HOUSE OF REPRESENTATIVES
THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO TRANSIENT ACCOMMODATIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
TRANSIENT ACCOMMODATIONS AUTHORIZATION AND HOSTING PLATFORM RESPONSIBILITIES
§ -1 Definitions. As used in this chapter, unless the context requires otherwise:
"Booking transaction" means any reservation or payment service provided by a person who facilitates a transient accommodations transaction between a prospective transient user and an operator or plan manager.
"County" means the department with primary jurisdiction over planning and permitting in each of the counties of Hawaii, Kauai, and Maui, and the city and county of Honolulu.
"Department" means the department of taxation.
"Home sharing" means an activity whereby a resident hosts a visitor in the resident's dwelling unit or an accessory dwelling unit for compensation for less than one hundred eighty consecutive days, while at least one of the dwelling unit's primary residents lives on-site during the visitor's stay.
"Hosting platform" means a person who participates in the transient accommodations business by collecting or receiving a fee, directly or indirectly through an agent or intermediary, for conducting a booking transaction using any medium of facilitation.
"Operator" shall have the same meaning as in section 237D-1.
"Plan manager" shall have the same meaning as in section 237D-1.
"Person" means any natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, or organization of any kind.
"Transient accommodation" means home sharing or the furnishing of a room, apartment, suite, single family dwelling, or the like to a transient for less than one hundred eighty consecutive days for each letting in a hotel, apartment hotel, motel, condominium or unit as defined in chapter 514B, cooperative apartment, dwelling unit, or rooming house that provides living quarters, sleeping, or housekeeping accommodations, or other place in which lodgings are regularly furnished to transients.
§ -2 Transient accommodations authorization. (a) Notwithstanding any provision to the contrary, transient accommodations shall be authorized in the State; provided that the operator or plan manager complies with each of the following requirements:
(1) Operates the transient accommodation in compliance with all certificates of registration and other requirements imposed by the State, and any requirements imposed by the respective county in which the accommodation is located, to effectuate the purpose of this chapter;
(2) Collects and remits transient accommodations taxes and general excise taxes, in coordination with any hosting platform utilized, to the department and complies with all requirements set forth in chapters 237 and 237D;
(3) Obtains and complies with the requirements of all permits required by the county in which each accommodation is located to operate each transient accommodation;
(4) Complies with all applicable state and county laws, including all health, safety, building, and fire protection laws; and
(5) Complies with any rules adopted pursuant to this chapter.
(b) All operators and plan managers and their respective properties, authorized for transient accommodations purposes, pursuant to this section, by the department and the respective counties in which the transient accommodations are located, shall be listed on a registry created by each county and updated periodically by the counties. Each county shall publish its respective registry, and a copy shall be sent electronically to any person upon request.
This subsection shall not apply to a county that does not regulate the number or location of transient accommodations within that county.
§ -3 Prohibitions. No operator or plan manager shall undertake, maintain, authorize, aid, facilitate, or advertise any transient accommodations activity that does not comply with section -2.
§ -4 Hosting platform responsibilities. (a) Hosting platforms shall be responsible for collecting all applicable transient accommodations tax and general excise tax and remitting the same to the department. The hosting platform shall be considered an agent of the operator or plan manager for purposes of transient accommodations and general excise tax collections and remittance responsibilities.
(b) Subject to applicable laws, hosting platforms shall disclose to the State on a regular basis each transient accommodations listing located in the State, the names of the persons responsible for each listing, the address of each listing, the length of stay for each listing, and the price paid for each stay.
(c) Hosting platforms shall not complete any booking transaction for any residential property or unit unless it is listed on a county's registry created under section -2(b), if applicable to that county, at the time the hosting platform receives a fee for the booking transaction.
(d) Hosting platforms shall not collect or receive a fee, directly or indirectly through an agent or intermediary, for facilitating or providing services ancillary to a transient accommodation that is not listed on a county's registry, if applicable to that county, including but not limited to insurance, concierge services, catering, restaurant bookings, tours, guide services, entertainment, cleaning, property management, or maintenance of the residential property or unit.
(e) A hosting platform operating exclusively on the Internet, which operates in compliance with this section, shall be presumed to be in compliance with this chapter; provided that the hosting platform shall remain responsible for compliance with the administrative subpoena provisions of this chapter.
(f) The provisions of this section shall be interpreted in accordance with otherwise applicable state and federal laws and shall not apply if determined by the State to be in violation of, or preempted by, any such laws.
§ -5 Rules. The department of taxation may adopt rules for the purposes of this chapter. Rules adopted by the department may include but are not limited to permit conditions, reporting requirements, inspection frequencies, enforcement procedures, advertising restrictions, disclosure requirements, administrative subpoena procedures, or insurance requirements. No person shall fail to comply with any such rule.
§ -6 Fees. The department of taxation may establish and set by rule all fees and charges as may be necessary to effectuate the purpose of this chapter.
§ -7 Enforcement. (a) Any operator or plan manager violating any provision of this chapter, or hosting platform that violates section -4, shall be found to have committed an infraction, and shall be subject to a fine of at least $250 and not exceeding $5,000. Each transaction in violation of section -4 constitutes a separate infraction, subject to separate, additive fines.
(b) Any person found to be in violation of this chapter in a civil or administrative proceeding brought by a law enforcement agency shall be ordered to reimburse the State and other participating law enforcement agencies their full investigative costs, pay back all transient accommodations taxes and general excise taxes collected, and remit all illegally obtained rental revenue to the State so that it may be returned to the transient accommodations user or used to compensate victims of illegal transient accommodations activities.
(c) Any operator or plan manager who violates any provision of this chapter, or hosting platform that violates section -4, shall be subject to administrative fines and administrative penalties.
(d) Any interested person may seek an injunction or other relief to prevent or remedy violations of this chapter. The prevailing party in such an action shall be entitled to recover reasonable costs and attorney's fees.
(e) The State may issue and serve administrative subpoenas as necessary to obtain specific information regarding transient accommodations listings located in the State, including but not limited to the names of the persons responsible for each listing, the address of each listing, the length of stay for each listing, and the price paid for each stay, to determine whether the transient accommodations listings comply with this chapter. Any subpoena issued pursuant to this section shall not require the production of information sooner than thirty days from the date of service. A person that has been served with an administrative subpoena may seek judicial review during that thirty-day period.
(f) The remedies provided in this section are not exclusive, and nothing in this section shall preclude the use or application of any other remedies, penalties, or procedures established by law.
§ -8 County authority. Nothing in this chapter shall be construed to preempt or prohibit the authority of a unit of local government in the State, including counties and any other political subdivisions of the State, to adopt, monitor, and enforce local land use ordinances, rules, or regulations, nor to transfer the authority to monitor and enforce these ordinances, rules, or regulations away from the counties."
SECTION 2. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
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. This Act shall take effect on January 1, 2020.
Transient Accommodations; Vacation Rentals; Counties; Enforcement; Hosting Platform Responsibilities; Transparency; Data Sharing
Authorizes transient accommodations in the State, subject to certain conditions. Requires all operators and plan managers and their respective properties to be listed on a registry created, published, and updated by each county, except in any county that does not regulate the number or location of transient accommodations within that county. Requires hosting platforms to collect and remit to the State all applicable TAT and GET, as agents of operators and plan managers, and to regularly disclose to the State information on transient accommodations listings in the State. Prohibits hosting platforms from collecting fees or completing any booking transactions for properties not listed on the registry, if applicable in that county. Authorizes DOTAX to establish fees, charges, and other requirements by rule. Establishes civil and administrative penalties for violations. Authorizes the State to issue administrative subpoenas to obtain certain information regarding transient accommodations listings in the State. (SD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.