§46-1.5  General powers and limitation of
the counties.  [Repeal and reenactment on June 30, 1996 by L 1993, c
168, §5 deleted by L 1996, c 19, §2.]  Subject to general law, each county
shall have the following powers and shall be subject to the following
liabilities and limitations:



(1)  Each county shall have the power to frame and
adopt a charter for its own self-government that shall establish the county
executive, administrative, and legislative structure and organization,
including but not limited to the method of appointment or election of
officials, their duties, responsibilities, and compensation, and the terms of
their office;



(2)  Each county shall have the power to provide for
and regulate the marking and lighting of all buildings and other structures
that may be obstructions or hazards to aerial navigation, so far as may be
necessary or proper for the protection and safeguarding of life, health, and
property;



(3)  Each county shall have the power to enforce all
claims on behalf of the county and approve all lawful claims against the
county, but shall be prohibited from entering into, granting, or making in any
manner any contract, authorization, allowance payment, or liability contrary to
the provisions of any county charter or general law;



(4)  Each county shall have the power to make
contracts and to do all things necessary and proper to carry into execution all
powers vested in the county or any county officer;



(5)  Each county shall have the power to:



(A)  Maintain channels, whether natural or
artificial, including their exits to the ocean, in suitable condition to carry
off storm waters;



(B)  Remove from the channels, and from the
shores and beaches, any debris that is likely to create an unsanitary condition
or become a public nuisance; provided that, to the extent any of the foregoing
work is a private responsibility, the responsibility may be enforced by the
county in lieu of the work being done at public expense;



(C)  Construct, acquire by gift, purchase, or
by the exercise of eminent domain, reconstruct, improve, better, extend, and
maintain projects or undertakings for the control of and protection against
floods and flood waters, including the power to drain and rehabilitate lands
already flooded; and



(D)  Enact zoning ordinances providing that
lands deemed subject to seasonable, periodic, or occasional flooding shall not
be used for residence or other purposes in a manner as to endanger the health
or safety of the occupants thereof, as required by the Federal Flood Insurance
Act of 1956 (chapter 1025, Public Law 1016);



(6)  Each county shall have the power to exercise the
power of condemnation by eminent domain when it is in the public interest to do
so;



(7)  Each county shall have the power to exercise
regulatory powers over business activity as are assigned to them by chapter 445
or other general law;



(8)  Each county shall have the power to fix the fees
and charges for all official services not otherwise provided for;



(9)  Each county shall have the power to provide by
ordinance assessments for the improvement or maintenance of districts within
the county;



(10)  Except as otherwise provided, no county shall
have the power to give or loan credit to, or in aid of, any person or
corporation, directly or indirectly, except for a public purpose;



(11)  Where not within the jurisdiction of the public
utilities commission, each county shall have the power to regulate by ordinance
the operation of motor vehicle common carriers transporting passengers within
the county and adopt and amend rules the county deems necessary for the public
convenience and necessity;



(12)  Each county shall have the power to enact and
enforce ordinances necessary to prevent or summarily remove public nuisances
and to compel the clearing or removal of any public nuisance, refuse, and
uncultivated undergrowth from streets, sidewalks, public places, and unoccupied
lots.  In connection with these powers, each county may impose and enforce
liens upon the property for the cost to the county of removing and completing
the necessary work where the property owners fail, after reasonable notice, to
comply with the ordinances.  The authority provided by this paragraph shall not
be self-executing, but shall become fully effective within a county only upon
the enactment or adoption by the county of appropriate and particular laws,
ordinances, or rules defining "public nuisances" with respect to each
county's respective circumstances.  The counties shall provide the property
owner with the opportunity to contest the summary action and to recover the
owner's property;



(13)  Each county shall have the power to enact
ordinances deemed necessary to protect health, life, and property, and to
preserve the order and security of the county and its inhabitants on any
subject or matter not inconsistent with, or tending to defeat, the intent of
any state statute where the statute does not disclose an express or implied
intent that the statute shall be exclusive or uniform throughout the State;



(14)  Each county shall have the power to:



(A)  Make and enforce within the limits of the
county all necessary ordinances covering all:



(i)  Local police matters;



(ii)  Matters of sanitation;



(iii)  Matters of inspection of buildings;



(iv)  Matters of condemnation of unsafe
structures, plumbing, sewers, dairies, milk, fish, and morgues; and



(v)  Matters of the collection and disposition
of rubbish and garbage;



(B)  Provide exemptions for homeless facilities
and any other program for the homeless authorized by chapter 356D, for all
matters under this paragraph;



(C)  Appoint county physicians and sanitary and
other inspectors as necessary to carry into effect ordinances made under this
paragraph, who shall have the same power as given by law to agents of the
department of health, subject only to limitations placed on them by the terms
and conditions of their appointments; and



(D)  Fix a penalty for the violation of any
ordinance, which penalty may be a misdemeanor, petty misdemeanor, or violation
as defined by general law;



(15)  Each county shall have the power to provide
public pounds; to regulate the impounding of stray animals and fowl, and their
disposition; and to provide for the appointment, powers, duties, and fees of
animal control officers;



(16)  Each county shall have the power to purchase and
otherwise acquire, lease, and hold real and personal property within the
defined boundaries of the county and to dispose of the real and personal
property as the interests of the inhabitants of the county may require, except
that:



(A)  Any property held for school purposes may
not be disposed of without the consent of the superintendent of education;



(B)  No property bordering the ocean shall be
sold or otherwise disposed of; and



(C)  All proceeds from the sale of park lands
shall be expended only for the acquisition of property for park or recreational
purposes;



(17)  Each county shall have the power to provide by
charter for the prosecution of all offenses and to prosecute for offenses
against the laws of the State under the authority of the attorney general of
the State;



(18)  Each county shall have the power to make
appropriations in amounts deemed appropriate from any moneys in the treasury,
for the purpose of:



(A)  Community promotion and public
celebrations;



(B)  The entertainment of distinguished persons
as may from time to time visit the county;



(C)  The entertainment of other distinguished
persons, as well as, public officials when deemed to be in the best interest of
the community; and



(D)  The rendering of civic tribute to
individuals who, by virtue of their accomplishments and community service,
merit civic commendations, recognition, or remembrance;



(19)  Each county shall have the power to:



(A)  Construct, purchase, take on lease, lease,
sublease, or in any other manner acquire, manage, maintain, or dispose of
buildings for county purposes, sewers, sewer systems, pumping stations,
waterworks, including reservoirs, wells, pipelines, and other conduits for
distributing water to the public, lighting plants, and apparatus and appliances
for lighting streets and public buildings, and manage, regulate, and control
the same;



(B)  Regulate and control the location and
quality of all appliances necessary to the furnishing of water, heat, light,
power, telephone, and telecommunications service to the county;



(C)  Acquire, regulate, and control any and all
appliances for the sprinkling and cleaning of the streets and the public ways,
and for flushing the sewers; and



(D)  Open, close, construct, or maintain county
highways or charge toll on county highways; provided that all revenues received
from a toll charge shall be used for the construction or maintenance of county
highways;



(20)  Each county shall have the power to regulate the
renting, subletting, and rental conditions of property for places of abode by
ordinance;



(21)  Unless otherwise provided by law, each county
shall have the power to establish by ordinance the order of succession of
county officials in the event of a military or civil disaster;



(22)  Each county shall have the power to sue and be
sued in its corporate name;



(23)  Each county shall have the power to establish and
maintain waterworks and sewer works; to collect rates for water supplied to
consumers and for the use of sewers; to install water meters whenever deemed
expedient; provided that owners of premises having vested water rights under
existing laws appurtenant to the premises shall not be charged for the
installation or use of the water meters on the premises; to take over from the
State existing waterworks systems, including water rights, pipelines, and other
appurtenances belonging thereto, and sewer systems, and to enlarge, develop,
and improve the same;



(24) (A)  Each county may impose civil fines, in
addition to criminal penalties, for any violation of county ordinances or rules
after reasonable notice and requests to correct or cease the violation have
been made upon the violator.  Any administratively imposed civil fine shall not
be collected until after an opportunity for a hearing under chapter 91.  Any
appeal shall be filed within thirty days from the date of the final written
decision.  These proceedings shall not be a prerequisite for any civil fine or
injunctive relief ordered by the circuit court;



(B)  Each county by ordinance may provide for
the addition of any unpaid civil fines, ordered by any court of competent
jurisdiction, to any taxes, fees, or charges, with the exception of fees or
charges for water for residential use and sewer charges, collected by the
county.  Each county by ordinance may also provide for the addition of any
unpaid administratively imposed civil fines, which remain due after all
judicial review rights under section 91-14 are exhausted, to any taxes, fees,
or charges, with the exception of water for residential use and sewer charges,
collected by the county.  The ordinance shall specify the administrative
procedures for the addition of the unpaid civil fines to the eligible taxes,
fees, or charges and may require hearings or other proceedings.  After addition
of the unpaid civil fines to the taxes, fees, or charges, the unpaid civil
fines shall not become a part of any taxes, fees, or charges.  The county by
ordinance may condition the issuance or renewal of a license, approval, or
permit for which a fee or charge is assessed, except for water for residential
use and sewer charges, on payment of the unpaid civil fines.  Upon recordation
of a notice of unpaid civil fines in the bureau of conveyances, the amount of
the civil fines, including any increase in the amount of the fine which the
county may assess, shall constitute a lien upon all real property or rights to
real property belonging to any person liable for the unpaid civil fines.  The
lien in favor of the county shall be subordinate to any lien in favor of any
person recorded or registered prior to the recordation of the notice of unpaid
civil fines and senior to any lien recorded or registered after the recordation
of the notice.  The lien shall continue until the unpaid civil fines are paid
in full or until a certificate of release or partial release of the lien,
prepared by the county at the owner's expense, is recorded.  The notice of
unpaid civil fines shall state the amount of the fine as of the date of the
notice and maximum permissible daily increase of the fine.  The county shall
not be required to include a social security number, state general excise
taxpayer identification number, or federal employer identification number on
the notice.  Recordation of the notice in the bureau of conveyances shall be
deemed, at such time, for all purposes and without any further action, to
procure a lien on land registered in land court under chapter 501.  After the
unpaid civil fines are added to the taxes, fees, or charges as specified by
county ordinance, the unpaid civil fines shall be deemed immediately due,
owing, and delinquent and may be collected in any lawful manner.  The procedure
for collection of unpaid civil fines authorized in this paragraph shall be in
addition to any other procedures for collection available to the State and
county by law or rules of the courts;



(C)  Each county may impose civil fines upon
any person who places graffiti on any real or personal property owned, managed,
or maintained by the county.  The fine may be up to $1,000 or may be equal to
the actual cost of having the damaged property repaired or replaced.  The
parent or guardian having custody of a minor who places graffiti on any real or
personal property owned, managed, or maintained by the county shall be jointly
and severally liable with the minor for any civil fines imposed hereunder.  Any
such fine may be administratively imposed after an opportunity for a hearing
under chapter 91, but such a proceeding shall not be a prerequisite for any
civil fine ordered by any court.  As used in this subparagraph,
"graffiti" means any unauthorized drawing, inscription, figure, or
mark of any type intentionally created by paint, ink, chalk, dye, or similar
substances;



(D)  At the completion of an appeal in which
the county's enforcement action is affirmed and upon correction of the
violation if requested by the violator, the case shall be reviewed by the
county agency that imposed the civil fines to determine the appropriateness of
the amount of the civil fines that accrued while the appeal proceedings were pending. 
In its review of the amount of the accrued fines, the county agency may
consider:



(i)  The nature and egregiousness of the
violation;



(ii)  The duration of the violation;



(iii)  The number of recurring and other similar
violations;



(iv)  Any effort taken by the violator to correct
the violation;



(v)  The degree of involvement in causing or
continuing the violation;



(vi)  Reasons for any delay in the completion of
the appeal; and



(vii)  Other extenuating circumstances.



The civil fine that is imposed by
administrative order after this review is completed and the violation is
corrected shall be subject to judicial review, notwithstanding any provisions
for administrative review in county charters;



(E)  After completion of a review of the amount
of accrued civil fine by the county agency that imposed the fine, the amount of
the civil fine determined appropriate, including both the initial civil fine
and any accrued daily civil fine, shall immediately become due and collectible
following reasonable notice to the violator.  If no review of the accrued civil
fine is requested, the amount of the civil fine, not to exceed the total
accrual of civil fine prior to correcting the violation, shall immediately
become due and collectible following reasonable notice to the violator, at the
completion of all appeal proceedings;



(F)  If no county agency exists to conduct
appeal proceedings for a particular civil fine action taken by the county, then
one shall be established by ordinance before the county shall impose the civil
fine;



(25)  Any law to the contrary notwithstanding, any
county mayor may exempt by executive order donors, provider agencies, homeless
facilities, and any other program for the homeless under chapter 356D from real
property taxes, water and sewer development fees, rates collected for water
supplied to consumers and for use of sewers, and any other county taxes,
charges, or fees; provided that any county may enact ordinances to regulate and
grant the exemptions granted by this paragraph;



(26)  Any county may establish a captive insurance
company pursuant to article 19, chapter 431; and



(27)  Each county shall have the power to enact and
enforce ordinances regulating towing operations. [L 1988, c 263, §2; am L 1989,
c 338, §1; am L 1990, c 135, §1; am L 1991, c 212, §2; am L 1993, c 168, §§1,
5; am L 1994, c 171, §§3, 4; am L 1995, c 236, §1; am L 1996, c 19, §§1, 2; am
L 1997, c 350, §17; am L 1998, c 212, §3; am L 2001, c 194, §1; am L 2003, c
84, §2; am L 2005, c 163, §l; am L 2007, c 249, §6]



 



Cross References



 



  Alternative dispute
resolution board of advisors, see §613-3.



  Construction
projects; recycled glass requirements, see §103D-407.



  Glass container
recovery, see §§342G-81 to 87.



  Glassphalt use, see
§264-8.5.



  Graffiti, parental
responsibility, see §577-3.5.



  Graywater recycling
program, see §342D-70.



  Liability for
promoting ridesharing, see §279G-2.



  School construction,
renovation; off-site improvement exemption, see §103-39.5.



 



Case Notes



 



  Public utilities commission's
regulatory powers over public utilities preempted power of counties to regulate
height of utility poles.  72 H. 285, 814 P.2d 398.



  Counties' general
power of eminent domain as set out in paragraph (6) not limited by §§46-61,
46-62, and 101-2; when a municipal ordinance may be preempted pursuant to
paragraph (13), discussed.  76 H. 46, 868 P.2d 1193.



  Financial
responsibility law was not preempted by chapter 294, part I (chapter 294 is
predecessor to chapter 431, article 10C), where plaintiff's preemption theories
were grounded in §70-105 (predecessor to §46-1.5(13)).  76 H. 209, 873 P.2d 88.



  Where city ordinance
did not require that funds generated by a "convicted persons" charge
be used to defray the city's investigative and prosecutorial costs associated
with the individual payor's case, leaving open the possibility that the charge
could be used for general revenue raising purposes, ordinance was not a
"service fee" under paragraph (8), but a tax, which the State did not
empower the city to impose; thus ordinance was invalid.  89 H. 361, 973 P.2d
736.



  Paragraph (16) does
not prohibit the condominium lease-to-fee conversion mechanism prescribed by
Revised Ordinances of Honolulu chapter 38 with respect to oceanfront property. 
98 H. 233, 47 P.3d 348.