§26-9 - Department of commerce and consumer affairs.

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

(b)  The department shall protect the interests
of consumers, depositors, and investors throughout the State.  It shall set
standards and enforce all laws and rules governing the licensing and operation
of, and register and supervise the conduct of, trades, businesses, and
professions, including banks, insurance companies, brokerage firms, and other
financial institutions.

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

(d)  Except as otherwise provided by this
chapter, the functions, duties, and powers, subject to the administrative
control of the director of commerce and consumer affairs, and the composition
of each board and commission shall be as provided by law.

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

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

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

(h)  The director may appoint a complaints and
enforcement officer not subject to chapter 76 who shall facilitate the receipt,
arbitration, investigation, prosecution, and hearing of complaints regarding
any person who furnishes commodities, services, or real estate for which a
license, registration, or certificate is required from the department or any
board, commission, or regulatory program thereunder.  In representing the State
in bringing any action to enjoin unlicensed, unregistered, or uncertified
activities, the department of commerce and consumer affairs' attorneys shall be
empowered to exercise all authority granted to the attorney general and to the
director 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 exist
and as they subsequently may be amended.  The attorneys also shall be empowered
to exercise all authority granted to the attorney general and to the
responsible attorneys of the various counties under section 92F-13 in all cases
involving documents and records within the custody or control of the regulated
industries complaints office.

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

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

The director shall appoint and commission one
or more investigators as the exigencies of the public service may require. 
Persons appointed and commissioned under this section may serve subpoenas and
serve process and orders pursuant to section 634-21.  Nothing in this
subsection shall be construed to entitle persons appointed and commissioned by
the director to retirement benefits applicable to police officers under chapter
88.

(k)  The director may adopt, amend, or repeal
rules pursuant to chapter 91 to effectuate the purposes of all laws within the
jurisdiction of the department of commerce and consumer affairs.  The
director's authority to adopt rules shall not modify, impair, or otherwise
affect the power of boards and commissions placed within the department of
commerce 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 fees
relating to any aspect of the registration, certification, licensure, or any
other administrative process for all laws within the jurisdiction of the
department.  Amendments to fee assessments shall be made pursuant to chapter
91;

(2)  Assess fees for copies in any form of media of
the computerized records of the business registration division or for
electronic access to the computerized information on a one-time or on-going
basis.  The fees charged for the copies or access may include billing service
fees, network usage fees, and computer consultant fees.  In adopting these
fees, the director shall take into account the intent to make the division
self-supporting.  To this end, the fees may reflect the commercial value of the
service or information provided.  In the case of requests for records by a
nonprofit organization, the director may reduce or waive the fees.  This
paragraph shall control in any instance where there is a conflict between this
paragraph and any other statute; and

(3)  Assess fees for copies of consumer and business
educational publications prepared or issued by the department.  Fees collected
under this paragraph shall be deposited into the compliance resolution fund
under subsection (o).  In the case of requests for copies by a nonprofit
organization, the director may reduce or waive the fees.  For purposes of this
paragraph, "consumer and business educational publications" does not
include copies of statutes or administrative rules.

The fees collected by the professional and
vocational licensing division and the business registration division shall be
deposited 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 professional
and vocational licensing division.

(m)  Notwithstanding section 92-17 or any other
law to the contrary, all boards, commissions, and regulatory programs placed
within the department of commerce and consumer affairs for administrative
purposes shall delegate their authority to receive, arbitrate, investigate, and
prosecute complaints to the department.

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

(o)  Every person licensed under any chapter
within the jurisdiction of the department of commerce and consumer affairs and
every person licensed subject to chapter 485A or registered under chapter 467B
shall pay upon issuance of a license, permit, certificate, or registration a
fee and a subsequent annual fee to be determined by the director and adjusted from
time to time to ensure that the proceeds, together with all other fines,
income, and penalties collected under this section, do not surpass the annual
operating costs of conducting compliance resolution activities required under
this section.  The fees may be collected biennially or pursuant to rules
adopted under chapter 91, and shall be deposited into the special fund
established under this subsection.  Every filing pursuant to chapter 514E or
section 485A-202(a)(26) shall be assessed, upon initial filing and at each
renewal period in which a renewal is required, a fee that shall be prescribed
by rules adopted under chapter 91, and that shall be deposited into the special
fund established under this subsection.  Any unpaid fee shall be paid by the licensed
person, upon application for renewal, restoration, reactivation, or
reinstatement of a license, and by the person responsible for the renewal,
restoration, reactivation, or reinstatement of a license, upon the application
for renewal, restoration, reactivation, or reinstatement of the license.  If
the 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 adopted
under chapter 91.  The director may also increase or decrease the fees pursuant
to section 92-28.

There is created in the state treasury a
special fund to be known as the compliance resolution fund to be expended by
the director's designated representatives as provided by this subsection. 
Notwithstanding any law to the contrary, all revenues, fees, and fines
collected by the department shall be deposited into the compliance resolution
fund.  Unencumbered balances existing on June 30, 1999, in the cable television
fund under chapter 440G, the division of consumer advocacy fund under chapter
269, the financial institution examiners' revolving fund, section 412:2-109,
the special handling fund, section 414-13, and unencumbered balances existing
on June 30, 2002, in the insurance regulation fund, section 431:2-215, shall be
deposited into the compliance resolution fund.  This provision shall not apply
to the drivers education fund underwriters fee, sections 431:10C-115 and 431:10G-107,
insurance premium taxes and revenues, revenues of the workers' compensation
special compensation fund, section 386-151, the captive insurance
administrative fund, section 431:19-101.8, the insurance commissioner's
education and training fund, section 431:2-214, the medical malpractice
patients' compensation fund as administered under section 5 of Act 232, Session
Laws of Hawaii 1984, and fees collected for deposit in the office of consumer
protection restitution fund, section 487-14, the real estate appraisers fund, section
466K-1, the real estate recovery fund, section 467-16, the real estate
education fund, section 467-19, the contractors recovery fund, section 444-26,
the contractors education fund, section 444-29, and the condominium education
trust fund, section 514B-71.  Any law to the contrary notwithstanding, the
director may use the moneys in the fund to employ, without regard to chapter
76, hearings officers and attorneys.  All other employees may be employed in
accordance with chapter 76.  Any law to the contrary notwithstanding, the
moneys in the fund shall be used to fund the operations of the department.  The
moneys in the fund may be used to train personnel as the director deems
necessary and for any other activity related to compliance resolution.

As used in this subsection, unless otherwise
required by the context, "compliance resolution" means a
determination of whether:

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

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

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

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

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

and includes work involved in or supporting the
above functions, licensing, or registration of individuals or companies
regulated by the department, consumer protection, and other activities of the
department.

The director shall prepare and submit an annual
report to the governor and the legislature on the use of the compliance
resolution fund.  The report shall describe expenditures made from the fund
including non-payroll operating expenses.

(p)  Any law to the contrary notwithstanding,
the department of commerce and consumer affairs, or any board or commission
placed within it for administrative purposes, may contract with professional
testing services to prepare, administer, and grade examinations and tests for
license applicants.  For these purposes, the department may require applicants
to 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 licensee
under a regulatory program of the department of commerce and consumer affairs,
or of any board or commission assigned to the department of commerce and
consumer affairs, cannot reasonably be secured, the department, board, or
commission may provide by rule for alternative forms of security to the
consumer so long as that alternate security is no less than that provided by
the type of bond or insurance initially required.

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

(s)  The director of commerce and consumer
affairs may establish advisory committees, the members of which shall serve as
consultants to the boards and to the director in their review of licensees
referred for possible disciplinary action and as experts to the department for
investigations and professional vocational licensing matters.  Each advisory
committee shall be appointed by the director from a list of licensees submitted
annually by the board or by referral from the regulated industry for which an
advisory committee is appointed.  Each member of the committee shall serve
until a new committee is established or until the particular case for which the
member was designated a consultant or expert has been concluded.

All members of the advisory committee shall
serve voluntarily and without compensation, but shall be paid reasonable
allowances for travel and expenses that may be incurred as a result of
performance of their duties on the committee.  The costs shall be paid by the
department.

Any member of the advisory committee shall be
immune from civil liability for any act done in connection with this
subsection. [L Sp 1959 2d, c 1, pt of §15; am L 1963, c 21, §1, c 111, §2, c
114, §4, and c 136, §1; Supp, §14A-14; HRS §26-9; am L 1970, c 63, §2; am L
1976, 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, c
54, §1, c 124, §2, c 153, §5, and c 224, §2; am L 1984, c 45, §2, c 97, §1, and
c 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 L
1993, c 173, §1, c 280, §24, and c 322, §1; am L 1994, c 279, §2; am L 1995, c
198, §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, §3
and 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, see
chapter 436B.

Case Notes

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