§200-39  Kaneohe Bay commercial ocean use activities; permits; restrictions.  (a)  Any other provision of this chapter to the contrary notwithstanding, no person shall operate thrill craft, parasailing, water sledding, or commercial high speed boating unless the person meets the requirements of section 200-37 and all rules adopted by the department that regulate or restrict these activities.

     (b)  No person shall conduct any commercial ocean use activity within Kaneohe Bay waters without a permit issued by the department.

     (c)  No person shall advertise or otherwise offer any commercial ocean use activity or equipment for such activity within Kaneohe Bay waters for which the person does not have a permit from the department.  Advertisement in print; by word of mouth; or online in any form, including through social media, of unpermitted commercial ocean use activities or commercial ocean recreational equipment shall be prima facie evidence that:

     (1)  The owner of the advertised commercial ocean use activity or commercial ocean recreational equipment disseminated or directed the dissemination of the advertisement in that form and manner; and

     (2)  The commercial ocean use activity or commercial ocean recreational equipment is being operated at the location advertised.

The burden of proof shall be on a person charged with a violation of this section to establish that the equipment is not being used for unpermitted commercial ocean use activity or that the person's conduct is pursuant to a permit, lease, or license issued by the department.

     (d)  Permits issued by the department for commercial ocean use activities in Kaneohe Bay shall be limited to the number and locations, by permit type and vessel and passenger capacity, provided in the Kaneohe Bay master plan developed pursuant to Act 208, Session Laws of Hawaii 1990, until applicable rules consistent with the master plan are adopted by the department; provided that the passenger capacity for snorkeling tours and glassbottom boat tours shall be set through rules adopted pursuant to chapter 91.  No thrill craft permit may be transferred after June 21, 1998; provided that transfers of permits may be made at any time between family members.

     (e)  On Sundays and federal holidays, all commercial ocean use activities shall be prohibited.

     (f)  All rules adopted by the department with regard to Kaneohe Bay shall be drafted in consultation with the Kaneohe Bay regional council.  For those provisions of the Kaneohe Bay master plan previously adopted by the legislature, the rules adopted by the department shall be in accordance with those provisions.  Notwithstanding subsection (d) to the contrary, if the department determines for safety or environmental protection reasons that a permitted use should be relocated, the department may relocate the permitted use and the department shall have discretion to permit vessel substitution with a similar length vessel; provided that the increase is no greater than ten per cent of the current vessel length.

     For those provisions of the Kaneohe Bay master plan developed pursuant to Act 208, Session Laws of Hawaii 1990, not previously adopted by the legislature, the master plan shall be used as the recommended guideline in the adoption and implementation of rules with regard to the regulation of all activities in Kaneohe Bay.

     (g)  Citations for violations of this section or any rules of the department adopted pursuant to this section may be issued by any law enforcement officer.  In enforcing this section, any law enforcement officer shall have the power to issue subpoenas and take legal custody of any personal property that is the subject of or related to any violation of this section or rules established by the department pursuant to this section.

     (h)  Property confiscated pursuant to this section may be released only upon approval by the board or a court of competent jurisdiction.  Storage of confiscated property shall be at the sole risk and expense to the owner.  The department may charge reasonable storage fees to the owner for storage of any property confiscated pursuant to this section.

     (i)  Any property confiscated pursuant to this section that remains unclaimed for more than ten working days after it has been released pursuant to subsection (h) may be sold at public auction.  If the department does not, or is unable to, sell the property at public auction, the department, after giving public notice of intended disposition, if that notice was not previously included in a public auction notice, may sell the property by negotiation, retain and use the property, donate the property to any other government agency, or dispose of the property as junk.

     (j)  Any penalties established in rule pursuant to this section shall be separate and in addition to any other fees, charges, and fines imposed by the department.

     (k)  As used in this section:

     "Commercial ocean recreational equipment" means thrill craft; watercraft for high-speed boating, parasailing, water sledding, sailing, snorkeling, diving tours, fishing tours, or glassbottom boat tours; kayaks; canoes; any manner of surfboards, sailboards, paddleboards, or related watercraft; or watercraft for any other similar commercial ocean activity.

     "Commercial ocean use activity" means and includes:

     (1)  Any commercial operation of commercial ocean recreational equipment, or any other similar commercial ocean activity;

     (2)  Providing any commercial ocean recreational equipment for rent or hire; or

     (3)  Delivering for hire or pre-positioning within one thousand feet of any shoreline of Kaneohe Bay for hire, any commercial ocean recreational equipment.

"Commercial ocean use activity" shall not include commercial fishing, commercial ocean activity authorized by a permit issued by the department, or activity authorized by an existing lease or license issued by the department. [L 1993, c 317, §§3(1), 7; am L 1998, c 4, §§2, 3 and c 129, §2; am L 2000, c 110, §1; am L 2023, c 232, §3]