SB241 SD1

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 public establishments, compensate owners of public establishments to repair damages caused by persons sheltered, and clarify that public establishments 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- Public establishments; 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, to the extent reasonably practicable and compliant with law, no public establishment shall deny shelter to any person who is inside the public establishment or who is in the immediate vicinity of the public establishment during the public establishment's normal business hours. This prohibition does not extend to pets.

(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) Except in cases of wilful misconduct, gross negligence, or recklessness, no public establishment 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.

(d) Any owner of a public establishment shall be financially compensated or reimbursed by the State for repairing any documented property damage to that owner's public establishment or its contents, or both, that is caused by any person who sought shelter at the public establishment during the emergency alert.

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

(f) The department of the attorney general shall investigate complaints involving public establishments that have allegedly denied shelter to persons, in violation of this section.

(g) As used in this section:

"Owner" has the same meaning as in section 663-10.7.

"Public establishment" means a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind that is constructed with safe concrete and whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the general public as customers, clients, or visitors. "Public establishment" includes but is not limited to the following:

(1) A facility providing services relating to travel or transportation;

(2) An inn, hotel, motel, or other establishment that provides lodging to transient guests;

(3) A common area within a project that consists entirely of time share units. For purposes of this paragraph, "project" and "time share unit" shall have the same meanings as in section 514E-1, and "common area" includes roofs, halls, sidewalks, corridors, lobbies, stairs, stairways, fire escapes, entrances and exits, recreational facilities, parking areas, and reception areas;

(4) A restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises of a retail establishment;

(5) A shopping center or any establishment that sells goods or services at retail;

(6) An establishment licensed under chapter 281 doing business under a class 4, 5, 8, 9, 10, 11, or 12 license, as defined in section 281-31;

(7) A motion picture theater, other theater, auditorium, convention center, lecture hall, concert hall, sports arena, stadium, or other place of exhibition or entertainment;

(8) A barber shop, beauty shop, bathhouse, swimming pool, gymnasium, reducing or massage salon, or other establishment conducted to serve the health, appearance, or physical condition of persons;

(9) A park, campsite, or trailer facility, or other recreation facility;

(10) A comfort station;

(11) A mortuary or undertaking establishment; and

(12) An establishment that is physically located within the premises of an establishment otherwise covered by this definition, or within the premises of which is physically located a covered establishment, and which holds itself out as serving patrons of the covered establishment.

"Public establishment" excludes hospitals and health care facilities."

PART II

SECTION 3. The legislature finds that section 663-10.7, Hawaii Revised Statutes, exempts a private property owner who provides emergency access to land, shelter, or subsistence to a person during a disaster without remuneration or expectation of remuneration from civil liability for injury or damage suffered by that person. 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 remuneration paid to these property owners does not disqualify them from the protections afforded under the law.

The false alert also raised the issue that there may be circumstances where emergency access to land, shelter, or subsistence is provided to the public by owners of private facilities or properties who are also in the business of selling services or commodities and that the liability protection may not apply to these owners if they attempt to sell services or incidental commodities to those people during a disaster. The legislature finds that there is a need to clarify that during a disaster, the owner of private property providing emergency access to land, shelter, or subsistence may sell services or incidental commodities during the property's use in a disaster.

The purpose of this part is to clarify that remuneration or expectation of remuneration paid to owners of private property for goods or services other than emergency access to land, shelter, or subsistence, including services or incidental commodities to the emergency access, does not void the exemption from civil liability afforded to these owners except where owners increase the sale price of incidental commodities.

SECTION 4. Section 663-10.7, Hawaii Revised Statutes, is amended to read as follows:

"[[]§663-10.7[]] Exemption for providing emergency access to land, shelter, and subsistence during a disaster. (a) Any owner of private property who in good faith provides emergency access to land, shelter, or subsistence, including food and water, to a person during a disaster without remuneration or expectation of remuneration[,] for the emergency access to land, shelter, or subsistence, shall be exempt from civil liability for any injury or damage suffered by the person that resulted from the owner providing such emergency access to land, shelter, or subsistence, unless the injury or damage was caused by the gross negligence or intentional or wanton acts or omissions of the owner.

(b) If an owner of private property who, while providing a person with emergency access to land, shelter, or subsistence without remuneration or expectation of remuneration for the emergency access, receives any remuneration for providing the person with a service or incidental commodity during the disaster, that remuneration shall not diminish or void the exemption from civil liability under subsection (a); provided that if the owner of the private property increases the sale price of any such service or incidental commodity, whether at retail or wholesale, on the private property during the disaster, the exemption from liability shall be void.

[~~(b)~~] (c) For the purposes of this section:

"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.

"Incidental commodity" means any good necessary for the health, safety, and welfare of the people of Hawaii that is not emergency access to land, shelter, or subsistence but is incidental to the emergency access to land, shelter, or subsistence. "Incidental commodity" includes but is not limited to materials, merchandise, supplies, equipment, resources, and other articles of commerce that shall include food, water, ice, medication, chemicals, or petroleum products.

"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."

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

SECTION 8. This Act shall take effect on July 1, 2019.

THE SENATE	S.B. NO.	241
THIRTIETH LEGISLATURE, 2019		S.D. 1
STATE OF HAWAII