§26-9  Department of commerce andconsumer affairs.  (a)  The department of commerce and consumer affairsshall be headed by a single executive to be known as the director of commerceand consumer affairs.

(b)  The department shall protect the interestsof consumers, depositors, and investors throughout the State.  It shall setstandards and enforce all laws and rules governing the licensing and operationof, and register and supervise the conduct of, trades, businesses, andprofessions, including banks, insurance companies, brokerage firms, and otherfinancial institutions.

(c)  The board of acupuncture, board of publicaccountancy, board of barbering and cosmetology, boxing commission, board ofchiropractic examiners, contractors license board, board of dental examiners,board of electricians and plumbers, elevator mechanics licensing board, boardof professional engineers, architects, surveyors, and landscape architects,board of massage therapy, Hawaii medical board, motor vehicle industrylicensing board, motor vehicle repair industry board, board of naturopathicmedicine, board of nursing, board of examiners in optometry, pest controlboard, board of pharmacy, board of physical therapy, board of psychology, boardof private detectives and guards, real estate commission, board of veterinaryexaminers, board of speech pathology and audiology, and any board, commission,program, or entity created pursuant to or specified by statute in furtheranceof the purpose of this section including but not limited to section 26H-4, orchapters 484, 514A, 514B, and 514E shall be placed within the department ofcommerce and consumer affairs for administrative purposes.

(d)  Except as otherwise provided by thischapter, the functions, duties, and powers, subject to the administrativecontrol of the director of commerce and consumer affairs, and the compositionof each board and commission shall be as provided by law.

(e)  Notwithstanding any provision to thecontrary, the employment, appointment, promotion, transfer, demotion,discharge, and job descriptions of all officers and employees under theadministrative control of this department shall be determined by the directorof commerce and consumer affairs subject only to applicable personnel laws.

(f)  The director of commerce and consumeraffairs may appoint a hearings officer or officers not subject to chapter 76 tohear and decide any case or controversy regarding licenses and the applicationand enforcement of rules involving any of the boards, commissions, or regulatoryprograms within the department of commerce and consumer affairs.  The hearingsofficer or officers shall have power to issue subpoenas, administer oaths, heartestimony, find facts, and make conclusions of law and a recommended decision;provided that the conclusions and decisions shall be subject to review andredetermination by the officer, board, or commission which would have heard thecase in the first instance in the absence of a hearings officer.  The reviewshall be conducted in accordance with chapter 91.

(g)  The director of commerce and consumeraffairs may appoint an information officer not subject to chapter 76 who shallensure the prompt and efficient handling of consumer inquiries and thedevelopment of a strong consumer education program.

(h)  The director may appoint a complaints andenforcement officer not subject to chapter 76 who shall facilitate the receipt,arbitration, investigation, prosecution, and hearing of complaints regardingany person who furnishes commodities, services, or real estate for which alicense, registration, or certificate is required from the department or anyboard, commission, or regulatory program thereunder.  In representing the Statein bringing any action to enjoin unlicensed, unregistered, or uncertifiedactivities, the department of commerce and consumer affairs' attorneys shall beempowered to exercise all authority granted to the attorney general and to thedirector of the office of consumer protection under sections 487-12, 487-14,480-3.1, 480-15, 480-15.1, 480-20(c), and 480-22, as these sections now existand as they subsequently may be amended.  The attorneys also shall be empoweredto exercise all authority granted to the attorney general and to theresponsible attorneys of the various counties under section 92F-13 in all casesinvolving documents and records within the custody or control of the regulatedindustries complaints office.

(i)  The functions and authority previouslyexercised by the treasurer (except funds custody, cash management, debtmanagement, and administering of veterans loans transferred to the departmentof budget and finance) as constituted are transferred to the department ofcommerce and consumer affairs established by this chapter.

(j)  In the course of an investigation ofmatters affecting the interest of consumers, depositors, or investors, or ofany other matter within the jurisdiction of the department, the director shallhave the power to subpoena witnesses, examine witnesses under oath, and requirethe production of books, papers, documents, or objects that the director deemsrelevant or material to the inquiry.  Upon application by the director,obedience to the subpoena may be enforced by the circuit court in the county inwhich the person subpoenaed resides or is found in the same manner as asubpoena issued by the clerk of a circuit court.

The director shall appoint and commission oneor more investigators as the exigencies of the public service may require. Persons appointed and commissioned under this section may serve subpoenas andserve process and orders pursuant to section 634-21.  Nothing in thissubsection shall be construed to entitle persons appointed and commissioned bythe director to retirement benefits applicable to police officers under chapter88.

(k)  The director may adopt, amend, or repealrules pursuant to chapter 91 to effectuate the purposes of all laws within thejurisdiction of the department of commerce and consumer affairs.  Thedirector's authority to adopt rules shall not modify, impair, or otherwiseaffect the power of boards and commissions placed within the department ofcommerce and consumer affairs for administrative purposes from adopting,amending, or repealing rules, except as provided for in subsection (l).

(l)  Any law to the contrary notwithstanding,the director of commerce and consumer affairs may:

(1)  Establish, increase, decrease, or repeal feesrelating to any aspect of the registration, certification, licensure, or anyother administrative process for all laws within the jurisdiction of thedepartment.  Amendments to fee assessments shall be made pursuant to chapter91;

(2)  Assess fees for copies in any form of media ofthe computerized records of the business registration division or forelectronic access to the computerized information on a one-time or on-goingbasis.  The fees charged for the copies or access may include billing servicefees, network usage fees, and computer consultant fees.  In adopting thesefees, the director shall take into account the intent to make the divisionself-supporting.  To this end, the fees may reflect the commercial value of theservice or information provided.  In the case of requests for records by anonprofit organization, the director may reduce or waive the fees.  Thisparagraph shall control in any instance where there is a conflict between thisparagraph and any other statute; and

(3)  Assess fees for copies of consumer and businesseducational publications prepared or issued by the department.  Fees collectedunder this paragraph shall be deposited into the compliance resolution fundunder subsection (o).  In the case of requests for copies by a nonprofitorganization, the director may reduce or waive the fees.  For purposes of thisparagraph, "consumer and business educational publications" does notinclude copies of statutes or administrative rules.

The fees collected by the professional andvocational licensing division and the business registration division shall bedeposited into the compliance resolution fund under subsection (o).

The director may appoint program specialists,not subject to chapter 76, to assist with the activities of the professionaland vocational licensing division.

(m)  Notwithstanding section 92-17 or any otherlaw to the contrary, all boards, commissions, and regulatory programs placedwithin the department of commerce and consumer affairs for administrativepurposes shall delegate their authority to receive, arbitrate, investigate, andprosecute complaints to the department.

(n)  Each board and commission, as well as thedirector, by written order, may delegate to the executive secretary or otherpersonnel of the department any of its powers or duties as it deems reasonableand proper for the administration of the licensing laws that are within the jurisdictionof the department of commerce and consumer affairs.  The delegated powers andduties may be exercised by the executive secretary or other personnel of thedepartment in the name of the board, commission, or the director.  However,neither a board, a commission, nor the director shall delegate the authority toadopt, amend, or repeal rules or take final disciplinary action against alicensee.

(o)  Every person licensed under any chapterwithin the jurisdiction of the department of commerce and consumer affairs andevery person licensed subject to chapter 485A or registered under chapter 467Bshall pay upon issuance of a license, permit, certificate, or registration afee and a subsequent annual fee to be determined by the director and adjusted fromtime to time to ensure that the proceeds, together with all other fines,income, and penalties collected under this section, do not surpass the annualoperating costs of conducting compliance resolution activities required underthis section.  The fees may be collected biennially or pursuant to rulesadopted under chapter 91, and shall be deposited into the special fundestablished under this subsection.  Every filing pursuant to chapter 514E orsection 485A-202(a)(26) shall be assessed, upon initial filing and at eachrenewal period in which a renewal is required, a fee that shall be prescribedby rules adopted under chapter 91, and that shall be deposited into the specialfund established under this subsection.  Any unpaid fee shall be paid by the licensedperson, upon application for renewal, restoration, reactivation, orreinstatement of a license, and by the person responsible for the renewal,restoration, reactivation, or reinstatement of a license, upon the applicationfor renewal, restoration, reactivation, or reinstatement of the license.  Ifthe fees are not paid, the director may deny renewal, restoration,reactivation, or reinstatement of the license.  The director may establish,increase, decrease, or repeal the fees when necessary pursuant to rules adoptedunder chapter 91.  The director may also increase or decrease the fees pursuantto section 92-28.

There is created in the state treasury aspecial fund to be known as the compliance resolution fund to be expended bythe director's designated representatives as provided by this subsection. Notwithstanding any law to the contrary, all revenues, fees, and finescollected by the department shall be deposited into the compliance resolutionfund.  Unencumbered balances existing on June 30, 1999, in the cable televisionfund under chapter 440G, the division of consumer advocacy fund under chapter269, the financial institution examiners' revolving fund, section 412:2-109,the special handling fund, section 414-13, and unencumbered balances existingon June 30, 2002, in the insurance regulation fund, section 431:2-215, shall bedeposited into the compliance resolution fund.  This provision shall not applyto the drivers education fund underwriters fee, sections 431:10C-115 and 431:10G-107,insurance premium taxes and revenues, revenues of the workers' compensationspecial compensation fund, section 386-151, the captive insuranceadministrative fund, section 431:19-101.8, the insurance commissioner'seducation and training fund, section 431:2-214, the medical malpracticepatients' compensation fund as administered under section 5 of Act 232, SessionLaws of Hawaii 1984, and fees collected for deposit in the office of consumerprotection restitution fund, section 487-14, the real estate appraisers fund, section466K-1, the real estate recovery fund, section 467-16, the real estateeducation fund, section 467-19, the contractors recovery fund, section 444-26,the contractors education fund, section 444-29, and the condominium educationtrust fund, section 514B-71.  Any law to the contrary notwithstanding, thedirector may use the moneys in the fund to employ, without regard to chapter76, hearings officers and attorneys.  All other employees may be employed inaccordance with chapter 76.  Any law to the contrary notwithstanding, themoneys in the fund shall be used to fund the operations of the department.  Themoneys in the fund may be used to train personnel as the director deemsnecessary and for any other activity related to compliance resolution.

As used in this subsection, unless otherwiserequired by the context, "compliance resolution" means adetermination of whether:

(1)  Any licensee or applicant under any chaptersubject to the jurisdiction of the department of commerce and consumer affairshas complied with that chapter;

(2)  Any person subject to chapter 485A has compliedwith that chapter;

(3)  Any person submitting any filing required bychapter 514E or section 485A-202(a)(26) has complied with chapter 514E orsection 485A-202(a)(26);

(4)  Any person has complied with the prohibitionsagainst unfair and deceptive acts or practices in trade or commerce; or

(5)  Any person subject to chapter 467B has compliedwith that chapter;

and includes work involved in or supporting theabove functions, licensing, or registration of individuals or companiesregulated by the department, consumer protection, and other activities of thedepartment.

The director shall prepare and submit an annualreport to the governor and the legislature on the use of the complianceresolution fund.  The report shall describe expenditures made from the fundincluding non-payroll operating expenses.

(p)  Any law to the contrary notwithstanding,the department of commerce and consumer affairs, or any board or commissionplaced within it for administrative purposes, may contract with professionaltesting services to prepare, administer, and grade examinations and tests forlicense applicants.  For these purposes, the department may require applicantsto pay the examination fee directly to the testing agency.

(q)  Any law to the contrary notwithstanding,when any type of bond or insurance required to be maintained by any licenseeunder a regulatory program of the department of commerce and consumer affairs,or of any board or commission assigned to the department of commerce andconsumer affairs, cannot reasonably be secured, the department, board, orcommission may provide by rule for alternative forms of security to theconsumer so long as that alternate security is no less than that provided bythe type of bond or insurance initially required.

(r)  Notwithstanding any other law to thecontrary, the department of commerce and consumer affairs, or any board orcommission placed within it for administrative purposes, may change any licenserenewal date by rules adopted in accordance with chapter 91.

(s)  The director of commerce and consumeraffairs may establish advisory committees, the members of which shall serve asconsultants to the boards and to the director in their review of licenseesreferred for possible disciplinary action and as experts to the department forinvestigations and professional vocational licensing matters.  Each advisorycommittee shall be appointed by the director from a list of licensees submittedannually by the board or by referral from the regulated industry for which anadvisory committee is appointed.  Each member of the committee shall serveuntil a new committee is established or until the particular case for which themember was designated a consultant or expert has been concluded.

All members of the advisory committee shallserve voluntarily and without compensation, but shall be paid reasonableallowances for travel and expenses that may be incurred as a result ofperformance of their duties on the committee.  The costs shall be paid by thedepartment.

Any member of the advisory committee shall beimmune from civil liability for any act done in connection with thissubsection. [L Sp 1959 2d, c 1, pt of §15; am L 1963, c 21, §1, c 111, §2, c114, §4, and c 136, §1; Supp, §14A-14; HRS §26-9; am L 1970, c 63, §2; am L1976, c 18, §1 and c 165, §8; am L 1980, c 92, §1; am L 1981, c 75, §1, c 82,§7, and c 136, §1; am L 1982, c 60, §1, c 203, §1, and c 204, §1; am L 1983, c54, §1, c 124, §2, c 153, §5, and c 224, §2; am L 1984, c 45, §2, c 97, §1, andc 213, §7; am L 1985, c 58, §1, c 68, §1, c 115, §1, and c 276, §2; am L 1986,c 140, §1; am L 1988, c 101, §2, c 126, §1, and c 141, §4; am L 1989, c 211,§10; am L 1990, c 166, §3, c 281, §11, and c 285, §3; am L 1991, c 47, §1; am L1993, c 173, §1, c 280, §24, and c 322, §1; am L 1994, c 279, §2; am L 1995, c198, §2; am L 1997, c 87, §1, c 88, §1, c 223, §1, c 225, §1, c 231, §1, c 235,§1, and c 301, §2; am L 1999, c 129, §1 and c 248, §2; am L 2000, c 253, §150;am L 2002, c 16, §2, c 39, §1, and c 40, §1; am L 2004, c 116, §1 and c 164, §§4,5; am L 2005, c 22, §2; am L 2006, c 229, §2 and c 300, §3; am L 2008, c 9, §3and c 28, §3; am L 2009, c 77, §1 and c 129, §2; am L Sp 2009, c 22, §11(1)]

 

Cross References

 

  Uniform professional and vocational licensing act, seechapter 436B.

 

Case Notes

 

  Director of regulatory agencies as protector of consumer'sinterest is party to proceeding before PUC.  54 H. 663, 513 P.2d 1376.