SPEC. COM. REP. NO.
RE: S.R. 88
Honorable Robert Bunda
President of the Senate
Twenty-First State Legislature
State of Hawaii
Your Special Committee on Agricultural Theft, established under S.R. No. 88, S.D. 1, entitled:
REQUESTING AN ASSESSMENT AND REVIEW OF EXISTING AGRICULTURAL THEFT LAWS AND ENFORCEMENT ISSUES THAT HAMPER THE ARREST AND CONVICTION OF PERSON'S CAUGHT OR SUSPECTED OF AGRICULTURAL THEFT,
begs leave to report as follows:
The Senate of the Twenty-first Legislature, Regular Session of 2001, adopted S.R. No. 88, S.D. 1, in order to address ongoing concerns of the agricultural community across the State. The measure requested that the President of the Senate convene a Legislative Agricultural Theft Committee (Committee) to assess and review existing agricultural theft laws and enforcement issues that hamper the arrest and conviction of persons caught or suspected of agricultural theft.
Senate Resolution No. 88, S.D. 1, gave the President of the Senate the authority to limit the membership of the Committee; the Resolution, however, provided that the Chair of the Senate Committee on Agriculture would serve as Chair. The President of the Senate appointed the entire Senate Committee on Agriculture to serve.
Scope of Review
Pursuant to S.R. No. 88, S.D. 1, the Committee's responsibilities were threefold:
(1) To assess and review existing agricultural theft laws and enforcement issues that hamper the arrest and conviction of persons caught or suspected of agricultural theft;
(2) To obtain input from specific interest groups of the public and private sectors; and
(3) To submit a report on its findings, recommendations, and any proposed legislation to the Legislature not later than twenty days prior to the convening of the 2002 Regular Session.
The Committee embarked on a statewide hearing schedule that began on November 5, 2001, and concluded on November 14, 2001. During this period, the Committee held public forums in Hilo, Kona, Kahului, Lihue, and Honolulu.
At these public forums, the Committee invited representatives from the nine interest groups listed in S.R. No. 88, S.D. 1, as well as the general public to attend. The public forum format included presentations by local representatives of the Hawaii Farm Bureau, the police department, and the prosecutor's office. Each representative was provided with the opportunity to describe their concerns and suggestions on the issue of agricultural theft. Upon the conclusion of the presentations, the general public was provided with the opportunity to testify before the Committee.
In addition to the convening of the Committee to assess and review existing agricultural theft laws and enforcement issues, S.R. No. 88, S.D. 1, also required that the Committee obtain input from:
(1) The Department of the Attorney General;
(2) The Department of Agriculture;
(3) Each respective county Police Department;
(4) Each respective county Prosecutor's Office;
(5) The Hawaii Farm Bureau Federation;
(6) The ranching industry;
(7) The agricultural wholesalers;
(8) The shipping industry; and
(9) Farmers throughout the State.
The Committee transmitted copies of its hearing schedule along with invitations to participate to the above listed groups. The Committee also solicited the assistance of the Hawaii Farm Bureau Federation to contact its members on each island to encourage attendance and participation.
Review and Assessment of Current Statutes
Under existing law, there are two separate specific references to agricultural theft. Chapter 145, Part II, Hawaii Revised Statutes, and sections 708-831 and 708-835.5, Hawaii Revised Statutes, in the State's Penal Code.
Chapter 145, Part II, Hawaii Revised Statutes (Act 186, Session Laws of Hawaii 1999)
The laws contained in Part II of Chapter 145, Hawaii Revised Statutes, were enacted in 1999 as Act 186, Session Laws of Hawaii 1999 (Act 186). Act 186's purpose was to:
...[T]o establish a means of identifying the owner of large lots of picked fruits, nuts, or vegetables of any tree, vine, or plant, or large lots of shrimps, prawns, shell fish, fish, seaweed, algae, and other aquaculture products, or large lots of flowers, ornamentals, or other horticultural products to give law enforcement officers an additional means of identifying the lawful owners of these agricultural commodities and to assist in the prevention of theft of these commodities.
Act 186 attempted to accomplish this purpose by requiring a "paper trail", or the certification of ownership of lots of agricultural commodities weighing in excess of two hundred pounds or having a value equal to or greater than $100.
Act 186 required that every owner, upon the sale or transportation of lots of over two hundred pounds or with a value of at least $100, of any agricultural commodity that would be marketed for commercial purposes, complete a certificate describing the commodity and indicating:
(1) The seller, owner, buyer, or consignee;
(2) The origin; and
(3) The destination.
Two copies of the certificate are to accompany the shipment and a copy is to be retained by the owner. A copy of the certificate would have to be presented upon the request of a state or county law enforcement officer or other officer or employee authorized by the Department of Agriculture.
If any person who sells, transports, or possesses after sale or transport, agricultural commodities in lots of over two hundred pounds or with a value of at least $100, is unable to provide a certificate of ownership or other written proof of ownership that describes the commodity, that person would be considered in violation of the law and subject to a citation and summons. Violators of these requirements could be charged with a misdemeanor, resulting in a fine of up to $1,000 or imprisoned for up to one year, or both.
Act 186 also authorized law enforcement officers and authorized personnel of the Department of Agriculture to hold the agricultural commodity for not longer than forty-eight hours to investigate and ascertain the ownership of the agricultural commodity. If the lawful owner is determined and located, the agricultural, aquacultural, or horticultural commodity would be released to the lawful owner.
If the agricultural commodity is not released to the lawful owner after being in the custody of the law enforcement officer or the Department of Agriculture, or the lawful owner cannot be determined, the law enables the law enforcement entity or the Department of Agriculture to sell the commodity at fair market value to any retailer, wholesaler, or packer of the commodity. All of the proceeds derived from the sale are to be held for not longer than six months, during which time the lawful owner of the commodity may submit satisfactory proof of ownership and obtain possession of the proceeds. If no lawful owner claims the proceeds within a six-month time period, the proceeds shall be subject to the State's unclaimed property law. The law also allows for the disposal of unsold commodities to a nonprofit charitable organization or destruction at the discretion of the law enforcement entity or the Department of Agriculture.
Testimony at each hearing of the Committee indicated general support for the law. However, to date, no citations or summons have been executed pursuant to this law. Due to the law's relatively recent enactment, many parties, including certain prosecutors, were unaware of its existence. The Committee received assurances from all parties to work towards fully effectuating this law's intent.
Sections 708-831 and 708-835.5, Hawaii Revised Statutes
Sections 708-831 and 708-835.5, Hawaii Revised Statutes, are contained in the State's Penal Code and deal with persons whose proven intent was to steal the agricultural commodity or equipment.
Section 708-831(1)(d), Hawaii Revised Statutes, maintains that a person commits the offense of theft in the second degree if the person steals agricultural equipment, supplies, or products valued between $100 and $20,000. However, the law also requires that in order to qualify as second degree theft of an agricultural commodity, the item must be stolen from a premises that is fenced, enclosed, or secured in a manner designed to exclude intruders, or there is prominently displayed on the premises a sign or signs sufficient to give notice and reading as follows: "Private Property." The law goes on to specify how large the "Private Property" signs must be... containing letters not less than two inches in height...and how the signs should be displayed.
Theft in the second degree is a class C felony, punishable by a fine not to exceed $10,000, a prison term not to exceed five years, or both. The law also allows the judge to impose, for a first offense, a minimum sentence of a fine of at least $1,000 or two-fold damages sustained by the victim, whichever is greater.
Section 708-835.5, Hawaii Revised Statutes, specifically pertains to the theft of livestock. Section 708-835.5, Hawaii Revised Statutes, states that a person commits the offense of theft of livestock if the person possesses a live animal of the bovine, equine, swine, or sheep species, or its carcass or meat, while on unlawfully being or remaining on another person's premises which are fenced or enclosed in a manner designed to exclude intruders, or by having in the person's possession such live animal, carcass, or meat in any other location. The penalty for the theft of livestock is also a class C felony and punishable in the same manner as agricultural theft crimes under section 708-831, Hawaii Revised Statutes.
Noticeably absent from the definition of livestock in section 708-835.5, Hawaii Revised Statutes, are goats.
Numerous testifiers on all islands raised concerns on the onerous signage and fencing requirements of sections 708-831 and 708-835.5, Hawaii Revised Statutes. There was testimony of poachers who would tear down signs and later claim that no signs were seen when they were caught poaching livestock. Other anecdotes revealed:
(1) Fences being cut to allow livestock to wander off the property, causing liability claims against the rancher;
(2) Goats being stolen or slaughtered and not being covered under the existing theft of livestock statute;
(3) Ranch hands being arrested for using force to detain poachers; and
(4) Even when farmers have seen persons stealing produce on their property, call police, and the person is later apprehended at another location, the prosecution of the alleged thief is not executed due to the inability to conclusively prove that the stolen produce came from the farmer.
Upon the conclusion of its hearings, the Committee found the following:
(1) Agricultural theft is a serious problem, costing millions of dollars in losses to producers each year;
(2) The remote and rural location of farming operations often makes theft detection and apprehension difficult;
(3) The county police and prosecutor's office are for the most part, not aware of the severity of the on-going agricultural theft problem statewide;
(4) With a few exceptions, there appears to be a lack of communication and understanding between agricultural producers, county law enforcement agencies, and prosecuting attorneys which results in situations where thieves are not pursued, investigations are not conducted, and prosecution is not initiated;
(5) The agricultural industry needs to coordinate efforts with the county law enforcement agencies and prosecuting attorneys to resolve the agricultural theft problem;
(6) Existing agricultural theft laws need to be periodically re-examined to determine if any adjustments are necessary;
(7) In addition to the existing agricultural theft laws, there may be other enforcement issues that need to be addressed to enable more aggressive efforts to apprehend and prosecute agricultural thieves;
(8) Individual police officers, particularly those patrolling farming communities, need to receive specialized training in agricultural theft issues; and
(9) Communication between the farming community and county police departments and prosecutors needs to take place on an ongoing basis to resolve these issues.
The Committee also found that although police reports have been filed on numerous agricultural theft incidents, in many of those cases, no suspects have been identified. This is a common occurrence since many farms are situated in isolated, rural areas where few witnesses may be available to see any criminal acts. The unfortunate reality in many cases is that if no suspect has been arrested, a police department will have no reason to send a case to the prosecutor's office.
In many instances, county police departments and prosecutor's offices were either not aware of the severity of the agricultural theft problems in their areas or lacked the resources necessary to deter agricultural theft. One exception was in Kona, Hawaii, where the Hawaii Police Department has teamed up with the farming community to establish a Farmwatch program.
Based on the successful neighborhood watch model of enlisting community members as active participants in crime deterrence, Farmwatch was established in the Kona region as a way of stemming the increasing tide of Kona coffee thefts in the area. Since its inception, the Farmwatch program has seen a steady decline in agriculture-related thefts from a high in 1996 of sixty-five cases to a low of five cases in 1999 in the Kona area. Although such cases have seen recent growth (which has been attributed to the thieves going on the Internet to sell stolen commodities), the Hawaii Police Department and the Kona farming community is actively looking at more solutions to these new problems.
In Kona, the farming community and the police department enjoy a cohesive working relationship in which information is disseminated in a timely manner. The police understand the concerns of the farming community and the farming community understands their role in deterring crime. This partnership has and will assist the Kona community in lowering its agricultural theft.
The Committee recommends that:
(1) A task force be established by the Department of Agriculture whose purpose will be to develop policies and procedures to assist the agricultural community, police departments, and prosecutor's offices in abating agricultural theft;
(2) The Department of Agriculture take a leadership role in establishing educational programs for the agricultural community so that the community may be apprised of its legal rights in deterring and apprehending thieves and to assist them in securing their property;
(3) Law enforcement officers of all state and county branches of service with whom the power of arrest resides should be better educated on the issue of agricultural theft;
(4) Attention be paid to Chapter 145, Part II, Hawaii Revised Statutes, by the Department of Agriculture as well as law enforcement agencies, and its full implementation should become a top priority;
(5) Goats be added to the definition of "livestock" in the Penal Code; and
(6) All agricultural thefts be designated a class B felony.
The Committee believes that these recommendations, if implemented, will deter the further escalation of agriculturally-related criminal activities and hopefully result in the decrease of property-related crime in rural areas.
Respectfully submitted on behalf of the members of the Special Committee on Agricultural Theft,
jAN YAGI BUEN, Chair