Friday, December 06, 2019
Hawai'i Free Press

Current Articles | Archives

Thursday, May 09, 2019
Grassroot: Bill 89 Unconstitutional
By Grassroot Institute @ 1:48 AM :: 3142 Views :: Honolulu County, Law Enforcement, Small Business, Tourism

Testimony on short-term rentals – Bill 89

From Grassroot Institute, May 8, 2019

To: Honolulu City Council

From: Grassroot Institute of Hawaii, Joe Kent, Executive vice president

Re: Bill 89 — Relating to Short-Term Rentals

Comments Only

Dear Council Members:

The Grassroot Institute of Hawaii would like to offer its comments on Bill 89, which sets out certain regulations and fines regarding transient vacation units and “bed and breakfast” homes.

While we are concerned about the impact of these regulations on the burgeoning vacation rental industry and Hawaii tourism as a whole, we would like to focus on an even more serious issue: the potentially unconstitutional fine scheme contained in this bill.

Bill 89 proposes extremely steep penalties for any ordinance violations: $1,000 plus up to $5,000 per day that the violations persist. For a recurring violation, it goes up to $10,000 plus $10,000 per day. For the second recurrence, it’s $20,000 plus $20,000 per day,  and for the third, up to $50,000 and $50,000 per day.

These high fines are echoed in Bill 85, which establishes a fine of $25,000 to $50,000 that can compound daily for merely violating the ordinance regarding advertising a bed-and-breakfast or transient vacation unit.

Bill 89 also allows neighbors to sue anyone, including the guests and rental owners, over violations of any provision of the ordinance. If the neighbors win, they get whatever remedy the courts determine, plus attorney fees. If the rental owners can’t pay the fines that result from the lawsuits, then liens will be placed against their properties.

Though this bill doesn’t explicitly try to outlaw short-term rentals, the proposed penalties, including the creation of a private right of action, could have that effect.

That is, unless the entire regulation scheme falls apart because the penalty structure is unconstitutional.

In February, the U.S. Supreme Court ruled that the Eighth Amendment’s prohibition on excessive fines applies to state and local governments. The case, Timbs v. Indiana, dealt with civil asset forfeiture. In the unanimous decision, Justice Ruth Bader Ginsburg wrote, “Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

The Hawaii Constitution also has a clause that protects citizens from excessive fines, making it even more likely that someone will challenge the enormous fines associated with this proposal.

Under the fine structure proposed in Bill 89, an owner could quickly find himself owing hundreds of thousands of dollars. Violators on their third recurring violation could owe $1 million in fines in less than three weeks. Even first-time violators could end up owing more than the property is worth in a matter of months.

By nearly any measure, that is an excessive fine. It’s certainly far in excess of the forfeiture at the root of the Timbs case.

Managing the competing interests involved in transient vacation rentals is a difficult challenge. It requires the Council to balance concerns about vacation rentals with the economic benefits they bring. Unfortunately, attaching a confiscatory penalty scheme to the bill threatens to shut down all rentals — at least until a lawsuit is brought against it.

Instead of pursuing a plan for rentals based around regulation and punishment, the Council should go back to the drawing board, eliminate the excessive fines proposed in this bill, and look for ways to create a practical, enforceable and equitable way to let rentals operate legally.

Thank you for the opportunity to submit our testimony.

Sincerely,

Joe Kent
Executive vice president
Grassroot Institute of Hawaii

Bill 89: Text, Status

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

ALEC

Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Habele.org

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop 

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube

HPACC

Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Salvage The Rail

Save the Plastic Bag

School Choice in Hawaii

SenatorFong.com

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT