HB3446

PART I.

SECTION 1. The legislature finds that over the past several years, it has enacted incrementally stronger measures in an attempt to reduce the incidence of graffiti in our neighborhoods. Specifically, Act 187, Session Laws of Hawaii 2005, was enacted as a means to punish those who are repeatedly convicted under low level property damage crimes.

The legislature further finds that despite the foregoing measure, graffiti has reached epidemic levels, diminishing the majestic beauty of our State, and creating an atmosphere of lawlessness that could have dire social and economic consequences. Consequently, the legislature finds this blight to be an intolerable attack on the core economic and cultural values of Hawai`i, and finds that virtual elimination of this blight requires taking the following steps simultaneously: dramatically increasing penalties, providing law enforcement the tools they need to catch and prosecute graffiti vandals, or "taggers", and providing the means to eliminate graffiti quickly. Accordingly, the purpose of this Act, which may be known as "The Malama Aina Act", is to take the aforementioned steps simultaneously.

SECTION 2. Section 708-822, Hawaii Revised Statutes, is amended to read as follows:

"§708-822 Criminal property damage in the third degree. (1) A person commits the offense of criminal property damage in the third degree if by means other than fire:

(a) The person recklessly damages the property of another, without the other's consent, by the use of widely dangerous means;

(b) The person intentionally or knowingly damages the property of another, without the other's consent, in an amount exceeding $500; or

(c) The person intentionally damages the agricultural equipment, supplies, or products or aquacultural equipment, supplies, or products of another, including trees, bushes, or any other plant and livestock of another, without the other's consent, in an amount exceeding $100. In calculating the amount of damages to agricultural products, the amount of damages includes future losses and the loss of future production.

(2) Criminal property damage in the third degree is a misdemeanor.

(3) For a conviction under this section, the sentence shall be:

(i) An indeterminate term of imprisonment of up to one year, but not less than 30 days;

(ii) A fine of not less than $1000 but not more than $2,000;

(iii)Restitution;

(iv) Forty hours of community service;

(v) A surcharge of $250 to be deposited into the graffiti database special fund as established by section 5 of this Act; and

(vi) Suspension of driver's license for two years, or if offender does not have a driver's license, two year prohibition from obtaining a driver's license."

SECTION 3. Section 708-823, Hawaii Revised Statutes, is amended to read as follows:

"§708-823 Criminal property damage in the fourth degree. (1) A person commits the offense of criminal property damage in the fourth degree if by means other than fire, the person intentionally or knowingly damages the property of another without the other's consent.

(2) Criminal property damage in the fourth degree is a petty misdemeanor."

(3) For a conviction under this section, the sentence shall be:

(i) An indeterminate term of imprisonment of up to 30 days, but not less than 10 days;

(ii) A fine of not less than $500 but not more than $1,000;

(iii)Restitution;

(iv) Twenty hours of community service;

(v) A surcharge of $150 to be deposited into the graffiti database special fund as established by section 5 of this Act; and

(vi) Suspension of driver's license for two years, or if offender does not have a driver's license, two year prohibition from obtaining a driver's license."

SECTION 4. Section 708-823.5, Hawaii Revised Statutes, is amended to read as follows:

"§708-823.5 Aggravated criminal property damage. (1) A person commits the offense of aggravated criminal property damage if the person by means other than fire:

(a) Intentionally damages the property of another without the other's consent; and

(b) Has been convicted two or more times of an offense under section 708-822 or 708-823.

(2) For purposes of this section, "convicted two or more times" means that, at the time of the instant offense, the person had previously entered a plea of guilty or no contest or a judge or jury had previously returned a verdict of guilty against the person for two or more offenses committed on separate occasions.

(3) Aggravated criminal property damage is a misdemeanor.

(4) For a conviction under this section, the sentence shall be:

(i) An indeterminate term of imprisonment of up to one year, but not less than 90 days;

(ii) A fine of not less than $1,000 but not more than $2,000;

(iii)Restitution;

(iv) Eighty hours of community service;

(v) A surcharge of $800 to be deposited into the graffiti database special fund as established by section 5 of this Act; and

(vi) Suspension of driver's license for two years, or if offender does not have a driver's license, two year prohibition from obtaining a driver's license."

SECTION 5. There is established within the department of the attorney general the graffiti database special fund to assist in the funding of the operations of a database of information for law enforcement officials to use in identifying and apprehending creators of graffiti, also known as "taggers". Proceeds from the fund may be used for acquisition of computer software and hardware, surveillance equipment, recording equipment such as digital cameras or still cameras, funding of positions, and other costs associated with the maintenance of the graffiti database.

SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2008-2009 into the graffiti database special fund created by this Act.

SECTION 7. There is appropriated out of the graffiti database special fund the sum of $ or so much thereof as may be necessary for fiscal year 2008-2009 for the purposes of this Act.

The sum appropriated shall be expended by the department of the attorney general for the purposes of this Act.

PART II

SECTION 8. The legislature also finds that timely, or near immediate, removal of graffiti deprives vandals of peer recognition and the power to impose their "aesthetic" upon others. Studies show that prompt removal of graffiti is the single most effective component of any successful eradication program. This has been best accomplished in other jurisdictions with abatement crews that deal with designated areas.

The legislature also finds that graffiti is not limited to public property, but affects private property as well. In order to remove graffiti in a timely manner, the ability to enter private property for the limited purpose of eradicating graffiti as well as qualified immunity from liability when entering private property for that purpose would be very helpful in addressing the problem of graffiti. Accordingly, the purpose of this part is to provide funding for abatement crews and granting the right to enter private property for the purpose of eliminating graffiti and qualified immunity when doing that.

SECTION 9. Graffiti abatement crew members may enter private property for the limited purpose of eradicating graffiti located on private property. No member of a graffiti abatement crew shall be liable to any private landowner for any injury or damage caused in connection with entry onto private property to, or work in connection with, a graffiti eradication program or project, except for injury or damage resulting from the gross negligence or wanton acts or omissions of the graffiti abatement crew.

No private landowner shall be liable for any injury or damage sustained to a member of a graffiti abatement crew in connection with entry onto private property to, or work in connection with, a graffiti eradication program or project, except for injury or damage resulting from the gross negligence or wanton acts of the private landowner.

For purposes of this section:

"Graffiti abatement crew" means an employee of the department of accounting and general services that administers, manages, or otherwise engages in graffiti eradication programs or projects.

"Private landowner" means an individual, company, corporation, partnership, community group, or other legal entity that owns private property.

SECTION 10. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2008-2009 for the creation of graffiti abatement crews pursuant to this Act.

The sum appropriated shall be expended by the department of accounting and general services for the purposes of this Act.

SECTION 11. New statutory material is underscored.

SECTION 12. This Act shall take effect on July 1, 2008.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	3446
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII