Report Title:

Condominiums; Alternative Dispute Resolution

 

Description:

Restates that the administrative hearing process as a method of alternative dispute resolution in condominium cases remains in effect until 6/30/09.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1087

TWENTY-FOURTH LEGISLATURE, 2007

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to condominiums.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  Act 277, Session Laws of Hawaii 2006, provides for a hearing procedure by the office of administrative hearings as a method of alternative dispute resolution in condominium disputes, with an effective date of June 29, 2006, and a repeal date of June 30, 2009.  The purpose of Act 277 was to continue the pilot program established by section 28, Act 164, Session Laws of Hawaii 2004, which was set to be repealed on June 30, 2006, by section 7 of Act 93, Session Laws of Hawaii 2005. 

     The new section being added to chapter 514B, Hawaii Revised Statutes was not codified because the June 30, 2009 repeal date rendered the law temporary rather than permanent.  Because the new section was not specifically codified in part VI of chapter 514B, the department of commerce and consumer affairs concluded that the provisions of Act 277 were not applicable to condominiums existing prior to July 1, 2006.

     The purpose of this Act is to restate and clarify that the legislature's intent in enacting Act 277, Session Laws of Hawaii 2006, was to continue the administrative hearing process until June 30, 2009, and that the new statutory section enacted by Act 277 be included in part VI of chapter 514B, Hawaii Revised Statutes.

     SECTION 2.  Act 277, Session Laws of Hawaii 2006, is amended by:

     1.  Amending section 1 to read as follows:

     "SECTION 1.  Chapter 514B, Hawaii Revised Statutes, is amended by adding a new section to part VI, subpart D, to be appropriately designated and to read as follows:

     "§514B‑    Hearings.  (a)  If a dispute is not resolved by mediation as provided in section 514B‑161, in addition to any other legal remedies that may be available, any party that participated in the mediation may file a request for a hearing with the office of administrative hearings as follows:

     (1)  The party requesting the hearing must be a board of directors of a registered association pursuant to section 514B-103 or a unit owner who is a member of a registered association pursuant to section 514B‑103;

     (2)  The request for hearing shall be filed within thirty days from the final day of mediation;

     (3)  The request for hearing shall name one or more parties that participated in the mediation as an adverse party and identify the statutory provisions in dispute; and

     (4)  The subject matter of the hearing before the hearings officer may include any matter that was the subject of the mediation pursuant to section 514B‑161.

     (b)  The office of administrative hearings shall accept no more than thirty requests for hearing per fiscal year under this section.

     (c)  The party requesting the hearing shall pay a filing fee of $25 to the department of commerce and consumer affairs, and the failure to do so shall result in the request for hearing being rejected for filing.  All other parties shall file a response, accompanied by a filing fee of $25, to the department of commerce and consumer affairs, within twenty days of being served with the request for hearing.

     (d)  The hearings officer appointed by the director of commerce and consumer affairs pursuant to section 26-9(f) shall have jurisdiction to review any request for hearing filed under subsection (a).  The hearings officer shall have the power to issue subpoenas, administer oaths, hear testimony, find facts, make conclusions of law, and issue written decisions that shall be final and conclusive, unless a party adversely affected by the decision files an appeal in the circuit court under section 91‑14.

     (e)  Rules of practice and procedure of the department of commerce and consumer affairs shall govern all proceedings brought under this section.  The burden of proof, including the burden of producing the evidence and the burden of persuasion, shall be upon the party initiating the proceeding.  Proof of a matter shall be by a preponderance of the evidence.

     (f)  Hearings to review and make determinations upon any requests for hearings filed under subsection (a) shall commence within sixty days following the receipt of the request for hearing.  The hearings officer shall issue written findings of fact, conclusions of law, and an order as expeditiously as practicable after the hearing has been concluded.

     (g)  Each party to the hearing shall bear the party's own costs, including attorney's fees, unless otherwise ordered by the hearings officer.

     (h)  Any party to a proceeding under this section who is aggrieved by a final decision of a hearings officer may apply for judicial review of that decision pursuant to section 91‑14; provided that any party seeking judicial review pursuant to section 91‑14 shall be responsible for the costs of preparing the record on appeal, including the cost of preparing the transcript of the hearing.

     (i)  The department of commerce and consumer affairs may adopt rules and forms, pursuant to chapter 91, to effectuate the purpose of this section and to implement its provisions.

     (j)  This section shall be repealed on June 30, 2009."

     2.  By amending section 4 to read as follows:

     "SECTION 4.  This Act shall take effect on June 29, 2006[, and shall be repealed on June 30, 2009]."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect retroactive to June 29, 2006.

 

INTRODUCED BY:

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