Report Title:

Small Business Defender

 

Description:

Re-establishes the Office of the Small Business Defender within the Legislature.  Allows the Small Business Defender to hire attorneys.  Appropriates funds.  (HB314 HD2)

 


HOUSE OF REPRESENTATIVES

H.B. NO.

314

TWENTY-FOURTH LEGISLATURE, 2007

H.D. 2

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

     (1)  Re-establishing the office of the small business                   defender, which was created by Act 168, Session Laws               of 1998, but repealed by Act 202, Session Laws of            Hawaii 2002, to represent, defend, and provide legal            representation to small businesses during proceedings              involving civil citations issued by a state or county           agency;

     (2)  Allowing the small business defender to hire                   attorneys; and

     (3)  Appropriating funds for the re-establishment of the            office.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

Chapter

small business defender

     §    -1  Small business defender.  (a)  There is established within the legislature 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.

     (b)  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)  The legislature declares that the activities of the small business defender constitute a public purpose for which public funds may be expended.

     (d)  As used in this section, "small business" is defined in section 201M-1.

     §   -2  Attorneys; staff or contract.  The small business defender may employ or retain, by contract or otherwise, one or more attorneys who are independent of the attorney general to provide legal services as determined by the small business defender.  The attorneys hired or contracted shall be exempted from chapters 76, 78, and 88.

     Neither the small business defender nor the attorneys shall represent the State in the performance of their duties.

     §   -3  Annual report.  The small business defender shall submit an annual report to the legislature detailing its activities and expenditures no later than twenty days prior to convening of the regular session."

     SECTION 3.  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;

    (19)  By the office of elections;

    (20)  By the campaign spending commission;

    (21)  By the Hawaii tourism authority, as provided in section 201B-2.5; [or]

    (22)  By the small business defender, as provided in section    -2; or

   [(22)] (23) 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 division of consumer advocacy, the University of Hawaii, the Hawaii tourism authority as provided in section 201B-2.5, 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 4.  There is appropriated out of the general funds of the State of Hawaii the sum of $      or so much thereof as may be necessary for fiscal year 2007-2008 to establish the office of the small business defender within the legislature, to represent, defend, and provide legal representation to any small business during proceedings involving civil citations issued by a state or county agency.

     The sum appropriated shall be expended by the legislature for the purposes of this Act.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect on July 1, 2034; provided that amendments made to section 28-8.3, Hawaii Revised Statutes, by this Act shall not be repealed when that section is reenacted on June 30, 2010, by Act 58, Session Laws of Hawaii 2004, section 14, as amended by Act 22, Session Laws of Hawaii 2005, section 50, and as amended by Act 306, Session Laws of Hawaii 2006, section 1.