§712-1207  Street solicitation of
prostitution; designated areas.  (1)  It shall be unlawful for any person
within the boundaries of Waikiki and while on any public property, to offer or
agree to engage in sexual conduct with another person in return for a fee.



(2)  It shall be unlawful for any person within
the boundaries of other areas in this State designated by county ordinance
pursuant to subsection (3), and while on any public property, to offer or agree
to engage in sexual conduct with another person in return for a fee.



(3)  Upon a recommendation of the chief of
police of a county, that county may enact an ordinance that:



(a) Designates areas, each no larger than three
square miles, as zones of significant prostitution-related activity that is detrimental
to the health, safety, or welfare of the general public; or



(b) Alters the boundaries of any existing area under
paragraph (a);



provided that not more than four areas may be
designated within the State.



(4)  Notwithstanding any law to the contrary,
any person violating this section shall be guilty of a petty misdemeanor and
shall be sentenced to a mandatory term of thirty days imprisonment.  The term
of imprisonment shall be imposed immediately, regardless of whether the
defendant appeals the conviction, except as provided in subsection (5).



(5)  As an option to the mandatory term of
thirty days imprisonment, if the court finds the option is warranted based upon
the defendant's record, the court may place the defendant on probation for a
period not to exceed six months, subject to the mandatory condition that the
defendant observe geographic restrictions that prohibit the defendant from
entering or remaining on public property, in Waikiki and other areas in the
State designated by county ordinance during the hours from 6 p.m. to 6 a.m. 
Upon any violation of the geographic restrictions by the defendant, the court,
after hearing, shall revoke the defendant's probation and immediately impose
the mandatory thirty-day term of imprisonment.  Nothing contained in this
subsection shall be construed as prohibiting the imposition of stricter
geographic restrictions under section 706-624(2)(h).



(6)  Any person charged under this section may
be admitted to bail, pursuant to section 804-4, subject to the mandatory
condition that the person observe geographic restrictions that prohibit the
defendant from entering or remaining on public property, in Waikiki and other
areas in the State designated by county ordinance during the hours from 6 p.m.
to 6 a.m.  Notwithstanding any other provision of law to the contrary, any
person who violates these bail restrictions shall have the person's bail
revoked after hearing and shall be imprisoned forthwith.  Nothing contained in
this subsection shall be construed as prohibiting the imposition of stricter
geographic restrictions under section 804-7.1.



(7)  Notwithstanding any other law to the
contrary, a police officer, without warrant, may arrest any person when the
officer has probable cause to believe that the person has committed a violation
of subsection (5) or (6), and the person shall be detained, without bail, until
the hearing under the appropriate subsection can be held, which hearing shall
be held as soon as reasonably practicable.



(8)  For purposes of this section:



"Area" means any zone within a county
that is defined with specific boundaries and designated as a zone of
significant prostitution by this section or a county ordinance.



"Public property" includes any
street, highway, road, sidewalk, alley, lane, bridge, parking lot, park, or
other property owned or under the jurisdiction of any governmental entity or
otherwise open to the public.



"Sexual conduct" has the same meaning
as in section 712-1200(2).



"Waikiki" means that area of Oahu
bounded by the Ala Wai canal, the ocean, and Kapahulu avenue.



(9)  This section shall apply to all counties;
provided that if a county enacts an ordinance to regulate street solicitation
for prostitution, other than an ordinance designating an area as a zone of
significant prostitution-related activity, the county ordinance shall supersede
this section and no person shall be convicted under this section in that
county. [L 1998, c 149, §2; am L 2000, c 143, §1]



 



COMMENTARY ON §712-1207



 



  Act 149, Session Laws 1998, added this section to require
that as a mandatory condition of probation and bail, defendants are to observe
geographic restrictions prohibiting them from entering or walking on the public
streets or sidewalks of Waikiki during the hours from 6 p.m. to 6 a.m.  Defendants
that live in Waikiki and choose to remain in Waikiki during the prohibited
hours are required to stay off the streets and sidewalks during those hours. 
The legislature believed that although the restriction covered a large physical
space, it was narrowly tailored to cover only the hours most closely associated
with the crime.  Also, the restriction was sufficiently definite to provide
adequate notice of the behavior that is prohibited.  Act 149 also allowed the
counties to enact ordinances regulating street solicitation that shall
supersede the provisions of this section.  Conference Committee Report No. 83.



  Act 143, Session Laws 2000, amended this section by expanding
the prohibition of street solicitation of prostitution from Waikiki to other
areas designated by the council of the appropriate county, but to not more than
four areas of the State.  The legislature found that allowing counties to
designate additional areas as "prostitution-free zones" could provide
counties with a way to address the proliferation of prostitution beyond the
Waikiki area.  This Act also provided for the denial of bail to those persons
arrested for violating the terms of bail or probation upon entering the
prohibited designated areas.  Conference Committee Report No. 72.



 



Case Notes



 



  By the express terms of subsections (4) and (5), the offense
of street solicitation under subsection (1) is probationable, and thus not
excludable under §853-4(5); appeals court therefore erred in affirming trial
court's refusal to consider defendant's motion for a deferred acceptance of no
contest plea.  116 H. 519, 174 P.3d 358.