HB2693 HD2

PART I

SECTION 1. While it is the policy of the legislature to encourage the private sector to assist in emergencies or disasters, the legislature finds that there is an added need to encourage the private sector to assist in providing emergency shelter during emergencies or disasters. In many cases, the private entity is reluctant to make facilities or property available to a person for use as a shelter because of liability concerns.

The purpose of this part is to prohibit the denial of emergency shelter by places of public accommodation and clarify that places of public accommodation and their agents and employees are protected from liability when providing emergency shelter.

SECTION 2. Chapter 127A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§127A- Places of public accommodation; prohibition against denial of shelter. (a) Whenever the State, or any portion thereof, is the subject of any emergency alert that advises the public to immediately seek shelter, including an alert of an incoming missile, a place of public accommodation shall not deny shelter to any person who is inside the place of public accommodation or who is in the immediate vicinity of the place of public accommodation.

(b) The prohibition under subsection (a) shall remain in effect until a federal, state, or county emergency management official advises the public that the emergency condition no longer exists and that it is safe to resume normal activities.

(c) A complaint involving an alleged violation of subsection (a) shall be made directly to the department of the attorney general.

(d) The owner of a public accommodation that violates subsection (a) shall be subject to a civil penalty of not less than $500 nor more than $10,000 for each violation. Each day of violation shall constitute a separate offense. All penalties collected pursuant to this section shall be deposited into a trust account established pursuant to section 127A-16(e).

(e) Except in cases of wilful misconduct, gross negligence, or recklessness, no public accommodation or any of its agents or employees that provide shelter pursuant to subsection (a) shall be civilly liable for the death of or injury to persons, or property damage, that results from any act or omission in the course of providing shelter.

(f) The department of the attorney general shall investigate complaints involving places of public accommodation that have allegedly denied shelter to persons in violation of this section. If the department of the attorney general determines, based on credible evidence, that a violation has occurred, the department of the attorney general shall impose and enforce the penalty provided for in subsection (d).

(g) As used in this section, "place of public accommodation" has the same meaning as in section 489-2."

SECTION 3. Section 127A-16, Hawaii Revised Statutes, is amended to read as follows:

"§127A-16 Major disaster fund. (a) The director shall submit requests to the legislature to appropriate from the general revenues of the State sufficient moneys as may be necessary for expenditure by or under the direction of the governor for immediate relief in response to an emergency or disaster in any part of the State; provided that:

(1) The governor has issued a proclamation of a state of emergency;

(2) The governor may not expend in excess of $5,000,000 for immediate relief as a result of any single emergency or disaster; and

(3) In addition to the funds in paragraph (2), an additional $5,000,000 may be made available solely for the purpose of matching federal disaster relief funds when [~~these~~] those funds become available to the State following a presidential disaster declaration.

In expending the moneys, the governor may allot any portion thereof to any agency, office, or employee of the State or a county for the most efficient relief for the population. Notwithstanding this subsection, the only exception to paragraphs (1), (2), and (3) is that the director may use up to $100,000 per year to support emergency reserve corps training.

(b) No later than one month after any allotment by the governor or the expenditure of any fund moneys, the director shall report to the legislature on the purpose of the allotment or expenditure.

(c) Except as provided in subsection (d), federal reimbursement moneys for disaster relief shall be deemed to be trust moneys and may be deposited into a trust account with and under the control of the department of defense. [~~These~~] Those moneys and any interest earned thereon shall be used for the purpose identified in subsection (a) and shall not lapse to the general fund.

(d) In cases in which the department of education expends the funds appropriated to the department for purposes deemed to be reimbursable by federal reimbursement moneys for disaster relief, the federal reimbursement moneys shall not lapse to the general fund and shall be credited directly to the department of education without regard to whether the original appropriation has lapsed. [~~Such~~] Those funds shall carry over in accordance with section 37-41.5(c).

(e) Moneys collected by the department of the attorney general pursuant to its enforcement of section 127A- shall be deemed to be trust moneys and shall be deposited into a trust account with and under the control of the department of defense. Those moneys and any interest earned thereon shall be used for the purpose identified in subsection (a) and shall not lapse to the general fund."

PART II

SECTION 4. In 2012, the legislature passed Act 291 which exempted a private property owner who provides emergency access to a person in good faith during a disaster from liability for injury or damage. The false alert of an inbound ballistic missile on January 13, 2018, raised the issue that this protection may not apply to certain businesses because those sheltering there may be paying guests or tenants. The legislature finds that there is a need to clarify that the compensation paid by guests or tenants should not disqualify these property owners from the protections afforded by the legislature.

The false alert also raised the issue that there may be circumstances where shelter is provided to the public in facilities or properties that are also in the business of selling commodities and that liability protection may not apply to these businesses if they attempt to sell commodities to those people being sheltered. The legislature finds that there is a need to clarify that while persons are sheltered, the owner of property made available as a shelter should be allowed to sell commodities if its use as a shelter is required over a period of time.

The purpose of this part is to clarify that:

(1) Hotels, apartments, condominiums, hospitals, healthcare facilities, and any facility that is receiving compensation from a person sheltered there shall not be disqualified from the civil liability exemption for providing emergency access to land, shelter, and subsistence during a disaster; and

(2) Owners of properties made available for shelter use are not excluded from the civil liability exemption for providing emergency access to land, if the owner sells commodities to those in the shelter; provided the owner is not engaged in price gouging.

SECTION 5. Section 663-10.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) For the purposes of this section:

"Commodity" means any good necessary for the health, safety, and welfare of the people of Hawaii; provided that this term shall include, but not be limited to materials, merchandise, supplies, equipment, resources, and other articles of commerce that shall include food, water, ice, medication, chemicals, or petroleum products.

"Disaster" means a nonroutine event that exceeds the capacity of persons in the affected area to respond to it in such a way as to save lives, preserve property, or to maintain the social, ecological, economic, or political stability of the affected area.

"Emergency" means a situation in which the life or health of a person is in jeopardy due to a disaster requiring immediate assistance.

"Owner" means the possessor of a fee interest, or a tenant, lessee, occupant, person, group, club, partnership, family, organization, entity, or corporation that has control, possession, or use of the land, and its members, agents, partners, representatives, shareholders, and employees.

"Remuneration" does not mean:

(1) Any compensation or consideration paid by or on behalf of any guest or person for transient accommodation lodging;

(2) Any compensation or consideration paid for any patient, resident, or ward present or residing in any hospital, community-based care home, home-based care home, or healthcare agency of any type licensed by the department of health or the department of human services and used as a private shelter under this section; provided that the protections afforded by this section shall not extend beyond the use of the private shelter under this section and do not apply to any other duty or standard of care owed to any patient, resident, or ward;

(3) Any compensation or consideration paid by or on behalf of any minor or student of any age in any day care, preschool, elementary school, middle school, or any other educational facility used as a private shelter under this section; and

(4) Any compensation or consideration paid to an owner for any commodity by a person being sheltered during the disaster or emergency; provided there shall be prohibited any increase in the selling price of any commodity, whether at the retail or wholesale level, in the private property being used as a shelter."

PART III

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. 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 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	2693
TWENTY-NINTH LEGISLATURE, 2018		H.D. 2
STATE OF HAWAII