2aHawaii
General Topics => Legal and Activism => Topic started by: suka on April 14, 2015, 01:25:41 AM
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The Hawaii Administrative Procedure Act is found under, Hawaii Revised Statutes 91 (HRS). According, under the Act, an agency has to comply with the rule-making requirements imposed by law. The rule-making requirements include:
1)Adoption as a rule a report of method by which a person can obtain information, make submittals and requests;
2)Adoption of rules of practice setting forth the requirements of all formal and informal procedures available;
3)Description of all forms and instructions used by the agency;
4)Making available for public inspection all documents used by the agency in discharging its functions;
5)Making available for public inspection all final opinions and orders.
6)An agency rule, order or opinion will be valid only if it is published or made available for public inspection. Each state agency must make available on the official website of the lieutenant governor each proposed rule-making action of the agency, full text of agency’s proposed rules or changes to existing rules.
According to HRS § 91-3, an agency before adoption, amendment or repeal of a rule must give at least 30 days’ notice for a public hearing. The notice must contain the statement of the topic and copy of the proposed rule, when and where the rule to be adopted, amended or repealed and the time and place of public hearing. Each rule adopted, amended or repealed will become effective ten days after filing it with the lieutenant governor if it is a state and with the county clerks if it is a county. Also HRS § 91-5 provides that each agency shall compile, index, and publish all rules adopted by the agency and remaining in effect.
Further according to HRS § 91-6, any interested person can petition the agency for the adoption, amendment or repeal of any rule. Within 30 days after the receipt of the petition, the agency can either initiate proceedings for rule-making or can deny it stating the reasons for denial in writing.
HRS § 91-7 provides that any interested person can seek declaratory judgment as to the validity of an agency by bringing in an action in the circuit court of the county in which petitioner resides or has its principal place of business. The court can then declare the rule invalid if it violates constitutional or statutory provisions, exceeds the statutory authority of the agency, or was adopted without compliance with statutory rule-making procedures. Also HRS § 91-8 provides that any interested person can petition an agency for a declaratory order as to the applicability of any statutory provision, rule or order of the agency.
In a contested case, each party must be afforded with an opportunity for hearing after giving a reasonable notice. The notice must contain the following:
The date, time, place and the nature of hearing;
Legal authority under which the hearing will be held;
Specific sections of the rules and statutes involved;
Statement of the facts and issues involved;
The fact that a party can retain a counsel if s/he desires.
In a contested case, every agency must consider the whole record or such portions thereof, cited by any party as reliable, probative, and substantial evidence before imposing a rule or issuing an order. Any oral or documentary evidence can be received by the agency but the agency must provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence. Further in a contested case, a final decision of the agency which adversely affects the other party will be made only after providing to the other party a statement containing determination of each issue of facts or law necessary to the proposed decision. An opportunity has been afforded to each party adversely affected to file exceptions and present argument to the officials who are to render the decision, who will personally consider the whole record or such portions thereof as may be cited by the parties.
Further according to HRS § 91-14, any person aggrieved by a final decision in a contested case is entitled to judicial review by the circuit court. This will not prevent the person from resorting to a trail by jury as provided by law. “Person aggrieved” also includes an agency who is a party to the contested case before that agency or another agency.
HRS § 91-14 provides that if the application of any provision of this Act to any person or circumstance is invalid, it does not mean that other provisions are also invalid. Other provisions are not affected by the invalidity and can be given effect without the invalid provision. Therefore, the provisions of this Act are severable.
http://files.hawaii.gov/dcca/oah/hrs/hrs_oah_91.pdf (http://files.hawaii.gov/dcca/oah/hrs/hrs_oah_91.pdf)
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Good information to know but I am not totally sure why you are posting it. What context is there? What rule should we or are we considering appealing using this method?
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HPD has a bad habit of making up the rules as they go along, this shows that it's illegal. :thumbsup:
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HPD has a bad habit of making up the rules as they go along, this shows that it's illegal. :thumbsup:
that is correct!
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suka,
Are you planning on notifying HPD of their (many) on-the-fly rules? Any specific examples you can give?
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So who should we contact to let them know our complaint about HPD Firearms Division? Personally I have not experienced any of their shenanigans but I'd be glad to help support those who have.
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helping a guy out on the big island.
his non detachable AR pistol was confiscated pending review. it has been several month now.
this is far cheaper (FREE) than a full lawsuit.
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They confiscated it when he attempted to register? Wow....
The lack of codified rules concerning what defines a "detachable" magazine kills me. Bullet button works fine in CA, but not here according to HPD and whomever is at/behind the counter.
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Was it the bullet button issue? I figure they probably took the gun until they can figure out a legal opinion or basis to say for sure whether it counts or not. I am surprised the bullet button passed muster in California and I doubt it will for Hawaii.
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The magazine was welded.
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They confiscated it when he attempted to register? Wow....
The lack of codified rules concerning what defines a "detachable" magazine kills me. Bullet button works fine in CA, but not here according to HPD and whomever is at/behind the counter.
yes
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The magazine was welded.
then that's double bullshit.
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from Spacegoat
Short answer on the Big Island is-NO-
1st-no way to "register" an 80%-Hawaii County does not have the "drop down" menu for self built manufactured...so it is not allowable to be registered
2nd-the LT. Who interprets the HRS. Does not have the time to look at it to determine if it complies with HRS..."different counties follow different rules on what is allowed, and since I am the in Hawaii county who says so and I am in Hilo, your in Kona, and I won't be there for a month, we ( HPD) are probably going to destroy it".-they held it as soon as I took it in to register.
He has not returned calls to date.
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"Oh, 'we' can't let 'you' have that !"
This is what goes through every bureaucrat's mind regarding the internet:
"That damned internet is going to ruin our ability to make up arbitrary and capricious rules and regs. Now we have to jump through all kinds of legal hoops instead of just 'them.' "
No wonder "they" want to control it like a public utility. As it is now, just "everyone" can read the rules and regs about making rules and regs.
Tough noogies for the lawyers or bureaucrats or the folks behind the counter.
Thanks, OP !
Terry, 230RN
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from Spacegoat
Short answer on the Big Island is-NO-
1st-no way to "register" an 80%-Hawaii County does not have the "drop down" menu for self built manufactured...so it is not allowable to be registered
2nd-the LT. Who interprets the HRS. Does not have the time to look at it to determine if it complies with HRS..."different counties follow different rules on what is allowed, and since I am the in Hawaii county who says so and I am in Hilo, your in Kona, and I won't be there for a month, we ( HPD) are probably going to destroy it".-they held it as soon as I took it in to register.
He has not returned calls to date.
That is massed up, and theft of private property with no due process. Hope this goes all the way and justice is served.
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If he really didn't know he should have let the guy take the gun. If he found later it was illegal then he could have the guy turn it in or sell it to a FFL. If a cop is unsure of the law he has to enforce then it is better to under act than over act.
If the magazine was actually welded in there I can't believe they would have a problem with it.
This makes me worried about making a pump action AR pistol...
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If he really didn't know he should have let the guy take the gun. If he found later it was illegal then he could have the guy turn it in or sell it to a FFL. If a cop is unsure of the law he has to enforce then it is better to under act than over act.
If the magazine was actually welded in there I can't believe they would have a problem with it.
This makes me worried about making a pump action AR pistol...
Why not call the ATF and have them send out people to make a assessment of the rifle, or for definitions about what is unclear. HPD has done that before. If you don't know, ask your supervisor or boss, and if they don't know, have them call their boss. We already took the day off to make a trip down to the PD to register our rifles, Im sure most wont mind waiting while they figure it out.
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Why not just allow them to register guns at any station?
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Why not just allow them to register guns at any station?
Only Honolulu PD has that requirement. Neighbor islands allow registration at any station.
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Why not just allow them to register guns at any station?
That still doesn't solve the problem of the police department making up rules and confiscating weapons they feel don't follow the law.
And as mentioned, registration at a single location is only an Oahu issue
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Thank you Suka for assistance.
It is my pistol that has been held for months with no response except for today.
I have been informed by an assistant to the LT. that it will not be returned nor registered and I was "supposed" to have received a letter...
I will wait until I receive that notice to act further but would appreciated guidance.
Not like I did not expect resistance...knowing that no one I knew registered one here before...but now stuff got real.
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your next step before you get the letter would be to file a stolen firearms report and a motion to sue since the PD did not offer a receipt for custody of your firearm.
This would at least keep it in evidence and your firearm from getting destroyed.
It will be a civil suit to recover property.
Can't help you on the lawyer part.
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Although the procedure is less than desirable now, it could be a lot worse.
Instead of confiscating, what could happen is the police department decides not to allow you to register your receiver. The entire time the police department could be calling the district court and attempting to secure a search warrant.
After they secure the warrant, they would let you walk out of the station. The moment you step foot onto the sidewalk, the police could execute the warrant, and find the receiver.
At that point, they could arrest you on the spot for having an illegal firearm, in which case you'd be arrested and charged with a crime.
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Although the procedure is less than desirable now, it could be a lot worse.
Instead of confiscating, what could happen is the police department decides not to allow you to register your receiver. The entire time the police department could be calling the district court and attempting to secure a search warrant.
After they secure the warrant, they would let you walk out of the station. The moment you step foot onto the sidewalk, the police could execute the warrant, and find the receiver.
At that point, they could arrest you on the spot for having an illegal firearm, in which case you'd be arrested and charged with a crime.
I don't understand why a warrant is needed. The owner already incriminated himself when he produced the receiver trying to register it. Plain sight, and all that.
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I don't understand why a warrant is needed. The owner already incriminated himself when he produced the receiver trying to register it. Plain sight, and all that.
A warrant probably isn't needed, but I'm assuming that the arresting officer would be different from the person at the firearms registration. Also, i'm assuming that the arrestee will put their firearm into a sealed container before leaving the police department.
If that's the case, then an officer might need a warrant to open the bag, discover that there's an illegal firearm, and subsequently arrest the person. The Constitution limits an officer's power to use a Terry stop, and without more facts, i don't think that one could be justified in this case.
The worst part about all of this is, even if the officer has no real reason to arrest you, but does, and even if your case gets thrown out, you'll still have to retain counsel. Assuming that you don't qualify for a public defender, which you probably won't, a lawyer might still cost you a grand or more.
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A warrant probably isn't needed, but I'm assuming that the arresting officer would be different from the person at the firearms registration. Also, i'm assuming that the arrestee will put their firearm into a sealed container before leaving the police department.
If that's the case, then an officer might need a warrant to open the bag, discover that there's an illegal firearm, and subsequently arrest the person. The Constitution limits an officer's power to use a Terry stop, and without more facts, i don't think that one could be justified in this case.
The worst part about all of this is, even if the officer has no real reason to arrest you, but does, and even if your case gets thrown out, you'll still have to retain counsel. Assuming that you don't qualify for a public defender, which you probably won't, a lawyer might still cost you a grand or more.
I think a more realistic scenario is, the firearms div officer confiscates the receiver and bags it as evidence The report is forwarded to the AG's office, and they decide whether the case needs punishment. If so, they will ask for an arrest warrant, and the owner will get a knock at his door.
By attempting to register, it's obvious the intent was to follow the law. Depending on the rest of the facts and the owner's arrest record, if any, the mistake will likely be overlooked.
If I were the owner, I would welcome the chance to have the police explain to a judge why they are unable to properly register a receiver which is not illegal according to the law as written. If that doesn't make them clean up their registration rules and processes, maybe a civil suit will.
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I emailed the firearms division last month concerning AR pistols. Here's the conversation.
Me:
Per HRS 91 State law requires documents used by an agency (county include) in discharging its functions must be made available to the public. I have heard about discrepancies in registering a purchased pistol lower receiver with a non-detachable magazine. Before spending money on a project like this I'd like to know where I can get the rules the Firearms division uses to determine what can be registered. Thank you.
HPD Firearms Section
Please look under the Hawaii Revised Statues 134-1 Definition, Assault Pistol.
This type of pistol is only legal now because of the wording "detachable magazine". When the loophole is written out of future laws the pistols will become illegal.
Me
Per HRS 91 I would like to be pointed to clear and officially published document that department employees use to make the determination of what is or is not a detachable magazine.
HPD Firearms Section
All technical questions referring to firearms make, model, and detachable magazines are referred to the BATF.
I was thinking of taking this email conversation in case I have any issues.
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:thumbsup:
loophole
seems they want to bring the definition up for a revision in the future.
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I sent an email to BATF asking for the official definition of detachable magazine. As soon as I get that I will post the response. So AR pistols are legal and looks like they will go by ATF's definition of detachable. Any shenanigans done by the firearms division to not let you register them is illegal on their part. They are enforcers of written law, they do not make the law or operate on what they think what "future laws" will be. Frankly I was surprised they put that in writing.
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I already have a official letterhead ATF letter from tech branch in VA; which they do not determine detachable magazines, they referred it over the the local authority. As quoted ,it is not mandated nor mentioned by federal laws. They ATF has no jurisdiction on that matter.
HPD is blowing it up there ass again!
They will take a few years to hatch out a new law and definition. but it will take me only 30 min to review understand and order new parts for a legal firearm.
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Good luck with the local BATF; they are just as bad as the firearms section with regards to making their own laws up.
I sent it to their NFA@atf.com. I'm assuming that's the national office.
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I already have a official letterhead ATF letter from tech branch in VA; which they do not determine detachable magazines, they referred it over the the local authority. As quoted ,it is not mandated nor mentioned by federal laws. They ATF has no jurisdiction on that matter.
HPD is blowing it up there ass again!
They will take a few years to hatch out a new law and definition. but it will take me only 30 min to review understand and order new parts for a legal firearm.
Thanks for that info. I can now respond that ATF passes the back to them and they need to define it in their own procedural documents.
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I think that bringing a HAPA claim will be pretty trivial. I doubt that the courts will agree with the theoretical arguments made in this thread. I'll point you to the case In Interest of Doe, 844 P.2d 679, 9 Haw.App. (Haw. App. 1992). In this case, it seems pretty clear that the court will not allow HAPA claims arguing a lack of promulgation of the regulations. The case cites several other decisions as well, so I decided that this case might be the most persuasive.
here's the language of the opinion.
Opinion
PER CURIAM.
The Family Court of the Third Circuit entered a decree adjudging that Doe, a minor, was a law violator within the purview of Hawaii Revised Statutes (HRS) § 571–11(1) (1985) *407 for, inter alia, driving under the influence of intoxicating liquor (DUI) in violation of HRS § 291–4(a)(1) (1985).1 On appeal, Doe contends that the family court erred in denying Doe's motion to suppress evidence of the results of the field sobriety tests administered to him because the procedures regarding those tests had not been adopted pursuant to rule-making directives of HRS Chapter 91, the Hawaii Administrative Procedure Act (HAPA), by the Hawaii County Police Department (HCPD). We affirm.
FACTS
In the early morning hours of July 20, 1991, Doe was arrested and thereafter charged with (1) DUI; (2) driving through a red light in violation of HRS § 291C–32(a)(3A) (1985); and (3) driving with an expired safety sticker in violation of HRS § 286–25 (1985). Doe filed a motion to suppress “any and all evidence relating to the field sobriety tests and evidence derived as a result thereof[.]” Record at 15. On January 8, 1992, the family court held an evidentiary hearing on Doe's motion. The testimony of HCPD *408 Officer Martin Ellazar (Officer Ellazar) established the following facts.
At about 12:15 a.m. on July 20, 1991, Officer Ellazar observed Doe drive his vehicle through the intersection of Route 19 and Pukihae Street in South Hilo against a red traffic light. Officer Ellazar activated his blue light and stopped Doe. As Officer Ellazar approached Doe's vehicle from the rear, Doe got out of his vehicle to meet the officer. Officer Ellazar observed that the safety sticker on Doe's vehicle had expired and advised Doe of this violation. As Doe stood a foot away from him, Officer Ellazar detected “a very strong odor of an alcoholic beverage on his breath.” Trial Transcript at 9. The officer then advised Doe that he would administer field sobriety tests on Doe.
Prior to administering the field sobriety tests, Officer Ellazar asked Doe if he had any physical impairments. Upon receiving a negative reply, Officer Ellazar proceeded to administer to Doe five different field sobriety tests: (1) Horizontal Gaze Nystagmus test; (2) Walk-and-Turn test; (3) One–Leg Stand test; (4) Finger-to-Nose test; **681 and (5) Modified Rhomberg test (with heels together and hands down at his side, subject closes his eyes, tilts his head back, and counts backward). Officer Ellazar testified that Doe failed all five tests, so he arrested Doe for DUI.
Officer Ellazar also testified that he had been a police officer since 1985, he had a minimum of eight hours of classroom training and another eight hours of classroom training later relating to administering field sobriety tests. HCPD personnel conducted these training sessions. Officer Ellazar has administered field sobriety tests since becoming a police officer in 1985. He stated that field sobriety tests are routinely administered to a driver suspected of DUI, unless the driver is physically unable or refuses to undergo such tests. The HCPD has printed “Standardized Field Sobriety Tests Work Sheet” forms used by its police officers. State's Exhibit 1. These forms contain instructions to be given *409 to the driver being administered the tests and spaces to score the results for each of the five field sobriety tests. According to Officer Ellazar, based on his knowledge, “there were no administrative rules or regulations governing the administration of the field sobriety tests.” Record at 58.
At the close of the hearing, the family court denied Doe's motion to suppress. Thereafter, the jury-waived trial of the case commenced. The parties stipulated that the testimony and other evidence in the suppression hearing be made a part of the trial on the merits. The parties further stipulated that (1) after Doe's arrest, he was transported to the police station where he consented to take a breath test; and (2) the intoxilyzer breath test administered to Doe at 1:45 a.m. indicated a blood alcohol concentration of 0.091 percent. The family court adjudged that Doe was a law violator with respect to DUI,2 driving through a red light, and driving with an expired safety sticker.
After the denial of his motion for reconsideration, Doe timely appealed.3
*410 DISCUSSION
A state agency “must conform to the requirements of HAPA when acting in ... a rule making capacity (quasi-legislative)[.]” Town v. Land Use Comm'n, 55 Haw. 538, 545, 524 P.2d 84, 89 (1974); see also Sharma v. State, 66 Haw. 632, 637, 673 P.2d 1030, 1033 (1983). HAPA defines “agency” and “rule” as follows:
(1) “Agency” means each state or county board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches.
* * * * * *
(4) “Rule” means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued **682 pursuant to section 91–8, nor intra-agency memoranda.
* * * * * *
HRS § 91–1 (1985).
Doe argues that (1) HCPD is an “agency” as defined in HAPA; (2) HCPD's field sobriety testing procedures are “rules” pursuant to HAPA; (3) because HCPD failed to conform to HAPA's rule-making requirements in adopting the field sobriety testing procedures, the procedures are invalid and unenforceable; (4) consequently, the family court should have suppressed the field sobriety test results which led to Doe's arrest for DUI; (5) without *411 the field sobriety test results, there was insufficient evidence that Doe was guilty of DUI beyond a reasonable doubt; and (6) therefore the family court's adjudication that Doe was a law violator for DUI must be reversed.
The HCPD is a county department authorized by law to make rules. Charter of the County of Hawaii sec. 7–2.3 (1980) (the police commission is authorized to adopt rules). We therefore agree that the HCPD is an “agency” required to conform to HAPA's rule-making requirements. However, we do not agree that the HCPD's field sobriety testing procedures constitute “rules” subject to HAPA's rule-making requirements.
HAPA itself excludes “regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public” from its rule-making restraints. See Holdman v. Olim, 59 Haw. 346, 355, 581 P.2d 1164, 1170 (1978) (a directive controlling the dress of visitors to the Oahu State Prison). We conclude that the HCPD's field sobriety testing procedures fall within such exclusion and are not subject to HAPA's rule-making requirements.
In Doe v. Chang, 58 Haw. 94, 564 P.2d 1271 (1977), three welfare recipient plaintiffs sought injunctive relief from investigations and prosecutions of welfare fraud on the ground that the State welfare fraud procedures were invalid because the manual of instructions concerning welfare fraud investigations was not adopted in accordance with HAPA's rule-making requirements. The Hawaii Supreme Court disagreed with the plaintiffs, holding that the manual of instructions in question constituted “internal regulation contemplated by HRS § 91–1(4).” 58 Haw. at 96, 564 P.2d at 1273.
In State v. Fedak, 9 Haw.App. 98, 825 P.2d 1068 (1992), the Honolulu Police Department's (HPD) regulation that established the department's drunk driving prevention program, which included the authorization of sobriety roadblocks, was at issue. A DUI defendant, who had been stopped at a sobriety roadblock, *412 challenged the HPD regulation in question on the ground that it had not been promulgated in accordance with HAPA. This court held that the HPD regulation was an internal regulation within the definition of HRS § 91–1(4), stating:
[A]lthough HPD sobriety roadblocks unquestionably impinge on a driver's freedom of movement, [the HPD regulation's] procedures are aimed at prescribing and controlling the police officer's activities in order to minimize the intrusion on the driver's rights.
9 Haw.App. at 101, 825 P.2d at 1070.
The record in this case discloses that, like in Doe v. Chang, supra, the field sobriety testing procedures established by the HCPD were instructional in nature directed only to HCPD police officers. The procedures instructed the officers how to administer field sobriety tests to drivers reasonably believed to have been DUI, after they were properly stopped and ordered out of their cars.4 Also, although field sobriety tests intrude on drivers' rights as do sobriety roadblocks, HCPD's field sobriety testing procedures are aimed at assuring the proper and correct methods of administering the tests to drivers.
Consequently, those testing procedures concern only the “internal management” of the HCPD and do not affect “private rights **683 of or procedures available to the public” within the meaning of HAPA.
CONCLUSION
Accordingly, we hold that the HCPD's field sobriety testing procedures are not “rules” subject to the rule-making requirements of HAPA. Therefore, the family court did not err in denying Doe's motion to suppress evidence.
Affirmed.
Parallel Citations
844 P.2d 679
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Thanks for that info. I can now respond that ATF passes the back to them and they need to define it in their own procedural documents.
for muzzle devices , ATF requires silver solder, a non removable permanent pin or at least 2 clearly defined tack weld points . HPD should follow in this direction.
having to weld completely around is just overkill.
Don't push it to far or they may require it to completely weld over. Currently they require only that it doesn't wobble, and not just held by the mag catch.
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Follow up... Wow got some action. I have been polite and explained the emphasis of non-detachable=none of the "assault pistol" features apply... I have received 4 phone calls from 2 separate clerks. Well I can only speculate at this point, but no letter has gone out, but an explanation has been given.
I have been now inforrmed that my attachment ( clerk would not elaborate how) of the magazine has not passed the Majors inspection and although removal would destroy the receiver-, there is no mag catch to depress( I cut this off n after completely bottoming it out and attached a blind galvanized plate over it)
When I asked about the 80%...I was informed the LT n Kona Clerk were in error...training will take place. 80% and self manufacture is OK.
As to my firearm...I asked if I could address the Majors concerns regarding the attachment-fix it? Nope. Deemed illegal. My weld not good enough. I am being given the chance to transfer out of state. Details to follow, but I need to speak with an FFL who would cooperate.
I'm done I think.
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Did you ask the major the written department rules and regulation that he used to make this determination? Such rules are required to be made public by law. Unless he is following a publicly available written rule he is violating your constitutional right to bear arms that are legal to own.
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Spacegoat, PM me your email. I'll give you my FFL and have it sent to me.
We can figure out what you want done to the receiver, send it back to you with welds, or make it into a rifle.
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Spacegoat, PM me your email. I'll give you my FFL and have it sent to me.
We can figure out what you want done to the receiver, send it back to you with welds, or make it into a rifle.
Suka. Great looking out! You are an officer and a gentleman. :worship: :thumbsup:
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They must still give you a written statement as to why it was not accept and also made public.