an ordinance that the
invalidity of a part of the ordinance shall not affect the remainder—ordinarily indicates
an intention of the municipal legislative body that if a part of the ordinance is held invalid
this shall not affect the enforceability of the rest of the ordinance." Id., citing Mealey v.
City of Laramie, 472 P.2d 787 (Wyo. 1970).
ii. Validity of Police Power Regulations
"Cities and other local government bodies have broad police powers to enact
ordinances to regulate and restrict the activities of its citizens in the interest of their
health, safety, and welfare."46 "A municipality's power to pass ordinances to promote
the health, safety, morals, or general welfare of the public is broad and not subject to
precise definition; however, it must bear a real and substantial relation to the health,
safety, morals, or general welfare of the public."47
"When passing or amending ordinances in the area of health, human services,
police protection, or public safety, municipal bodies are historically accorded wide
latitude concerning the evidence on which they rely in making a discretionary decision,
including studies from other sources,48 and the presumption is that the municipality's
action in this regard is based on adequate factual support."49
431d citing Sconyers v. Town of Coffee Springs, 230 Ala. 12, 160 So. 552 (1934); Arnett v. Cardwell,
135 Ky. 14, 121 S.W. 964 (1909).
44 56 Am. Jur. 2d 313, citing Sarin v. City of Papillion, 277 Neb. 829, 765 N.W.2d 456 (2009).
45 Id., citing Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814(9th Cir. 1996).
46 56 Am. Jur. 2d 386, citing City of Mt.Vernon v. Julian, 369 III. 447, 17 N.E.2d 52, 119 A.L.R. 747
(1938); State v. Risiord, 249 Kan. 497, 819 P.2d 638 (1991); McCollum v. City of Berea, 53 S.W.3d 106
(Ky. Ct. App. 2000); Town of Ennis v. Stewart, 247 Mont. 355, 807 P.2d 179 (1991); Ex parte Woodall,
154 S.W.3d 698 (Tex.App. El Paso 2004).
47 56 Am. Jur. 2d 386, citing Walter v. City of Gulf Shores, 829 So. 2d 181 (Ala. Crim.App. 2001),
judgment aff'd, 829 So. 2d 186 (Ala. 2002); City of Alliance v. Carbone, 181 Ohio App. 3d 500, 2009-
Ohio-1197, 909 N.E.2d 688 (5th Dist. Stark County 2009).
48 Id., citing County of Morrison v.Wheeler, 722 N.W.2d 329 (Minn. Ct. App. 2006)
45 Id., citing Singer v. Township of Princeton, 373 N.J. Super. 10, 860 A.2d 475 (App. Div. 2004).
18
Related to public health, "municipalities may, in the exercise of their police
power, enact ordinances to protect public health."°3 "Among the police powers of
municipal government, the authority to promote and safeguard public health is a high
priority."51 "An ordinance is related to health and welfare, rather than a zoning
ordinance, where its primary purpose is to regulate for health concerns, rather than to
provide for uniform development of real estate." 56 Am. Jur. 2d 387, citing City of
Green Ridge v. Kreisel, 25 S.W.3d 559 (Mo. Ct. App. W.D. 2000). "Ordinances to
preserve the public health are liberally construed; the authorities go to great lengths in
enumerating the implied powers of municipalities to enact laws to protect the community
from infectious and contagious diseases, bad water, nuisances injurious to health, and
noxious odors and gases." Id., citing Penn-Dixie Cement Corp. v. City of Kingsport, 189
Tenn. 450, 225 S.W.2d 270 (1949).
"Municipalities must exercise the police power in a reasonable manner"52; "No
pass constitutional muster, all laws enacted pursuant to the police power must be
reasonable and not arbitrary."53 "A local police power ordinance is a reasonable
regulation if it fairly relates to the health, safety, morals, or general welfare of the
public."54
"The analysis of whether a government action is a legitimate exercise of the
police power first focuses on whether the goal of the action is within the police power
and then on whether the means of achieving that goal are reasonable." City of Concord
v. Stafford, 173 N.C. App. 201, 618 S.E.2d 276 (2005). "The ordinance must bear a
reasonable relationship to the interest sought to be protected, and the means adopted
must constitute a reasonable method to accomplish it."55 "Once the government
objective is determined to be legitimate, the exercise of municipal police power need
only be reasonable."56 "A police regulation is valid unless it clearly appears that it is
unreasonable."57
Beyond that described above, there are further considerations of whether
exercise of a municipality's police power is valid. "To be a valid exercise of a
50 56 Am Jur. 2d 387, citing Gilchrist Drug Co.v. City of Birmingham, 234 Ala. 204, 174 So. 609, 111
A.L.R. 103(1937);Village of Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476 (1996).
51 Id., citing Lexington Fayette County Food and Beverage Assn v. Lexington-Fayette Urban County
Government, 131 S.W.3d 745 (Ky. 2004).
b2 56 Am. Jur. 2d 380,citing Ventenbergs v. City of Seattle, 163 Wash. 2d 92, 178 P.3d 960 (2008).
53 Id., citing Bal Harbour Village v. Welsh, 879 So. 2d 1265 (Fla. Dist. Ct. App. 3d Dist. 2004).
54 Id., citing Risen v. Cucharas San. &Water Dist., 32 P.3d 596 (Colo. App. 2001); City of Alliance v.
Carbone, 181 Ohio App. 3d 500, 2009-Ohio-1197, 909 N.E.2d 688 (5th Dist. Stark County 2009);Weden
v. San Juan County, 135 Wash. 2d 678, 958 P.2d 273 (1998).
bb 56 Am. Jur. 2d 380, citing Raintree Homes, Inc.v..Village of Long Grove, 389 III. App. 3d 836, 329 III.
Dec. 553, 906 N.E.2d 751 (2d Dist. 2009), appeal denied, 233 III. 2d 599, 335 III. Dec. 646, 919 N.E.2d
365 (2009); Rusk v. City of Milwaukee, 298 Wis. 2d 407, 2007 WI App 7, 727 N.W.2d 358 (Ct. App.
2006).
58 Id., citing Singer v. Township of Princeton, 373 N.J. Super. 10, 860 A.2d 475 (App. Div. 2004).
57 Id., citing City of Russellville v. Vulcan Materials Co., 382 So. 2d 525 (Ala. 1980); Wilson v. City of
Cincinnati, 46 Ohio St. 2d 138, 75 Ohio Op. 2d 190, 346 N.E.2d 666 (1976); Denene, Inc. v. City of
Charleston, 352 S.C. 208, 574 S.E.2d 196 (2002).
19
municipality's police power, the object must be a proper subject of regulation,58 and the
ordinance must have a real and substantial, or rationa1,59 relation to its purpose."60 "An
ordinance is not authorized, if there is not any plausible, reasonable, and substantial
connection between its provisions and the supposed evils to be suppressed." 56 Am.
Jur. 2d 381, citing Urban Imperial Bldg. & Rental Corp. v. Akron, 139 Ohio App. 3d 221,
743 N.E.2d 478 (9th Dist. Summit County 2000).
"A police regulation is valid unless it clearly appears that it does not bear a real
and substantial relation to the health, safety, morals, or general welfare of the public."61
"A city's attempted regulation, which does not have a clear and present relation to public
safety, or imposed where the threat to the public health and safety is remote, may be
voided." 56 Am. Jur. 2d 381, citing City of Springfield v. Hashman, 332 III. App. 3d 748,
266 III. Dec. 321, 774 N.E.2d 427 (4th Dist. 2002).
"Municipal police regulations must also operate in a manner that is not
arbitrary"62, vague,63 discriminatory,64 oppressive, or fraudulent. 56 Am. Jur. 2d 381,
citing Wright v. Woodridge Lake Sewer Dist., 218 Conn. 144, 588 A.2d 176 (1991).
"Legislation under the police power is under a constitutional limitation that it not be
unreasonable, arbitrary, or capricious, and that the means selected have a real and
substantial relation to the object to be attained."65
"The police power is an inherent reserved power to subject individual rights to
reasonable regulation for the general welfare,66 and the fact that an exercise of police
power impinges on a private interest does not restrict a reasonable regulation."6
"However, it is obviously subordinate to the equal protection and other guarantees of
58 56 Am. Jur. 2d 381, citing Sun Ridge Development, Inc. v. City of Cheyenne, 787 P.2d 583(Wyo.
1990).
59 Id., citing Wright v.Woodridge Lake Sewer Dist., 218 Conn. 144, 588 A.2d 176 (1991).
60 Id., citing Walter v. City of Gulf Shores, 829 So. 2d 181 (Ala. Crim. App. 2001),judgment affd, 829 So.
2d 186(Ala. 2002); Bess v. Bracken County Fiscal Court, 210 S.W.3d 177(Ky. Ct. App. 2006); City of
Kansas City v. Jordan, 174 S.W.3d 25(Mo. Ct.App.W.D. 2005); Hausman v. Dayton, 73 Ohio St. 3d
671, 1995-Ohio-277, 653 N.E.2d 1190 (1995); Pearce v. City of Round Rock, 78 S.W.3d 642 (Tex. App.
Austin 2002).
61 Id., citing A& H Services, Inc. v. City of Wahpeton, 514 N.W.2d 855 (N.D. 1994); Wilson v. City of
Cincinnati, 46 Ohio St. 2d 138, 75 Ohio Op. 2d 190, 346 N.E.2d 666 (1976).
62 56 Am. Jur. 2d 381, citing City of Russellville v. Vulcan Materials Co., 382 So. 2d 525 (Ala. 1980);
Plummer v. City of Fruitland, 139 Idaho 810, 87 P.3d 297 (2004); City of Alliance v. Carbone, 181 Ohio
App. 3d 500, 2009-Ohio-1197, 909 N.E.2d 688 (5th Dist. Stark County 2009); City of Marion v.
Schoenwald, 2001 SD 95, 631 N.W.2d 213 (S.D. 2001); Neece v. City of Johnson City, 767 S.W.2d 638
bTenn. 1989).
s Id., citing Corn., Office of Attorney General ex rel. Corbett v. Richmond Tp., 975 A.2d 607 (Pa. Commw.
Ct. 2009).
64 Id., citing City of Alliance v. Carbone, 181 Ohio App. 3d 500, 2009-Ohio-1197, 909 N.E.2d 688 (5th
Dist. Stark County 2009); Neece v. City of Johnson City, 767 S.W.2d 638 (Tenn. 1989).
65 Id., citing New Jersey Shore Builders Ass'n v. Township of Jackson, 199 N.J. 38, 970 A.2d 992 (2009).
66 56 Am. Jur. 2d 382, citing Cotta v. City and County of San Francisco, 157 Cal. App. 4th 1550, 69 Cal.
Rptr. 3d 612 (1st Dist. 2007); Napleton v. Village of Hinsdale, 229 III. 2d 296, 322 III. Dec. 548, 891
N.E.2d 839 (2008).
67 Id., citing Lexington Fayette County Food and Beverage Ass'n v. Lexington-Fayette Urban County
Government, 131 S.W.3d 745 (Ky. 2004).
20
the federal and state constitutions,68 and may not be used to violate a fundamental
constitutional right."69 "The standard for evaluating ordinances claimed to be violative
of due process or equal protection is whether a rational basis exists for the police power
exercised or the classification established by the ordinance." Autotronic Systems, Inc.
v. City of Coeur D'Alene, 527 F.2d 106 (9th Cir. 1975).
"A government purpose to control or prevent certain activities that may be
constitutionally subject to regulation under the police power may not be achieved by
unnecessarily broad means that invade the area of protected freedoms and broadly
stifle fundamental personal liberties, when the end can be more narrowly achieved."70
"Accordingly, local police power enactments may not interfere with private rights beyond
the necessities of the situation."71
"Any interference with the protected rights of the citizens of a municipality must
bear a reasonable relationship to the public need served72 and not unduly restrict the
citizens' constitutional rights." 3 "The police power does not justify interference with a
citizen's constitutional rights that is entirely out of proportion to any benefit to the
public."74 "To sustain an encroachment on an individual's liberty by a municipal
ordinance, there must be an obvious and real connection between the ordinance and its
purpose to protect the public welfare, and the municipality must not be able to use a
less restrictive means to serve the intended purpose." 56 Am. Jur. 2d 382, citing
Priddy v. City of Tulsa, 1994 OK CR 63, 882 P.2d 81 (Okla. Crim. App. 1994).
"The police power may be properly used to regulate the use of private
property."75 "All private property is subject to the police power, and its use may be
regulated in the interest of the public health, safety, or welfare."76
"A local government has considerable latitude in regulating property rights in
ways that may adversely affect the owners."77 "The police power may be loosely
68 Id., citing Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977),judgment rev'd on other grounds, 437 U.S.
518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (1978); Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d
686 (1983).
69 Id., citing Visiting Homemaker Service of Hudson County v. Bd. of Chosen Freeholders of County of
Hudson, 380 N.J. Super. 596, 883 A.2d 1074 (App. Div. 2005).
10 Id., citing Trinen v. City and County of Denver, 53 P.3d 754 (Colo. App. 2002).
71 Hausman v. Dayton, 73 Ohio St. 3d 671, 1995-Ohio-277, 653 N.E.2d 1190 (1995); Priddy v. City of
Tulsa, 1994 OK CR 63, 882 P.2d 81 (Okla. Crim. App. 1994).
/2 56 Am Jur. 2d 382, citing Metropolitan Dade County Fair Housing and Employment Appeals Bd. v.
Sunrise Village Mobile Home Park, Inc., 511 So. 2d 962(Fla. 1987); Priddy v. City of Tulsa, 1994 OK CR
63, 882 P.2d 81 (Okla. Crim.App. 1994).
73 Id., citing Tidewater Ass'n of Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114, 400 S.E.2d 523
1991).
141d., citing City of Baton Rouge v.Williams, 661 So. 2d 445 (La. 1995).
76 56 Am. Jur. 2d 383, citing Odegard Outdoor Advertising, LLC v. Board of Zoning Adjustment of
Jackson County, 6 S.W.3d 148 (Mo. 1999); Dobrzenski v. Village of Hamburg, 277 A.D.2d 1005, 715
N.Y.S.2d 819 (4th Dept 2000).
76 Id., citing Cohen v. City of Hartford, 244 Conn. 206, 710 A.2d 746 (1998); City of Kansas City v. Jordan,
174 S.W.3d 25 (Mo. Ct. App. W.D. 2005); Hill v. City of Bethlehem, 909 A.2d 439 (Pa. Commw. Ct. 2006);
Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 476 S.E.2d 477 (1996).
" Id., citing Hodel v. Irving,481 U.S. 704, 107 S. Ct. 2076, 95 L. Ed, 2d 668 (1987),
21
described as the power to prevent persons from conducting themselves or using their
property to the detriment of the general welfare."78 "However, a municipality may not,
under the guise of the police power, impose restrictions that are unnecessary and
unreasonable on the use of private property or pursuit of useful activities."79
"Compensation is required when property is actually taken from the owner and put to a
public use, even if that use may enhance the public health, morals, or safety." Hudson
v. City of Shawnee, 246 Kan. 395, 790 P.2d 933 (1990); Sefzik v. City of McKinney, 198
S.W.3d 884 (Tex. App. Dallas 2006). See also Am. Jur. 2d, Eminent Domain § 11(as to
when regulation constitutes a taking).
"When asked to review the legality of an ordinance, a court's function is to
determine whether the ordinance is within the municipality's conferred discretionary
powers and a reasonable use of the police power."80 "Questions that are presented to
the court are: whether a particular ordinance is a proper exercise of the municipal
police power,"81 "whether the facts of a particular situation warrant the assertion of the
police power,"82 and "whether the attempted regulations have a proper and rational
relationship to the objects of the police power—the public health, safety, morals, or
welfare—and have for their aim the protection and preservation of those objects."83
"Thus, the rational basis test is proper for determining the validity of an ordinance that
was enacted pursuant to the police power."84 To uphold a regulatory municipal
ordinance that was enacted under the general powers enumerated by a charter, the
court must find that the ordinance tends, in some degree, to prevent some offense or
preserve the public health, morals, safety, or welfare." City of Chicago v. Kautz, 313 III.
196, 144 N.E. 805, 35 A.L.R. 1050 (1924).
"Once a local legislative body identifies a problem and enacts legislation to
protect and promote the general welfare of its citizens, that legislation is presumed to be
a valid exercise of the police power."85 "Municipal ordinances are presumed to be
constitutional if any rational consideration supports their enactment. If any rational
78 Id., citing Hudson v. City of Shawnee, 246 Kan. 395, 790 P.2d 933 (1990); Sefzik v. City of McKinney,
198 S.W.3d 884 (Tex.App. Dallas 2006).
79 Id., citing City of Russellville v. Vulcan Materials Co., 382 So. 2d 525 (Ala. 1980); Kennedy v. Town of
Sunapee, 147 N.H. 79, 784 A.2d 685 (2001); McGovern v. Borough of Harvey Cedars, 401 N.J. Super.
136, 949 A.2d 302(App. Div. 2008).
B°56 Am. Jur. 2d 419, citing Square Lake Hills Condominium Ass'n v. Bloomfield Tp., 437 Mich. 310, 471
N.W.2d 321 (1991).
81 Id., citing Gilchrist Drug Co.v. City of Birmingham, 234 Ala. 204, 174 So. 609, 111 A.L.R. 103(1937);
City of Miami Beach v. Seacoast Towers-Miami Beach, Inc., 156 So. 2d 528 (Fla. Dist. Ct.App. 3d Dist.
1963); S.S. Kresge Co. v. Couzens, 290 Mich. 185, 287 N.W. 427, 124 A.L.R. 543 (1939); Patton v. City
of Bellingham, 179 Wash. 566, 38 P.2d 364, 98 A.L.R. 1076 (1934).
82 Id., citing City of Miami Beach v. Seacoast Towers-Miami Beach, Inc., 156 So. 2d 528 (Fla. Dist. Ct.
App. 3d Dist. 1963).
83 Id., citing City of Miami Beach v. Seacoast Towers-Miami Beach, Inc., 156 So. 2d 528 (Fla Dist. Ct.
App. 3d Dist. 1963); S.S. Kresge Co. v. Couzens, 290 Mich. 185, 287 N.W. 427, 124 A.L.R. 543 (1939);
St. Charles County v. St. Charles Sign & Elec., Inc.,237 S.W.3d 272 (Mo. Ct.App. E.D. 2007).
8a Id., citing VIP of Berlin, LLC v. Town of Berlin, 50 Conn. Supp. 542, 951 A.2d 714 (Super. Ct. 2007),
judgment affd, 287 Conn. 142, 946 A.2d 1246 (2008); New Jersey Shore Builders Ass'n v. Township of
Jackson, 199 N.J. 38, 970 A.2d 992 (2009).
$5 56 Am. Jur. 2d 420, citing Opyt's Amoco, Inc. v. Village of South Holland, 149 III. 2d 265, 172 III. Dec.
390, 595 N,E.2d 1060 (1992).
22
motive exists for the exercise of the police power, the motive for its exercise is not a
proper subject of inquiry."86 "Thus, a party challenging the constitutionality of an
ordinance must prove that it is not debatable that it has any substantial relationship to
public health, safety, or general welfare." 56 Am. Jur. 2d 420, citing State v. Reinke,
702 N.W.2d 308 (Minn. Ct. App. 2005). "Such an ordinance will be declared invalid only
when it plainly appears that it does not tend, in any applicable degree, to promote those
ends and that the power to legislate has been exercised arbitrarily." Id., citing Square
Lake Hills Condominium Ass'n v. Bloomfield Tp., 437 Mich. 310, 471 N.W.2d 321
(1991).
"The courts may review whether the exercise of municipal police power passes
the test of reasonableness."87 "The test of the validity of a city's exercise of police
power is reasonableness."88 "Municipal ordinances and regulations must be
reasonable, and their reasonableness is a judicial question."89 "Courts will not interfere
with the enforcement of municipal regulations designed for the protection of the health,
welfare, and safety of citizens, unless they are determined to be unreasonable."
Denene, Inc. v. City of Charleston, 359 S.C. 85, 596 S.E.2d 917 (2004). "A
presumption of reasonableness attaches to such ordinances,"90 "although that
presumption is overcome if unreasonableness is apparent on the face of the ordinance
or by extrinsic evidence that clearly establishes its unreasonableness."91 "A court will
not hold a municipal ordinance invalid unless it is clear that the ordinance is
unreasonable."92 "The party challenging the ordinance has the burden to show that it is
unreasonable."93
"The test for determining whether a local police ordinance is reasonable requires
that the court assess the existence of a rational relationship between the exercise of the
police power and the public health, safety, morals, or general welfare in a given case."94
"In determining this question, all the existing circumstances or contemporaneous
conditions, the objects sought to be obtained, and the necessity for the adoption of the
ordinance are considered." 6
86 Id., citing City of Long Beach v. California Lambda Chapter of Sigma Alpha Epsilon Fraternity, 255 Cal,
App. 2d 789, 63 Cal. Rptr. 419, 25 A.L.R.3d 912 (2d Dist. 1967).
87 56 Am. Jur. 2d 422, citing Kennedy v. City of Seattle, 94 Wash. 2d 376, 617 P.2d 713 (1980).
88 Id., citing Miller v. City of Town &Country, 62 S.W.3d 431 (Mo. Ct. App. E.D. 2001).
89 Id., citing Hearne v. City of Brookhaven, 822 So. 2d 999 (Miss. Ct. App. 2002).
90 Id., citing Scope Pictures, of Missouri, Inc. v. City of Kansas City, 140 F.3d 1201 (8th Cir. 1998); First
Peoples Bank of New Jersey v. Township of Medford, 126 N.J.413, 599 A.2d 1248 (1991);A&H
Services, Inc. v. City of Wahpeton, 514 N.W.2d 855(N.D. 1994); Mountain View Ltd. Partnership v. City
of Clifton Forge, 256 Va. 304, 504 S.E.2d 371 (1998).
91 Id., citing Mountain View Ltd. Partnership v. City of Clifton Forge, 256 Va. 304, 504 S.E.2d 371 (1998).
92 Id., citing City of Huntington v. Bacon, 196 W.Va.457,473 S.E.2d 743, 111 Ed. Law Rep. 1001 (1996).
93 Id., citing Scope Pictures, of Missouri, Inc. v. City of Kansas City, 140 F.3d 1201 (8th Cir. 1998); U.S,
West Communications, Inc. v. City of Longmont, 948 P.2d 509(Colo. 1997); First Peoples Bank of New
Jersey v. Township of Medford, 126 N.J.413, 599 A.2d 1248 (1991); Helmick v.Town of Warrenton, 254
Va. 225, 492 S.E.2d 113 (1997).
94 Id., citing Buck v. Kilgore, 298 A.2d 107 (Me. 1972); Square Lake Hills Condominium Ass'n v.
Bloomfield Tp., 437 Mich. 310, 471 N.W.2d 321 (1991).
96 Id., citing City of Miami Beach v. Seacoast Towers-Miami Beach, Inc., 156 So. 2d 528 (Fla. Dist. Ct.
App. 3d Dist. 1963); Lewiston Pistol Club, Inc. v. Board of County Com'rs of Nez Perce County, 96 Idaho
137, 525 P.2d 332 (1974).
23
In Hawaii the police power, "is not plenary and that one of its limitations is that
the regulations and inhibitions imposed must be reasonably necessary to the public
welfare and not inconsistent with fundamental rights that are common to all." Territory v.
Anduha, 31 Haw. 459, affirmed 48 F.2d 171 (1930). Finding that a statute making, "[a]II
loitering, loafing or idling on the streets and highways of a city, even though habitual, is
not necessarily detrimental to the public welfare nor is it under all circumstances an
interference with travel upon them."
iii. Validity of Nuisance Laws
"Within the meaning of a city's statutory authority to define and abate nuisances,
a `nuisance' means something that unreasonably interferes with another's enjoyment of
his or her property and causes damage to it."96 "A municipality may declare what
constitutes a nuisance and pass ordinances to prevent and abate it under a broad
statutory grant of authority that allows municipalities to define, prevent, and abate
nuisances."97
"An ordinance that governs nuisances must give fair warning by specifying the
conduct prohibited and be sufficiently general to address the essential problem under
varied circumstances." 56 Am. Jur. 2d 393, citing Price v. City of Lakewood, 818 P.2d
763 (Colo. 1991). "Municipalities may consider all of the circumstances surrounding a
situation to determine whether it is a nuisance." Id., citing Moreland v. Cheney, 267 Ga.
469, 479 S.E.2d 745 (1997). "A municipality has the power to declare anything a
nuisance, which is either a nuisance per se, or a nuisance at common law or by statute.
A municipality also has the authority to regulate as a nuisance anything that could be an
honest difference of opinion, if, in the municipal authorities' opinion, such a thing
constitutes a nuisance."98 "However, the power to determine what is a nuisance and
abate it is not arbitrary."99 "As with all exercises of the police power, the determination
of nuisances is subject to constitutional guarantees,"10° "and a municipality may not
declare what is not a nuisance in fact to be a nuisance."1 61 "A lawful use by an
individual of one's own property may not be made a nuisance per se by a municipal
ordinance; the most that the municipal authorities may do is suppress those uses that
are nuisances per se, or upon inquiry are found to be nuisances per accidens." Id.,
citing City of New Orleans v. Lenfant, 126 La. 455, 52 So. 575 (1910).
"Laws and regulations enacted to resolve a problem of legitimate local concern
96 56 Am. Jur. 2d 393, citing Home Builders Ass'n of Central Arizona v. City of Apache Junction, 198 Ariz.
493, 11 P,3d 1032, 148 Ed. Law Rep. 491 (Ct. App. Div. 2 2000).
97 Id., citing Village of Sugar Grove v. Rich, 347 III. App. 3d 689, 283 III. Dec. 559, 808 N.E.2d 525 (2d
Dist. 2004).
98 Id., citing McCarthy v. Kunicki, 355 III. App. 3d 957, 291 III. Dec. 502, 823 N.E.2d 1088 (1st Dist. 2005).
99 Id., citing City of Corsicana v.Wilson, 249 S.W.2d 290 (Tex. Civ.App. Waco 1952).
100 Id., citing City of Milwaukee v. Milbrew, Inc., 240 Wis. 527, 3 N.W.2d 386, 141 A.L.R. 277 (1942).
1°1 -1-(3., citing City of Miami Beach v. Texas Co., 141 Fla. 616, 194 So. 368, 128 A.L.R. 350 (1940); Nourse
v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761 (1935); Bane v. Pontiac Tp., Oakland County, 343
Mich. 481, 72 N.W.2d 134 (1955); City of Scottsbluff v. Winters Creek Canal Co., 155 Neb. 723, 53
N.W.2d 543 (1952); Gow Why v. City of Marshfield, 138 Or. 167, 5 P.2d 696 (1931); City of Milwaukee v.,
Milbrew, Inc., 240 Wis. 527, 3 N.W.2d 386, 141 A.L.R. 277 (1942).
24
will not be invalidated on equal protection grounds, unless those laws place excessive
and unwarranted burdens on protected classes of persons."102 "To challenge an
ordinance on equal protection grounds, the plaintiff bears the burden of showing that the
classification is arbitrary and cannot serve a legitimate governmental goal." 56 Am. Jur.
2d 394, citing Curto v. City of Harper Woods, 954 F.2d 1237 (6th Cir. 1992).
In Hawaii, the validity of nuisance laws is treated as follows:
The suppression of nuisances injurious to the public health or morality is
among the most important duties of government. The state, in the
exercise of its police power, has authority to abate nuisances, and under
this power, and subject to constitutional limitations, the legislature has
authority to declare what shall be deemed nuisances and to provide for
their suppression. Since "nuisance"is a term which does not have a fixed
content, either at common law or at the present time, compelling reasons
of policy require that the responsibility for establishing those standards of
public morality, the violation of which is to constitute nuisances within
equity jurisdiction, be left to the legislature.
Marsland v. Pang, 701 P.2d 175, 5 Haw.App. 463, certiorari denied 744 P.2d 781, 67
Haw. 686 (1985), citing 58 Am.Jur.2d, supra, § 14 (footnotes omitted) (emphasis
added).
From very early times until now, Hawaii has had numerous statutes providing for
abatement of particular activities amounting to nuisances. Nevertheless, the Supreme
Court, in Akwai v. Royal Ins. Co., 14 Haw. 533 (1902), held that under the statute
authorizing the territorial board of health to abate nuisances, the board was not
authorized to destroy that which was not a nuisance or make or declare that to be a
nuisance which was not in fact a nuisance.
d. Preemption
i. Federal Preemption.
Federal law may preempt state law in one of three ways: (1) express preemption,
which arises when there is an explicit federal statutory command that state law be
displaced; (2) field preemption, which results when federal law so thoroughly occupies a
legislative field as to make reasonable the inference that Congress left no room for the
states to supplement it; and (3) conflict preemption, which arises when a state law
makes it impossible to comply with both state and federal law or when state law stands
as an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress. The St. Thomas—St. John Hotel &Tourism Assoc., Inc. v. Government of
the U.S. Virgin Islands, 218 F.3d 232, 238 (3d Cir.2000). By referring to these three
categories, we should not be taken to mean that they are rigidly distinct. Indeed, field
102 56 Am. Jur. 394, citing Interstate Towing Ass'n, Inc. v. City of Cincinnati, Ohio, 6 F.3d 1154 (6th Cir.
1993).
25
pre-emption may be understood as a species of conflict pre-emption: A state law that
falls within a pre-empted field conflicts with Congress' intent (either express or plainly
implied) to exclude state regulation. English v. General Electric Co., 496 U.S. 72, 79,
110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). [F]or the purposes of the Supremacy Clause,
the constitutionality of local ordinances is analyzed in the same way as that of statewide
laws. Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S.
707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985).
ii. State Preemption
"A municipality may not enact or adopt bylaws or ordinances which are
inconsistent with state law,"103 "or which infringe the spirit of state law."104 "Municipal
ordinances are inferior to the laws of the state and must not conflict with any controlling
provision of a state statute."105 "Also, municipal ordinances will be invalidated when
they are in contravention of the charter."106 or a state statute.107 "Where a local
ordinance conflicts with state law, the ordinance must yield."108 In other words, in cases
of conflict between local and state enactments, the state statute must prevail. Queen
Anne's Conservation, Inc. v. County Com'rs Of Queen Anne's County, 382 Md. 306, 855
A.2d 325 (2004).
"There is a conflict between a municipal ordinance and a state statute when the
ordinance cannot coexist with the state statute."109 "For a conflict to exist between a
state statute and a municipal ordinance, both must contain either express or implied
conditions that are inconsistent or irreconcilable with each other; if either is silent where
the other speaks, there can be no conflict between them; and thus, where no conflict
exists, both laws stand." 56 Am. Jur. 2d 315, citing Alabama Recycling Ass'n, Inc. v.
City of Montgomery, 24 So. 3d 1085 (Ala. 2009); Foothills Brewing Concern, Inc. v. City
of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008).
103 56 Am. Jur. 2d 315, citing Cioch v. Treasurer of Ludlow, 449 Mass. 690, 871 N.E.2d 469(2007).
104 Id., citing Providence City Council v. Cianci, 650 A.2d 499 (R.I. 1994).
105 Id., citing Phantom of Brevard, Inc.v. Brevard County, 3 So. 3d 309 (Fla. 2008).
1°fi Id., citing County of Kaua'i ex rel. Nakazawa v. Baptiste, 115 Haw. 15, 165 P.3d 916 (2007), as
corrected, (Aug. 7, 2007) (an ordinance which conflicts with an express provision in a charter is invalid);
Grasso Service Center, Inc. v. Sepe, 962 A.2d 1283(R.I. 2009).
107 Id., citing Municipality of Helena-West Helena v.Weaver, 374 Ark. 109, 286 S.W.3d 132 (2008);
Grasso Service Center, Inc. v. Sepe, 962 A.2d 1283 (R.I. 2009); Hansen v. Eyre, 2005 UT 29, 116 P.3d
290 (Utah 2005); State v. Kirwin, 165 Wash. 2d 818, 203 P.3d 1044 (2009).
108 Id., Lamar OCI South Corp.v. Stanly County Zoning Bd. of Adjustment, 186 N.C. App. 44, 650 S.E.2d
37 (2007), review allowed, 362 N.C. 236, 659 S.E.2d 734 (2008) and aff'd in part, review dismissed in
part, 362 N.C. 670, 669 S.E.2d 322 (2008).
09 Id., citing Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008) (also stating that the
test for a conflict between a local ordinance and a state statute is whether to comply with one provision, a
violation of the other is required); Salt Lake City v. Newman, 2006 UT 69, 148 P.3d 931 (Utah 2006);
West Lewinsville Heights Citizens Ass'n v. Board of Sup'rs of Fairfax County, 270 Va. 259, 618 S.E.2d
311 (2005)(stating that the fact that a county or municipal ordinance enlarges on a statute's provisions
does not create a conflict with the statute unless the statute limits the requirements for all cases to its own
terms); State v. Kirwin, 165 Wash. 2d 818, 203 P.3d 1044(2009).
26
"A local regulation is repugnant to state law when it expressly contradicts a
statute, it is contrary to the legislative intent underlying the statutory scheme,"1° "or
intrudes into an area where the state has a more substantial interest than the
municipality."111 "A local ordinance also may be invalid because it conflicts with a state
regulation where the state regulation has the force and effect of law." Dail v. York
County, 259 Va. 577, 528 S.E.2d 447 (2000).
"A local ordinance is preempted by a state statute only to the extent that the two
are in conflict."112 "Where an ordinance is not preempted by state law, the ordinance is
valid if there is no conflict with state law."13 "Municipal legislation is preempted if it
expressly contradicts state law or if it runs counter to the legislative intent underlying a
statutory scheme."114 "A state statute preempts a municipal ordinance when either the
language in the ordinance contradicts the language in the statute or when the
Legislature has intended to thoroughly occupy the field."115 "The preemption doctrine
flows from the principle that municipal legislation is invalid if it is repugnant to, or
inconsistent with, state law." Thayer v. Town of Tilton, 151 N.H. 483, 861 A.2d 800
(2004).
"A conflict between state law and a local ordinance exists if the ordinance
duplicates, contradicts, or enters an area fully occupied by general law, either expressly
or by legislative implication."116 "Local legislation is "duplicative" of general law, for
purposes of state preemption, where it is coextensive therewith,"117 "Additionally, for
purposes of preemption, a local ordinance contradicts state law when it is inimical to or
cannot be reconciled with state law." O'Connell v. City of Stockton, 41 Cal. 4th 1061, 63
Cal. Rptr. 3d 67, 162 P.3d 583, 33 A.L.R.6th 661 (2007). "In fact, "conflict preemption"
occurs when the ordinance hinders the accomplishment of the statute's purpose or
when the ordinance conflicts with the statute such that compliance with both is
impossible."118 "`Conflict preemption' acts to preempt any local law that contradicts or
11° Id., citing City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316 (Alaska 1982); John's
Corvette Care, Inc. v. City of Dearborn, 204 Mich. App. 616, 516 N.W.2d 527 (1994); Public Service Co.
v. Town of Hampton, 120 N.H. 68, 411 A.2d 164 (1980); Providence City Council v. Cianci, 650 A.2d 499
(R.I. 1994); R/L Associates, Inc. v. City of Seattle, 113 Wash. 2d 402, 780 P.2d 838 (1989); Davidson v.
Shoney's Big Boy Restaurant, 181 W.Va. 65, 380 S.E.2d 232(1989);
117 56 Am. Jur. 2d 315, citing California Fed. Savings& Loan Assn. v. City of Los Angeles, 54 Cal. 3d 1,
283 Cal. Rptr. 569, 812 P.2d 916 (1991).
112 56 Am. Jur. 2d 316, citing Action Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 63
Cal. Rptr. 3d 398, 163 P.3d 89 (2007) (stating that if otherwise valid local legislation conflicts with state
law, it is preempted by such law and is void).
113 Id., citing South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 629 S.E.2d 624 (2006).
114 Id., citing Guildhall Sand &Gravel, LLC v.Town of Goshen, 155 N.H. 762, 929 A.2d 199 (2007).
115 id., citing Coastal Recycling, Inc. v. Connors, 854 A.2d 711 (R.I. 2004).
t16 Id., citing Action Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 63 Cal. Rptr. 3d 398,
163 P.3d 89 (2007).
117 Id., citing Viacom Outdoor, Inc. v. City of Arcata, 140 Cal.App. 4th 230, 44 Cal. Rptr. 3d 300(1st Dist.
2006).
118 Id., citing South Carolina State Ports Authority v. Jasper County, 368 S.C. 388, 629 S.E.2d 624(2006).
27
contravenes state law."19 "Local legislation is contradictory to a general law, and
therefore preempted, when it is inimical thereto."120
"Local legislation enters an area that is "fully occupied" by a general law, for
purposes of determining whether it is preempted by state law, where:
(1) the legislature has expressly manifested its intent to "fully occupy"the area;
(2) the legislature has impliedly intended to "fully occupy" the area because the
subject matter has been so fully and completely covered by state law as to
clearly indicate it has become an exclusive matter of state concern;
(3) the subject matter has been partially covered by state law couched in such
terms as to indicate a paramount state concern which will not tolerate further
or additional local action;
(4) or the subject matter has been partially covered by state law and the subject
is of such a nature that the adverse effect of the local ordinance on transient
citizens of the state outweighs the possible benefit to the locality.
56. Am. Jur. 2d 316, citing Viacom Outdoor, Inc. v. City of Arcata, 140 Cal. App. 4th
230, 44 Cal. Rptr. 3d 300 (1st Dist. 2006). "The preemption of a municipal ordinance by
a state statute may be established where the state law is expressly preemptive, by
examination of the legislative history, by the pervasiveness of the state regulatory
scheme, or where the nature of the subject matter regulated demands exclusive state
regulation to achieve the uniformity necessary to serve the state's purpose or
interest.'t121
"Where a legislative enactment, either expressly or impliedly, is intended to be
exclusive in a field, preemption will be found, but the legislative intent to supersede local
powers must be clearly present."122 "Whenever the legal question of priority of statutes
and ordinances is presented, it must be resolved by a thorough analysis of the statute
that purportedly gives the government entity priority over local regulations. In this
context, the term "priority" is legally synonymous with the term "immunity" because if a
government entity has priority over local regulations, it may also be described as being
immune from local regulations." Herman v. Berrien County, 481 Mich. 352, 750 N.W.2d
570 (2008).
119 56 Am. Jur. 2d 316, citing Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401 (2007).
120 Id., citing Action Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 63 Cal_ Rptr. 3d 398,
163 P.3d 89 (2007) (stating that absent a clear indication of preemptive intent from the Legislature, the
courts presume that local regulation in an area over which the local government traditionally has
exercised control is not preempted by state law).
121 Id., citing John's Corvette Care, Inc. v. City of Dearborn, 204 Mich. App. 616, 516 N.W.2d 527 (1994).
122 Id.,citing Goodenow v. City Council of Maquoketa, Iowa, 574 N.W.2d 18 (Iowa 1998); Incorporated
Village of Nyack v. Daytop Village, Inc., 78 N.Y.2d 500, 577 N.Y.S.2d 215, 583 N.E.2d 928 (1991); Town
of Warren v. Thornton-Whitehouse, 740 A.2d 1255 (R.I. 1999).
28
"The determination of whether state legislation impliedly preempts local
enactments involves assessing whether the state regulations have so thoroughly and
pervasively covered a subject as to completely occupy the field, and whether the
subject requires a uniform statewide treatment."123 "For an implied preemption of a
municipal ordinance to occur based on conflict with state law, the conflict must be
obvious, unavoidable, and not a matter of reasonable debate."124 "To qualify for the
"conflict" branch of implied preemption, a local law must be irreconcilable with state law;
and in order to be irreconcilable so as to trigger implied preemption, the conflict
between the local ordinance and state statute must be unresolvable and short of
choosing one enactment over the other."125 "The theory of the "conflict" branch of
implied preemption is that even though an ordinance may not be expressly preempted
by the legislature, the ordinance cannot exist harmoniously with a state statute because
the ordinance is diametrically in opposition to it."126
"The rule denying legislative power to a local body when the state has preempted
the field is a rule of necessity based upon the need to prevent dual regulation that would
result in uncertainty and confusion."12 "Under the doctrine of preemption, the key
consideration is not whether the legislature and the municipality have both entered the
same field, but whether in so doing, state law and municipal ordinance have clashed."128
"State preemption by reason of an operational conflict can arise when effecting a local
interest would materially impede or destroy the state interest, and under those
circumstances, the local regulations may be partially or totally preempted to the extent
that they conflict with the state interest."129 If an otherwise valid local legislation
conflicts with state law, it is preempted by such law and is void. 56 Am. Jur. 2d 316,
citing Cal. Const. art. 11, § 7 City of Los Angeles v. County of Kern, 214 Cal. App. 4th
394, 154 Cal. Rptr. 3d 122 (5th Dist. 2013).
"General laws that seek to accomplish an objective of a statewide concern may
prevail over conflicting local regulations even if they impinge to a limited extent upon
some phase of local control."13 Put another way, "[I]ocal legislation that conflicts with
general law is preempted and void."131
123 56 Am. Jur. 2d 316, citing Mayor and City Council of Baltimore v. New Pulaski Co. Ltd. Partnership,
112 Md. App. 218, 684 A.2d 888 (1996).
124 Id., citing City of Davenport v. Seymour, 755 N.W.2d 533(Iowa 2008)(stating that the courts that
apply the conflict-preemption analysis are to interpret the state law in such a manner as to render it
harmonious with the ordinance).
125 Id,
126 Id.
127 Id., citing Missouri Pac. R. R. v. Board of County Com'rs of Greeley County, 231 Kan. 225, 643 P.2d
188(1982).
728 Id., citing Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255 (R.I. 1999) (a municipal ordinance
is preempted if it conflicts with a state statute on the same subject).
129 Id., citing Board of County Com'rs, La Plata County v. Bowen/Edwards Associates, Inc., 830 P.2d
1045 (Colo. 1992); Collins v. City of Hazlehurst, 709 So. 2d 408 (Miss. 1997).
13°Id., citing Neville v. County of Sonoma, 206 Cal. App. 4th 61, 141 Cal. Rptr. 3d 570 (1st Dist. 2012), as
modified, (June 6, 2012).
131 Id., citing West's Ann.Cal. Const. Art. 11, § 7. Garcia v. Four Points Sheraton LAX, 188 Cal. App. 4th
364, 2010 WL 3491954 (2d Dist. 2010).
29
"For purposes of determining whether the local enactment is preempted, the
legislative intent to preclude local action must be clear."132 "A comprehensive statutory
scheme does not automatically result in preemption, because it could nonetheless
authorize additional municipal regulation."133 "Where the State has wholly occupied the
field of a subject to the exclusion of any local regulation, it is of no consequence that a
municipality's regulation coincides with or is complementary to the state law; a
municipality is precluded from enacting any regulation related to the subject
preempted." Law v. City of Sioux Falls, 2011 SD 63, 804 N.W.2d 428 (S.D. 2011).
"The states' courts vary considerably when reviewing municipalities' penalties
that differ from state penalties. The courts have ruled in some circumstances that
ordinances that prohibit the same conduct as a state statute may provide different
penalties without being in conflict with the statute."134 "In other situations however, the
courts have ruled that penalties established by state law cannot be set aside by local
ordinances."135 "For instance, a city ordinance that fixed minimum fines and
appearance bonds for fifty three enumerated misdemeanors was deemed invalid
because the penalty exceeded the city's statutory authority to fix the penalty for offenses
defined and punishable by state law." 36 "Likewise, a city, by a local ordinance, could
not impose criminal penalties for solicitation to commit sodomy that was four times .
greater than allowed by the state statute for the same violation." 56 Am. Jur. 2d 317,
citing Pierce v. Corn., 777 S.W.2d 926 (Ky. 1989).
"A city ordinance cannot increase either the minimum or maximum penalty that
has been authorized by state law for the same criminal conduct without evidence of
legislative acquiescence." 56 Am. Jur. 2d 317, citing City of Portland v. Dollarhide, 300
Or. 490, 714 P.2d 220 (1986). "Also, an ordinance cannot impose criminal penalties on
conduct that has been essentially decriminalized by the state." Id., citing Thomas v.
State, 614 So. 2d 468 (Fla. 1993).
1. Preemption by State Statute
"When the state chooses to regulate and act under its police power, its laws
predominate over local laws or ordinances."137 "Thus, a municipality may be foreclosed
from exercising a police power that it would otherwise have if the state has sufficiently
132 56 Am. Jur. 2d 316, citing St. George Greek Orthodox Cathedral of Western Massachusetts, Inc. v.
Fire Dept. of Springfield, 462 Mass. 120, 2012 WL 1537939 (2012).
133 Id., citing Forsberg v. Kearsarge Regional School Dist., 999 A.2d 278 (N.H. 2010).
134 56 Am. Jur. 2d 317, citing City of Chicago v. Roman, 184 III. 2d 504, 235 III. Dec. 468, 705 N.E.2d 81
(1998); City of Baton Rouge v. Williams, 661 So. 2d 445 (La. 1995); International Paper Co. v. Town of
Jay, 665 A.2d 998 (Me. 1995); City of Fargo v. Little Brown Jug, 468 N.W.2d 392 (N.D. 1991); City of
Niles v. Howard, 12 Ohio St. 3d 162, 466 N.E.2d 539 (1984); State ex rel. Dept. of Revenue and
Taxation, Motor Vehicle Div. v. McNeese, 718 P.2d 38 (Wyo. 1986).
135 Id., citing Thomas v. State, 614 So. 2d 468 (Fla. 1993); City of Baton Rouge v. Williams, 661 So. 2d
445 (La. 1995); City of North Charleston v. Harper, 306 S.C. 153, 410 S.E.2d 569 (1991).
136 Id., citing Wright v. Burton, 279 Ark. 1, 648 S.W.2d 794 (1983).
137 56 Am. Jur. 2d 375, citing Clark v. City of Draper, 168 F.3d 1185 (10th Cir. 1999) (regarding a Utah
city ordinance).
30
acted in a particular field."138 "Also, municipalities may not adopt ordinances under the
police power that are inconsistent with state law."139 "A local ordinance enacted in the
exercise of the police power must give way if it conflicts with a general law."140 "In
addition, a county or city may make and enforce within its limits all police, sanitary, and
other ordinances and regulations that are not in conflict with general laws."141 "A
"general law," for this purpose, is part of a statewide and comprehensive enactment;
must apply to and operate uniformly throughout the state; establishes police, sanitary,
or similar regulations, rather than only granting or limiting the legislative power of a
municipal corporation to establish regulations under the police power; and prescribes a
rule of conduct on citizens, generally." 56 Am. Jur. 2d 375, citing Ohioans for
Concealed Carry, Inc. v. Clyde, 120 Ohio St. 3d 96, 2008-Ohio-4605, 896 N.E.2d 967
(2008).
"A local law is invalid if it enters a field fully occupied by state law or if it conflicts
with state law."142 "Thus, a local exercise of the police power is preempted if the nature
of regulated subject matter calls for a uniform state regulatory scheme."143 "On the
other hand, a municipality's police powers are not preempted where a state statute is
not so broad or detailed as to preclude all local regulation automatically, the legislature
did not express a need for a statewide uniform standard, and the local law furthers the
state's policy,"144 "the ordinance only includes mere differences in detail or imposes
additional regulation,"145 "a statute authorizes local regulation in an area also covered
by state statutes,"146 "or the state statute provides that it is not intended to preclude the
right to adopt more restrictive ordinances."147
"A local ordinance may be invalid because it conflicts with a state administrative
regulation, if the state regulation has the force and effect of law."148 "Even when a non-
home-rule unit of government is conveyed the authority to regulate in a particular field, it
may not adopt an ordinance that infringes upon the spirit of the state law or is repugnant
138 Id., citing Corn., Office of Attorney General ex rel. Corbett v. Richmond To., 975 A.2d 607 (Pa.
Commw. Ct. 2009).
133 Id., citing City of Dellwood v.Twyford, 912 S.W.2d 58 (Mo. 1995).
140 Id., citing Ohioans for Concealed Carry, inc.v. Clyde, 120 Ohio St. 3d 96, 2008-Ohio-4605, 896
N.E.2d 967(2008).
141 Id., citing Rental Housing Ass'n of Northern Alameda County v. City of Oakland, 171 Cal. App. 4th 741,
90 Cal. Rptr. 3d 181 (1st Dist. 2009), review denied, (June 10, 2009).
142 Id., citing Sequoia Park Associates v. County of Sonoma, 176 Cal. App. 4th 1270, 98 Cal. Rptr. 3d 669
(1st Dist. 2009), review denied, (Dec. 2, 2009) (involving the validity of an ordinance regulating the
conversion of mobile home parks from rental to an ownership basis); USA Cash#1, Inc. v. City of
Saginaw, 285 Mich. App. 262, 776 N.W.2d 346 (2009) (ordinance requiring that secondhand merchants
electronically report transactions).
143 Id., citing Idaho Dairymen's Ass'n, Inc. v. Gooding County,—P.3d.—, 2010 WL 337939 (Idaho 2010).
144 Id., citing Vatore v. Commissioner of Consumer Affairs of City of New York, 83 N.Y.2d 645, 612
N.Y.S.2d 357, 634 N.E.2d 958 (1994) (local law restricting cigarette vending machines to taverns not
preempted by a state statute restricting them to four types of locations).
148 56 Am. Jur. 2d 375, citing USA Cash #1, Inc. v. City of Saginaw, 285 Mich. App. 262, 776 N.W.2d 346
(2009).
48 Id., citing Heesan Corp. v. City of Lakewood, 118 Wash. App. 341, 75 P.3d 1003 (Div. 2 2003).
147 Id., citing Lake Valley Associates, LLC v. Township Of Pemberton, 411 N.J. Super. 501, 987 A.2d 623
(App_ Div. 2010).
48 Id., citing Dail v. York County, 259 Va. 577, 528 S.E.2d 447 (2000).
31
to the general policy of the state; an ordinance enacted under those powers that
conflicts with the spirit and purpose of a state statute is preempted by the statute."149
"The mere fact that the General Assembly has enacted legislation in a field does not
lead to the presumption that the state has precluded all local enactments in that field;
rather, the General Assembly must clearly evidence its intent to preempt." Hoffman
Min. Co., Inc. v. Zoning Hearing Bd. of Adams Tp., Cambria County, 32 A.3d 587 (Pa.
2011).
2. Express or Implied Preemption
"Preemption of local regulations enacted under the police power by a state
statute may be either express or implied."15° "Express preemption occurs when the
state legislature specifically prohibits local action in an area.s151 "Implied preemption
occurs when an ordinance prohibits an act permitted by a statute, or permits an act
prohibited by a statute; such an ordinance is inconsistent with state law and thus
preempted by it."152 "The doctrine of implied preemption of a local ordinance by state
law typically applies in instances where, despite the lack of specific language
preempting local regulation, the state has acted in an area in such a pervasive manner
that it must be assumed that it intended to occupy the entire field of regulation,"153 "or
that the legislature did not intend that it be supplemented by local regulations."154
"Determining whether state legislation implicitly preempts local enactments accordingly
involves assessing whether the state regulations so thoroughly and pervasively cover
the subject as to occupy the field completely, and whether the subject requires uniform
statewide treatment."15 "However, it is also said that municipal regulation under the
police power is not preempted, absent a clear indication of a legislative intent to limit
local government action."156 "Under this view, courts may not speculate on legislative
intent to find preemption of municipal action, even in a highly regulated field, but there
must be persuasive concrete evidence of an intent to preempt the field in the language
149 Id., citing Janis v. Graham, 349 III. Dec. 487, 946 N.E.2d 983 (App. Ct. 2d Dist. 2011).
150 56 Am. Jur. 2d 376, citing Fogle v. H &G Restaurant, Inc., 337 Md.441, 654 A.2d 449(1995)
(smoking regulations).
51 Id., citing Goodell v. Humboldt County, 575 N.W.2d 486 (Iowa 1998).
152 Id., citing Sequoia Park Associates v. County of Sonoma, 176 Cal. App. 4th 1270, 98 Cal. Rptr. 3d 669
(1st Dist. 2009), review denied, (Dec. 2, 2009) (involving regulations on the conversion of a mobile home
park from rental to an ownership basis); City of Davenport v. Seymour, 755 N.W.2d 533 (Iowa 2008); City
of Wichita v. Basgall, 257 Kan. 631, 894 P.2d 876, 10 A.D.D. 887(1995); Perdue Farms Inc. v. Hadder,
109 Md. App. 582, 675 A.2d 577(1996); City of Dellwood v. Twvford, 912 S.W.2d 58 (Mo. 1995).
153 Id.,citing Idaho Dairymen's Ass'n, Inc.v. Gooding County,—P.3d.—, 2010 WL 337939(Idaho 2010).
154 56 Am. Jur. 2d 376, citing Huntley& Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa.
207, 964 A.2d 855(2009).
155 Id., citing Mayor and City Council of Baltimore v. New Pulaski Co. Ltd. Partnership, 112 Md. App. 218,
684 A.2d 888 (1996).
156 Id., citing City of Claremont v. Kruse, 177 Cal. App. 4th 1153, 100 Cal. Rptr. 3d 1 (2d Dist. 2009),
review denied, (Dec. 2, 2009) (involving a city moratorium on issuing permits and licenses to medical
marijuana dispensaries, and enforcing licensing and zoning regulations prohibiting their operation); M &H
Profit, Inc. v. City of Panama City, 2009 WL 4756147 (Fla. Dist. Ct. App. 1st Dist. 2009); Borough of
Avalon v. New Jersey Dept. of Environmental Protection, 403 N.J. Super. 590, 959 A.2d 1215 (App. Div.
2008), certification denied, 199 N.J. 133, 970 A.2d 1049 (2009); Corn., Office of Attorney General ex rel.
Corbett v. Richmond Tp., 975 A.2d 607 (Pa. Commw. Ct. 2009) (also noting that the state is not
presumed to preempt the police power merely by legislating on a particular subject).
32
actually used in the statute." City of Davenport, 755 N.W.2d at 533. "Conversely, an
expressed legislative intent to allow local regulation, or an express recognition of local
regulation, is convincing evidence that a state legislative scheme was not intended to
occupy a field within the local police power." Viacom Outdoor, Inc. v. City of Arcata, 140
Cal. App. 4th 230, 44 Cal. Rptr. 3d 300 (1st Dist. 2006).
"Implied-field preemption occurs when the legislature has so covered a subject
by statute as to demonstrate a legislative intent that regulation in the field is preempted
by state law; but, extensive regulation in a certain field is not enough."157 "The
existence of an express preemption clause does not preclude an implied preemption
analysis, even though it may support the inference that no implied preemption exists."158
3. Lack of Conflict
"A local legislative body, in the exercise of its police powers, may forbid an act
when state legislation is silent on the subject; there is no conflict between a state statute
and a local ordinance when there is no statute dealing with the same subject matter."159
"Conflict between a municipal ordinance and state law may be found when state law
affirmatively or specifically permits an activity, rather than when it is silent."16° "Also, a
measure enacted pursuant to the police power is not preempted if there is not an
irreconcilable"161 "or direct"162 "conflict or an inconsistency"1 3 "with state law on the
subject. This includes where a municipal regulation is in addition to one under state
law,"164 "goes further in a prohibition,"165 "complements a state law,"166 "or imposes
higher standards."167 "A municipal ordinance does not conflict with state law, unless the
157 Id., citing Const. Art. 3, § 38A. Hensler v. City of Davenport, 790 N,W.2d 569 (Iowa 2010).
168 Id., citing Hoffman Min. Co., Inc. v. Zoning Hearing Bd. of Adams Tp., Cambria County, 32 A.3d 587
(Pa. 2011).
56 56 Am. Jur. 2d 377, citing Miller v. City of Town &Country, 62 S.W.3d 431 (Mo. Ct. App. E.D. 2001);
Kislev v. City of Falls Church, 212 Va. 693, 187 S.E.2d 168, 51 A.L.R.3d 929 (1972).
160 56 Am. Jur. 2d 377, citing New Mexicans for Free Enterprise v. The City of Santa Fe, 138 N.M. 785,
2006-NMCA-007, 126 P.3d 1149 (Ct. App. 2005).
961 1d., citing Foothills Brewing Concern. Inc. v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008)
(smoking regulations); Lawson v. City of Pasco, 144 Wash. App. 203, 181 P.3d 896 (Div. 3 2008), review
granted, 165 Wash. 2d 1012, 199 P.3d 410 (2009) (regulation prohibiting recreational vehicles in mobile
home park).
162 Id., citing (USA Cash#1, Inc. v. City of Saginaw, 285 Mich.App. 262, 776 N.W.2d 346 (2009)).
163 Id., citing Stennis v. City of Santa Fe, 2008-NMSC-008, 143 N.M. 320, 176 P.3d 309 (2008).
164 G., citing Firemen's Ins. Co. of Washington, D. C. v. Washington, 483 F.2d 1323 (D.C. Cir. 1973) (with
regard to a District of Columbia ordinance); City of Wichita v. Basgall, 257 Kan. 631, 894 P.2d 876, 10
A.D.D. 887(1995); Foothills Brewing Concern, Inc. v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264
(2008).
65 Id., citing Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 662 A.2d 1179 (1995);
City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356(1997).
166 Id., citing Jackson County v. State, Dept. of Natural Resources, 2006 WI 96, 293 Wis. 2d 497, 717
N.W.2d 713 (2006).
1671d., citing Greater New Haven Property Owners Ass'n v. City of New Haven, 288 Conn. 181, 951 A.2d
551 (2008).
33
ordinance permits an act the general law prohibits, or vice versa,"168 `or where the state
does not have an overriding interest that requires that it retain exclusive control."169
"Absent a clear manifestation of legislative intent to preempt a field of regulation,
a municipality may enact an ordinance that neither conflicts with state legislation nor is
itself unreasonable." Corey v. Town of Merrimack, 140 N.H. 426, 666 A.2d 1359
(1995). "In some jurisdictions, local ordinances that address a different subject matter
than a state statute are consistent with the statute unless the state explicitly provides
that localities may not further regulate in a given area; silence on the part of the state
does not give rise to an inference that the state has prohibited its localities from
enacting ordinances further regulating an area."170 "Even where a field is one of
statewide concern, this does not automatically void a local regulation."171
"While there is no conflict where a municipal ordinance does nothing more than
prohibit the same conduct prohibited by a state statute,"172 it has also been said that
when a local ordinance is identical to a state statute, it is clear that the field sought to be
covered by the ordinance has already been occupied by state law, and thus the local
ordinance is preempted."173 "When a court considers preemption claims, it is obligated
to harmonize, to the extent it legally can be done, state and municipal enactments on
the identical subject." Butler County Dairy, L.L.C. v. Butler County, 285 Neb. 408, 827
N.W.2d 267 (2013).
4. Ordinances Imposing Criminal Penalties
"In some jurisdictions, a municipality may enact ordinances relating to the safety
and security of its citizens, and impose fines,"1 4 "penalties,"175 "forfeitures,"176 "and
168 Id., citing Alabama Recycling Ass'n, Inc. v. City of Montgomery, 24 So. 3d 1085(Ala. 2009) (ordinance
regulating metals recyclers); City of Claremont v. Kruse, 177 Cal.App. 4th 1153, 100 Cal. Rptr. 3d 1 (2d
Dist. 2009), review denied, (Dec. 2, 2009); City of Coralville v. Iowa Utilities Bd., 750 N.W.2d 523 (Iowa
2008); City of Kansas City v. Carlson, 292 S.W.3d 368 (Mo. Ct. App.W.D. 2009), reh'g and/or transfer
denied, (July 28, 2009) and transfer denied, (Oct. 6, 2009); Stennis v. City of Santa Fe, 2008-NMSC-008,
143 N.M. 320, 176 P.3d 309 (2008); Maple Hts. v. Ephraim, 178 Ohio App. 3d 439, 2008-Ohio-4576, 898
N.E.2d 974 (8th Dist. Cuyahoga County 2008); Denene, Inc. v. City of Charleston, 352 S.C. 208, 574
S.E.2d 196 (2002) (ordinance regulating hours when on-premises consumption of beer and wine is
permitted did not impliedly provide a right to sell beer and wine when prohibited by a state statute); Feil v.
Eastern Washington Growth Management Hearings Bd., 153 Wash.App. 394, 220 P.3d 1248 (Div. 3
2009);
169 Id., citing Quilici v.Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) (village gun control
ordinance).
170 56 Am. Jur. 2d 377, citing J &B Entertainment, Inc. v. City of Jackson, Miss., 152 F.3d 362(5th Cir.
1998) (applying Mississippi law).
171 Id., citing DeRosso Landfill Co. Inc. v. City of Oak Creek, 200 Wis. 2d 642, 547 N.W.2d 770 (1996).
172 Id., citing Mendenhall v.Akron, 117 Ohio St. 3d 33, 2008-Ohio-270, 881 N.E.2d 255 (2008).
173 Id., citing Sequoia Park Associates v. County of Sonoma, 176 Cal.App. 4th 1270, 98 Cal. Rptr, 3d 669
(1st Dist. 2009), review denied, (Dec. 2, 2009) (involving regulation of mobile home parks).
74 56 Am. Jur. 2d 378, citing State ex rel. State Line Sparkler of WV. Ltd. v. Teach, 187 W. Va. 271,418
S.E.2d 585 (1992).
34
imprisonment if they are violated."177 "Some ordinances have also been upheld as
being an exercise of the police power, rather than a municipality's power of self-
government."178 "In other jurisdictions, because municipalities cannot create crimes,
they may not impose either a fine or imprisonment as a sanction for a violation of a
municipal ordinance." 56 Am. Jur. 2d 378, citing State v. Thierfelder, 174 Wis. 2d 213,
495 N.W.2d 669 (1993). "Preemption may result from a statute indicating that the
legislature has determined by implication that it intended to preempt the regulation of
the criminal aspects of a field of the law,"19 "a criminal code that contains a specific
declaration that municipal ordinances dealing with areas of criminal law covered by it
are preempted,"180 "or a state constitutional provision that the power of voters to enact
and amend municipal charters is subject to state criminal laws." State v. Tyler, 168 Or.
App. 600, 7 P.3d 624 (2000).
"A municipality may not, under the claim of its police power, make criminal those
activities that are normally deemed innocent,"181 "or not criminal under state law."182
"Similarly, a municipality may not adopt an ordinance if its effect nullifies state statutes
dealing with the same misdemeanor."183 "On the other hand, a municipal ordinance
establishing an offense is not preempted by a statute, where the ordinance merely
enlarges on the statute's provisions and does not prohibit activity that the statute
specifically allows."184
iii. Preemption in Hawaii
In Hawaii, the law of preemption and the test to determine whether preemption
exists has previously been addressed. Richardson v. City and County of Honolulu,
868 P.2d 1193 (1994) articulates the test by which a municipal ordinance is preempted
in Hawaii. Under Richardson, "a municipal ordinance may be preempted pursuant to
HRS § 46-1.5(13) if(1) it covers the same subject matter embraced within a
175 Id., citing Yellow Freight Systems, Inc.v. Mayor's Com'n on Human Rights of City of Springfield, 791
S.W.2d 382 (Mo. 1990); State ex rel. State Line Sparkler of WV, Ltd.v. Teach, 187 W.Va. 271, 418
S.E.2d 585 (1992).
176 Id., citing County of Nassau v. Kilcommons,45 A.D.3d 522, 845 N.Y.S.2d 127(2d Dep't 2007) leave to
appeal denied, 10 N.Y.3d 703, 854 N.Y.S.2d 104, 883 N.E.2d 1011 (2008) (civil forfeiture to obtain title to
instrumentalities of crimes, including traffic infractions).
177 Id., citing State v. Belitz, 203 Neb. 375, 278 N.W.2d 769 (1979).
178 Id., citing Maple Hts. v. Ephraim, 178 Ohio App. 3d 439, 2008-Ohio-4576, 898 N.E.2d 974 (8th Dist.
Cuyahoga County 2008) (ordinance making parents criminally liable if their minor child committed certain
types of delinquent acts).
Id., citing In re Jennifer S., 179 Cal. App. 4th 64, 101 Cal. Rptr. 3d 467 (1st Dist. 2009), review denied,
(Feb. 18, 2010) (public drunkenness).
8O Id., citing State v. Felder, 329 N.J. Super. 471, 748 A.2d 163 (App. Div. 2000).
181 ld citing City of Seattle v. Pullman, 82 Wash. 2d 794, 514 P.2d 1059 (1973).
182 Id., citing Connor v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608(1994)(ordinance
prohibiting nude and semi-nude barroom dancing).
183 56 Am. Jur. 2d 378, Collins v. City of Hazlehurst, 709 So. 2d 408 (Miss. 1997) (possession of beer
made legal for personal consumption).
184 Id., citing State v. S.L.S., 777 So. 2d 318 (Ala. Crim.App. 2000) (ordinance prohibiting making any
false, fictitious, or fraudulent statement or representation in a matter within the jurisdiction of a city
department or agency).
35
comprehensive state statutory scheme disclosing an express or implied intent to be
exclusive and uniform throughout the state or (2) it conflicts with state law."
The Hawaii Supreme Court has employed an approach to the issue of
preemption of county ordinances by state statutory law, which might best be
characterized as a "comprehensive statutory scheme" test. In the case In re Application
of Anamizu, 52 Haw. 550, 481 P.2d 116 (1971), [the court] considered whether a city
ordinance mandating the certification of electrical contractors by a municipal agency
was preempted by a state statutory scheme that governed the licensing of all building
contractors. Applying HRS § 70-105 (the precursor to HRS § 46-1.5(13)), the court
held that the city ordinance was preempted by the state statutory scheme, noting that
"the critical determination to be made" under HRS § 70-105 was whether the statutory
scheme at issue "indicate[d] a legislative intention to be the exclusive legislation
applicable to contractors." Anamizu, 52 Haw. at 553, 481 P.2d at 118. Because the
legislation "established a comprehensive statutory scheme for regulating the contracting
business within the [s]tate," the court ruled that the state's grant of permission to a
contractor"to pursue his occupation throughout the [s]tate" could "not be circumscribed
by local authorities through the enactment of additional qualifying regulations." Id. at
554-55, 481 P.2d at 118-19 (emphasis added). "To hold otherwise," we said, "would
be to allow the intercity flow of contracting services to be impaired, thereby severely
diluting the value of a uniform state licensing system." Id. at 555, 481 P.2d at 119.
In Anamizu, 52 Haw. 550, 481 P.2d 116 (1971) the court found preemption due
to two issues presented in that case. First, the state statute in question created a global
( i.e., "comprehensive") mechanism for regulating the licensing of the entire universe of
building contractors within the state; by contrast, the city ordinance undertook to
regulate only electrical contractors—a discrete galaxy within, or a subset of, that
universe. Second, the city ordinance at issue in Anamizu imposed "qualifying
regulations" upon electrical contractors for municipal certification that were "additional"
to those required for state licensure.
In Citizens Utilities Co. v. County of Kauai, 72 Haw. 285, 814 P.2d 398 (1991),
the court held that a county ordinance regulating the height of utility poles was
preempted by the combination of HRS § 269-6 (1985), which conferred upon the State
Public Utilities Commission (PUC) the power of"general supervision ... over all public
utilities," and a specific regulation of the PUC that governed, inter alia, the minimum
requirements for utility pole height, Id. at 288-89, 814 P.2d at 400. In doing so, the
court applied the Anamizu test to HRS § 46-1.5(13) (the successor to HRS § 70-105)
and declared that "a municipal ordinance, which covers the same subject matter
embraced within a [s]tate statute is invalid if the statute discloses an express or implied
intent that the same shall be exclusive, or uniform in application throughout the [s]tate."
Id. at 289, 814 P.2d at 400. Analogously to Anamizu the state law at issue in Citizens
Utilities governed a substantive "universe," i.e., global regulation of public utilities,
whereas the relevant county ordinance addressed only a "galaxy" thereof—utility pole
regulation.
36
However, Hawaii courts have also found no state preemption in other cases.
See Pacific Intern. Services Corp. v. Hurip, 873 P.2d 88, 76 Hawaii 209 (1994), (finding
that city financial responsibility law, requiring car rental company's insurance policy to
cover vehicles driven with customer's permission, did not conflict with no-fault law
provision prescribing minimum coverage to be afforded insured in no-fault policy);
Richardson v. City and County of Honolulu, 868 P.2d 1193 (1994), (finding that
ordinance providing mechanism for transfer of fee simple interest of leasehold property
from condominium lessors to condominium lessees did not conflict with state statutes
governing eminent domain proceedings; state statutory scheme was not
"comprehensive", and ordinance covered subject matter not addressed in state
statutes); HRS 46-1.5 (13), 46-61, 46-62; Territory v. Hop Kee, 21 Haw. 206 (1912),
(ordinance providing for protection of meat, fish, and seafood from dust, dirt, contact of,
and contamination by, flies and other insects and from promiscuous handling and other
contamination was not void as in conflict with regulation of territorial board of health,
where municipal act provided that no ordinance should be held invalid on ground that it
covered a subject embraced in statute of territory, even though the two conflicted).
III. Specific Challenges Pertaining to Bill No. 2491 in its current form.
In an effort to present the relevant legal issues as clearly and coherently as
possible the Office of the County Attorney will first present the general authority of the
County to promulgate the Bill according to form and the general authority of the County
to regulate under its police power and its power to regulate public nuisances. Then the
County Attorney's Office will address the specific challenges facing each individual
section of Bill No. 2491 in its current form. Although the four aforementioned issues
generally pertain to all sections, certain individual sections contain specific challenges
that do not apply generally. The Office of the County Attorney will discuss these
challenges in depth under each section.
a. Compliance with County Charter Requirements Pertaining to Bills
and Ordinances.
Section 4.02 B of the Charter of the County of Kauai mandates that every
ordinance shall embrace but "one subject", which shall be expressed in its "title". The
term "subject" as used in such provisions is given a broad and extended meaning to
allow the legislative municipal body full scope to include in one act all matters having a
logical or natural connection. If all parts of an act relate directly or indirectly to the
general subject of the act, it is not open to the objection of plurality. Tanner v. City of
Boulder, 158 Colo. 173, 405 P.2d 939 (1965).
The title of Bill No. 2491 is, "Pesticides and Genetically Modified Organisms."
The expression of subject in the title of an ordinance is sufficient if it calls attention to
the general subject of the legislation. It is not necessary that the title refer to details
within the general subject, nor those which may be reasonably considered as
appropriately incident thereto, and the title is sufficient if it is germane to the one
controlling subject of the ordinance. The crucial test of sufficiency of title is generally
found in the answer to this question: Does the title tend to mislead or deceive the
37
people or the municipal board as to the purpose or effect of the legislation, or to conceal
or obscure the same? If it does, then the ordinance is void; if not, it is valid. Territory v.
Dondero, 21 Haw. 19, 1912 WL 1627 Haw.Terr. 1912, citing 28 Cyc. 379, 380.
According to the information as understood by the County Attorney's Office, the bill's
title does not, "tend to mislead or deceive the people or the municipal board as to the
purpose or effect of the legislation, or to conceal or obscure the same", as the title
clearly indicates that it pertains to both pesticides and GMOs.
According to the law,"[i]t is sufficient if the title of an ordinance fairly indicates to
the ordinary mind the general subject of the act, is comprehensive enough to
reasonably cover all its provisions, and is not calculated to mislead; but an act which
contains provisions neither suggested by the title, nor germane to the subject expressed
therein, is, to that extent void." Territory v. Furubayashi, 20 Haw. 559. (1911). Likewise,
the County Attorney's Office asserts that the title of the ordinance "fairly indicates to the
ordinary mind the general subject of the act, is comprehensive enough to reasonably
cover all its provisions, and is not calculated to mislead."
The County Attorney's Office opines that the "general subject of the act", of Bill
No. 2491 is stated in the bill's purpose section which is codified as sec. 22-22.2. As
state in sec. 22-22.2 the purpose of the bill is to, "inform the public and protect the
public from any direct, indirect, or cumulative negative impacts on the health and natural
environment of the people and place of the County of Kauai, by governing the use of
pesticides and genetically modified organisms," and assessing penalties for violation of
the bill and any rules promulgated thereby. The bill in its current form strives to
accomplish this goal by requiring disclosure of the possession, and or use of pesticides
and GMOs and creating buffer zones where crops cannot be grown on agricultural
lands. These regulations apply to commercial agricultural entities that purchase or use
established "threshold" amounts of pesticides and or intentionally or knowingly posess
GMO products. According to the County Attorney's understanding the use of pesticides
and GMOs by the entities sought to be regulated by Bill No. 2491 go hand in hand.
According to statements made during public hearings and via written testimony
submitted to the Council, both by proponents and opponents of Bill No. 2491, the use
and or possession of pesticides and GMOs by these entities appear to have both a
"logical" or"natural connection". It appears that all parts of the bill relate directly or
indirectly to the general subject of the act as stated above, and therefore it does not
appear that the bill is open to the objection of plurality.
It does not appear that Bill No. 2491 contains subjects which are, "so dissimilar
as to have no legitimate connection." Therefore, the bill does not appear to violate the
tenets as described in State ex rel. Tomasic v. Unified Government of Wyandotte
County/Kansas City, Kan., 264 Kan. 293, 955 P.2d 1136 (1998); ACI Plastics, Inc. v.
City of St. Louis, 724 S.W.2d 513 (Mo. 1987).
Section 4.02 (C) of the County Charter states that no bill shall be so amended as
to change its original purpose, and that, every bill, as amended, shall be in writing
before final passage. The County Attorney's Office finds that although the bill has been
amended from its original form, said amendments have not changed the bill's "original
38
purpose". The original purpose of the bill was to regulate the use of pesticides and the
possession of GMOs and the amended bill has retained this character.
b. Whether the County Has the General Authority to Enact Police Power
Regulations and to Regulate Nuisances
L Police Power
Although no Hawaii constitutional provision provides that the counties have any
explicit powers relating to legislating on public health safety and welfare or "police
power"; the Hawai'i State Legislature has conferred onto the County of Kauai the
authority to legislate pursuant to the police power, "on any subject or matter not
inconsistent with, or tending to defeat, the intent of any state statute where the statute
does not disclose an express or implied intent that the statute shall be exclusive or
uniform throughout the State."
Under the Kauai County Charter Section 2.01. Powers. The County has the
power to legislate in order to, "promote the general welfare and the safety, health,
peace, good order, comfort and morals of its inhabitants, the county shall have and may
exercise all powers necessary for local self-government, and any additional powers and
authority which may hereafter be granted to it, except as restricted by laws of this
State."
The County Attorney's Office asserts that the County has the general authority to
enact laws under the police power.
ii. Nuisance
The Hawaii State Legislature has specifically granted the County of Kauai the
power to regulate "smoke, dust, vibration, or odors which constitute a public nuisance"
pursuant to FIRS 46-17 (emphasis added). As it pertains to Bill No. 2491, the public
nuisances sought to be regulated would appear to be those related to dust or odors
emanating from "farming operations" as defined under HRS 165-2.
In Hawaii, nuisances are classified into public nuisances and private nuisances,
or sometimes as both public and private. The latter are sometimes called mixed
nuisances. Territory v. Shull Fuiiwara, 33 Haw. 428 (1935). A "public nuisance" is
created where acts or series of acts produce common injury or is subversive of public
order, decency, or morals, or constitute obstruction of public rights, or affects rights
enjoyed by citizens, notwithstanding number, as part of public. Marsland v. Pang, 701
P.2d 175, 5 Haw. App. 463, cert. denied 744 P.2d 781, 67 Haw. 686 (1985). A nuisance
is not a public nuisance unless it is in a public place, a place where the public frequently
congregates, or a place where members of the public are likely to come within the range
of its influence. Littleton v. State, 656 P.2d 1336, 66 Haw. 55 (1982). If the act or use of
property is in a remote and unfrequented locality, it will not, unless malum in se, be a
public nuisance, but if the nuisance affects a place where the public has a legal right to
go, and where the members thereof frequently congregate, or where they are likely to
39
come within its influence, it will be a public nuisance. Littleton v. State, 656 P.2d 1336,
66 Haw. 55 (1982).
The County Attorney's Office asserts that the County of Kauai has the clear
authority to regulate public nuisances generally, but not private nuisances. Case law
clearly states that, "a municipality does not have the authority, under its police power, to
punish conduct that is a private nuisance". City of Virginia Beach v. Murphy, 239 Va.
353, 389 S.E.2d 462 (1990). While the authority to declare and regulate public
nuisances is clear any inquiry as to whether or not the specific activities sought to be
regulated by Bill No. 2491 is in fact a "public nuisance" versus a "private nuisance" is
dependent on specific facts and circumstances.
Although a municipality has the power to declare anything a nuisance, which is
either a nuisance per se, or a nuisance at common law or by statute; a municipality also
has the authority to regulate as a nuisance anything about which there could be an
honest difference of opinion, if, in the municipal authorities' opinion, such a thing
constitutes a nuisance. McCarthy v. Kunicki, 355 III. App. 3d 957, 291 Ill. Dec. 502, 823
N.E.2d 1088 (1st Dist. 2005). However, this right is not unqualified. As the power to
regulate public nuisances falls under the police power it is subject to the preemption
doctrine. While municipalities have police power to regulate in the interest of public
health safety and welfare, they cannot invoke that power to accomplish what is
otherwise preempted. Minnesota Agricultural Aircraft Assoc. v. Township of Mantrap,
498 N.W.2d 40 (1993) (held that ordinance was preempted by state statute governing
pesticides).
The ability for the County to regulate the types of public nuisances sought to be
addressed by Bill No. 2491 will be challenged by opponents of the bill pursuant to the
tenets of FIRS Chapter 165, Hawaii Right to Farm Act. The purpose of the Right to
Farm Act ("the Act") is to, "reduce the loss to the State of its agricultural resources by
limiting the circumstances under which farming operations may be deemed to be a
nuisance". Under the Act, "the preservation and promotion of farming is declared to be
in the public purpose and deserving of public support" HRS 165-4, Right to Farm,
states that, "[n]o court, official, public servant, or public employee shall declare any
farming operation a nuisance for any reason if the farming operation has been
conducted in a manner consistent with generally accepted agricultural and management
practices. There shall be a rebuttable presumption that a farming operation does not
constitute a nuisance."
Under HRS 165-2, "Farming operation" means a, "commercial agricultural,
silvicultural, or aquacultural facility or pursuit conducted, in whole or in part, including
the care and production of livestock and livestock products, poultry and poultry
products, apiary products, and plant and animal production for nonfood uses; the
planting, cultivating, harvesting, and processing of crops; and the farming or ranching of
any plant or animal species in a controlled salt, brackish, or freshwater environment.
"Farming operation" includes but shall not be limited to: (1) Agricultural-based
commercial operations as described in section 205-2(d)(15); (2) Noises, odors, dust,
and fumes emanating from a commercial agricultural or an aquacultural facility or
40
pursuit; (3) Operation of machinery and irrigation pumps; (4) Ground and aerial
seeding and spraying; (5) The application of chemical fertilizers, conditioners,
insecticides, pesticides, and herbicides; and (6) The employment and use of labor. A
farming operation that conducts processing operations or salt, brackish, or freshwater
aquaculture operations on land that is zoned for industrial, commercial, or other
nonagricultural use shall not, by reason of that zoning, fall beyond the scope of this
definition; provided that those processing operations form an integral part of operations
that otherwise meet the requirements of this definition."
Although the applicability of HRS Chapter 165 to the issue of the County
council's treatment of pesticides and CMOs is disputed, the County Attorney's
office asserts that the provisions of HRS Chapter 165 would in fact apply to
prevent the tenets of Bill No. 2491 from "declaring" the subject farming
operations, including pesticide use and propagation of GMO products and the
dust and odors associated therewith to be a nuisance. This is because, as stated
in the Marsland case, "[s]ince "nuisance" is a term which does not have a fixed
content, either at common law or at the present time, compelling reasons of
policy require that the responsibility for establishing those standards of public
morality, the violation of which is to constitute nuisances within equity jurisdiction,
be left to the legislature." Marsland v. Pang, 701 P.2d 175, 5 Haw.App. 463,
certiorari denied 744 P.2d 781, 67 Haw. 686 (1985), citing 58 Am.Jur.2d, supra,
§ 14 (footnotes omitted) (emphasis added).
Through the enactment of HRS chapter 165 the Hawaii State legislature has
basically stated that farming operations are not nuisances. By regulating farming
operations as nuisances and under such legal authority the County is adopting a
contradictory policy to what the State legislature has adopted. The County will thus be
hard pressed to argue that they can treat farming operations as nuisances and rely on
nuisance law to regulate what the State legislature has clearly stated is not a nuisance.
c. State and Federal Preemption Issues Applicable to Bill No. 2491
In evaluating the application of the various levels of the preemption doctrine, both
State and Federal, the County Attorney's Office has looked to case law for ultimate
guidance. Statutory law regarding application of preemption issues appears to be
rather simple. However, the difficulties and nuances pertaining thereto arise when
these principles are actually applied to specific fact patterns. "Cases involving issues of
supremacy of law ... are difficult to apply from one subject to another because of the
different regulatory structures governing, for example, foods, drugs, poisons, hazardous
substances, and wastes." Fairview Park v. Barefoot Grass and Lawn, 115 Ohio App.3d
306, 309 (1996). Because the specific questions presented by Bill No. 2491 have not
yet been answered by any Hawaii court, the County Attorney's Office analyzed case
law from across the country in order to advise the Mayor on this matter: While these
cases are not binding precedent, their analysis is persuasive in providing the best
advice possible.
41
In this section, the County Attorney's Office will first address the general
application of the "occupying the field" preemption doctrine as applied to Bill No. 2491's
treatment of Pesticide, Genetically Modified Organisms and land use laws whether
express or implied. Occupying the field preemption, however, is only one aspect of the
larger doctrine of preemption. The law is clear that a municipal ordinance may be
preempted pursuant to the preemption doctrine or the supremacy clause if it conflicts
with the law of a superior authority. The Office of the County Attorney will analyze any
section specific "conflict preemption" issues in subsequent portions of this opinion.
i. General Preemption Issues Pertaining to Pesticide Portions of
Bill No. 2491
The United States Supreme Court has clearly stated that, the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) does not expressly supercede local regulation
of use of pesticides; express authorization to the State to regulate pesticides could more
plausibly be read as authorizing allocation of regulatory authority to absolute discretion
of states themselves. Such discretion might include options of specific redelegation or
leaving local regulation in hands of local authorities under existing state laws. FIFRA, §
24(a), 7 U.S.C.A. § 136V(a). Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111
S.Ct. 2476 (1991). Given the U.S. Supreme Court's holding in Mortier it is obvious that
FIFRA would not preempt the Council from enacting Bill No. 2491. However, given that
the Supreme Court has stated that FIFRA expressly authorizes allocation of regulatory
authority to absolute discretion of states themselves, the operative question with
regard to the tenets of Bill No. 2491's regulation of pesticide use is: whether the State
has preempted the County from enacting Pesticide regulations under the Hawaii
Pesticides Law, H.R.S. § 149A and its administrative rules title 4 chapter 66.
H.R.S. Chapter 149A, Hawaii Pesticides Law, is divided into six (6) different
parts. Parts one and six are entitled general provisions and miscellaneous provisions,
respectively. Part 2 of 149A addresses pesticide licensing and sale. Part 3 addresses
pesticide use. Part 4 addresses violations, warning notices, and penalties. Part 5
provides for an advisory committee regarding pesticide regulations. Although not
codified presently, with the recent passage of Act 105, 2013, the Hawaii State Pesticide
law now covers disclosures relating to restricted-use pesticides as well. It is apparent
from its text that the Hawaii Pesticides Law does not expressly preempt the counties of
Hawaii from regulating Pesticides.
The Hawaii Pesticide Law is a complex regulatory law that integrates both
industry and scientific standards within its text. In reviewing the law for evidence of
implied preemption the County Attorney's Office has analyzed the following sections:
Section 149A-3 Delegation of duties. All authority vested in the
board or chairperson by virtue of this chapter may with like force
and effect be exercised by those employees of the department as
the board or chairperson may from time to time designate for the
purpose.
42
Section 149A-11 Prohibited acts. (a) Except as otherwise
exempted in section 149A-12, it shall be unlawful for any person to
distribute, solicit, sell, offer for sale, hold for sale, transport, deliver
for transportation, or receive and having so received, deliver or
offer to deliver to any person in intrastate commerce or between
points within this State through any point outside this State [any
pesticide unless that person complies with licensing and labeling
requirements and restrictions as required under State law.]
Section 149A-31 Prohibited acts. No person shall: (1) Use any
pesticide in a manner inconsistent with its label, with some limited
exceptions. Under the Hawaii Pesticides Law, the State Board of
Agriculture and the State Department of Agriculture are the
governmental agencies that determine the labeling requirements
and use restrictions as to Pesticide labeling and usage.
Section 149A-19 Determination; rules; uniformity. (a) The Board of
Agriculture, after having afforded interested and affected parties an
opportunity to be heard and, in instances in which human health is
affected, after consultation with the director of health, shall adopt
rules to: (1) Determine the pesticides that are highly toxic to
humans, designate pesticides as restricted use or nonrestricted
use, and establish a system of control over the distribution and use
of certain pesticides and devices purchased by the consuming
public; (2) Determine standards of coloring for pesticides, and
subject pesticides to the requirements of section 149A-16; (3)
Establish procedures, conditions, and fees for the issuance of
licenses for sale of restricted use pesticides; (4) Establish fees for
the licensing of pesticides within the limitations of section 149A-
13(b); (5) Establish procedures for the licensing of pesticides; (6)
Establish procedures for the registration of pesticides under
provisions of section 24(c), FIFRA; (7) Establish procedures for the
disposal of pesticides; and (8) Establish procedures to issue
experimental use permits under provisions of section 5 of FIFRA.
Section 149A-19 (b) [states that] the board, after public hearing,
shall make and adopt appropriate rules for carrying out this chapter,
including rules providing for the collection and examination of
samples of pesticides or devices.
Section 149A-19 (c), [explains that] the board, after public hearing,
shall adopt rules applicable to and in conformity with the primary,
standards established by this chapter or as prescribed by FIFRA
with respect to pesticides.
Section 149A-21, Enforcement. (a) If it appears that a pesticide or
device fails to comply with this chapter, the department may refer
43
the facts with a copy of the results of the analysis or the
examination of the pesticide product or device to the appropriate
governmental agency for prosecution. A warning notice shall be
issued before prosecution proceedings are initiated.
Section 149A-22, Authority. (a) The board [of Agriculture] shall
have authority to adopt rules, as necessary, consistent with section
5(f) and section 24(c) of FIFRA, to develop and implement state
programs for registration of pesticides for special local needs and
issuance of experimental use permits.
Section 149A-23, Cooperation. The department [of Agriculture]
may cooperate or enter into agreements with any other agency of
the State or any agency of the federal government for the purpose
of carrying out this chapter and securing uniformity of rules.
Section 149A-32.5, Cancellation or suspension of pesticide uses.
Notwithstanding any law, rule, or executive order to the contrary,
the chairperson of the board of agriculture, in consultation with the
advisory committee on pesticides and also with the approval of the
director of health, shall suspend, cancel, or restrict the use of
certain pesticides or specific uses of certain pesticides when the
usage is determined to have unreasonable adverse effects on the
environment. In addition to other circumstances which may require
a determination as to whether unreasonable adverse effects exist,
a determination shall be made: (1) When residues of the pesticides
are detected in drinking water; or (2) When a use under special
local needs registration involves a pesticide for which any use has
been suspended or canceled by the EPA.165
H.R.S. Chp. 149A, §§ 3, 11, 19, 21-23, 31, 32.5. Section 149A-33 authorizes the
Department of Agriculture to carry out and effectuate the purpose of chapter 149A by
rules, including but not limited to the following:
(1) To establish fees, procedures, conditions, and standards to
certify persons for the use of restricted use pesticides under section
4 of FIFRA;
(2) To establish limitations and conditions for the application of
pesticides by aircraft, power rigs, mist blowers, and other
equipment;
165 It should be noted that the counties are not mentioned in this section.
44
(3) To establish, as necessary, specific standards and guidelines
which specify those conditions which constitute unreasonable
adverse effects on the environment;
(4) To establish, as necessary, record keeping requirements for
pesticide use by applicators; and
(5) To establish, as necessary, procedures for the issuance of
guidelines to specify those conditions that constitute use of a
pesticide in a manner inconsistent with its label.
Section 149A-35 Cooperation. The department of agriculture is
authorized and empowered to cooperate with and enter into
agreements with any agency of the State, the federal government,
or any other agency for the purpose of carrying out this chapter.
The University of Hawaii cooperative extension service and other
educational agencies shall provide educational programs aimed at
assisting users and prospective users of pesticides and shall solicit
the aid of the department in providing technical assistance and
advice on the authorized use of pesticides.
Section 149A-36 Authority to inspect. The department or any
authorized representative or employee of the department may enter
upon any public or private property, according to law at any
reasonable time to examine and inspect application methods and
equipment, to examine and collect samples of plants, soil, and
other materials, and to perform any other duty for the purpose of
carrying out and effectuating the purposes of this chapter.
Section 149A-37 Exemptions.
(a) Exemption from this chapter may be granted by the department
to the University of Hawaii and other state and federal agencies for
experimental or research work directed toward obtaining knowledge
of the characteristics and proper usage of unspecified or
experimental pesticides. Research and experimental work
conducted by private agencies with adequate research facilities
may also be similarly exempted upon approval by the department.
Approval shall be in writing stating the specific exemptions and
conditions.
(b) Any pesticide exempted by the Administrator of the EPA
pursuant to Title 7, United States Code, section 136w(b), shall be
exempt from this chapter, if the pesticide product meets the terms
and conditions of the EPA's exemption, except for pesticides that
the department has determined by rule may cause unreasonable
adverse effects on the environment.
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H.R.S. Chp. 149A, §§33, 35-37.
In evaluating whether state pesticide laws preempt local ordinances, extra-
jurisdictional courts have looked to the language of the statutes themselves. These
courts have found that, "[w[here a state law indicates a purpose to occupy an entire field
of regulation, local regulations are pre-empted regardless of whether their terms conflict
with provisions of the state statute or only duplicate them." Ames v. Smoot, 98 A.D.2d
216, 219, 471 N.Y. S2d 128 (1983). Courts that have found implied preemption to be
present, look to specific criteria for guidance, including: (1) laws of state-wide
application; (2) establishment of a system of pesticide regulation, including designation
of restricted use pesticides and a scheme for the testing and certification of pesticide
applicators; (3) laws that expressly assert a need for uniformity; (4) laws that effectuate
the desired result and ensure uniformity by specifically vesting jurisdiction related to
pesticide matters in a specific agency; (5) whether the ordinance stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of the
legislature; and (6) whether the ordinance conflicts with the state law, either because of
conflicting policies or operational effect— put another way, does the ordinance forbid
what the legislature has permitted? Ames, 98 A.D.2d at 219; Fairview Park v. Barefoot
Grass and Lawn, 115 Ohio App.3d 306 (1996); Synagro-WWT, Inc. v. Rush Tp., Penn.,
204 F.Supp.2d 827 (M.D. Pa. 2002); and Village of Lacona v. State Dept. of Ag. and
Markets, 51 A.D.3d 1319 (N.Y. 2008).
The Hawaii Pesticide Law is clearly a law of Statewide application. Under
section 149A-11 and 149A-31, as listed above, it is unlawful for any person to distribute,
solicit, sell, offer for sale, hold for sale, transport, deliver for transportation, or receive
and having so received, deliver or offer to deliver to any person in intrastate commerce
or between points within this State through any point outside this State, or use [any
pesticide] unless that person complies with licensing and labeling requirements and use
restrictions as required under State law. In effect, no pesticide can enter into or be used
in this State without Department of Agriculture approval.
The Hawaii Pesticide Law, through both statutory enactments as well as
administrative rules, establishes a system of pesticide regulation, including designation
of restricted use pesticides and a scheme for the testing and certification of pesticide
applicators. Under the Hawaii Administrative Rules, specifically under section 4-66-
32.1, the Department of Agriculture has the authority to evaluate pesticide uses.
Similarly, section 4-66-56 applies to certification of restricted use pesticide applicators; §
4-66-57 illustrates the general standards for the certification of pesticide applicators; §
4-66-58 illustrates the specific standards for certification of pesticide applicators; § 4-66-
60 presents the certification procedures for pesticide applicators; and § 4-66-61 places
conditions on the use of restricted use pesticides. Taken together, it is clear that the
Hawaii Pesticide Law establishes a system of pesticide regulation, including
designation of restricted use pesticides and a scheme for the testing and certification of
pesticide applicators.
46
The Hawaii Pesticide Law expressly asserts a need for uniformity. Section
149A-19, Determination; rules; uniformity; section 149A-22, Authority; and section
149A-23, Cooperation, all evidence and assert a need for statewide uniformity of rules.
The Hawaii Pesticide Law effectuates the desired result and ensures uniformity
by specifically vesting jurisdiction related to pesticide matters in the Hawai'i Board of
Agriculture and/or the State Department of Agriculture. Hawai'i Revised Statutes
sections; 149A-3, Delegation of duties; 149A-19, Determination, rules, uniformity; 149A-
21, Enforcement; 149A-22, Authority; 149A-23, Cooperation; 149A-32.5, Cancellation or
suspension of pesticide uses; 149A-33, Rules; 149A-35, Cooperation; 149A-
37, Exemptions; when read together appear to effectuate and ensure uniformity
throughout the state related to pesticide matters.
Finally, the County Attorney's Office opines that a reviewing court would likely
find that Bill No. 2491 stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of the legislature under the Hawai'i Pesticides Law.
Some sections of Bill No. 2491, discussed more in detail below, clearly conflict with the
Hawaii State Pesticide law by prohibiting what the State otherwise allows. Other
sections would frustrate the uniformity and state-wide application of the law via
circumscription by the County through the enactment of additional qualifying
regulations. Such an outcome is contrary to the holding of In re Application of Anamizu,
52 Haw. 550, 481 P.2d 116 (1971). "To hold otherwise," the Anamizu court said, "would
be to allow the intercity flow of contracting services to be impaired, thereby severely
diluting the value of a uniform state licensing system." Id. at 555.
For the reasons stated above the County Attorney's Office is of the opinion that,
to the extent that the current bill still regulates pesticides, a reviewing court would likely
find the Hawaii Pesticides law impliedly preempts the County from enacting any and all
portions of Bill No. 2491 relating to Pesticides, and or the tenets of the bill actually
conflict with the Hawaii Pesticide Law.
ii. General Preemption Issues Pertaining to Portions of Bill No.
2491 Addressing Genetically Modified Organisms
To the extent that Bill No. 2491 regulates GMO products, the County will face
express preemption challenges under the Plant Protection Act, 7 U.S.C. § 7756(a), and
its prohibition of regulation by municipalities of plants and/or plant pests in the stream of
foreign commerce. As stated above, GM plants are regulated under the Plant
Protection Act if they were created through gene transfer with Agrobacterium
tumefaciens, (which is considered a plant pest), or if they incorporate DNA from a plant
pest (such as a terminator gene). Any and all crops currently grown under the auspices
of the PPA that are within the stream of foreign or interstate commerce will be protected
by the preemption doctrine.
Bill No. 2491 will also face express preemption challenges under the Plant
Protection Act, 7 U.S.C. § 7756(b), and its prohibition of regulation by municipalities of
plants and/or plant pests in the stream of interstate commerce. Opponents to Bill No.
47
2491 will claim that the bill is preempted because it improperly regulates plants and or
plant pests within the stream of interstate commerce. Opponents to the bill will assert
that the tenets of the bill are not consistent with and in fact exceed the regulations or
orders issued by the federal Secretary of Agriculture pursuant to 7 U.S.C. §
7756(b)(2)(A); that the County has not demonstrated to the federal Secretary of
Agriculture that there is a "special need for the additional prohibitions or restrictions
based on sound scientific data and a thorough risk assessment" pursuant to 7 U.S.C. §
7756(b)(2)(B).
Opponents of the bill will also claim that through the Coordinated Framework and
federal authority under the PPA, the FFDCA, and FIFRA, the Federal government has
occupied the field of regulation of the introduction of GMOs in interstate and foreign
commerce to the exclusion of states and local governments. They will, therefore, assert
that the bill is preempted because the purpose and effect of the bill is to substitute the
County's regulatory assessment of appropriate protections for human health and the
environment for the judgments of the federal agencies entrusted with that responsibility
under federal law. They may further argue that, because the Federal government has
occupied the field of regulation of GMOs for that purpose, any and all the provisions of
the proposed ordinance regulating the introduction of GMO seed crops on Kauai would
be impliedly preempted under the Supremacy clause. U.S. v. Manning, 527 F.3d 828,
836-839 (9th Cir. 2008), citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation
& Dev. Comm'n, 461 U.S. 190, 213 (1983), quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 236 (1947).
At this time, the County Attorney's Office is not aware of a case that definitively
addresses these specific legal claims pertaining to preemption. However, the County
Attorney's advice is that it is plausible that a reviewing court will find that Bill No. 2491 is
preempted by federal law.
d. Challenges Facing Bill No. 2491: Section 22-22.3, Definitions
Because Bill No. 2491 is attempting to involve the County in areas that are
already being regulated by both Federal and State agencies the meaning of the words
used are very important. The County Attorney's Office recognizes that semantics is a
critical area of the law and that legal issues are frequently decided based upon the
specific terms used and how they are applied. For this reason the County Attorney's
Office asserts that any and all words or phrases contained in Sec. 22-22.3 that are also
currently used either by the County or other governmental regulatory agencies should
have consistency of meaning and usage. This consistency will avoid challenges based
upon vagueness and or arbitrariness.
A majority of the words or phrases defined by Sec. 22-22.3 are consistent with
the definitions used in County, State and Federal regulations, specifically FIFRA, HRS
Chapter 149A and HRS Chapter 343. However, some words or phrases are not defined
consistently with parallel or superior regulatory statutes and/or create new definitions
that do not exist in superior regulatory statutes. The County Attorney's Office
48
recommends that said words or phrases either be changed to reflect consistency of
definition with existing regulations or be discarded.
Section 22-22.3 uses the term "Genetically modified organism" to describe what
the FDA more precisely defines as "Genetically Engineered". The terms; "Experimental.
genetically modified organisms", "Genetically modified", and "Genetically modified
organism" should be amended from variations of GMO to variations of GE in order to
achieve consistency in multi-governmental regulation, i.e. replace the aforementioned
terms with the following: "Experimental genetically engineered organisms," "Genetically
engineered," and "Genetically engineered organism."
A similar concern is raised by the definition of"general use pesticide" under Sec.
22-22.3. No Federal or State agency defines "general use pesticide" independently of
other types of pesticide. Instead, both Federal and State agencies use the same
definition of pesticides generally and then treat their specific classifications as "general
use", "restricted use", and or "experimental use." This determination is made by virtue
of the specific permitted use contained on its label instead of by virtue of the chemical
itself. If the County is going to get involved in the regulation of pesticides, the County
Attorney's Office asserts that semantic consistency be utilized so as to avoid challenges
based upon vagueness or arbitrary and capricious enforcement.
e. Challenges Facing Bill No. 2491: Section 22-22.4, Mandatory
Disclosure of Pesticides, and Genetically Modified Organisms
i. Pesticides
Bill No. 2491 sec. 22-22.4 (a) mandates all commercial agricultural entities that
annually purchase or use in excess of five (5) pounds or fifteen (15) gallons of restricted
use pesticides, any amount of any experimental pesticides, or both, during any calendar
year to disclose the use of all pesticides of any kind during the following calendar year.
The Bill further defines what the disclosure requirements include.
The first challenge the County will face pertains to the privilege to refuse to
disclose and to prevent other persons from disclosing a trade secret pursuant to Hawaii
Rules of Evidence (HRE) Rule 508. Pursuant to HRE Rule 501, [e]xcept as otherwise
required by the Constitution of the United States, the Constitution of the State of
Hawai'i, or provided by Act of Congress or Hawaii statute, and except as provided in
these rules or in other rules adopted by the Supreme Court of the State of Hawai'i, no
person has a privilege to: (1) Refuse to be a witness; (2) Refuse to disclose any
matter; (3) Refuse to produce any object or writing; or (4) Prevent another from being a
witness or disclosing any matter or producing any object or writing.
Pursuant to HRE Rule 508, Trade secrets:
[a] person has a privilege, which may be claimed by the person or
the person's agent or employee, to refuse to disclose and to
prevent other persons from disclosing a trade secret owned by the
49
person, if allowance of the privilege will not tend to conceal fraud or
otherwise work injustice. When disclosure is directed, the judge
shall take such protective measure as the interests of the holder of
the privilege and of the parties and the furtherance of justice may
require.
Id. An in-depth analysis of the issue is difficult, however, because Rule 508 is qualified.
Pursuant to Rule 508 the privilege fails when the assertion of it will, lend to conceal
fraud or otherwise work injustice." According to the commentary on the Rule, "Hawai'i
courts have not addressed the issue at the appellate level." The lack of appellate court
guidance regarding the privileges pertaining to trade secrets makes it difficult to assess
the likely outcome of such a challenge. However, the County Attorney's Office asserts
that any requirement of disclosure of information regarding chemical pesticides used by
what is understood to be chemical pesticide corporations will be challenged primarily by
an assertion of trade secret privilege.
The second challenge faced by the disclosure provisions contained in Section
22-22.4 (a) is state level preemption. Regarding federal law, the U.S. Supreme Court
opined in Mortier, supra, that FIFRA did not expressly supersede local regulation of the
use of pesticides. Instead the express authorization to States to regulate pesticides
under FIFRA section 24(a) could more plausibly be read as authorizing allocation of ,
regulatory authority to the absolute discretion of the states themselves. This would
include options of specific redelegation or leaving local regulation of pesticides in the
hands of local authorities under existing state laws. Case law across the nation on this
subject has consistently stated that Mortier, does not stand for the principle that
municipalities are authorized to regulate pesticide but rather that the ability of
municipalities to regulate pesticide matters rests with the individual states themselves.
Under Hawaii Law, "a municipal ordinance may be preempted pursuant to HRS
§ 46-1.5(13) 11(1) it covers the same subject matter embraced within a comprehensive
state statutory scheme disclosing an express or implied intent to be exclusive and
uniform throughout the state or (2) it conflicts with state law." Richardson v. City and
County of Honolulu, 868 P.2d 1193 (Haw. 1994). The Hawaii Supreme Court has
employed an approach to the issue of preemption of county ordinances by state
statutory law, which might best be characterized as a "comprehensive statutory
scheme" test. In Anamizu, the court found preemption due to two issues presented in
that case. 52 Haw. at 554. First, the state statute in question created a global ( i.e.,
"comprehensive") mechanism for regulating the licensing of the entire universe of
building contractors within the state. By contrast, the city ordinance undertook to
regulate only electrical contractors—a discrete galaxy within, or a subset of, that
universe. Second, the city ordinance at issue in Anamizu imposed "qualifying
regulations" upon electrical contractors for municipal certification that were "additional"
to those required for state licensure.
In Citizens Utilities Co. v. County of Kauai, 72 Haw. 285, 814 P.2d 398 (1991),
the court held that a county ordinance regulating the height of utility poles was
preempted by the combination of HRS § 269-6 (1985). The State which conferred
50
upon the State Public Utilities Commission (PUC) the power of"general supervision ...
over all public utilities," and a specific regulation of the PUC that governed, inter alia, the
minimum requirements for utility pole height, Id. at 288-89, 814 P.2d at 400. In doing
so, the court applied the Anamizu test to HRS § 46-1.5(13) (the successor to HRS §
70-105) and declared that "a municipal ordinance, which covers the same subject
matter embraced within a [s]tate statute is invalid if the statute discloses an express or
implied intent that the same shall be exclusive, or uniform in application throughout the
[s]tate." Id. at 289, 814 P.2d at 400. Analogously to Anamizu the state law at issue in
Citizens Utilities governed a substantive "universe," i.e., global regulation of public
utilities, whereas the relevant county ordinance addressed only a "galaxy" thereof—
utility pole regulation.
On June 14, 2013 Act 105, FIB 673, was signed into law by Governor
Abercrombie. The purpose of Act 105 was to add a new section to HRS 149A in order
to better address the potential public health and environmental issues related to
pesticides by requiring: the online publishing of certain restricted use pesticide records,
reports, or forms; and for the legislative reference bureau to conduct a study of other
states' reporting requirements on pesticides that do not fall within the definition of a
restricted use pesticide.
In reviewing HRS Chapter 149A and the attendant HARs it appears to the
County Attorney's Office that the Hawaii pesticide law is a comprehensive state
statutory scheme disclosing an implied intent to be exclusive and uniform throughout
the state irrespective of the fact that nowhere in the law are counties expressly
prohibited from regulating pesticides. This is because HRS Chapter 149A governs
Pesticide Licensing and Sale, Pesticide Use, Violations, Warning Notice, and Penalties,
creates an Advisory Committee pertaining to pesticides, Disclosure of restricted use
pesticides and contains other general and miscellaneous provisions. Like Anamizu,
supra, the bill at issue imposes disclosure regulations that are "additional" to those
required for state licensure.
ii. Genetically Modified Organisms
Similarly to the challenges facing mandatory of disclosure of pesticide use, Sec.
22-22.4 (b) will primarily face challenges based upon the assertion of the trade secret
privilege pursuant to HRE Rule 508. Sec. 22-22.4 (b) specifically requires all
commercial agricultural entities that intentionally or knowingly possess any genetically
modified organism to disclose the presence of said genetically modified organism or
organisms. Disclosure is specifically mandated to include, "a general description of each
genetically modified organism, a general description of the geographic location including
at minimum the Tax Map Key and ahupua'a where each genetically modified organism
is being grown or developed, and dates that each genetically modified organism was
initially introduced to the land in question."
It is difficult to assess the extent of what may be claimed to be trade secrets by a
bio-tech company like DuPont-Pioneer or Syngenta. As stated supra, FIRE Rule 508
provides commentary that is illustrative of the matter given that the issue has not been
51
addressed by Hawai`i appellate courts. In the commentary the Rule notes that Hawaii
Rules of Civil Procedure (HRCP) Rule 26(c) (7) provides qualified protection against
disclosure of trade secrets during pre-trial discovery, investing the court with discretion
to order "that a trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way." If treated
similarly by the courts at the circuit or appellate levels it is likely that the bio-tech
companies will assert that the information being sought to be disclosed by Sec. 22-22.4
(b) constitutes a "trade secret or other confidential research, development, or
commercial information."
Sec. 22-22.4 (b) will also face federal and state preemption challenges. The
FDA has authority under the Federal Food, Drug, and Cosmetic (FD&C or the Act) Act
to ensure the safety of all domestic and imported foods for man or other animals in the
United States market, except meat, poultry and egg products which are regulated by the
United States Department of Agriculture (USDA). The FDA also monitors foods to
enforce the tolerances set by EPA for pesticides. Bloengineered foods and food
ingredients (including food additives) must adhere to the same standards of safety
under the Act that apply to their conventional counterparts. This means that these
products must be as safe as the traditional foods in the market. The FDA has broad
authority to initiate regulatory action if a product fails to meet the safety standards of the
Act. The FDA relies primarily on two sections of the Act to ensure the safety of foods
and food ingredients:
(1) The adulteration provisions of section 402(a)(1). Under this section, the FDA
has the power to remove a food from the market (or sanction those marketing the food)
if the food poses a risk to public health. It is important to note that the Act places a legal
duty on developers to ensure that the foods they market to consumers are safe and
comply with all legal requirements.
(2) The food additive provisions (section 409). Under this section, substances
that are intentionally added to food are food additives, unless the substance is generally
recognized as safe (GRAS) or is otherwise exempt (e.g., a pesticide, the safety of which
is overseen by EPA).
The FD&C Act requires premarket approval of any food additive regardless of
the technique used to add it to food. Thus, substances introduced into food are either
(1) new food additives that require premarket approval by the FDA or (2) GRAS, and
are exempt from the requirement for premarket review, for example, where there is a
long history of safe use in food. Generally, whole foods, such as fruits, vegetables, and
grains, are not subject to premarket approval because they have been used in food for
lengthy periods of time.
Under FDA policy on foods derived from new plant varieties, a substance that
would be a food additive if it were added during traditional food manufacture is also
treated as a food additive if it is introduced into food through genetic modification of a
food crop. For example, a novel sweetener bioengineered into food would likely require
premarket approval. Generally, under agency policy, substances intentionally
52
introduced into food that would be reviewed as food additives include those that have
unusual chemical functions, have unknown toxicity, or would be new major dietary
components of the food.
There exists a lot of difficulty in evaluating the current state of the regulation of
GMO products due to the rapid changing of the legal landscape at the federal level and
therefore it is difficult to address and predict any court rulings regarding the application
of the Supremacy Clause, Commerce Clause, or the federal preemption doctrine. For
example, recently Congress has passed what has been popularly termed the "Monsanto
Protection Act, "which was section 735 of a fiscal budget signed on March 26, 2013 by
President Obama. This law has ignited a firestorm of criticism, with media channels
claiming that it favors special interests like Monsanto Company and gives the executive
branch the green light to disregard the judiciary.
According to Michele Simon, a public health lawyer, the provision "would require
the U.S. Department of Agriculture [USDA] to essentially ignore any court ruling that
would otherwise halt the planting of new genetically-engineered crops." Others
maintain Section 735 simply gives the USDA authority to issue temporary permits to
farmers to continue to plant or sell a genetically-modified crop notwithstanding a court
injunction so long as the agency has found the crop is safe for the environment and
health. The agency also has discretion to deny a temporary license, relying on the final
sentence in Section 735, which reaffirms "the Secretary's authority under section 411,
412 and 414 of the Plant Protection Act."
Some within the legal community assert that Section 735 is a "rider" that is only
in effect through the duration of the appropriations law, which initially expired on
September 30, 2013. However, it is the County Attorney's Office understanding that the
Monsanto Protection act was recently extended via another spending bill and is
currently set to expire in December of 2013. Such potentially dynamic changes in this
area of the law make it exceedingly difficult to opine on such matters. Nonetheless, the
County Attorney's Office remains confident that federal preemption challenges or
variations thereof will be mounted against the County due to the mandatory disclosure
portions of sec. 22-22.4 (b).
f. Challenges Facing Bill No. 2491: Section 22-22.5, Pesticide Buffer
Zones
Section 22-22.5 (a) states that it shall be mandatory for all commercial
agricultural entities that purchased or used in excess of five (5) pounds or fifteen (15)
gallons of any single restricted use pesticide during the prior calendar year to restrict the
growing of crops, except ground cover to which no pesticide is applied, and thereby
restrict the application of all pesticides in the following areas as stated.
The primary challenge that Section 22-22.5 will face will be a validity challenge
under the County's general police power. As stated supra, in determining the validity of
a local ordinance, the inquiry is twofold: whether the local government had the power to
enact the ordinance; and, if so, whether the ordinance is consistent with the constitution
53
and general law of the state. Beachfront Entertainment, Inc. v. Town of Sullivan's
Island, 379 S.C. 602, 666 S.E.2d 912 (2008); Municipal Ass'n of South Carolina v.
AT&T Communications of Southern States, Inc., 361 S.C. 576, 606 S.E.2d 468 (2004).
It has been established that the County of Kaua'i does have the general power to
enact ordinances on the police power and specifically to exercise the zoning power in
lands zoned agricultural. However, as applied to a specific bill or ordinance, a municipal
law must be reasonable; that is, it must be fair, general and impartial in operation and
must achieve legitimate governmental objectives.186 "Municipalities may rely, in part, on
appeal to common sense, in enacting an ordinance."187 A municipal ordinance may not
be arbitrary.188 The test for determining whether a local police ordinance is reasonable
requires that the court assess the existence of a rational relationship between the
exercise of the police power and the public health, safety, morals, or general welfare in
a given case.189 In determining this question, all the existing circumstances or
contemporaneous conditions, the objects sought to be obtained, and the necessity for
the adoption of the ordinance are considered. 90
The County Attorney's Office anticipates that any.challenges to Sec. 22-22.5 will
assert that it is unreasonable for the County to require that commercial agricultural
entities that buy certain quantities of restricted use and experimental pesticides will be
prohibited from growing "crops" in certain areas whether or not pesticides are used.
Courts may question such a requirement given that it does not clearly appear that such
restriction requirements manifest, "a rational relationship between the exercise of the
police power and the public health, safety, morals, or general welfare" in this case.191
This is because courts, in determining this question, will analyze all the existing
circumstances or contemporaneous conditions, the objects sought to be obtained, and
the necessity for the adoption of the ordinance.192 The pertinent question in the
analysis then becomes what is the rational relationship between prohibiting commercial
agricultural entities who buy certain amounts of restricted use pesticides from growing
any crops on lands specifically designated for the growing of crops? If the County is
unable to address such questions a court will find Sec. 22-22.5 (a) an invalid use of the
police power.
186 Rollins Environmental Services (FS), Inc.v. St. James Parish, 775 F.2d 627, 84 A.L.R. Fed. 895 (5th
Cir. 1985).
187 Com. v. Jameson, 215 S.W.3d 9 (Ky. 2006).
188 Four County(NW) Regional Solid Waste Management Dist. Bd. v. Sunray Services, Inc., 334 Ark. 118,
971 S.W.2d 255 (1998) (an enactment by a local government is not arbitrary if there is any reasonable
basis for the enactment); City of Duluth v. Serene, 283 N.W.2d 533(Minn. 1979); John v. State, 577
S.W.2d 483 (Tex. Crim. App. 1979); Hart Health Studio v. Salt Lake County, 577 P.2d 116 (Utah 1978).
189 Buck v. Kilgore, 298 A.2d 107 (Me. 1972); Square Lake Hills Condominium Ass'n v. Bloomfield Tp.,
437 Mich. 310, 471 N.W.2d 321 (1991).
19°City of Miami Beach v. Seacoast Towers-Miami Beach, Inc., 156 So. 2d 528 (Fla. Dist. Ct.App. 3d
Dist. 1963); Lewiston Pistol Club, Inc. v. Board of County Com'rs of Nez Perce County, 96 Idaho 137, 525
P.2d 332 (1974).
191 Buck v. Kilgore, 298 A.2d 107 (Me. 1972); Square Lake Hills Condominium Ass'n v. Bloomfield Tp.,
437 Mich. 310, 471 N.W.2d 321 (1991).
192 City of Miami Beach v. Seacoast Towers-Miami Beach, Inc., 156 So. 2d 528 (Fla. Dist. Ct. App. 3d
Dist. 1963); Lewiston Pistol Club, Inc. v. Board of County Com'rs of Nez Perce County, 96 Idaho 137, 525
P.2d 332(1974).
54
The second challenge that Sec. 22-22.5 will face will be state level preemption.
As stated supra, under Hawaii Law, "a municipal ordinance may be preempted
pursuant to HRS § 46-1.5(13) if (1) it covers the same subject matter embraced within a
comprehensive state statutory scheme disclosing an express or implied intent to be
exclusive and uniform throughout the state or(2) it conflicts with state law." Richardson
v. City and County of Honolulu, 868 P.2d 1193 (1994). The Hawaii Supreme Court has
employed an approach to the issue of preemption of county ordinances by state
statutory law, which might best be characterized as a "comprehensive statutory
scheme" test. In Anamizu, 52 Haw. 550, 481 P.2d 116 (1971) the court found
preemption due to two issues presented in that case. First, the state statute in question
created a global ( i.e., "comprehensive") mechanism for regulating the licensing of the
entire universe of building contractors within the state; by contrast, the city ordinance
undertook to regulate only electrical contractors—a discrete galaxy within, or a subset
of, that universe. Second, the city ordinance at issue in Anamizu imposed "qualifying
regulations" upon electrical contractors for municipal certification that were "additional"
to those required for state licensure.
In Citizens Utilities Co. v. County of Kauai, 72 Haw. 285, 814 P.2d 398 (1991),
[the court] held that a county ordinance regulating the height of utility poles was
preempted by the combination of FIRS § 269-6 (1985), which conferred upon the State
Public Utilities Commission (PUC) the power of"general supervision ... over all public
utilities," and a specific regulation of the PUC that governed, inter alia, the minimum
requirements for utility pole height, Id. at 288-89, 814 P.2d at 400. In doing so, the court
applied the Anamizu test to HRS § 46-1.5(13) (the successor to HRS § 70-105) and
declared that "a municipal ordinance, which covers the same subject matter embraced
within a [s]tate statute is invalid if the statute discloses an express or implied intent that
the same shall be exclusive, or uniform in application throughout the [s]tate." Id. at 289,
814 P.2d at 400. Analogously to Anamizu the state law at issue in Citizens Utilities
governed a substantive "universe," i.e., global regulation of public utilities, whereas the
relevant county ordinance addressed only a "galaxy" thereof—utility pole regulation.
Both State and County law already clearly allow, and arguably encourage, the
growing of crops anywhere within lands zoned for agricultural use. This generally
permitted use is allowable without further licenses, permits or permission from any
sovereign entity. The bill's attempt to restrict the alleged negative health impacts of
pesticides by prohibiting the simple growing of crops will likely be found to be in conflict
with state law and the state wide policy of supporting agriculture on agricultural lands.
Sec. 22-22.5 also contains a public nuisance type conflict provision which
provides that in case of a conflict the more restrictive provisions would apply. Again, as
stated supra, the County Attorney's Office opines that HRS Chapter 165 prohibits the
County from "declaring" farming operations, including those specific operations
proscribed by this section, a nuisance. Likewise any authority of the Bill based upon the
ability to declare and regulate nuisances relating to farming operations would like wise
be held to be violative of the Right to Farm Act.
55
g. Challenges Facing Bill No. 2491: Section 22-22.6, Environmental and
Public Health Impacts Study (EPHIS)
No laws prohibit or preempt the County from conducting an Environmental and
Public Health Impact Study (EPHIS) as described in the bill. However, there may be a
separation of powers issue that is raised because it appears that the Council may try to
direct how the study will be conducted via resolution. As described below this may be a
violation of the doctrine of separation of powers.
According to the bill the County of Kauai shall complete an EPHIS, "as
determined by resolution". Akahane v. Fasi, 58 Haw. 74, 65 P.2d 552 (1977), held that
the executive branch of the city and county of Honolulu was primarily responsible to
initially proceed and conduct in-depth studies relating to city planning, and thus, where
city council never made or submitted a request to executive branch for in-depth study
concerning development plan and where city council did not make any resolution to
executive branch accompanied by proper appropriation requesting the desired study,
city council was without authority to employ independent contractor to make the desired
study.
Therefore under Akahane Council must first pass a resolution, accompanied by
proper appropriation, requesting that the executive branch of the County to conduct the
desired study. If not the County council will likely be found to not have the authority to
employ independent contractor to make the desired study.
However, Akahane may be distinguishable from the instant issues regarding
GMO and pesticides because in Akahane the court found that there was no doubt that,
"the study in question would be helpful to the city council in determining whether and
what revisions or amendments to the existing general plan or development plan should
be made[,]" and that, "[t]he Charter clearly [gave] the city council the power to initiate
legislation designed to revise and amend an existing general plan or development plan."
In the instant issue that Kauai County Charter does not clearly give the council the
power to regulate pesticides or GMO. So further analysis may be required.
Furthermore, because said resolution has not been discussed yet, the subject resolution
may in fact comply with the requirements of Akahane. At this point the issue has been
raised but without seeing the actual resolution no conclusions may be made.
Further challenges facing the County under Sec. 22-2.6 pertain to challenges of
implementation. The bill currently describes the EPHIS as comprising a two-step
process. The first is a 12 month scoping process convened and facilitated by a
professional consultant. The second part mandates that the EPHIS itself be completed
within 18 months. The County Attorney's office does not believe that these timelines
have any practical basis but instead reflect the desire of the Council.
Given the high level of divisiveness of the bill it is likely that the overall process
will take more than the mandated 30 months. Given other similar citizens advisory
groups that the County Attorney has had experience working for it is likely that the
process of determining who will sit on and participate in the Joint Fact Finding Group
alone will take months to complete and getting the participants to agree on the scope
56
and design of the study will take even longer. Furthermore it is unknown how long the
scientific portion of the study will take and how much an actual scientific study of the
pertinent issues as determined by the design and scoping group will cost. This is
because the scope and design of the study is yet to be determined. However, it is
understood that such a study would be in depth and involve highly technical
environmental analysis of scientific, social, and economic impacts of what amounts to
adverse effects to the environment of the commercial agricultural industry in general.
h. Challenges Facing Bill No. 2491: Section 22-22.7, Penalties, and
Section 22-22.8, Rulemaking
Sec. 22-22.7 and Sec. 22-22.8 are attendant sections of the Bill that prescribe
penalties for violation of the preceding section of Bill No. 2491 and authorize the Office
of Economic Development of the County of Kauai to engage in HRS Chapter 91 rule
making proceedings to effectuate said preceding sections of Bill No. 2491. Given the
County Attorney's analysis of the preceding sections if a court finds that the tenets of
Bill No. 2491 are invalid or otherwise preempted, Sections 22-22.7 and 22-22.8 will
likewise be set aside as they result from said sections.
i. Challenges Facing Bill No. 2491: Application of Kauai County
Charter Section 6.02
One of the single biggest changes of the bill between its first reading and its final
passage was the reassignment of the responsibilities under the bill from the Department
of Public Works to the Office of Economic Development {"OED"). For the reasons
stated below Council's unilateral assignment of new functions to OED via the bill without
first being recommended by the Mayor appears to violate charter section 6.02
specifically and the legal doctrine of separation of powers in general.
Although the formal creation of the United States and the incorporation of Hawaii
into that Union differ in time by more than 150 years, they both follow the same guiding
principles of government. The Founding Fathers developed the concepts and ideals
which form the basis of our unified government through philosophical and practical
debate, most notably in the period prior to the effective date of our current Constitution:
March 4, 1789.
In the years preceding the official replacement of the Articles of Confederation by
the Constitution, displeasure with the Articles stirred significant discussion regarding the
"correct" form of Government. The Federalist was one of the best sources for these
discussions. Penned by Alexander Hamilton, James Madison, and John Jay, The
Federalist, now known as The Federalist Papers, is a series of 85 articles and essays
which promoted discourse and the ratification of the Constitution. The Federalist
broached many topics popular toward the end of the 18th Century which still have
application today.
in one of the more famous essays, entitled The Federalist No. 10: the Utility of
the Union as a Safeguard against Domestic Faction and Insurrection, James Madison
57
reasoned that a republican form of democracy could best protect the people of the
United States from unbridled power and tyranny. In No. 10, Madison discusses the
concept we now refer to as federalism and, essentially, the need for the powers of a
government to be separated so as to protect the people from the passions of
individuals. In so doing, Madison explained:
No man is allowed to be a judge in his own case, because his interest
would certainly bias his judgment, and, not improbably, corrupt his
integrity. With equal, nay with greater reason, a body of men are unfit to
be both judges and parties at the same time; yet what are many of the
most important acts of legislation, but so many judicial determinations, not
indeed concerning the rights of single persons, but concerning the rights
of large bodies of citizens? And what are the different classes of
legislators but advocates and parties to the causes which they determine?
The Federalist, No. 10. While The Federalist, No. 10, explains the dangers of
unchecked power, the Papers in their entirety lay the groundwork for a separation of
powers complimented by a series of checks and balances. See, e.g., The Federalist
No. 78 (Hamilton paves the way for the process of Judicial Review: federal courts
reviewing federal legislation or executive acts); The Federalist No. 39 (Madison
presents a clear discussion of what is now known as the principle of Federalism); The
Federalist No. 51 (Madison calls for checks and balances in government). Through the
dissemination of ideas, literature such as The Federalist, and much discourse, the
Congressional Congress adopted the Constitution on September 17, 1787, the states
ratified it, and the Constitution replaced the Articles of Confederation on March 4, 1789.
Under the constitutional separation of powers, no branch of government"may
exercise any power that is not explicitly bestowed by the constitution or that is not
essential to the exercise thereof." 16A Am. Jur. 2d Constitutional Law § 239; citing
Washington v. Commissioner of Correction, 287 Conn. 792, (2008). "Although the
purpose of the separation of powers doctrine is to create a system of checks and
balances so that each branch maintains its integrity and independence, the three
branches need not be entirely separate and distinct." Id., citing In re J.D., 172 Ohio
App. 3d 288 (10th Dist. 2007). While such blending of powers may occur to some,
minor extent, "the purpose of the doctrine is to define the core powers of the three
branches of government and prevent unwarranted infringement by one upon another's
core powers." Id. Thus, we have a separate legislative, judicial, and executive branch,
each with its own set of powers and limited overlap.
The reason for a three-branch, or tripartite, governmental system is to prevent
the commingling of powers within the same hands. While the legislature may be
responsible for crafting laws, they are confined to that role and should not be
responsible for enforcing the laws, or judging their application. "The Doctrine [of
separation of powers] is premised on the belief that too much power in the hands on
one governmental branch invites corruption and tyranny, and thus, the doctrine prevents
one branch of government from aggrandizing itself or encroaching upon the
fundamental functions of another." 16A Am. Jur. 2d Constitutional Law § 239, citing
58
State v. Baxter, 686 N.W. 2d 846 (Minn. Ct. App. 2004); in re Detention of Savala, 147
Wash. App. 798 (Div. 3, 1998). The goal is to avoid the aggregation of "unchecked
power which might lead to oppression and despotism." Id., citing Bullet Hole Inc. v.
Dunbar, 335 N.J. Super. 562 (App. Div. 2000). This concept of Federalism, and more
specifically, of the separation of powers among three branches of government has
modern application here in Hawaii.
There have been numerous constitutions for Hawaii, as a kingdom, a territory,
and as a state. The people of the State of Hawaii adopted the modern constitution on
June 27, 1959, and it went into effect on August 21, 1959, upon the presidential
proclamation admitting Hawaii to the Union. H.I. Const., intro. The 1959 constitution
has been revised a number of times, most notably in 1978, when the Constitutional
Convention adopted several amendments.
The Constitution for the State of Hawaii, explicitly adopts the Constitution of the
United States of America "on behalf of the people of the State of Hawaii." H.I. Const.,
preamble. By adopting the Federal Constitution, the people of the State of Hawaii
implicitly accept the tenets of separation of powers and the system of checks and
balances. Taking the implicit acceptance of these doctrines one step further, the
Constitution for the State of Hawaii explicitly provides for a separate legislative,
executive, and judicial branch of government. See H.I. Const., Art. IV, § 3.1 (defining
the legislative power), Id. at Art. V, §§ 5.1, 5.5 (establishing the Executive Branch and
defining its powers, respectively), Id. at Art. VI, §§ 6.1-6.2 (defining powers and
structure of judicial branch). With this tripartite system in mind, both the Constitution for
the State of Hawaii and the Hawaii Revised Statutes allow for local municipalities to
govern themselves in accordance with the rule and laws of the United States and the
State of Hawaii.
Article VIII of the Constitution of the State of Hawaii is entitled "Local
Government: Creation; Powers of Political Subdivisions." H.I. Const., Art. VIII. Article
VIII, § 1 explains that the "legislature shall create counties," while § 2 provides that each
political subdivision "shall have the power to frame and adopt a charter for its own self-
government within such limits and under such procedures as may be provided by
general law." Id. at §§ 1, 2. Similarly, the Hawaii State Legislature enacted FIRS § 46-
1.5(1) which explains that, "[e]ach county shall have the power to frame and adopt a
charter for its own self-government that shall establish the county executive,
administrative, and legislative structure and organization..." Id. It is vital to note that
both the Constitution and the Revised Statutes explicitly list the separate branches of
the local government: legislative, executive, and administrative —judicial is provided for
separately. Going beyond simply specifying that there are different and independent
branches of local government, the Constitution of the State of Hawaii provides that
"[c]harter provisions with respect to a political subdivision's executive, legislative and
administrative structure and organization shall be superior to statutory provisions...."
H.I. Coast. Art. VIII, § 2. Thus, the county charter is of the utmost importance.
Pursuant to Article XXVI, Transitional Provisions, the Charter of the County of
Kauai ("the Charter") "shall take full effect on January 2, 1969." In early January, 1969,
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the Charter became the law of the land, proudly proclaiming that"[t]he people of the
county of Kauai are and shall continue to be a body politic and corporate in perpetuity
under the name of `county of Kaua'i...."' This body politic made a conscious decision to
follow the structure and design of many other political entities before it, adopting a
legislature in the form of a Council and a separate executive/administrative branch
headed by the Mayor.
One way to look at the governance of a city or county as a municipal corporation
is cogently explained as follows:
Unless additional powers are conferred by statute or by the state
constitution, a municipal corporation created by charter derives all its
powers from the charter under which it acts as a body corporate and
politic.
The city is a miniature state, the council is its legislature, the charter its
constitution. In other words, the city charter[or county charter] represents
the supreme law of the city, subject only to conflicting provisions in the
state and federal constitutions, or to preemptive state or federal law. The
charter supersedes all municipal laws, ordinances, rules or regulations
that are inconsistent with its provisions.
2A McQuillin Mun. Corp. § 9:3 (3d ed.) (internal citations omitted), citing Paulsen v. City
of Portland, 149 U.S. 30 (1893); see also DeVita v. County of Napa, 9 Cal. 4th 763
(1995). Put another way, the County Charter is the law of the land. The only action
which may be taken by actors within the Government of the County is that which the
Charter expressly provides.193
The Charter is very specific in the powers afforded the different branches of the
County government. Article III, § 3.01 entitled "County Council," states that the
"legislative power of the county shall be vested in and exercised by the county council,
except as otherwise provided by this charter." Fortunately, the Charter otherwise
provides very specific limitations on the power of the Council in § 3.18, mandating that
"[t]he council and its members shall not interfere with the administrative processes
delegated to the mayor." The drafters of the Charter clearly laid out the duties of the
executive branch in general, and the mayor in particular.
193"...the powers of the municipal corporation are derived from the charter or act of incorporation.
Consequently the municipality's officers may only perform those duties which are prescribed in those
documents or as made applicable by legislative act or which may be implied or which are indispensible to
enable the municipal corporation to perform the purposes of its creation. In the discharge of their duties
the officers cannot go beyond the law, nor delegate powers involving the exercise of judgment and
discretion." Am. Jur. 2d, Public Officers and Employees § 226, citing Lockyer v. City and County of San
Francisco, 33 Cal,4th 1055 (2004); City of Weslaco, Tex. V. Porter, 56 F.2d 6 (C.C.A. 5th Cir. 1932); Ex
parte Guerrero, 69 Cal. 88 (1886).
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Article VI of the Charter, "Executive Branch," plainly states that [t]he executive
power of the county shall be vested in and exercised by the executive branch, which
shall be headed by the mayor." Id. at § 6.01. Article VII of the Charter, "Mayor,"
expounds on the mayor's powers: "[t]he mayor shall be the chief executive officer of the
county." § 7.05. Among the powers listed in Section 7.05 is the power to "exercise
direct supervision over all departments and coordinate all administrative activities and
see that they are honestly, efficiently, and lawfully conducted." Id. Thus, we have two
distinct branches of the County government, Constitution of the State of Hawaii
providing the third (judicial).
Based on the above, it seems clear that there are two distinct branches of
County government with two, distinct sets of power at odds due to the Council's passing
of Bill No. 2491, Draft 2 as adopted by the Council on October 17, 2013. At the outset,
the Council leaves no doubt that it submits to the governance of the State Constitution
(Art. 22, § 22-22.1(a)) and the Hawaii Revised Statutes. (Art. 22, § 22-22.1(d)). By
definition then, the Council would also have to agree that it supports the tripartite
system of Government which the State of Hawaii officially adopted in 1959, along with
its separation of powers and system of checks and balances. The Council could not
very well say in one breath, "pursuant to the Constitution of this State," or "based on the
laws of this land as enacted by the State Legislature," and then in the next breath
disregard both. But, by appearances, the Council is doing just that.
The Council of the County of Kauai passed Bill No. 2491, Draft 2, ("the Bill") on
October 17, 2013. The purpose of the Bill "is to establish provisions to inform the
public, and protect the public from any direct, indirect, or cumulative negative impacts
on the health and the natural environment of the people and place of the County of
Kauai...." Art. 22, § 22-22.2. In essence, the Bill requires that commercial agricultural
entities using particular types of pesticides in excess of listed amounts make certain
disclosures. Id. at § 22-22.4(1). The Bill further requires the use of"buffer zones" in
specific instances, pursuant to Section 22-22.5 of the Bill. At issue here are the duties
and demands which the Council makes of the Office of Economic Development through
the Bill.
Section 22-22.4, "Mandatory Disclosure of Pesticides, and Genetically Modified
Organisms," explains in sub-section three ("Pesticide Post-Application Weekly Public
Disclosure") that"[e]ach commercial agricultural entity shall submit all public disclosure
reports to the County of Kauai Office of Economic Development (OED)..." and further
requires that "[apt public disclosure reports shall be posted online, and available for
viewing and download by any interested persons. OED shall develop a standardized
reporting form." Id. The Bill also requires that any commercial agricultural entity that
intentionally possesses any genetically modified organism to disclose said possession,
and that "[d]irect notification to OED and DOA documenting such disclosure shall occur
no later than sixty (60) days following the end of each calendar year...." Art. 22, § 22-
22.4(b)(1). Lastly, the Bill mandates as follows:
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Sec. 22-22.8 Rulemaking
In order to effectuate all provisions of this Article, the Office of Economic
Development may engage in any rulemaking it deems necessary or proper,
utilizing the provisions of Hawaii Revised Statutes Chapter 91. In so doing, OED
is authorized to collaborate with the State of Hawaii Department of Agriculture.
Art. 22, § 22-22.8. By enacting the Bill inclusive of the above provisions, the Council,
which is the legislative branch of the County government, is infringing on the
enumerated powers of the Executive and Administrative branches of the County
government.
The Office of Economic Development ("OED") is one of several offices of which
the Mayor has oversight. Section 2-1.5 of the Kauai County Code states that "Et]here
shall be an office of Economic Development as provided by law." Id. OED's mission is
as follows:
The Office of Economic Development works, in partnership with the community,
to create economic opportunities towards the development of a healthy, stable
and balanced economy for the residents of the County of Kauai.
The Office of Economic Development (OED), as a government entity, interfaces
with business and community leaders as well as other government programs to
enhance Kauai's economic development activities. OED is responsible to provide
technical and financial support, as feasible, for both large and small business
establishments or existing and emerging new industries which offer
full employment for Kauai's residents.
County of Kauai: Office of Economic Development, http://www.kauai.gov/default.
aspx?tabid=59, (last accessed October 21, 2013). The Office of Economic
Development also lists its goals as the following:
• Foster and strengthen a well-qualified labor force consistent with local industry
direction and workforce needs.
• Expand and strengthen well-balanced visitor industry promotions and businesses
aligned with enhancing island-wide product development projects.
• Increase support and collaboration to ensure the continual growth and expansion
of Kauai's agricultural project.
• increase advocacy and coordination efforts for energy efficiency projects, energy
emergency preparedness programs, and increase use of renewable resources.
• Increase high level film location productions and expand business development
efforts to secure a major film studio complex on Kauai.
62
• Improve the facilitation of coordinated research, market analysis, and compilation
of local industry/community-related data and statistics to support business and
community development.
Id. None of the above goals, nor OED's mission statement relate in any way to
regulating the disclosure of pesticide use, the monitoring of pesticide use, or rulemaking
related to disclosures of pesticide use or possession of GMO products. The functions
which the Council has allocated to OED do not fall within any explicit or implied duty of
the Office. The Council has, therefore, assigned a new function to OED.
The power to create departments and agencies resides with the Mayor under the
executive branch of the County government. Article VI, "Executive Branch," Section
6.02, "Organization," provides as follows:
Except as otherwise provided, within six months after the effective date of
this charter, the mayor shall recommend and the council shall by ordinance adopt
an administrative code providing for a complete plan of administrative
organization of the executive agencies of the county government consistent with
the provisions of this charter. Upon recommendation of the mayor, the council
may, by vote of five members, change, abolish, combine or re-arrange the
executive agencies of the county government.
New functions may be assigned by the mayor to existing agencies, but to
the extent that this is not practicable,the council by a vote of five members may
upon the recommendation of the mayor create additional departments.
Id. Considering that the six month window discussed in the first paragraph has long
since passed, the important provision for the issue at hand lies in the second paragraph.
Referencing existing agencies, the Charter explicitly states that it is the Mayor which
may assign new functions. Through the provisions of the Bill, Council has impermissibly
usurped the power of the Executive branch of the County, and specifically the powers of
the Mayor as defined in the Charter. 3 McQuillin Mun. Corp. § 12:73; Am. Jur. 2d,
Municipal Corporations § 203 ("The powers and duties of the mayor or chief
executive194 rest almost entirely upon the proper construction of the charter and the
ordinances or bylaws and municipal regulations passed in pursuance of such
authority"), citing City of Brighton v. Gibson, 501 So. 2d 1239 (Ala. Civ. App. 1987);
Mullins v. Henderson, 75 Cal. App. 2d 117 (1st Dist. 1946); Brown v. Fair Political
Practices Corn., 84 Cal. App. 4th 137 (1st Dist. 2000). The present situation is quite
similar to that which the Supreme Court of Hawaii dealt examined in City Council of the
City and County of Honolulu v. Fasi, 52 Haw. 3 (1970).
In Fasi, the court dealt with a complaint which the city council filed in the First
Circuit Court. The Council was suing the mayor and sought a judgment mandating the
194"Universally the mayor is the chief executive officer of the city and, except as otherwise provided,
charters nearly always declare that he or she shall have and exercise all the executive powers of the
municipality." 3 McQuillin Mun. Corp. § 12:73, citing Brown v. Fair Political Practices Corn., 84 Cal. App.
4th 137 (1st Dist. 2000).
63
defendants comply with a newly passed resolution ("the Resolution"). 52 Haw. At 3-4.
The goal of the Resolution was to require the director of finance to take certain actions.
Although the court held that there were two issues which required attention, the
pertinent issue here is: whether the director of finance, as part of the executive branch,
was required to complete the obligations set forth in the Resolution. Id. at 4.
The Supreme Court of Hawaii held that the council had ignored the concept of
separation of powers and, therefore, the requirements of the Resolution were invalid.
Prior to so holding, the court performed a full analysis of the issues.196 Fasi, 52 Haw. at
8-9. In its analysis, the court referred to a recent application of the timeless statement
of Justice Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918):
A word is not a crystal, transparent and uncharged, it is the skin of a living
thought and may vary greatly in color and content according to the
circumstances and the time in which it is used.
Fasi, 52 Haw. at 5, citing In re Application of Eklund, 51 Haw. 568 (1970). The court
cited the wisdom of Justice Holmes to support the following premise regarding city and
county charters:
The charter has as its basic scheme a clear and definite separation of the
legislative power and the executive power of the city and county, vesting
the former in the legislative branch represented by the council and the
latter in the executive branch headed by the mayor. Under the separation
of powers so provided, each branch is coordinate with the other, and
neither may exercise the power vested in the other.
Fasi, 52 Haw. at 5. In this regard, the court continued that there is not a "wall of
separation between the powers which allows those powers to go unchecked. Id. at 6.
Rather, the separation merely serves as a safeguard "against improvident legislative or
executive action."196 Id. at 6. The Fasi court crystallized the application of separation of
powers to municipal corporations, and sheds light on the situation at hand.
By assigning specific, new powers to the Office of Economic Development, the
Council has assigned new functions to an existing office. Those new functions are
listed above, and include creating rulemaking per Section 22-22.8 of the Bill. Assigning
new powers to an existing office is a power specifically reserved for the Mayor. Thus,
the Council is in violation of Section 6.02 of the Charter. The Council is also in violation
of Section 3.18 of the Charter, which clearly states that "[t]he council and its members
shall not interfere with the administrative processes delegated to the mayor." There can
be no argument that Council is in compliance with the terms of the Charter of the
195"Because Resolution No. 436 provides for the exercise by the council of executive power which is
inconsistent with the principle of separation of powers, we hold that it does not establish the kind of policy
which the director of finance is required to follow under section 5-403(k)," Fasi, 52 Haw. at 8-9 (internal
citations omitted).
196 As examples, the Fasi court states that the Mayor's veto power does not allow him to legislate, and,
conversely, the council cannot take the power of the executive.
64
County of Kauai, with the tenets of the State laws, the State Constitution, the Federal
Constitution, or the basic ideals of federalism and checks and balances which support
our entire system of government. Some might argue that the Council's delegation of
powers to the Office of Economic Development has no real effect on the basics of the
American institution that is the democratic republic -that such a statement is little more
than an argumentum ad absurdium. But such a statement would be false.
The County government in general and the system in Kauai in particular, are of
the utmost importance. Given the decentralized nature of the County unit of
government, it is much more important that the County unit function properly as a full,
governmental entity; proper roles filled and boundaries of power respected. Am. Jur.
2d, Municipal Corporations, Etc. § 2, citing Fairlie, Local Government in Counties,
Towns and Villages, ch IV, pp. 62, 63. Related to cities and counties as municipal
corporations, treatises and courts agree that:
[i]f the city [or county] is to be regarded at all times as a mere creature and
agent of the state in government—the settled doctrine—to carry out the
fundamental of our political system, namely, the separation of powers into
the executive, legislative and judicial, it would seem to follow logically that
the functions of the officer should be restricted to the powers of the
department in which he serves.
2A McQuillin Mun. Corp. § 9:11 (3d ed.); see also Fasi, 52 Haw. 3 (1970) (under charter
legislative branch city and county government as coordinate with executive branch and
neither to exercise the power of other). Our Charter follows in form and substance,
mandating that the Council respect its given role, and the mayor do the same. Councils'
overstepping its bounds of power and impermissibly adopting the role of the Mayor and
the Executive/Administrative branch of government will lead to the Bill being held
unconstitutional if challenged on those grounds.
*Remainder of page intentionally left blank*
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IV. Conclusion
Based on the foregoing, the County Attorney's Office concludes that there are
many legal challenges facing Bill No 2491. While there is no Hawaii case law directly
interpreting the above-listed issues, there is extensive statutory and case law
demonstrating a strong likelihood that a reviewing court would declare Bill No 2491
preempted by superior State or federal statutes. Bill No 2491 may also be an invalid
exercise of the police power, and/or violate HRS Chapter 165's proscription against an
official "declaring" such farming operations a nuisance. We may also face a challenge
given Council's unilateral assignment of new functions to OED without initiation by the
Mayor, in violation of the Charter.
..__
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MAUNA KEA TR SK --,„
Deputy aunty ttorney
APPROVED:
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"it ors.,
ALFRED B. CAS 0, JR.
County Attorne
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CONFIDENTIAL
Attorney-Client Communication
and/or Attorney Work Product
DO NOT DISCLOSE
66