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

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

(c)  [Subsection effective until June30, 2014.  For subsection effective July 1, 2014, see below.]  No personshall operate a thrill craft in the waters of the State, except:

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

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

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

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

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

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

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

(3)  Authorized government personnel conductingoperations approved by the department.

(d)  No person shall:

(1)  Engage in parasailing; or

(2)  Operate a motorized vessel towing a personengaged in parasailing;

on or above the waters of the State, except on orabove 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 personengaged in water sledding;

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

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

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

(2)  In accordance with a permit issued by thedepartment.

(g)  During all weekends and state and federalholidays, no commercial operator shall operate a thrill craft, or engage inparasailing, water sledding, or commercial high speed boating, or operate amotor 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 oceanrecreation activities, including those listed in this section, shall beprohibited on Oahu in Maunalua Bay as provided for in section 200-38.

(i)  Between December 15 and May 15of each year, no person shall operate a thrill craft, or engage in parasailing,water sledding, or commercial high speed boating, or operate a motor vesseltowing 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 permitsissued by the department for commercial thrill craft, and parasailingactivities shall be fully transferable upon the payment of a business transferfee in an amount determined by the department, which shall be no greater thansix per cent of the transfer price; provided that no more than one transferevery two years shall be authorized with respect to any given permit, excepttransfers between family members for the purpose of business reorganization.

(k)  The department may immediately revoke acommercial use permit without a hearing for any activity that endangers or mayendanger the health or safety of passengers or the public, and may suspend orrevoke 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 permitholder fails to cure the violation; provided that the permit holder shall haveten days from receipt of the notice of suspension or revocation to request inwriting an administrative hearing.  The administrative hearing is solely forthe purpose of allowing the permit holder to contest the basis for the suspensionor revocation of the permit.  The hearing shall be held within five workingdays of the department's receipt of the written request.  The chairperson shalladopt rules pursuant to chapter 91 to implement the procedures governing theadministrative hearing process.  Within ten days after the conclusion of thehearing, the department shall either:

(1)  Lift the suspension;

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

(3)  Revoke the permit.

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

(m)  Each commercial use and operator permitissued by the department for commercial thrill craft, and parasailingactivities shall be valid for five years from the date of issuance and shall berenewed by the department for additional five-year periods, not to exceed amaximum of twenty years; provided that the permit holder shall have met thefollowing conditions:

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

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

(3)  The permit holder shall have a good safety recordregarding 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 firstrefusal in accordance with departmental rules; and provided further that thepermit holder shall agree to match the highest bid offered at the publicauction.

(o)  All commercial use and operator permitsissued by the department for commercial thrill craft, and parasailingactivities shall be subject to an annual review by the department which shallinclude but not be limited to:

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

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

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

(p)  The department shall adopt rules toencourage water safety education and programs with respect to thrill craft, orparasailing activities. [L 1991, c 272, pt of §2; am L 1993, c 317, §3(2); am L1995, 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, §§3and 4 as amended by L 1998, c 4, §4 provides:

  "SECTION 3. This Act [amending section 200-37] shall not apply to existing permits issuedby 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 permitvalidly issued as of the effective date of this Act [June 18, 1996] shallbe extended by the department to conform with this Act if the permit holder:

  (1) Is in compliance with applicable rulesof the department;

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

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

provided further thatno permit validly issued as of the effective date shall be put up for publicauction by operation of this Act until the end of the extended term of thepermit."

  Implementation of L2009, c 89, §1 amendment; reports to legislature through2014.  L 2009, c 89, §3.

 

Revision Note

 

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

 

Case Notes

 

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

  Defendants' motionfor summary judgment granted, where, inter alia, plaintiffs argued thatsubsection (i) impermissibly restricted the coastwise trade of plaintiff'svessels in contravention of plaintiff's federal licenses.  380 F. Supp. 2d1160.

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