§46-1.5  General powers and limitation ofthe counties.  [Repeal and reenactment on June 30, 1996 by L 1993, c168, §5 deleted by L 1996, c 19, §2.]  Subject to general law, each countyshall have the following powers and shall be subject to the followingliabilities and limitations:

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

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

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

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

(5)  Each county shall have the power to:

(A)  Maintain channels, whether natural orartificial, including their exits to the ocean, in suitable condition to carryoff storm waters;

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

(C)  Construct, acquire by gift, purchase, orby the exercise of eminent domain, reconstruct, improve, better, extend, andmaintain projects or undertakings for the control of and protection againstfloods and flood waters, including the power to drain and rehabilitate landsalready flooded; and

(D)  Enact zoning ordinances providing thatlands deemed subject to seasonable, periodic, or occasional flooding shall notbe used for residence or other purposes in a manner as to endanger the healthor safety of the occupants thereof, as required by the Federal Flood InsuranceAct of 1956 (chapter 1025, Public Law 1016);

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

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

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

(9)  Each county shall have the power to provide byordinance assessments for the improvement or maintenance of districts withinthe county;

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

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

(12)  Each county shall have the power to enact andenforce ordinances necessary to prevent or summarily remove public nuisancesand to compel the clearing or removal of any public nuisance, refuse, anduncultivated undergrowth from streets, sidewalks, public places, and unoccupiedlots.  In connection with these powers, each county may impose and enforceliens upon the property for the cost to the county of removing and completingthe necessary work where the property owners fail, after reasonable notice, tocomply with the ordinances.  The authority provided by this paragraph shall notbe self-executing, but shall become fully effective within a county only uponthe enactment or adoption by the county of appropriate and particular laws,ordinances, or rules defining "public nuisances" with respect to eachcounty's respective circumstances.  The counties shall provide the propertyowner with the opportunity to contest the summary action and to recover theowner's property;

(13)  Each county shall have the power to enactordinances deemed necessary to protect health, life, and property, and topreserve the order and security of the county and its inhabitants on anysubject or matter not inconsistent with, or tending to defeat, the intent ofany state statute where the statute does not disclose an express or impliedintent 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 thecounty all necessary ordinances covering all:

(i)  Local police matters;

(ii)  Matters of sanitation;

(iii)  Matters of inspection of buildings;

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

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

(B)  Provide exemptions for homeless facilitiesand any other program for the homeless authorized by chapter 356D, for allmatters under this paragraph;

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

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

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

(16)  Each county shall have the power to purchase andotherwise acquire, lease, and hold real and personal property within thedefined boundaries of the county and to dispose of the real and personalproperty as the interests of the inhabitants of the county may require, exceptthat:

(A)  Any property held for school purposes maynot be disposed of without the consent of the superintendent of education;

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

(C)  All proceeds from the sale of park landsshall be expended only for the acquisition of property for park or recreationalpurposes;

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

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

(A)  Community promotion and publiccelebrations;

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

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

(D)  The rendering of civic tribute toindividuals 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 ofbuildings for county purposes, sewers, sewer systems, pumping stations,waterworks, including reservoirs, wells, pipelines, and other conduits fordistributing water to the public, lighting plants, and apparatus and appliancesfor lighting streets and public buildings, and manage, regulate, and controlthe same;

(B)  Regulate and control the location andquality 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 allappliances for the sprinkling and cleaning of the streets and the public ways,and for flushing the sewers; and

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

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

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

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

(23)  Each county shall have the power to establish andmaintain waterworks and sewer works; to collect rates for water supplied toconsumers and for the use of sewers; to install water meters whenever deemedexpedient; provided that owners of premises having vested water rights underexisting laws appurtenant to the premises shall not be charged for theinstallation or use of the water meters on the premises; to take over from theState existing waterworks systems, including water rights, pipelines, and otherappurtenances belonging thereto, and sewer systems, and to enlarge, develop,and improve the same;

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

(B)  Each county by ordinance may provide forthe addition of any unpaid civil fines, ordered by any court of competentjurisdiction, to any taxes, fees, or charges, with the exception of fees orcharges for water for residential use and sewer charges, collected by thecounty.  Each county by ordinance may also provide for the addition of anyunpaid administratively imposed civil fines, which remain due after alljudicial 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 administrativeprocedures for the addition of the unpaid civil fines to the eligible taxes,fees, or charges and may require hearings or other proceedings.  After additionof the unpaid civil fines to the taxes, fees, or charges, the unpaid civilfines shall not become a part of any taxes, fees, or charges.  The county byordinance may condition the issuance or renewal of a license, approval, orpermit for which a fee or charge is assessed, except for water for residentialuse and sewer charges, on payment of the unpaid civil fines.  Upon recordationof a notice of unpaid civil fines in the bureau of conveyances, the amount ofthe civil fines, including any increase in the amount of the fine which thecounty may assess, shall constitute a lien upon all real property or rights toreal property belonging to any person liable for the unpaid civil fines.  Thelien in favor of the county shall be subordinate to any lien in favor of anyperson recorded or registered prior to the recordation of the notice of unpaidcivil fines and senior to any lien recorded or registered after the recordationof the notice.  The lien shall continue until the unpaid civil fines are paidin 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 ofunpaid civil fines shall state the amount of the fine as of the date of thenotice and maximum permissible daily increase of the fine.  The county shallnot be required to include a social security number, state general excisetaxpayer identification number, or federal employer identification number onthe notice.  Recordation of the notice in the bureau of conveyances shall bedeemed, at such time, for all purposes and without any further action, toprocure a lien on land registered in land court under chapter 501.  After theunpaid civil fines are added to the taxes, fees, or charges as specified bycounty ordinance, the unpaid civil fines shall be deemed immediately due,owing, and delinquent and may be collected in any lawful manner.  The procedurefor collection of unpaid civil fines authorized in this paragraph shall be inaddition to any other procedures for collection available to the State andcounty by law or rules of the courts;

(C)  Each county may impose civil fines uponany 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 tothe actual cost of having the damaged property repaired or replaced.  Theparent or guardian having custody of a minor who places graffiti on any real orpersonal property owned, managed, or maintained by the county shall be jointlyand severally liable with the minor for any civil fines imposed hereunder.  Anysuch fine may be administratively imposed after an opportunity for a hearingunder chapter 91, but such a proceeding shall not be a prerequisite for anycivil fine ordered by any court.  As used in this subparagraph,"graffiti" means any unauthorized drawing, inscription, figure, ormark of any type intentionally created by paint, ink, chalk, dye, or similarsubstances;

(D)  At the completion of an appeal in whichthe county's enforcement action is affirmed and upon correction of theviolation if requested by the violator, the case shall be reviewed by thecounty agency that imposed the civil fines to determine the appropriateness ofthe 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 mayconsider:

(i)  The nature and egregiousness of theviolation;

(ii)  The duration of the violation;

(iii)  The number of recurring and other similarviolations;

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

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

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

(vii)  Other extenuating circumstances.

The civil fine that is imposed byadministrative order after this review is completed and the violation iscorrected shall be subject to judicial review, notwithstanding any provisionsfor administrative review in county charters;

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

(F)  If no county agency exists to conductappeal proceedings for a particular civil fine action taken by the county, thenone shall be established by ordinance before the county shall impose the civilfine;

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

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

(27)  Each county shall have the power to enact andenforce 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; amL 1997, c 350, §17; am L 1998, c 212, §3; am L 2001, c 194, §1; am L 2003, c84, §2; am L 2005, c 163, §l; am L 2007, c 249, §6]

 

Cross References

 

  Alternative disputeresolution board of advisors, see §613-3.

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

  Glass containerrecovery, see §§342G-81 to 87.

  Glassphalt use, see§264-8.5.

  Graffiti, parentalresponsibility, see §577-3.5.

  Graywater recyclingprogram, see §342D-70.

  Liability forpromoting ridesharing, see §279G-2.

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

 

Case Notes

 

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

  Counties' generalpower 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 toparagraph (13), discussed.  76 H. 46, 868 P.2d 1193.

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

  Where city ordinancedid not require that funds generated by a "convicted persons" chargebe used to defray the city's investigative and prosecutorial costs associatedwith the individual payor's case, leaving open the possibility that the chargecould be used for general revenue raising purposes, ordinance was not a"service fee" under paragraph (8), but a tax, which the State did notempower the city to impose; thus ordinance was invalid.  89 H. 361, 973 P.2d736.

  Paragraph (16) doesnot prohibit the condominium lease-to-fee conversion mechanism prescribed byRevised Ordinances of Honolulu chapter 38 with respect to oceanfront property. 98 H. 233, 47 P.3d 348.