SB3089 HD2

SECTION 1. The legislature finds that the emergence of coronavirus disease 2019 (COVID-19) and its variants created a great challenge to global health, the economy, and our way of life. The governor and county mayors have had to exercise their emergency powers under chapter 127A, Hawaii Revised Statutes, to impose rules aimed to control the spread of COVID-19. The enforcement of those rules has been critical to efforts to limit the spread of COVID-19, protect the health and safety of the community, manage medical resources, and promote economic recovery. The COVID-19 pandemic has highlighted the importance of clear legal frameworks for state and county emergency management to ensure that the State and counties are ready for any type of emergency.

The legislature further finds that chapter 127A, Hawaii Revised Statutes, should clearly specify and articulate the bases for emergency actions.

The purpose of this Act is to:

(1) Clarify that powers granted for emergency purposes shall not be inconsistent with the state constitution;

(2) Provide parameters for the duration of the suspension of laws and require justification for the suspension;

(3) Authorize the governor to require counties to obtain the approval of the governor or director of the Hawaii emergency management agency before issuing any emergency order, rule, or proclamation;

(4) Clarify the legal framework governing the extension and termination of emergency periods;

(5) Authorize the legislature and county councils to terminate, in part or in whole, a state of emergency or local state of emergency, as applicable, by an affirmative two-thirds vote;

(6) Clarify that the governor and mayors may re-declare a state of emergency or local state of emergency, as applicable, that has been terminated; and

(7) Specify when certain prohibitions during an emergency or a severe warning expire.

SECTION 2. Section 127A-1, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) It is the intent of the legislature to provide for and confer comprehensive powers for the purposes stated herein. This chapter shall be liberally construed to effectuate its purposes; provided that this chapter shall not be construed as conferring any power or permitting any action [~~which~~] that is inconsistent with the Constitution and laws of the United States[,] or the Hawaii State Constitution, but, in so construing this chapter, due consideration shall be given to the circumstances as they exist from time to time. This chapter shall not be deemed to have been amended by any act hereafter enacted at the same or any other session of the legislature, unless this chapter is amended by express reference."

SECTION 3. Section 127A-13, Hawaii Revised Statutes, is amended to read as follows:

"§127A-13 Additional powers in an emergency period. (a) In the event of a state of emergency declared by the governor pursuant to section 127A-14, the governor may exercise the following additional powers pertaining to emergency management during the emergency period:

(1) Provide for and require the quarantine or segregation of persons who are affected with or believed to have been exposed to any infectious, communicable, or other disease that is, in the governor's opinion, dangerous to the public health and safety, or persons who are the source of other contamination, in any case where, in the governor's opinion, the existing laws are not adequate to assure the public health and safety; provide for the care and treatment of the persons; supplement the provisions of sections 325-32 to 325-38 concerning compulsory immunization programs; provide for the isolation or closing of property [~~which~~] that is a source of contamination or is in a dangerous condition in any case where, in the governor's opinion, the existing laws are not adequate to assure the public health and safety, and designate as public nuisances acts, practices, conduct, or conditions that are dangerous to the public health or safety or to property; authorize that public nuisances be summarily abated and, if need be, that the property be destroyed[,] by any police officer or authorized person, or provide for the cleansing or repair of property, and if the cleansing or repair is to be at the expense of the owner, the procedure therefor shall follow as nearly as may be the provisions of section 322-2, which shall be applicable; and [~~further,~~] authorize, without the permission of the owners or occupants, entry on private premises for any such purposes;

(2) Relieve hardships and inequities, or obstructions to the public health, safety, or welfare, found by the governor to exist in the laws and to result from the operation of federal programs or measures taken under this chapter[,] by suspending the laws, in whole or in part, or by alleviating, [~~the provisions of laws on such~~] subject to terms and conditions [as] that the governor may [~~impose~~] specify, the provisions of laws, including licensing laws, quarantine laws, and laws relating to labels, grades, and standards;

(3) [~~Suspend~~] Except as provided in section 127A- , suspend any law that impedes or tends to impede or be detrimental to the expeditious and efficient execution of, or to conflict with, emergency functions, including laws [~~which~~] that by this chapter specifically are made applicable to emergency personnel; provided that any suspension of law shall be no broader and last no longer than the governor deems necessary for the execution of emergency management functions, and any suspension of law shall identify the section of law suspended and, for each section, shall specify the emergency management functions facilitated and justify the suspension based on protecting the public health, safety, and welfare; provided further that any suspension of any law that requires permits, authorizations, or approvals from any state or county agency may continue beyond the emergency period to allow for the completion of any repairs, reconstruction, rebuilding, or construction of any state or county infrastructure, facilities, or properties that would otherwise be delayed by any such permit, authorization, or approval;

(4) Suspend the provisions of any regulatory law prescribing the procedures for out-of-state utilities to conduct business in the State, including any licensing laws applicable to out-of-state utilities or their respective employees, as well as any order, rule, or regulation of any state agency, if strict compliance with the provisions of [~~any such~~] the law, order, rule, or regulation would in any way prevent, hinder, or delay necessary action of a state utility in coping with the emergency or disaster with assistance that may be provided under a mutual assistance agreement;

(5) In the event of a disaster or an emergency beyond local control[~~, or~~]; an event [~~which,~~] that, in the opinion of the governor, [~~is such as to make~~] makes state operational control or coordination necessary[,]; or upon request of the [~~local entity, assume~~] county:

(A) Assume direct operational control over all or any part of the emergency management functions within the affected area; and

(B) Notwithstanding sections 127A-14 and 127A-25, require the county to obtain the approval of the governor or director before issuing any emergency order, rule, or proclamation under this chapter;

(6) Shut off water mains, gas mains, electric power connections, or suspend other services, and, to the extent permitted by or under federal law, suspend electronic media transmission;

(7) Direct and control the mandatory evacuation of the civilian population;

(8) Exercise additional emergency functions to the extent necessary to prevent hoarding, waste, or destruction of materials, supplies, commodities, accommodations, facilities, and services, to effectuate equitable distribution thereof, or to establish priorities therein as the public welfare may require; to investigate; and notwithstanding any other law to the contrary, to regulate or prohibit, by means of licensing, rationing, or otherwise, the storage, transportation, use, possession, maintenance, furnishing, sale, or distribution thereof, and any business or any transaction related thereto;

(9) Suspend section 8-1, relating to state holidays, except the last paragraph relating to holidays declared by the president, which shall remain unaffected, and in the event of the suspension, the governor may establish state holidays by proclamation;

(10) Adjust the hours for voting to take into consideration the working hours of the voters during the emergency period, and suspend those provisions of section 11-131 that fix the hours for voting, and fix other hours by stating the same in the election proclamation or notice, as the case may be;

(11) Assure the continuity of service by critical infrastructure facilities, both publicly and privately owned, by regulating or, if necessary to the continuation of the service thereof, by taking over and operating the same; and

(12) Except as provided in section 134-7.2, whenever, in the governor's opinion, the laws of the State do not adequately provide for the common defense[,] or public health, safety, and welfare, investigate, regulate, or prohibit the storage, transportation, use, possession, maintenance, furnishing, sale, or distribution of, as well as any transaction related to, explosives, firearms, and ammunition, inflammable materials and other objects, implements, substances, businesses, or services of a hazardous or dangerous character, or particularly capable of misuse, or obstructive of or tending to obstruct law enforcement, emergency management, or military operations, including intoxicating liquor and the liquor business; and authorize the seizure and forfeiture of any such objects, implements, or substances unlawfully possessed, as provided in this chapter.

(b) In the event of a local state of emergency declared by the mayor pursuant to [[]section[]] 127A-14, the mayor may exercise the following additional powers pertaining to emergency management during the emergency period:

(1) Relieve hardships and inequities, or obstructions to the public health, safety, or welfare, found by the mayor to exist in the laws of the county and to result from the operation of federal programs or measures taken under this chapter[,] by suspending the county laws, in whole or in part, or by alleviating [~~the provisions of county laws on such~~], subject to terms and conditions [as] that the mayor may [~~impose~~] specify, the provisions of county laws, including county licensing laws[,] and county laws relating to labels, grades, and standards;

(2) [~~Suspend~~] Except as provided in section 127A- , suspend any county law that impedes or tends to impede or be detrimental to the expeditious and efficient execution of, or to conflict with, emergency functions, including laws [~~which~~] that by this chapter specifically are made applicable to emergency personnel; provided that any suspension of law shall be no broader and last no longer than the mayor deems necessary for the execution of emergency management functions, and any suspension of law shall identify the section of law suspended and, for each section, shall specify the emergency management functions facilitated and justify the suspension based on protecting the public health, safety, and welfare; provided further that any suspension of any law that requires permits, authorizations, or approvals from any state or county agency may continue beyond the emergency period to allow for the completion of any repairs, reconstruction, rebuilding, or construction of any state or county infrastructure, facilities, or properties that would otherwise be delayed by any such permit, authorization, or approval;

(3) Shut off water mains, gas mains, electric power connections, or suspend other services; and, to the extent permitted by or under federal law, suspend electronic media transmission;

(4) Direct and control the mandatory evacuation of the civilian population; and

(5) Exercise additional emergency functions, to the extent necessary to prevent hoarding, waste, or destruction of materials, supplies, commodities, accommodations, facilities, and services, to effectuate equitable distribution thereof, or to establish priorities therein as the public welfare may require; to investigate; and notwithstanding any other county law to the contrary [~~notwithstanding~~], to regulate or prohibit, by means of licensing, rationing, or otherwise, the storage, transportation, use, possession, maintenance, furnishing, sale, or distribution thereof, and any business or any transaction related thereto."

SECTION 4. Section 127A-14, Hawaii Revised Statutes, is amended to read as follows:

"§127A-14 State of emergency. (a) The governor may declare the existence of a state of emergency in the State by proclamation if the governor finds that an emergency or a disaster has occurred or that there is imminent danger or threat of an emergency or a disaster in any portion of the State.

(b) A mayor may declare the existence of a local state of emergency in the county by proclamation if the mayor finds that an emergency or a disaster has occurred or that there is imminent danger or threat of an emergency or a disaster in any portion of the county.

(c) [~~The~~] Except as provided in subsection (e), the governor or mayor shall be the sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration, an extension, or a termination of a state of emergency in the State or a local state of emergency in the county, as applicable. This section shall not limit the power and authority of the governor under section 127A-13(a)(5).

(d) A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, [or] unless extended or terminated by a separate or supplementary proclamation of the governor or mayor[~~, whichever occurs first~~].

(e) The legislature may, by an affirmative vote of two-thirds of the members to which each house is entitled, terminate a state of emergency, in part or in whole, declared by the governor pursuant to this section. A county council may, by an affirmative vote of two-thirds of the members to which the county council is entitled, terminate a local state of emergency, in part or in whole, declared by the mayor pursuant to this section.

(f) Notwithstanding subsections (d) and (e):

(1) The governor may re-declare the existence of a state of emergency in the State pursuant to this chapter if an emergency or a disaster has occurred or there is imminent danger or threat of an emergency or a disaster in any portion of the State; and

(2) A mayor may re-declare the existence of a local state of emergency in the county pursuant to this chapter if an emergency or a disaster has occurred or there is imminent danger or threat of an emergency or a disaster in any portion of the county."

SECTION 5. Section 127A-30, Hawaii Revised Statutes, is amended as follows:

1. By amending subsections (a) to (c) to read:

"(a) Whenever the governor declares a state of emergency for the entire State or any portion thereof, or a mayor declares a local state of emergency for the county or any portion thereof, or when the State, or any portion thereof, is the subject of a severe [~~weather~~] warning:

(1) There shall be prohibited any increase in the selling price of any commodity, whether at the retail or wholesale level, in the area that is the subject of the proclamation or [~~the~~] severe [~~weather~~] warning; and

(2) No landlord shall terminate any tenancy for a residential dwelling unit in the area that is the subject of the proclamation or [~~the~~] severe [~~weather~~] warning, except for a breach of a material term of a rental agreement or lease, or if the unit is unfit for occupancy as defined in this chapter; provided that:

(A) Nothing in this chapter shall be construed to extend a fixed-term lease beyond its termination date, except that a periodic tenancy for a residential dwelling unit may be terminated by the landlord upon forty-five days' written notice:

(i) When the residential dwelling unit is sold to a bona fide purchaser for value; or

(ii) When the landlord or an immediate family member of the landlord will occupy the residential dwelling unit; or

(B) Under a fixed-term lease or [a] periodic tenancy, upon forty-five days' written notice, a landlord may require a tenant or tenants to relocate during the actual and continuous period of any repair to render a residential dwelling unit fit for occupancy; provided that:

(i) Reoccupancy shall first be offered to the same tenant or tenants upon completion of the repair;

(ii) The term of the fixed-term lease or periodic tenancy shall be extended by a period of time equal to the duration of the repair; and

(iii) It shall be the responsibility of the tenant or tenants to find other accommodations during the period of repair.

(b) Notwithstanding this section, any additional operating expenses incurred by the seller or landlord because of the emergency [or], disaster, or [~~the~~] severe [~~weather, and which~~] warning that can be documented[,] may be passed on to the consumer. In the case of a residential dwelling unit, if rent increases are contained in a written instrument that was signed by the tenant [~~prior to~~] before the declaration or severe [~~weather~~] warning, the increases may take place pursuant to the written instrument.

(c) The prohibitions under subsection (a) shall remain in effect until twenty-four hours after the severe [~~weather~~] warning is canceled by the National Weather Service[;], Pacific Tsunami Warning Center, United States Geological Survey, or other public authority, as applicable; or in the event of a declaration, [~~the later of a date specified by the governor or mayor in the declaration or ninety-six~~] seventy-two hours after the effective date and time of the declaration, unless [~~such~~] the prohibition is identified and continued [~~by a supplementary declaration issued~~] by the governor or mayor[.] in the proclamation or any supplementary proclamation. Any proclamation issued under this chapter that fails to state the time at which it will take effect, shall take effect at [~~twelve~~] noon [of] on the day on which it takes effect."

2. By amending subsection (f) to read as follows:

"(f) As used in this section:

"Breach of a material term" means the failure of a party to perform an obligation under the rental agreement or lease, which constitutes the consideration for entering into the contract and includes the failure to make a timely payment of rent.

"Commodity" means any good or service 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; chemicals; petroleum products; construction materials; or residential dwellings.

"Fixed-term lease" means a lease for real property that specifies its beginning date and its termination date as calendar dates, or contains a formula for determining the beginning and termination dates; and the application of the formula as of the date of the agreement will produce a calendar date for the beginning and termination of the lease.

"Periodic tenancy" means a tenancy wherein real property is leased for an indefinite time with monthly or other periodic rent reserved. A periodic tenancy may be created by express agreement of the parties, or by implication upon the expiration of a fixed-term lease when neither landlord nor tenant provides the other with written notice of termination and the tenant retains possession of the premises for any period of time after the expiration of the original term.

"Severe warning" means the issuance by the National Weather Service, Pacific Tsunami Warning Center, United States Geological Survey, or other public authority of a public notification that a dangerous condition exists that could impact the State, or any portion of it, within a specified period of time. "Severe warning" includes but is not limited to warnings of coastal inundation, high surf, flash flooding, volcano, tsunami, or hurricane.

"Unfit for occupancy" means that a residential dwelling unit has been damaged to the extent that the appropriate county agency determines that the unit creates a dangerous or unsanitary situation and is dangerous to the occupants or [~~to the~~] neighborhood."

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

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

THE SENATE	S.B. NO.	3089
THIRTY-FIRST LEGISLATURE, 2022		S.D. 2
STATE OF HAWAII		H.D. 2