HomeMy WebLinkAboutCOM 0739.399 2016-2018 P/Co it
09141. iY1
COUNTY CLERK
COUNTY OF HAWAII
/11I8 NOV 19 AN , 03 AHL
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AMERICAN HOTEL&LODGING ASSOCIAf ION
November 16, 2018
The Honorable Valerie T. Poindexter
Council Chairwoman
The Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96749
Aloha Council Chairwoman Poindexter,
For more than 100 years, the American Hotel & Lodging Association (AHLA) has been
the foremost representative of and advocate for the U.S. lodging industry. We advocate
for our members, so they can do their best at what matters most: serving guests,
employees and their communities. With more than 150 members in Hawaii representing
110,000 employees, this is a job we take very seriously.
We appreciate the valuable work the council has been doing to ensure that Hawaii's
tourism industry continues to thrive. We commend the Council for taking on the task of
addressing this issue and understand the challenges of coming up with balanced
legislation. However, in its current form, Bill 108 will not be able to curb the negative
proliferation of illegal hotels in our neighborhoods. Therefore, AHLA on behalf of the
Hawaii County lodging industry respectfully submits and urges the Council to accept
these sensible amendments to close exploitable loopholes that commercial operators
utilizing online short-term rental hosting platforms will utilize.
As currently written, Bill 108 contains loopholes that will allow commercial operators to
thrive due to the lack of hosting platform data transparency and accountability. The key
to successful implementation and enforcement of short-term rental legislation, as we have
seen in other localities, is transparency and accountability for the hosting platform.
Without amendment, the County's land use laws will continue to be violated while critical
housing continues to be taken away from residents, the cost of living is driven up further,
and parity within the local hotel and lodging industry continues to be eroded. As has been
made apparent through years of legislative trials and errors in other localities, platform
transparency and accountability are indispensable to County enforcement.
Cities in California like San Francisco and Santa Monica—as well as Boston and
Washington, DC—have already adopted ordinances that soundly address the concerns
we are raising. We, in the County of Hawaii, deserve no less than what Airbnb and other
hosting platforms have already agreed to elsewhere. To this extent, we respectfully urge
your inclusion of the following amendments to Bill 108.
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If these amendments cannot be made, we urge the Council to defer action on this
measure or to vote no on Bill 108 at the upcoming hearing.
Without these amendments, the hotel and lodging industry cannot support Bill 108.
The hotel and lodging industry thanks you for your careful consideration of the
amendments below in order to produce the most effective ordinance for the County of
Hawaii.
Mahalo,
Troy Flanagan
Vice President, Government Affairs & Industry Relations
American Hotel & Lodging Association
Kekoa McClellan
AHLA Hawaii Representative
Please amend Bill 108 as following:
`NOTE: LANGUAGE IN RED IS PROPOSED CHANGES TO DRAFT 6
§ 25-4- Short-term vacation rentals.
(6) Upon change in ownership, the ciew former owner shall notify the director forthwith of
the change in ownership and registration shall automatically terminate. e .
ifor-mation-fir-tf€ereachab - __ _R - : _ : -at o, subject-to
§ 25-4- .1. Short-term vacation rental nonconforming use certificate.
(a) Nonconforming use certificate. In addition to registering pursuant to 25-4- (b)(1),
the owner of any short-term vacation rental which operated outside of a permitted-zoning
district permitted under 25-4- (a) prior to the effective date of this ordinance, shall obtain
a short-term vacation rental nonconforming use certificate in order to continue to
operate. This certificate must be renewed annually and shall automatically terminate
upon change in ownership. Applications for nonconforming use certificates must be
submitted to the director no later than one hundred eighty days after the effective date of
this ordinance.
(b) Evidence of prior use and ownership.
(1) The applicant seeking a short-term vacation rental nonconforming use certificate shall
have the burden of proof in establishing that the property was in use prior to November
1, 2018 •- - - : - a -. - and that the dwelling has been issued final
approvals by the building division for building, electrical, and plumbing permits. The
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successful execution of a short-term vacation rental booking transaction between
November 1, 2017 and October 31, 2018 shall constitute Eevidence of
such prior use. For purposes of this section, a short-term vacation rental booking
transaction shall be deemed successfully executed if payment was exchanged, whether
directly or indirectly, between the applicant and guest.
in-facm atie44-,
(2) The applicant seeking a short-term vacation rental nonconforming use certificate shall
have the burden of proof in establishing their ownership of the property prior to November
1, 2018.
. . .
(H) Issuance or renewal of a nonconforming use certificate shall be denied if the director
verifies the applicant is not in compliance with, or in violation of, Section 25-4-_.1(b)(1)
or (2).
§ 25-4-_.3. Short-term vacation rental enforcement account.
(e) In addition to any other enforcement authority pursuant to this section, the director
may impose additional civil fines against an owner or operator of a short-term vacation
rental of no more than $1,000 per day, or the offered daily rental rate, whichever is
greater, for each day that a short-term vacation rental is operated unlawfully or otherwise •
in violation of this chapter.
CHAPTER
TRANSIENT VACATION RENTALS AND HOSTING PLATFORMS
-1 Definitions. As used in this chapter:
"Bed and breakfast establishment" has the same meaning as in section 25-1-5. and shall
also include the short-term use of an owner's primary residence as defined under section
121 of the Internal Revenue Code.
"Booking service" means any reservation or payment service provided by a person or
entity that facilitates a transient vacation rental transaction between a transient vacation
rental operator and a prospective quest, and for which the person or entity collects or
receives, directly or indirectly, through an agent or intermediary, a fee in connection with
the reservation or payment services provided for the transient vacation rental transaction.
"County" means the County of Hawaii.
"Dwelling unit" has the same meaning as in section 25-1-5.
"Hosting platform" means a person or entity that participates in the transient vacation
rental business by providing, and collecting or receiving a fee for, booking services
through which a transient vacation rental operator may offer a short-term vacation rental
or bed and breakfast establishment. Hosting platforms usually, though not necessarily,
provide booking services through an online platform that allows a transient vacation rental
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operator to advertise the transient vacation rental through a website provided by the
hosting platform, and the hosting platform conducts a transaction by which potential
guests arrange use and pay, whether the quest pays rent directly to the transient vacation
rental operator or to the hosting platform.
"Short-term vacation rental" has the same meaning as in section 25-1-5.
"Transient vacation rental" means "short-term vacation rental" or "bed and breakfast
establishment."
"Transient vacation rental operator" means any person operating a short-term vacation
rental or bed and breakfast establishment, whether as owner or proprietor, or as lessee.
sublessee mort.a'wee in •ossession licensee or other or en.a.in. or continuin• in an
service business that involves the actual furnishing of a short-term vacation rental or bed
and breakfast establishment.
-2 Conducting business with transient vacation rental operators. When
conducting business with a transient vacation rental operator with respect to a property
for lease or rent, a hosting platform:
a Shall notif the transient vacation rental o•erator that the sub'ect •ro sert is re.uired
to be in compliance with applicable state and county land use laws and ordinances prior
to retaining the services of the hosting platform;
(b) Shall require the transient vacation rental operator to provide the hosting platform with
the transient vacation rental operator's transient accommodations tax number, County
registration number or non-conforming use certificate number, and local contact
information and shall notify the transient vacation rental operator that this information is
required in advertisements for short-term vacation rentals and bed and breakfast
establishments,
(c Shall require the transient vacation rental operator to provide the hosting platform with
verification of compliance with state and county land use laws in the form of a written
certification, verification, or permit, as applicable, issued by the planning department; and
(d) Shall require the transient vacation rental operator to provide a statement to the
hosting platform confirming compliance with all applicable land use laws and ordinances.
A transient vacation rental operator shall remove any advertisement published through
the hosting platform, including an online advertisement, for a short-term vacation rental
or bed and breakfast establishment located in the county for which the transient vacation
rental operator fails to comply with paragraph (b), (c), or (d) or for which the transient
vacation rental operator has received written notice from a state or county governmental
authority that the property is not in compliance with state law or county ordinance, as
applicable. The state or county governmental authority shall provide a copy of the written
notice to the hostin• latform.
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§ -3 Prohibition on participation in illegal activities by hosting platforms.
Booking Services. It shall be unlawful for a person acting as, or on behalf of, a hosting,
platform to provide, and collect a fee for, booking services in connection with transient
vacation rentals located in the county if those transient vacation rentals are not lawfully
certified, registered, or permitted as a short-term vacation rental or bed and breakfast
establishment at the time the transient vacation rental is rented.
§ -4 Reporting requirements for hosting platforms providing booking services
for short-term vacation rentals and bed and breakfast establishments.
(a) A hosting platform shall:
(1) Submit to the planning department or such other department as may be designated
by the mayor, on a monthly basis, in a time and manner established by such department,
including but not limited to, electronically, a report of transactions during the preceding
month relating to the receipt of payments, either directly or indirectly, regarding listings or
advertisements for short-term vacation rentals and bed and breakfast establishments
located within the county. Where a payment is for more than one listing or advertisement,
each such listing or advertisement is considered to be a separate transaction. Such report
shall include the following information for each dwelling unit subject to the report:
fA) The address of the dwelling unit, including the(unit or apartment number;
(B) The name and address of the person offering the dwelling unit for rent;
(C) The individualized name or number of each such advertisement or listing connected
to such dwelling unit and the uniform resource locator (URL) for each such listing or
advertisement, where applicable;
(D) A statement of whether such booking services will be provided in connection with a
bed and breakfast establishment or a short-term vacation rental: and
,(E) Such other information as may be required by rules promulgated by such department;
and
(2) Obtain lawful consent from the person offering such dwelling unit to provide the
information described in paragraph (1) to such department.
(b) A hosting platform that violates paragraph (a) above shall be liable for a civil penalty
of no less than $5,000 and no more than $25,000 for each such dwelling unit.
§ -5 Maintenance of Records.
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Notwithstanding any other provision of law or administrative action to the contrary, for not
less than three years following the end of the calendaryear in which the transient vacation
rental transaction occurred the hostin• •latform shall maintain and be able in res•onse
to a lawful request or subpoena, to provide the County of Hawaii with the following data
' for each transient vacation rental transaction for which the hosting platform has provided
booking services:
(a) The name of the owner who offered the transient vacation rental;
(b) The name of the renter who procured occupancy of the transient vacation rental;
(c) The address, including any unit designation, of the transient vacation rental,
(d) Th d dates and nightly rates for which the renter procured use of the transient vacation
rental;
(e) The registration or nonconforming use certificate number, as applicable, for the
transient vacation rental; and
•
(1) Such other information as the director may require by rule.
Transient vacation rental operators shall be required to maintain and be able to provide
the same data for all of their transient vacation rental transactions under the same
standards and requirements.
-6 Penalties. Except as otherwise provided in section -4(b), a violation of this
chapter shall result in a civil penalty of not less than $25,000.
-7 Enforcement. The director or other appropriate official designated by the
director shall enforce this section."
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