HB576

SECTION 1. The legislature finds that, for more than a decade, residents of certain areas of the State have suffered the effects of excessive feeding of feral birds. These residents have reported bird fecal matter covering cars, roofs, walkways, and solar panels. After a light rain and direct sun, the odor is unbearable. After the bird fecal matter dries, it blows in the wind, exacerbates breathing problems, and triggers allergies. Residents who have suffered chronic runny noses, watery eyes, sneezing, and fungal and bacterial infections have seen these symptoms disappear after moving away. Voluminous bird droppings have also decreased property values by corroding home surfaces and making affected communities unpleasant places in which to live.

The legislature further finds that feeding feral birds dramatically increases non-native bird populations, which in turn interferes with native wildlife. Feral birds serve as reservoirs of infection for avian diseases such as avian pox and avian malaria, as well as numerous species of parasites such as lice and mites.

In 2013, Act 269, Session Laws of Hawaii 2013, was enacted to provide a remedy for individuals harmed by the excessive feeding of feral birds by declaring the odors and filth resulting from feeding feral birds to be a nuisance. However, the department of health has declined to take action pursuant to section 322-1(2), Hawaii Revised Statutes, against individuals who feed feral birds because, in the department's opinion, the odor and filth resulting from the excessive feeding of feral birds does not rise to the applicable statutory level of being dangerous or injurious to health.

The legislature further finds that the State's failure to act to resolve this issue has caused many residents to consider exterminating feral birds on their property as a remedy.

The purpose of this Act is to prohibit the feeding of an excessive number of feral birds without requiring the department of health to determine that bird waste is dangerous or injurious to health.

SECTION 2. Chapter 321, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§322- Excessive feeding of feral birds; prohibited. (a) No person shall feed or shall permit or allow the placement or discarding of food or food by-products in a manner that a reasonable person would expect to result in the lingering, roosting, or congregating of twenty-five or more feral birds within a twenty-foot radius.

(b) This section shall not apply to the feeding of any:

(1) Carrier pigeon, racing pigeon, or show pigeon in the possession of a person who has been issued a valid pigeon ownership permit pursuant to section 142-102;

(2) Migratory bird in compliance with a migratory bird permit issued pursuant to 50 Code of Federal Regulations part 21, as amended;

(3) Bird that is primarily kept in a cage or other enclosed container or structure and is thereby prevented from flying away;

(4) Bird any food containing any avian reproductive control product, by a licensed pest control operator, property owner, or agent of a property owner, pursuant to a permit issued by the department of health;

(5) Poultry at a farming operation in a manner consistent with generally accepted agricultural and management practices; and

(6) Bird by any federal, state, or county employee, their agent, cooperator, or permittee, engaged or aiding in the discharge of an official duty.

(c) Prima facie evidence of a violation of subsection (a) or of a cease and desist order issued under section 322-2 or 322-3 shall include:

(1) A certificate, sworn to or affirmed by an individual authorized to enforce this section, based upon inspection of the premises and witnessing a violation; or

(2) A photograph or video recording gathered or received by an individual authorized to enforce this section evidencing a violation.

(d) For purposes of this section:

"Carrier pigeon" shall have the same meaning as in section 142-101.

"Feral bird" means any bird living in a wild and undomesticated state.

"Poultry" shall have the same meaning as in section 161-3.

"Racing pigeon" shall have the same meaning as in section 142-101.

"Show pigeon" shall have the same meaning as in section 142-101."

SECTION 3. Section 322-1, Hawaii Revised Statutes, is amended to read as follows:

"§322-1 Removal, prevention. The department of health and its agents shall examine into all nuisances, foul or noxious odors, gases or vapors, water in which mosquito larvae exist, sources of filth, and all causes of sickness or disease, on shore, and in any vessel, which may be known to them or brought to their attention, which in their opinion are dangerous or injurious to health, and into any and all conditions created or existing which cause or tend to cause sickness or disease or to be dangerous or injurious to health, and shall cause the same to be abated, destroyed, removed, or prevented.

For purposes of this part, a nuisance shall include[:

~~(1)~~ ~~Toxic~~] toxic materials that are used in or by-products of the manufacture or conversion of methamphetamine, and clandestine drug labs that manufacture methamphetamine[~~; and~~

~~(2)~~ ~~Odors and filth resulting from a person feeding feral birds~~]."

SECTION 4. Section 322-2, Hawaii Revised Statutes, is amended to read as follows:

"§322-2 Ordering owner to remove. Whenever any [~~such~~] nuisance, foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease is found on private property, the department of health shall cause notice to be given to the owner to remove and abate the same at the owner's own expense within such reasonable time as the department may deem proper. Whenever any violation of section 322- is found on private property, the department of health shall cause notice to be given to the owner to cease any further violation of section 322- . A duplicate of the notice so given shall be left with one or more of the tenants or occupants of the premises. If the premises are unoccupied, notice shall be mailed to the last known place of residence of the owner if residing in the State. If the owner resides out of the State or cannot be reached with notice speedily, notice left at the house or posted on the premises shall be sufficient. If the owner thus notified does not comply with the notification or order of the department, or its agent, within the time specified, the department or its agent may apply to the district court of the circuit in which the property is situated for an order authorizing the department to execute and carry out the notice or for an order to abate the nuisance and remove, destroy, or prevent the cause of the foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease, or other thing detrimental to public health[.] or to prevent the further violation of section 322- .

The department may recover by appropriate proceedings the expenses incurred by it in the abatement, removal, destruction, or prevention, from any person who has caused or allowed the nuisances, source of foul or noxious odors, gases or vapors, water in which mosquito larvae breed, source of filth, or cause of sickness or disease, or other thing detrimental to the public health, or violation of section 322- , and from any owner, tenant, or occupant of the premises, who, after notice, has failed to abate, remove, destroy, or prevent the nuisance, source of foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease, or other thing detrimental to the public health within the time specified in the notice[.], or has failed to cease further violation of section 322- . In no case shall the department or any officer or agent thereof be liable for costs in any action or proceeding that may be commenced in pursuance of this part."

SECTION 5. Section 322-3, Hawaii Revised Statutes, is amended to read as follows:

"§322-3 Nuisance on public property. Whenever any nuisance, foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease or violation of section 322- is found on public property or on a public highway, street, lane, alley, or other public place, notice shall be given by the department of health, or its agent, to the person officially in charge thereof, and the person shall be notified to abate, destroy, remove, [or] prevent, or cease the same. In case of failure to comply with the notice, the mode of procedure shall be the same as [~~hereinbefore~~] provided in case of private persons in section 322-2."

SECTION 6. Section 322-4, Hawaii Revised Statutes, is amended to read as follows:

"§322-4 Entering lands, buildings, etc. Whenever any member of the department of health deems it necessary for the preservation of the lives or health of the public to enter any land, building, vessel, or aircraft for the purpose of examining into, abating, destroying, removing, or preventing any nuisance, source of foul or noxious odors, gases or vapors, water in which mosquito larvae exist, source of filth, or cause of sickness or disease, or other thing detrimental to the public health, or to enforce section 322- , and is refused such entry, the member may make complaint to the district judge in whose circuit the nuisance, source, place, or cause is, and the district judge may thereupon issue a warrant, directed to any police officer of the circuit, commanding the police officer to take sufficient aid, and, being accompanied by the member of the department, between the hours of sunrise and sunset, to repair to the place described in the complaint, and to abate, destroy, remove, or prevent, under the directions of the member, the nuisance, source, or cause."

SECTION 7. Section 322-6, Hawaii Revised Statutes, is amended to read as follows:

"§322-6 Who to report nuisances[.] and violations. The sheriff, all officers of police, and physicians shall report to the department of health, or its nearest authorized agent, the existence of any nuisance injurious to the public health[,] or any violation of section 322- , of which any of them may be cognizant, as soon as possible after it comes to their knowledge. Any individual may report to the department of health, or its nearest authorized agent, the existence of any nuisance injurious to the public health or violation of section 322- as soon as possible after the individual learns of the existence of the nuisance[.] or violation."

SECTION 8. Section 322-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Any person who violates this part or any rule adopted by the department of health to implement this part shall be fined not more than $10,000 for each separate offense[.]; provided that the minimum fines for violation of section 322‑ shall be as follows:

(1) For a second violation within five years of a previous violation, a fine of not less than $100;

(2) For a third violation within five years of the last violation, a fine of not less than $250;

(3) For a fourth violation within five years of the last violation, a fine of not less than $500;

(4) For a fifth violation within five years of the last violation, a fine of not less than $1,000;

(5) For a sixth violation within five years of the last violation, a fine of not less than $2,500; and

(6) For a sixth or subsequent violation within five years of the last violation, a fine of not less than $5,000.

Any action taken to collect the penalty provided for in this subsection shall be considered a civil action."

SECTION 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect on July 1, 2019.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	576
THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII