Report Title:

Small Business Defender

 

Description:

Makes the law enacting the small business regulatory flexibility act and the small business defender permanent. Moves the small business defender position to the department of business, economic development, and tourism for administrative purposes. Allows the small business defender to hire attorneys.

 

THE SENATE

S.B. NO.

1312

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to small business.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. A strong, viable economy is integral to the overall well-being of the people of Hawaii, and small businesses have a significant impact on the State's workforce and economy. The legislature finds that small businesses contribute to our quality of life by providing essential products and services, jobs, and other employment and economic opportunities. Small businesses also fuel economic expansion for the benefit of the entire community.

The legislature finds that small businesses serve a public purpose, and it is necessary that small businesses in the State be supported and assisted in their endeavors. The legislature further finds that the placement of the small business defender within department of business, economic development, and tourism for administrative purposes does not create any inherent conflict between the small business defender and the department of business, economic development, and tourism. Any representation, defense, or legal representation provided to a small business by the small business defender would be analogous to those actions where the prosecution of a case is handled by the department of the attorney general and the defendant is represented by the office of the prosecutor.

The purpose of this Act is to assist small businesses in this State by:

(1) Making permanent the law enacting the Hawaii Small Business Regulatory Flexibility Act and the small business defender;

(2) Transferring the small business defender position to the department of business, economic development, and tourism for administrative purposes; and

(3) Allowing the small business defender to hire attorneys under section 28-8.3, Hawaii Revised Statutes.

SECTION 2. Section 28-8.3, Hawaii Revised Statutes, is

amended by amending subsections (a), (b), and (c) to read as follows:

"(a) No department of the State other than the attorney general may employ or retain any attorney, by contract or otherwise, for the purpose of representing the State or the department in any litigation, rendering legal counsel to the department, or drafting legal documents for the department; provided that the foregoing provision shall not apply to the employment or retention of attorneys:

(1) By the public utilities commission, the labor and industrial relations appeals board, and the Hawaii labor relations board;

(2) By any court or judicial or legislative office of the State;

(3) By the legislative reference bureau;

(4) By any compilation commission that may be constituted from time to time;

(5) By the real estate commission for any action involving the real estate recovery fund;

(6) By the contractors license board for any action involving the contractors recovery fund;

(7) By the trustees for any action involving the travel agency recovery fund;

(8) By the office of Hawaiian affairs;

(9) By the department of commerce and consumer affairs for the enforcement of violations of chapters 480 and 485;

(10) As grand jury counsel;

(11) By the Hawaiian home lands trust individual claims review panel;

(12) By the Hawaii health systems corporation or any of its facilities;

(13) By the auditor;

(14) By the office of ombudsman;

(15) By the insurance division;

(16) By the University of Hawaii;

(17) By the Kahoolawe island reserve commission;

(18) By the division of consumer advocacy; [or]

(19) By the small business defender; or

[(19)] (20) By a department, in the event the attorney general, for reasons deemed by the attorney general good and sufficient, declines, to employ or retain an attorney for a department; provided that the governor thereupon waives the provision of this section.

(b) For purposes of this section, the term "department" includes any department, board, commission, agency, bureau, or officer of the State.

(c) Every attorney employed by any department on a full-time basis, except an attorney employed by the public utilities commission, the labor and industrial relations appeals board, the Hawaii labor relations board, the office of Hawaiian affairs, the Hawaii health systems corporation, the department of commerce and consumer affairs in prosecution of consumer complaints, insurance division, the University of Hawaii, the Hawaiian home lands trust individual claims review panel, the small business defender, or as grand jury counsel, shall be a deputy attorney general."

SECTION 3. Act 168, Session Laws of Hawaii 1998, is amended by amending section    -1 of the chapter established in section 3 of the Act to read as follows:

"§ -1 Small business defender. (a) There is established within the [legislature] department of business, economic development, and tourism for administrative purposes a small business defender. The small business defender shall be appointed by the [senate president and speaker of the house of representatives. The senate president and speaker of the house of representatives shall determine the salary of the small business defender. The senate president and speaker of the house of representatives may also appoint administrative support personnel who shall assist and support the small business defender.] governor without regard to chapter 76, and shall serve at the pleasure of the governor. The small business defender's salary shall be within the range of salaries paid to the directors and deputy directors of the departments of state government. The small business defender shall be a member of the state employees' retirement system and shall be eligible to receive the benefits of any state or federal employee benefit program generally applicable to officers and employees of the State.

(b) In carrying out its duties under this section, the small business defender may request staff assistance from the department of business, economic development, and tourism and other appropriate state agencies. The small business defender may also employ, without regard to chapter 76, and at pleasure dismiss such persons as the small business defender finds necessary for the performance of its functions and fix their compensation.

[(b)] (c) Unless otherwise specifically provided by law, and upon written request by a small business, the small business defender may represent, defend, and provide legal representation to any small business, during any adjudicatory or contested proceeding involving any civil citation issued by a state or county agency in which the small business is a party; provided that the small business shall seek its own legal representation whenever the potential remedies against the small business may include fines or penalties that exceed $25,000 or may result in the suspension or revocation of a license. The small business defender shall have the discretion to accept or refuse any case for good cause. The small business defender may also engage in the following activities:

(1) Advocate and negotiate, upon consultation with the small business regulatory review board, with federal, state, and county agencies and officials on any matter relating to and promoting the interests of small business;

(2) Conduct investigations to secure information useful in the lawful administration of any provision in this chapter;

(3) Refer any appropriate matter to the auditor or ombudsman for examination or investigation; and

(4) Do any and all things necessary to effectuate the purposes of this chapter.

[(c)] (d) Each small business shall waive and release any and all claims, damages, causes of action, and any request for relief made against the small business defender or staff, the State or counties, their officers, employees, or agents, and arising from the legal representation of the small business by the small business defender provided under this section."

SECTION 4. Act 168, Session Laws of Hawaii 1998, is amended by amending section 5 to read as follows:

"SECTION 5. This Act shall take effect on July 1, 1998[, and shall be repealed as of June 30, 2002]."

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $1, or so much thereof as may be necessary for fiscal year 2001-2002, to establish the office of the small business defender within the department of business, economic development, and tourism for the purpose of representing, defending, and providing legal representation to any small business involving civil citations issued by a state or county agency.

SECTION 6. The sum appropriated shall be expended by the department of business, economic development, and tourism for the purposes of this Act.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2001.

INTRODUCED BY:

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