SB3083 SD1

PART I

SECTION 1. The legislature finds that there is a need to encourage owners of private property to assist in times of emergencies or disasters by providing emergency shelter to the public. In many cases, owners of private property are reluctant to make their property or facilities available to the general public for use as emergency shelter due to concerns about liability. The legislature also finds that it is the policy of the State to encourage the private sector to assist their communities during emergencies or disasters. Consistent with this policy, Act 291, Session Laws of Hawaii 2012 (Act 291), exempts from civil liability for injury or damage an owner of private property who provides, in good faith, emergency access to land, shelter, or subsistence during a disaster, without remuneration or expectation of remuneration, with certain exceptions.

The legislature further finds that the ballistic missile alert that was broadcast in error to the public on January 13, 2018, has raised questions about whether the exemption from civil liability provided by Act 291 applies to certain types of property owners. More specifically, it is unclear whether a property owner who provides shelter during a disaster is exempt from civil liability if the persons being sheltered are paying guests of a transient accommodation, wards of healthcare facilities, students of an educational facility, or buyers of commodities sold by the property owner. The legislature believes that the compensation paid by or on behalf of guests, wards, students, or buyers of commodities should not disqualify a private property owner from receiving the exemption afforded by Act 291. Additionally, due to the possibility that the persons being sheltered may be required to remain sheltered for an extended period of time, the legislature believes that a private property owner's sale of a commodity to a person being sheltered should not disqualify the owner from receiving the exemption under Act 291.

Accordingly, the purpose of this part is to clarify that, with respect to eligibility for the exemption from civil liability provided by section 663-10.7, Hawaii Revised Statutes:

(1) Compensation received by the owner of a:

(A) Property used as a transient accommodation;

(B) Licensed hospital, care home, or healthcare agency; or

is not "remuneration" and shall not disqualify the owner from receiving the exemption; and

(2) Compensation received by the owner for the owner's sale of a commodity to a person being sheltered shall not disqualify the owner from receiving the exemption; provided that the owner does not violate the prohibition against "price gouging" under section 127A-30, Hawaii Revised Statutes.

SECTION 2. 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 include any compensation or other consideration:

(1) Paid by or on behalf of any guest or person for transient accommodations, as defined in section 237D‑1;

(2) 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 that is being provided as emergency shelter under this section; provided that the protections afforded by this section shall not extend beyond the use of the emergency shelter under this section for any other duty or standard of care owed to any patient, resident, or ward;

(3) 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 that is being provided as emergency shelter under this section; or

(4) Paid to the owner by a person being sheltered during the disaster for any commodity sold by the owner; provided that the owner's conduct does not violate section 127A-30."

PART II

SECTION 3. The purpose of this part is to:

(1) Require the owners of buildings open to the public to:

(A) Provide shelter to visiting members of the public in cases of emergency or disaster; and

(B) Inform the appropriate county emergency management agency of the designated shelter area; and

(2) Provide immunity from civil liability for owners of buildings open to the public to provide shelter to visiting members of the public in cases of emergency or disaster.

SECTION 4. Chapter 127A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§127A- Designated shelter in buildings open to the public; immunities. (a) In cases of emergency or disaster, the owner of any building open to the public shall provide shelter in or on the premises of the building to any member of the public visiting or conducting business in or on the premises of the building at the onset of an emergency or disaster.

(b) The owner of each building open to the public shall inform the appropriate county emergency management agency of the area designated for use as shelter in cases of emergency or disaster pursuant to subsection (a) in a manner to be determined by the county emergency management agency.

(c) No building owner subject to the duties of this section shall be civilly liable for the death or injury to any person or damage to any personal property as a result of any act done pursuant to the duties of this section."

PART III

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. New statutory material is underscored.

SECTION 7. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	3083
TWENTY-NINTH LEGISLATURE, 2018		S.D. 1
STATE OF HAWAII