§200-37  Operation of thrill craft;
parasailing; water sledding; commercial high speed boating.  (a)  No person
shall operate a thrill craft unless the person is fifteen years of age or
older.



(b)  The department shall adopt rules to
designate areas where, and time periods during which, thrill craft may be
operated and parasailing, water sledding, and commercial high speed boating may
be engaged in.



(c)  [Subsection effective until June
30, 2014.  For subsection effective July 1, 2014, see below.]  No person
shall operate a thrill craft in the waters of the State, except:



(1)  In areas and during time periods designated by
the department;



(2)  Through areas designated by the department to
serve as avenues for the ingress and egress of thrill craft between the areas
designated under paragraph (1) and the shore;



(3)  Authorized government personnel conducting
operations approved by the department; or



(4)  Authorized film production permit holders
conducting operations approved by the department.



(c)  [Subsection effective July 1,
2014.  For subsection effective until June 30, 2014, see above.]  No person
shall operate a thrill craft in the waters of the State, except:



(1)  In areas and during time periods designated by
the department;



(2)  Through areas designated by the department to
serve as avenues for the ingress and egress of thrill craft between the areas
designated under paragraph (1) and the shore; or



(3)  Authorized government personnel conducting
operations approved by the department.



(d)  No person shall:



(1)  Engage in parasailing; or



(2)  Operate a motorized vessel towing a person
engaged in parasailing;



on or above the waters of the State, except on or
above areas and during time periods designated by the department.



(e)  No person shall:



(1)  Engage in water sledding; or



(2)  Operate a motorized vessel towing a person
engaged in water sledding;



in the waters of the State, except in areas and
during time periods designated by the department.



(f)  No person shall engage in commercial high
speed boating or operate an open power boat capable of exceeding forty miles
per hour for commercial high speed boating purposes in the waters of the State,
except:



(1)  In areas, along routes, and during time periods
designated by the department; and



(2)  In accordance with a permit issued by the
department.



(g)  During all weekends and state and federal
holidays, no commercial operator shall operate a thrill craft, or engage in
parasailing, water sledding, or commercial high speed boating, or operate a
motor vessel towing a person engaged in water sledding or parasailing in Maunalua Bay on Oahu as provided for in section 200-38.



(h)  On Sundays, all commercial ocean
recreation activities, including those listed in this section, shall be
prohibited on Oahu in Maunalua Bay as provided for in section 200-38.



(i)  Between December 15 and May 15
of each year, no person shall operate a thrill craft, or engage in parasailing,
water sledding, or commercial high speed boating, or operate a motor vessel
towing a person engaged in water sledding or parasailing on the west and south shore of Maui as provided in section 200-38.



(j)  All commercial use and operator permits
issued by the department for commercial thrill craft, and parasailing
activities shall be fully transferable upon the payment of a business transfer
fee in an amount determined by the department, which shall be no greater than
six per cent of the transfer price; provided that no more than one transfer
every two years shall be authorized with respect to any given permit, except
transfers between family members for the purpose of business reorganization.



(k)  The department may immediately revoke a
commercial use permit without a hearing for any activity that endangers or may
endanger the health or safety of passengers or the public, and may suspend or
revoke a commercial use permit for violation of any rules of the department if,
after seventy-two hours notice by the department of the violation, the permit
holder fails to cure the violation; provided that the permit holder shall have
ten days from receipt of the notice of suspension or revocation to request in
writing an administrative hearing.  The administrative hearing is solely for
the purpose of allowing the permit holder to contest the basis for the suspension
or revocation of the permit.  The hearing shall be held within five working
days of the department's receipt of the written request.  The chairperson shall
adopt rules pursuant to chapter 91 to implement the procedures governing the
administrative hearing process.  Within ten days after the conclusion of the
hearing, the department shall either:



(1)  Lift the suspension;



(2)  Suspend the permit for a period of not longer
than one year; or



(3)  Revoke the permit.



(l)  All new commercial use and operator
permits issued by the department for commercial thrill craft, and parasailing
activities after June 18, 1996 shall be issued at public auction.



(m)  Each commercial use and operator permit
issued by the department for commercial thrill craft, and parasailing
activities shall be valid for five years from the date of issuance and shall be
renewed by the department for additional five-year periods, not to exceed a
maximum of twenty years; provided that the permit holder shall have met the
following conditions:



(1)  The permit holder shall be in compliance with all
applicable rules of the department;



(2)  The permit holder shall have timely filed and
paid all applicable state taxes during the year; and



(3)  The permit holder shall have a good safety record
regarding the operation of a commercial thrill craft, or parasailing activity.



(n)  Upon expiration of the twenty-year period,
the permit may be offered for public auction as provided in this chapter;
provided that the previous permit holder shall be offered the right of first
refusal in accordance with departmental rules; and provided further that the
permit holder shall agree to match the highest bid offered at the public
auction.



(o)  All commercial use and operator permits
issued by the department for commercial thrill craft, and parasailing
activities shall be subject to an annual review by the department which shall
include but not be limited to:



(1)  The permit holder's compliance with applicable
rules of the department;



(2)  The permit holder's timely filing and payment of
all applicable state taxes during the year; and



(3)  The permit holder's safety record regarding the
operation of a commercial thrill craft, or parasailing activity.



(p)  The department shall adopt rules to
encourage water safety education and programs with respect to thrill craft, or
parasailing activities. [L 1991, c 272, pt of §2; am L 1993, c 317, §3(2); am L
1995, c 140, §2; am L 1996, c 258, §1; am L 1998, c 129, §1; am L 2009, c 89, §§1,
2]



 



Note



 



  L 1996, c 258, §§3
and 4 as amended by L 1998, c 4, §4 provides:



  "SECTION 3. 
This Act [amending section 200-37] shall not apply to existing permits issued
by the department of land and natural resources pursuant to section 200-39,
Hawaii Revised Statutes.



  SECTION 4.  This Act
[amending section 200-37] shall take effect upon its approval [June 18,
1996]; provided that the term of each commercial use and operator permit
validly issued as of the effective date of this Act [June 18, 1996] shall
be extended by the department to conform with this Act if the permit holder:



  (1) Is in compliance with applicable rules
of the department;



  (2) Has timely filed and paid all
applicable state taxes during the year; and



  (3) Has a good safety record regarding the
operation of a commercial thrill craft or parasailing activity;



provided further that
no permit validly issued as of the effective date shall be put up for public
auction by operation of this Act until the end of the extended term of the
permit."



  Implementation of L
2009, c 89, §1 amendment; reports to legislature through
2014.  L 2009, c 89, §3.



 



Revision Note



 



  "June 18,
1996" substituted for "the effective date of this Act" in
subsection (l).



 



Case Notes



 



  Appellants' right to
operate vessels under federal maritime coasting licenses did not preempt Hawaii
law prohibiting parasailing off the coast of Maui during limited portions of
the year to protect mating humpback whales; among other things, because the
parasailing ban furthers the legitimate governmental purpose of protecting
humpback whales, the statute is reasonable.  508 F.3d 1189.



  Defendants' motion
for summary judgment granted, where, inter alia, plaintiffs argued that
subsection (i) impermissibly restricted the coastwise trade of plaintiff's
vessels in contravention of plaintiff's federal licenses.  380 F. Supp. 2d
1160.



  Subsection (i) and
all rules and regulations derived from the statute are not preempted by the
Marine Mammal Protection Act.  380 F. Supp. 2d 1166.