2012 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
712. Offenses Against Public Health and Morals
712-1281 Forfeiture; fireworks.]

§712-1281 Forfeiture; fireworks. In addition to any other penalty that may be imposed for violation of section 132D-14(a)(1) or (3), any property used or intended for use in the commission of, attempt to commit, or conspiracy to commit an offense under section 132D-14(a)(1) or (3), or that facilitated or assisted such activity, and any proceeds or other property acquired or maintained with the proceeds from violation of section 132D-14(a)(1) or (3) may be subject to forfeiture pursuant to chapter 712A. [L 2010, c 136, §1]

COMMENTARY ON §§712-1270 TO 1281

Act 181, Session Laws 1979, established this part to provide a remedy to abate as nuisances, offenses against public health and morals in the nature of offenses defined as prostitution, the display of indecent matter, and the like. It is based largely on sections 11225 to 11235 of the California Penal Code.

In enacting §712-1279, the legislature thought it desirable to place the burden upon the property owner to take appropriate action against the lessee to abate the nuisance, but felt that a categorical mandate requiring notice of revocation might raise collateral problems, particularly where chains of subleases were involved. Accordingly, the legislature chose to require the courts to consider the giving of notice and other actions the owner may or may not have taken to abate the nuisance when deliberating upon the issue of criminal contempt. Senate Standing Committee Report No. 892 (1979) states:

"Such treatment prevents the imposition of penalty against the owner who may not have technically given notice but who, under peculiar circumstances, may have taken other reasonable and possibly more effective measures to abate the nuisance, and thereby acted in...good faith."

Act 158, Session Laws 1990, amended this section to expand the nuisance law to permit closure of premises where drug offenses repeatedly occur. The legislature emphasized that this amendment is not intended to be applied to innocent landlords whose property may be inadvertently involved in drug offenses. Conference Committee Report No. 30.

Act 246, Session Laws 1996, amended §§712-1270 to 712-1280, by, inter alia, allowing any organization to bring a nuisance abatement suit and providing that the court may order that the person causing the nuisance be excluded from the premises under certain conditions. The Act also allowed the abatement of a nuisance that involves the manufacture as well as the distribution of drugs, and made the language in the statutes more consistent and comprehensive by referring to "buildings" and "premises" as well as a "place". The legislature believed that places used for illicit drugs, prostitution, or pornography were major factors contributing to the decline of neighborhoods, and that permitting any organization to bring a nuisance abatement action and allowing a court to exclude persons causing the nuisance strengthened part IV of chapter 712 to deal with these problems. Conference Committee Report No. 35, Senate Standing Committee Report No. 2618.

Act 286, Session Laws 1998, added §712-1270.5 to allow injunctions against entering or residing in any public or private building, premises, or place to issue against the person causing the nuisance. The legislature found that in 1996, Act 246 was passed, which amended various sections in chapter 712. The purpose of Act 246 was to allow organizations to maintain nuisance abatement suits and thereby obtain injunctive relief against persons utilizing certain buildings, premises, or places, to commit offenses against public health and morals. The legislature also found that the department of the prosecuting attorney, relying on Act 246, began to move for injunctions barring prostitutes from certain areas of Waikiki. The legal reasoning upon which Act 246 was applied to prostitutes was that prostitutes who solicit on public streets aggressively hinder both pedestrian and vehicular traffic and harass visitors to the point where their activity becomes a public nuisance. However, the circuit courts denied the motions for injunctions against prostitutes on the grounds that the nuisance abatement statute did not expressly apply to individuals.

In passing Act 246, the legislature expressly intended that the court could order, as part of the abatement of the nuisance, the exclusion of the person causing the nuisance from the place, building, or premises involved. Act 286 will solve the apparent ambiguity in the law by specifically stating that nothing in the nuisance abatement law prohibits injunctions against persons causing the nuisance. House Standing Committee Report No. 613-98, Conference Committee Report No. 93.

Act 286, Session Laws 1998, amended §712-1271 to provide that no actions authorized under part V of chapter 712 which seeks to abate or prevent a nuisance shall be filed or maintained against the State or any political subdivision thereof. Conference Committee Report No. 93.

Act 286, Session Laws 1998, amended §712-1273 to allow evidence of a person's general reputation to be introduced to prove the existence of a nuisance. Conference Committee Report No. 93.

Act 44, Session Laws 2004, added §712-1270.3 and amended §§712-1276 and 712-1278, to allow citizens to recover attorneys' fees and to receive the same protection as crime victims do. House Standing Committee Report No. 495-04.

Act 123, Session Laws 2005, added §712-1271.5, to establish that a preponderance of the evidence is the standard of proof applicable to nuisance abatement actions, §712-1271.6, to authorize a court to issue a protective order to prevent the disclosure of the identity of a witness when presented with evidence of acts of violence or prior threats of violence by any defendant in a nuisance abatement action, and §712-1277.5, to subject an individual who knowingly violates a protective order to civil as well as criminal contempt of court.

Act 123 also amended §§712-1270.5, 712-1271, 712-1272, 712-1273, 712-1275, and 712-1276 to, among other things, allow injunctions against persons who maintain, aid, abet, or permit a nuisance from entering or residing in any place where the nuisance exists and enable a court to enter an order suspending or revoking any business, professional, operational, or liquor license if the holder of the license is involved in maintaining, aiding, abetting, or permitting the nuisance. The legislature found that the Act would encourage neighborhood residents to report community nuisances such as drug activity by increasing the protections for witnesses in nuisance abatement actions, expanding the scope of injunctions to include persons associated with the nuisance, and providing law enforcement additional tools to abate a nuisance. Conference Committee Report No. 11, House Standing Committee Report No. 1288, Senate Standing Committee Report No. 638.

Act 136, Session Laws 2010, added §712-1281 to subject to forfeiture laws property used or intended to be used and proceeds acquired in the commission or attempted commission of the illegal importation, sale, and transfer of fireworks. Act 136 also amended §§712-1270 and 712-1270.3, respectively, to establish a nuisance action under the Penal Code to abate those activities, and to give citizens who bring an action to abate the activities the same rights and protections of victims and witnesses in criminal proceedings. The legislature found that increasing the penalties for violations of fireworks-related laws may serve to curb rampant illegal fireworks in the State. Conference Committee Report No. 18-10, Senate Standing Committee Report No. 3044.