Sewer System; Liens

Allows counties to place liens on real property served by a
county sewer system for uncollected water and sewer fees.

THE SENATE                              S.B. NO.           1353
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The collection of sewer fees is a continuing
 2 problem for the counties, particularly those counties where sewer
 3 and water charges are not integrated.  The purpose of this Act is
 4 to allow counties to place a lien upon the real property that is
 5 served by the sewer system to aid in the ultimate collection of
 6 the debt.
 7      SECTION 2.  Section 46-1.5, Hawaii Revised Statutes, is
 8 amended to read as follows:
 9      "46-1.5  General powers and limitation of the counties.
10 Subject to general law, each county shall have the following
11 powers and shall be subject to the following liabilities and
12 limitations:
13      (1)  Each county shall have the power to frame and adopt a
14           charter for its own self-government, which shall
15           establish the county executive, administrative, and
16           legislative structure and organization, including, but
17           not limited to, the method of appointment or election
18           of officials, their duties, responsibilities, and
19           compensation, and the terms of their office.

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 1      (2)  Each county shall have the power to provide for and
 2           regulate the marking and lighting of all buildings and
 3           other structures that may be obstructions or hazards to
 4           aerial navigation, so far as may be necessary or proper
 5           for the protection and safeguarding of life, health,
 6           and property.
 7      (3)  Each county shall have the power to enforce all claims
 8           on behalf of the county and approve all lawful claims
 9           against the county, but shall be prohibited from
10           entering into, granting, or making in any manner any
11           contract, authorization, allowance payment, or
12           liability contrary to the provisions of any county
13           charter or general law.
14      (4)  Each county shall have the power to make contracts and
15           to do all things necessary and proper to carry into
16           execution all powers vested in the county or any county
17           officer.
18      (5)  Each county shall have the power to maintain channels,
19           whether natural or artificial, including their exits to
20           the ocean, in suitable condition to carry off storm
21           waters; and to remove from the channels, and from the
22           shores and beaches, any debris that is likely to create
23           an unsanitary condition or become a public nuisance;

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 1           provided that, to the extent any of the foregoing work
 2           is a private responsibility, the responsibility may be
 3           enforced by the county in lieu of the work being done
 4           at public expense.  Counties also shall have the power
 5           to construct, acquire by gift, purchase, or by the
 6           exercise of eminent domain, reconstruct, improve,
 7           better, extend, and maintain projects or undertakings
 8           for the control of and protection against floods and
 9           flood waters, including the power to drain and
10           rehabilitate lands already flooded, and to enact zoning
11           ordinances providing that lands deemed subject to
12           seasonable, periodic, or occasional flooding shall not
13           be used for residence or other purposes in a manner as
14           to endanger the health or safety of the occupants
15           thereof, as required by the Federal Flood Insurance Act
16           of 1956 (chapter 1025, Public Law 1016).
17      (6)  Each county shall have the power to exercise the power
18           of condemnation by eminent domain when it is in the
19           public interest to do so.
20      (7)  Each county shall have the power to exercise regulatory
21           powers over business activity as are assigned to them
22           by chapter 445 or other general law.
23      (8)  Each county shall have the power to fix the fees and

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 1           charges for all official services not otherwise
 2           provided for.
 3      (9)  Each county shall have the power to provide by
 4           ordinance for the improvement or maintenance
 5           assessments of districts within the county.
 6     (10)  Except as otherwise provided, no county shall have the
 7           power to give or loan credit to, or in aid of, any
 8           person or corporation, directly or indirectly, except
 9           for a public purpose.
10     (11)  Where not within the jurisdiction of the public
11           utilities commission, each county shall have the power
12           to regulate by ordinance the operation of motor vehicle
13           common carriers transporting passengers within the
14           county and adopt and amend rules the county deems
15           necessary for the public convenience and necessity.
16     (12)  Each county shall have the power to enact and enforce
17           ordinances necessary to prevent or summarily remove
18           public nuisances and to compel the clearing or removal
19           of any public nuisance, refuse, and uncultivated
20           undergrowth from streets, sidewalks, public places, and
21           unoccupied lots, and in these connections, to impose
22           and enforce liens upon the property for the cost to the
23           county of removing and completing the necessary work

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 1           where the owners fail, after reasonable notice, to
 2           comply with the ordinances.  The authority provided by
 3           this paragraph shall not be self-executing, but shall
 4           become fully effective within a county only upon the
 5           enactment or adoption by the county of appropriate and
 6           particular laws, ordinances, or rules defining "public
 7           nuisances" with respect to each county's respective
 8           circumstances.  The counties shall provide the property
 9           owner with the opportunity to contest the summary
10           action and to recover the owner's property.
11     (13)  Each county shall have the power to enact ordinances
12           deemed necessary to protect health, life, and property,
13           and to preserve the order and security of the county
14           and its inhabitants on any subject or matter not
15           inconsistent with, or tending to defeat, the intent of
16           any state statute, provided also that the statute does
17           not disclose an express or implied intent that the
18           statute shall be exclusive or uniform throughout the
19           State.
20     (14)  Each county shall have the power to make and enforce
21           within the limits of the county all necessary
22           ordinances covering:  all local police matters; all
23           matters of sanitation; all matters of inspection of

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 1           buildings; all matters of condemnation of unsafe
 2           structures, plumbing, sewers, dairies, milk, fish, and
 3           morgues; all matters of the collection and disposition
 4           of rubbish and garbage; and to provide exemptions for
 5           homeless facilities and any other program for the
 6           homeless authorized by chapter 201G, for all matters
 7           under this paragraph; and to appoint county physicians
 8           and sanitary and other inspectors as necessary to carry
 9           into effect ordinances made under this paragraph, who
10           shall have the same power as given by law to agents of
11           the department of health, subject only to limitations
12           placed on them by the terms and conditions of their
13           appointments; and to fix a penalty for the violation of
14           any ordinance, which penalty may be a misdemeanor,
15           petty misdemeanor, or violation as defined by general
16           law.
17     (15)  Each county shall have the power to provide public
18           pounds, to regulate the impounding of stray animals and
19           fowl, and their disposition, and to provide for the
20           appointment, powers, duties, and fees of animal control
21           officers.
22     (16)  Each county shall have the power to purchase and
23           otherwise acquire, lease, and hold real and personal

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 1           property within the defined boundaries of the county
 2           and to dispose of the real and personal property as the
 3           interests of the inhabitants of the county may require,
 4           except that:  any property held for school purposes may
 5           not be disposed of without the consent of the
 6           superintendent of education; no property bordering the
 7           ocean shall be sold or otherwise disposed of; and all
 8           proceeds from the sale of park lands shall be expended
 9           only for the acquisition of property for park or
10           recreational purposes.
11     (17)  Each county shall have the power to provide by charter
12           for the prosecution of all offenses and to prosecute
13           for offenses against the laws of the State under the
14           authority of the attorney general of the State.
15     (18)  Each county shall have the power to make appropriations
16           in amounts deemed appropriate from any moneys in the
17           treasury, for the purpose of community promotion and
18           public celebrations, the entertainment of distinguished
19           persons as may from time to time visit the county, for
20           the entertainment of other distinguished persons as
21           well as public officials when deemed to be in the best
22           interest of the community, and the rendering of civic
23           tribute to individuals who, by virtue of their

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 1           accomplishments and community service, merit civic
 2           commendations, recognition, or remembrance.
 3     (19)  Each county shall have the power to:
 4           (A)  Construct, purchase, take on lease, lease,
 5                sublease, or in any other manner acquire, manage,
 6                maintain, or dispose of buildings for county
 7                purposes, sewers, sewer systems, pumping stations,
 8                waterworks, including reservoirs, wells,
 9                pipelines, and other conduits for distributing
10                water to the public, lighting plants, and
11                apparatus and appliances for lighting streets and
12                public buildings and manage, regulate, and control
13                the same;
14           (B)  Regulate and control the location and quality of
15                all appliances necessary to the furnishing of
16                water, heat, light, power, telephonic, and
17                telegraphic service to the county;
18           (C)  Acquire, regulate, and control any and all
19                appliances for the sprinkling and cleaning of the
20                streets and the public ways and for flushing the
21                sewers; and
22           (D)  Open, close, construct, or maintain county
23                highways or charge toll on county highways;

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                                     S.B. NO.           1353

 1                provided that all revenues received from a toll
 2                charge shall be used for the construction or
 3                maintenance of county highways.
 4     (20)  Each county shall have the power to regulate the
 5           renting, subletting, and rental conditions of property
 6           for places of abode by ordinance.
 7     (21)  Unless otherwise provided by law, each county shall
 8           have the power to establish by ordinance the order of
 9           succession of county officials in the event of a
10           military or civil disaster.
11     (22)  Each county shall have the power to sue and be sued in
12           its corporate name.
13     (23)  Each county shall have the power to establish and
14           maintain waterworks and sewer works; to collect rates
15           for water supplied to consumers and for the use of
16           sewers; to install water meters whenever deemed
17           expedient; provided that owners of premises having
18           vested water rights under existing laws appurtenant to
19           the premises shall not be charged for the installation
20           or use of the water meters on the premises; to take
21           over from the State existing waterworks systems,
22           including water rights, pipelines, and other
23           appurtenances belonging thereto, and sewer systems, and

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 1           to enlarge, develop, and improve the same.  In
 2           addition, each county may establish, charge, and
 3           collect rates for water supplied to consumers and for
 4           the use of sewers.  Any such charge unpaid for one year
 5           or more shall be a lien upon the served real property
 6           when a copy of the billing statement, certified by the
 7           county clerk, is recorded in the bureau of conveyances
 8           after notice has been served upon the delinquent
 9           consumer, and shall otherwise be subject to section
10           507-43.
11     (24)  (A)  Each county may impose civil fines, in addition to
12                criminal penalties, for any violation of county
13                ordinances or rules after reasonable notice and
14                requests to correct or cease the violation have
15                been made upon the violator.  Any administratively
16                imposed civil fine shall not be collected until
17                after an opportunity for a hearing under chapter
18                91.  Any appeal shall be filed within thirty days
19                from the date of the final written decision.
20                These proceedings shall not be a prerequisite for
21                any civil fine or injunctive relief ordered by the
22                circuit court.
23           (B)  Each county by ordinance may provide for the

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 1                addition of any unpaid civil fines, ordered by any
 2                court of competent jurisdiction, to any taxes,
 3                fees, or charges, with the exception of fees or
 4                charges for water for residential use and sewer
 5                charges collected by the county.  Each county by
 6                ordinance may also provide for the addition of any
 7                unpaid administratively imposed civil fines, which
 8                remain due after all judicial review rights under
 9                section 91-14 are exhausted, to any taxes, fees,
10                or charges, with the exception of water for
11                residential use and sewer charges, collected by
12                the county.  The ordinance shall specify the
13                administrative procedures for the addition of the
14                unpaid civil fines to the eligible taxes, fees, or
15                charges and may require hearings or other
16                proceedings.  After the unpaid civil fines are
17                added to the taxes, fees, or charges as specified
18                by county ordinance, the unpaid civil fines shall
19                be deemed immediately due, owing and delinquent
20                and may be collected in the same manner as the
21                taxes, fees, or charges.  The procedure for
22                collection of unpaid civil fines authorized in
23                this paragraph shall be in addition to any other

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 1                procedures for collection available to the State
 2                and county by law or rules of the courts.
 3           (C)  Each county may impose civil fines upon any person
 4                who places graffiti on any real or personal
 5                property owned, managed, or maintained by the
 6                county.  The fine may be up to $1,000 or may be
 7                equal to the actual cost of having the damaged
 8                property repaired or replaced.  The parent or
 9                guardian having custody of a minor who places
10                graffiti on any real or personal property owned,
11                managed, or maintained by the county shall be
12                jointly and severally liable with the minor for
13                any civil fines imposed hereunder.  Any such fine
14                may be administratively imposed after an
15                opportunity for a hearing under chapter 91, but
16                such a proceeding shall not be a prerequisite for
17                any civil fine ordered by any court.
18                     As used in this subparagraph, "graffiti"
19                     means any unauthorized drawing, inscription,
20                     figure, or mark of any type intentionally
21                     created by paint, ink, chalk, dye, or similar
22                     substances.
23           (D)  At the completion of an appeal in which the

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 1                county's enforcement action is affirmed and upon
 2                correction of the violation if requested by the
 3                violator, the case will be reviewed by the county
 4                agency that imposed the civil fines to determine
 5                the appropriateness of the amount of the civil
 6                fines that accrued while the appeal proceedings
 7                were pending.  In its review of the amount of the
 8                accrued fines, the county agency may consider the
 9                following:  nature and egregiousness of the
10                violation, duration of the violation, number of
11                recurring and other similar violations, effort
12                taken by the violator to correct the violation,
13                degree of involvement in causing or continuing the
14                violation, reasons for any delay in the completion
15                of the appeal, and other extenuating
16                circumstances.  The civil fine which is imposed by
17                administrative order after this review is
18                completed and the violation is corrected is
19                subject to only judicial review, notwithstanding
20                any provisions for administrative review in county
21                charters.
22           (E)  After completion of a review of the amount of
23                accrued civil fine by the county agency which

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 1                imposed the fine, the amount of the civil fine
 2                determined appropriate, including both the initial
 3                civil fine and any accrued daily civil fine, shall
 4                immediately become due and collectible following
 5                reasonable notice to the violator.  If no review
 6                of the accrued civil fine is requested, the amount
 7                of the civil fine, not to exceed the total accrual
 8                of civil fine prior to correcting the violation,
 9                shall immediately become due and collectible
10                following reasonable notice to the violator, at
11                the completion of all appeal proceedings.
12           (F)  If no county agency exists to conduct appeal
13                proceedings for a particular civil fine action
14                taken by the county, then one shall be established
15                by ordinance before the county shall impose that
16                civil fine.
17     (25)  Any law to the contrary notwithstanding, any county
18           mayor may exempt by executive order donors, provider
19           agencies, homeless facilities, and any other program
20           for the homeless under chapter 201G from real property
21           taxes, water and sewer development fees, rates
22           collected for water supplied to consumers and for use
23           of sewers, and any other county taxes, charges, or

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                                     S.B. NO.           1353

 1           fees; provided that any county may enact ordinances to
 2           regulate and grant the exemptions granted by this
 3           paragraph."
 4      SECTION 3.  New statutory material is underscored.
 5      SECTION 4.  This Act shall take effect upon its approval.
 7                              INTRODUCED BY:______________________