Governor Abercrombie Gives Final Approval On 2011 Legislative Bills
News Release from www.Hawaii.gov/gov July 12, 2011
Honolulu – Governor Neil Abercrombie today signed into law the last of the measures from the 2011 legislative session. In total, Governor Abercrombie enacted 235 measures and vetoed 17; seven bills became law without his signature.
“A legislative session is successful because of the input of community groups and concerned citizens working with our state legislators,” said Governor Abercrombie. “With every passing day, we will make decisions and move forward together to rebuild our economy, transform government, and make smart investments that advance our values and priorities.”
Governor Abercrombie signed the following bills into law:
House Bill 318 establishes an interagency task force on vog on the Big Island to discuss the impact of vog and find ways to address these issues. The bill was on Governor Abercrombie’s intent to veto list because there is currently a statewide task force on sulfur dioxide hazards and this interagency task force was seen as duplicative. However, Governor Abercrombie felt the health issues created by vog are serious, he believes a task force at the county level is more responsive. The county task force can address the immediate issues faced by Big Island residents and can bring recommendations to the statewide task force.
House Bill 680 repeals the requirement that Hawai'i Community Development Authority consider recommendations by the Kaka'ako Makai Community Planning Advisory Council (CPAC) in developing any plans for the Kaka'ako Makai area. This was previously on the intent to veto list because of the important role of community input. However, the conditions and circumstances under which CPAC was created no longer exist. There is a Conceptual Master Plan now in place and a public participation protocol in which any interested person or group, including CPAC, can ask to be involved in planning or lease decisions.
House Bill 1134 repeals Part V of the Hawai'i Prepaid Health Care Act and Act 99, Session Laws of Hawai'i 1994, relating to the future termination of the prepaid health care law. The bill was on the veto list because the Administration was in the process of consulting with federal officials. The Administration has since received opinions from the U.S. Department of Health and Human Services and the U.S. Department of Labor that concluded the intent of both the federal government and State of Hawai'i is to retain the Hawai'i Prepaid Health Care Act alongside the federal Patient Protection Affordable Care Act. Passing HB 1134 is a clear indication that Hawai'i plans to retain the Hawai'i Prepaid Health Care Act.
House Bill 1164 authorizes the Department of Land and Natural Resources (DLNR) to consider the sale or exchange of land of Sand Island parcels to leaseholders. This bill was on the intent to veto list because Governor Abercrombie opposes the sale of state land. However in this situation, private funding may be used to study the exchange of Sand Island parcels to leaseholders.
House Bill 1405 requires the Office of Planning to develop a timeline and plan for establishing a statewide system of greenways and trails. The bill was on the veto intent list because it creates an unfunded mandate. Although the plan would still be unfunded, the Office of Planning and state Rep. Jo Jordan has come to an understanding of what can be accomplished with existing resources.
House Bill 1505 establishes the State Facility Renovation Partnership Program, which allows the sale of certain state facilities to private investors who would improve the facility and lease it back to the state. Governor Abercrombie is opposed to the sale of state facilities to private entities and the potential debt service issues with the sale of public buildings previously financed with general obligation bonds that may currently be outstanding. However, Governor Abercrombie also sees this as an opportunity for the state to partner with the private sector to begin to renovate state buildings.
Senate Bill 1274 provides uniform standards for external review procedures based on the National Association of Insurance Commissioners Uniform Health Carrier External Review Model Act, to comply with the requirements of the federal Patient Protection and Affordable Care Act of 2010.
Senate Bill 1511 increases the maximum lease terms for aquaculture operations to 65 years. Governor Abercrombie had placed this bill on the intent to veto list because of concerns for a 65-year lease in the ocean. Governor Abercrombie has always been supportive of aquaculture and understands the need for long-term leases for financing operations. Moreover, he expects DLNR will structure leases so that long-term impacts can be properly monitored.
Governor Abercrombie vetoed the following bills:
House Bill 56 would have allowed the family court to award reasonable visitation rights to grandparents if the denial of visitation would cause significant harm to the child. This bill would make it more difficult for grandparents to visit their grandchildren.
House Bill 545 would have required electronic voter registration on the website of the Office of Elections by January 1, 2014. This measure would have required the Attorney General, counties, and the Office of Elections to modify its computer systems to verify the information required in the online voter registration system and to obtain an electronic copy of each applicant’s signature. The estimated cost of implementation is $2.5 million and no funding was provided in the bill. Electronic voter registration can be addressed as the state moves to assess and overhaul the state’s technology systems.
House Bill 667 would have created the food safety and security program within the Department of Agriculture (HDOA). This bill did not provide any funding or power for the department to establish regulations. Congress has recently passed the Food Safety Modernization Act and federal regulations are in the process of being passed. The state must act on the issue of food safety and this Administration will be working on bringing a bill before the Legislature that is comprehensive and includes implementation of a funding mechanism. Moreover, this measure has created such a division of opinion, passage of this bill would make more problems than it solves.
House Bill 1155 would have specified class A and B felonies that require mandatory minimum prison terms under the repeat offender statute. It would have also reinstated, added, and deleted certain class C felonies that require the mandatory minimum prison terms under the repeat offender statute. This bill would significantly change the current policy on how the criminal justice system addresses the problem of repeat offenders that was originally enacted since 1976. This bill would make the repeat offender law inapplicable to all felony drug offenses, ownership or possession of firearms or ammunition by persons convicted of certain crimes, and insurance fraud felony convictions. Governor Abercrombie agrees with the need to have judicial discretion and would like to revisit the issues raised in this bill in the next legislative session.
House Bill 1230 would have exempted the construction of nonresidential structures used for agricultural or aquacultural operations from county building permitting processes. This measure does not define “third party reviewer” nor does it require such reviewer to have any technical knowledge of building code requirements. This could lead to unqualified and inappropriate persons being labeled a third party reviewer to certify the building plans.
House Bill 1654 would have terminated a conditional use permit issued by a county agency to facilities intended for group living facilities or group homes that do not use the permits or cease operations for one year. There is a technical flaw in this bill.
Senate Bill 23 would have established the Aha Kiole Advisory Council within DLNR. This Council is self-selected, not confirmed, has no defined term limits, offers no guidelines concerning the role of its members, selects its own Executive Director and offers no recourse for inappropriate conduct by its members. This is a private entity that would receive taxpayer funds with no oversight. Moreover, this Council is more appropriately placed with a new governing entity.
Senate Bill 40 would have established a tracking system for the sale of products containing pseudoephedrine or ephedrine. In conference committee, the legislature added "ephedrine" to also be tracked and reported. There is a technical flaw in this bill making it unconstitutional because the title of the bill is "relating to pseudoephedrine."
Senate Bill 44 would have required the Department of Public Safety (PSD) to establish performance indicators for inmate reentry system; and required reports, using key performance indicators, to be provided to the legislature. It created the corrections and program report as a consolidated report of other annual reports. This bill does not allow enough time or resources for PSD to accomplish the intended outcomes of the bill. The Governor agrees with the intent of this bill but feels that it is premature. He would like to wait to see the outcomes from the Justice Reinvestment process and assessment from the new Chief Information Officer on the PSD’s capacity to respond in these performance areas.
Senate Bill 49 would have required the Director of Public Safety to report to the Governor, and the Governor to report to the legislature any death of an inmate or correctional facility employee within 48 hours. PSD currently does this and there is another statute that covers this procedure.
Senate Bill 217 would have eliminated the statute of limitations for civil actions brought by victims of sexual offenses as a minor against the person who committed the act(s) and authorizes suits against a legal entity in certain circumstances. This bill allowed an employer, including the state, to be sued for the criminal acts of its employees. This is contrary to well-established tort and agency law and is in direct contravention of the State Tort Liability Act (STLA), Chapter 662 of the Hawai'i Revised Statutes. Under the STLA, the state cannot be sued for the criminal or intentional acts of its employees. The elimination of a statute of limitations for a civil claim also raises grave constitutional and fairness concerns. If a claim can be brought after an unlimited passage of time, it is likely that documents will be lost or destroyed and witnesses will die or move away. The accused, even those falsely accused, will not be able to defend himself, herself, or itself, and true justice will not be achieved.
Senate Bill 590 would have extended the sunset date of the American Reinvestment and Recovery Act Commission by six months. Governor Abercrombie already signed House Bill 383 into law as Act 26 that does the same thing.
Senate Bill 1417 would have established the minimum number of board members necessary to constitute a quorum for the State Rehabilitation Council to 10 and establishes the number of votes necessary to validate any action of the Council to at least a majority of quorum. Governor Abercrombie believes that rather than reduce quorum, it is better to appoint people to serve on the Council who are committed and will participate in meetings. Reducing the number of votes necessary to validate any action of the Council to 6 out of a 21 member council is not a fair representation of the Council.
Senate Bill 1493 would have required all new and replacement lights to be fully shielded beginning July 1, 2013, with certain exemptions. This bill did not provide funding for the significant initial and continuing expenses required to implement this legislation; and does not provide a feasible implementation plan. Governor Abercrombie believes this is a worthy issue and will work with the Legislature in the 2012 Legislative Session to achieve the objectives of this measure.
Senate Bill 1559 would have required priority processing of applications for agricultural facilities of an agribusiness that only processes crops or livestock produced on Important Agricultural Lands (IAL). It also required the Public Utility Commission to establish preferential rates for the purchase of energy consumed for agricultural purposes on IAL. While these incentives are important for encouraging agriculture and the designation of IALs, the preferential treatment needs to be decided within an overall agricultural policy. Moreover, mandates on county governments should be worked out before imposing new requirements.
The following bills will become law without Governor Abercrombie’s signature:
House Bill 1138 authorizes a lien on an attorney’s firm for unpaid shorthand reporter services requested by an attorney. Although there are no problems with the substance of the bill, there were minor legal ambiguities in the bill’s language.
Senate Bill 173 prohibits the sale or distribution of “novelty lighters” within the state to prevent children from playing with novelty lighters and causing fires. The intent of the bill is good but Governor Abercrombie would like some of the enforcement issues tightened up with legislative amendments.
Senate Bill 782 prohibits any person from knowingly or intentionally possessing, constructing, setting off or otherwise causing to explode any homemade explosive device. “Homemade explosive device” is defined as “a non-commercially manufactured device composed of a single ingredient, or mixture of ingredients, capable of instantaneously releasing a sufficient amount of energy to inflict substantial damage to persons or property.” Although this should be prohibited, the phrase “substantial damage to persons or property” is not defined.
Senate Bill 946 permits a court to allow a petition, complaint, motion, temporary restraining order or an injunction from further harassment, or other document to be filed identifying the parties as “Jane Doe” or “John Doe” under certain circumstances. The protection of parties to court proceedings needs to be addressed but there are ambiguities in the bill language that could lead to implementation problems for the Judiciary as well as cost implications.
Senate Bill 975 requires real estate appraisers to comply with the Uniform Standards of Appraisal Practice when acting as an arbitrator in arbitration proceedings. Governor Abercrombie supports making the more process transparent and providing businesses with the information behind how an arbitration award was reached. However, arbitration proceedings often result in a compromise decision among the arbitrators and following appraisal standards may not be possible. The Department of Commerce and Consumer Affairs is meeting with appraisers and other interested parties to find a solution to advance in the next legislative session.
Senate Bill 1533 clarifies that a person commits the offense of cruelty to animals in the second degree if the person kills animals without need. This legislation was in response to a recent criminal case involving a woman who used a baseball bat to kill a peacock. The handling or extermination of any insect, vermin or pest must be conducted in accordance with standard and acceptable pest control practices. Although this protection is laudable and should be put in place as soon as possible, the language needs to be refined. Under a strict reading of the bill, killing a cockroach or other insect with a rubber slipper could be considered cruelty to animals in the second degree.
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