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Happy Lunar New Year!

As some of you know I do a post every year related to the Chinese zodiac animal of the New Year. Last year it was about landlord’s charging extra rent for dogs. The year prior to that one was, can you keep chickens in your backyard. Going to back when I started this tradition, in 2016, I wrote about can you own a monkey in Hawaii. Thank goodness dragon is still five years away! I have no idea what I am going to do that year …

2019 is Year of the Boar, so we are going hunting. Well, not literally, but I am going to cover the general basics for legally hunting feral pigs (sus scrofa scrofa) in the State of Hawaii.

Sus scrofa scrofa.

What do I Need to Hunt Legally?

Before getting to the paperwork, in general you should understand that hunting animals in Hawaii is largely regulated by the Department of Land and Natural Resources (DLNR).  DLNR is responsible for the management of public lands and all the interests therein, including the animals. So if you are planning to hunt and have further questions, DLNR is likely who you will be contacting.

With regard to the paperwork, a hunting in Hawaii requires a hunting license. A hunting license is necessary whether you are going to be hunting on public or private lands. In order to purchase a hunting license though you must either possess:

  1. a Hawaii Hunter Education Wallet Card; OR
  2. a Letter of Exemption.

In case of 1., you’ve passed the Hawaii Hunter Education Class, then received a Hunter Certification Card. In the case of 2., that means you have received an out-of-state hunter education card or obtained a Hawaii Hunting License prior to July 1, 1990. Specifically, for non-residents you will need complete the non-resident Letter of Exemption Form and submit it as an application to DLNR. Obviously, once you submit your application the government will review, process, and ideally approve it. Like any government process, there will be additional procedures after approval. However, with approval you should be able to purchase a Hawaii hunting license. If you are a nonresident, then you will likely have to work with your local hunter education office to get certification or proof to be submitted to DLNR to obtain the Letter of Exemption.

Go Hunt, Hawaii, a DLNR website is the State’s official hunting resource and provides a schedule of classes to take basic Hunter Education as well as an easy to follow flowchart on the basics of hunting.

What if I am a Nonimmigrant Alien?

If you are coming to the United States and temporarily bringing firearms and ammunition into the United States, then the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has a FAQ to address these issues. Obviously, this is just a general FAQ and any specific concerns may require more planning and communication with the agency or others involved, such as your travel arrangements.

What About Bringing Firearms and Ammunition Into Hawaii?

Firearms and ammunition being brought into the state must be registered.

Firearms and ammunition brought into Hawaii must be registered within 48 hours after their arrival with the Chief of Police of the county of one’s residence, business or sojourn. So whatever islands you are heading to, you have to register your hunting weapons and ammunition. Understand that while DLNR regulates public lands, the regulation and enforcement of firearms happens at the county-level, so the police chiefs of the various counties have control. So you will want to contact the district police station on the island you are heading to or an office of the Division of Conservation and Resources Enforcement (DOCARE).

What About Minors and Firearms?

Minors, those who are 15 years and younger, that are hunting with a firearm must obtain a permit from the county police department.

What if I am Disabled Hunter?

Those with disabilities are suggested by DLNR to review the vehicle permit application and the cross-bow permit application. There may be additional requirements and issues. Therefore, it would probably be best to contact DLNR.

Where Can I Hunt Boar in Hawaii?

Each island has different zones, animals, and other variables to go hunting. Check the DLNR rules and regulations.

Ok, once you’ve squared away your hunting license where can you go to hunt boars? Well, in terms of public lands feral pigs may be hunted on Hawaii (also known as the “Big Island”), Maui, Molokai, Oahu, and Kauai. There are special zones for public lands hunting. It is best to check maps and understand the terrain. To be specific DLNR provides the Game Mammal Hunting Rules as a downloadable PDF. If you go through these Hawaii Administrative Rules you will see a number of maps, charts, and exhibits that discusses each of the islands zones, hunting units, means of hunting, bag limits, open hunting periods, open hunting days, and special conditions and restrictions. It is quite explicit. In addition, they provide many of these charts and tables for each of the islands as follows:

Yes, Lanai has a page as well, but this post is concentrated on feral pig hunting.

What about Private Lands?

In addition to everything indicated prior, that is having a valid hunting license, doing your hunting during limited hours, you obviously need the permission of the landowner. The exception as to what is okay to hunt with, that is setting weapons and method, hunting fees, and special prohibits are set by the landowner. More on those topics ahead.

Whoever Goes Hunting Are They Required to Have Special Clothing?

Blaze orange garment is a must for anyone part of the hunt. Hawaii rules specific what is a must for this garment.

Yes, any person who goes on the hunt in a public hunting area basically needs to wear something specific. Think orange. That is whether the person is serving as a guide, accompanying or assisting the hunter, and the hunter themselves needs to be wearing an exterior blaze orange garment. The rules on this blaze orange garment are very specific, the point being safety. So the blaze orange garment while engaging in any of those hunting activities:

  1. may be a shirt, vest, coat or jacket;
  2. the material must be commercially manufactured and may be either solid or mesh with a maximum mesh size of one-eighth inch; and
  3. the use of camouflage orange is PROHIBITED.

Finally, these blaze orange garments are not required on designated archery only public hunting areas.

When Can I Hunt Boar? What Times During the Year and Day?

Game mammals (which includes feral pigs) may only be hunted from one-half hour prior to sunrise and until one-half hour after sunset. This is year-round. It is prohibited by law to hunt during one-half hour after sunset and one-half hour before sunrise. Basically, after the sun goes down and until rises again hunting is illegal. Again, much like the orange clothing requirement, safety is an issue.

How can I Hunt Boar? What Tools and Methods are Okay?

What about Using Flashlights?

So from the prior question and answer, you may be thinking what if we lit up the area? DLNR prohibits the use of any form of artificial light for hunting.

What about Dogs, Firearms, Bows and Crossbows or Melee weapons?

From DLNR’s Game Mammal Hunting page:

When hunting with dogs where permitted, hunters may use any muzzeloading rifle with a minimum of 0.45 caliber bore diameter; any rifle using at least a 0.22 caliber magnum load or center fire cartridge; shotguns loaded with slugs or 00 or larger buckshot or spears or knives. When hunting without dogs, hunters may use any rifle with a muzzle energy rating of 1,200 foot pounds or more; shotguns loaded with 00 or larger buckshot and muzzleloader rifles with a minimum of 0.45 caliber bore diameter (Breech loaders may not be used during muzzleloader only designated hunts). When hunting with a bow, the following drawing tension requirements are applicable: Long bows must have a minimum of 40 pounds at a 28-inch draw; Recurved bows must have a minimum of 35 pounds; Compound bows must have a minimum of 30 pounds.

Last Reminder: General Information and On Feral Pigs Only

Remember, we are only talking about feral pigs in this post, which falls under game mammals. Also much of this is general information provided on DLNR’s webpages, but when dealing with activities, such as hunting, then there are a lot of safety issues to deal with.  Additionally, for this post everything discussed here is on feral pigs. While some of these rules and regulations apply to other animals, such as feral goat – there are slightly different permit requirements for other game mammals. For example, deer, wallabies, and wild cattle are protected. Further, game birds are regulated both on public and private lands. So again, you are going to have to do some homework for those animals. Many people get turned away at the license agent’s counter due to being unaware or requirements. Research and plan ahead!

Good luck and good hunting! May you find the Year of the Boar prosperous and full of bounty!  As always, thanks for stopping by and reading.

-RKH

DISCLAIMER: This post provides general information, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained in the post without seeking the advice of  an attorney in the relevant jurisdiction.  Hew & Bordenave, LLLP expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Horror Stories of Owning a Business and How to Deal with Them

The seminar focused on stressful situations encountered by business owners and how to deal with them.

Horror Stories of Business Ownership: Recap of Seminar

How is the beginning of your November 2017 going? Are you scared there are only 2 months left till the end of the year? Well, speaking of frights, I did a seminar with the Better Business Bureau of Hawaii (BBB) this past Monday celebrating Hallloween. We told spooky stories, well sort of. We discussed the horrors of business ownership. Specifically, I talked about these broader topics:

  1. structure of entity – failing to plan properly;
  2. disputes with business partners and managers;
  3. government regulations – the revoking of permits and licenses; and
  4. intellectual property infringement.

Lisa Nakao,Director of Operations of the BBB, discussed the resources the BBB offers and how to deal with reviews and complaints by customers hosted on the BBB’s website (I will cover some of this in a Part II to this post). If you could not make it to this seminar do not worry. I will continue presenting seminars aimed at educating business owners about the legal issues. So be sure to check back and follow us.

Some of the Horrors of Owning a Business – Highlights

I’d like to take this time to discuss some highlights of the seminar. While, I will not cover everything from the seminar, as you will  just have to come to the next one, this post will touch upon a couple of issues. Particularly the ones that gave good discussion or attendees asked a lot of questions.

1. Managerial Authority in a LLC: Friends, Family Members, and/or Relatives of Friends as Your Manager

I’ve discussed in the past of business partner disputes, but this following scenario is derived on a similar theme. Consider the situation where many small and medium-sized business owners rely on family or friends to help run their business, including relatives of friends. This tight-knit network can be a boon or a misfortune. Especially, here in Hawaii where people tend to rely on local connections the trust and reliance can run high and sometimes too quickly. Specifically, I refer to hiring someone as a manager of your LLC or corporation and giving them access to the company’s bank account and credit cards. Then the business owner discovers the person they thought they could trust is gone the business account is empty and the credit cards are over extended. Worst yet, there is no written management agreement.

Don't lose your business account.

Be careful of giving your manager too much access to your finances.

Is there Nothing that Can be Done? 

While, legally there is a lot to do, such as suing them or attempting to report them to the police for theft – the reality is proof and evidence issues. Many times business owners in this situation rely on a handshake, only talk to their manager on the phone, and their emails and texts refer to managerial duties/obligations obliquely. There is no writing of the contract. Further, consider even if you have a good case, you have to find them and force them to give back the money, which by the time you get the the lawsuit filed, served, and litigated, they’ve probably spent it.

So again, this is an urging to slow it down and think methodically. I get it. Small business owners are trying to get help and tread water. However, consider the following ideas:

  1. conduct due diligence – find out more about them before you hire them;
  2. limit their access to the business bank account and credit cards – you do not need to give them unfettered access;
  3. if you cannot do a full-blown management agreement, then at least tackle the main terms in some of memorandum, letter, or lengthy email;
  4. as to point 3 make sure you get their signature, acknowledgment, and confirmation!

While, those things will not always save you, the point is getting you into the habit of preparing, doing your research, and record keeping when you finally decide to take an action that may be risky.

2. Shutting Down Business Operations Due to Lost of License or Permit

So I told a story during the seminar of a business owner who relied on their accountant to do the business entity’s Annual Filings with the State of Hawaii’s Department of Commerce Affairs (DCCA). Only problem with that was the accountant was not actually doing the filings; it was not a part of their services. So the DCCA administratively terminated the corporation’s existence. So leaving the account and taxation issues aside, the main focus of this section I want to focus on is government licensing and permitting. See LLCs and corporations are legal persons. They may not be a living, breathing individual like you and me, but they are persons under the law. So often time government licenses and permits, for example liquor licenses, issues to the business entity itself and not the individual owners of the business.

So when the DCCA administratively terminated this corporation the business owner also lost their government license. In this instance, they could not operate the business because it would be illegal to operate without a license. So they had to shutter their business and form a new corporation, then reapply for a completely new government license.

Did they Really have to Close Their Business?

Yes, unfortunately in this case they did. However, sometimes the government fails to follow proper procedure when revoking or suspending a business owner’s license or permit. If the government does not follow its own rules and regulations there may be opportunity to stop the government’s action. However, it depends on the type of permit or license being revoked and the applicable laws and regulations surrounding it.  In this instance, the business owner could have saved themselves by routinely checking the DCCA and communicating with their accountant. Finally, catching the administrative termination of their original corporation earlier could’ve resulted in a successful petition to reinstate it.

You should know the filings you need to make with the government and calendar them into your schedule. Further, consider an annual business checkup to assist you in navigating your business’s compliance requirements. If you are interested in an initial consult to begin the process of an annual business checkup contact us today!

Be vigilant in your compliance.

Keep your business compliant or you may be forced to shut it down by the government.

There will be a Part II to this post; it will focus on the BBB Reports and Complaints and resources/information they shared. So check back!

DISCLAIMER: This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained in the post without seeking the advice of  an attorney in the relevant jurisdiction.  Hew & Bordenave, LLLP expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Last week I discussed why an invoice (take by itself) is not a contract.  As was stated, it only shows a quantity and a price, but there is no evidence that the side being sent the invoice has accepted those terms.  Unless they have signed or there is another underlying contract an invoice alone does not make a contract.  During that week’s discussion I briefly mentioned a bill of sale.  If you remember in the court case I quoted it stated that an invoice is not a bill of sale, which is true.  A bill sale, unlike an invoice, facilitates a transfer of title to property and at the same time evidences contract.

Why is a Bill of Sale a Contract versus An Invoice?

If you remember the several Draw the Law posts about contract law, I mentioned that a contract requires mutual assent (which is offer and acceptance) and consideration.  In your typical bill of sale the seller agrees to sell the property to the buyer, if the buyer signs according the to the terms of what is described in the bill of sale there is acceptance of that offer. The consideration is the underlying exchange of cash for title to the property.  Notice that there is a transfer of property and a contract in one document.

Is there a Difference between Property Law and Contract Law?

Yes, there is a difference between the two; much of the confusion in our modern usage of legal terms comes from the fact that property and contracts law are tend overlap in many instances, such as in a real estate deal.  However, the two of them are very different.  The rights that arise under property law are different than the rights that arise under contract law. Generally (and simply) speaking, property law gives rights to the owner over something (i.e. land or a car) to be enforceable against other persons.  However, contractual rights give you enforceable rights against a particular person.

Today’s document, the bill of sale, transfers ownership over something, thus giving the buyer the ability to enforce their rights over their newly acquired property against all others. However, the exchange of valuable consideration between the two parties, for instance money for a car, gives the two parties contractual rights to sue against each other if the terms of the deal are broken.

Contrast this with a contractual agreement that does not grant the nonowner a property interest, nor the rights to enforce against all others.  For example, a license for copyrighted software – remember you the software user are only granted a license.  Therefore, you cannot enforce the copyright against all others whereas the software maker can, all you can enforce is that you did not receive access to use the software or it malfunctioned and the company can enforce you went beyond the license or you did not pay them for it.

Do Bills of Sale Require Any Other Information?

In many states (as well as under federal law), for particular pieces of property, such as cars, boats, land, etc . . . the bill of sale also requires other specific information to effect the transfer and evidence a contract.  For example, check the City and County of Honolulu’s form for a bill of sale for a car at this link.  On the form you will see the need to state the mileage of the vehicle and have it notarized.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

So two weeks ago I discussed a marketing agreement (aka reseller agreement).  This was where you would allow someone to (re)sell your product or service for a fee.  The benefit of such an agreement should be clear to those who can produce a lot, but lack distribution channels.   As I said, I will be for several weeks charting some of the type of agreements you will come across as a business.

Licensing Agreements: Tool to Allow Usage, but Not Grant Ownership

Today I will focus on another type of contract that you might consider making, a licensing agreement.  Instead of selling your product or service to another, a licensing agreement allows another person to use your product or service.  The key word here is “use”, as with a licensing agreement the person who may be utilizing the product or service has no ownership.  In today’s electronic productive world, there is something that you should realize by now.  Most of your software (if not all) is not yours.  Why?  You have been granted a right to use the software through a licensing agreement., which means you cannot reproduce copies of your software and give those copies to friends.  It is a violation of a the licensing agreement.  This is why the term End-User License Agreement (EULA) pops up as you install a game, office suite, or some other type of software.

What the EULA says, more often than not, as you scroll to the bottom of the long document to click “I Agree” is you are the end-user, thus you get a license, and you understand you don’t own the software, nor will you copy and resale in en masse.

Now what does that mean for you small businesses with a strong brand or startups that are producing the next awesome software for everyone to use.  You can use a licenses to parse rights outs, the best example I can think of the art of licensing is you have a pie and you can choose to cut it up in any way you see fit (barring restrictions from the law).

Licensing Out IP: Factors to Consider

Let’s take a copyright license for a comic book.  You own the right to copy (which includes derivative works).  So let’s say you give the rights to “copy” to a movie company to produce a theatrical release, you give another license to a publishing company to do a novelization, then another to a Broadway producer to make a musical, finally you grant another license to a troop of interpretative dancers to perform the story on the street and open-air fairs.  These are all licensing agreements to use your right to copy a derivative work off of that one original comic.

Even what’s better for you as the licensor (the one granting the license) is you can change the terms of the agreement for each licensee (the one receiving the right to use).  Here are some things you want to consider in a licensing agreement:

  • Exclusivity – is the licensee the only one who gets the right to use? In one region?
  • Payment – does the licensee pay a one-time usage fee or do you make periodic payments?
  • Time – is the license forever? Is it finite? Does it end if a certain event happens?
  • Control – does the licensor have a right to dictate the quality, delivery, etc . . . of the product or service?
  • Indemnification – will the licensor move to defend the licensee if they get sued for using the product or service from a third party?


These are only a sliver of things to consider when using licenses.  As always while you may have your own basic ideas of what the objectives of your deal is it is best to go to an attorney to reduce your intentions to writing, especially when it comes to licensing intellectual property, land-use, and agreements that are to last beyond a year.

See you next week!


*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Zoning

Hi everyone, on the last post I briefly touched upon using your home as the location of your business.  Today’s post will focus on zoning and all the complexities that brings to setting up your business.

Similar, to how neighborhood associations or condo groups want a certain look, so they enforce covenants against members the government also wants to shape and control how the land is used.  This is accomplished through zoning laws.

All land in Hawaii (except for federal land) is one of four categories: (1) conservation; (2) agricultural; (3) rural; and (4) urban).  The four designation were created by the State Land Use Commission.   The Zoning Code lists what are the permitted uses within each zone.  It also lists the required setbacks, height limits, parking areas for commercial developments, and other such types of requirements.

Every zone has a list of what is a “permitted” use without need of further approvals. It’s the reason you see gas stations and strip malls where you do, and away from your houses.

In general, when looking at a location you want to make sure your business will be able to meet the requirements.  If you are set-up shop in one area and violate the zoning requirements it could be very costly and be so severe as to drive you out of business.  In addition to the land use, construction of buildings need plan approvals from the Planning Department as well as the building itself needs a building permit, which ensures that the building is for the permitted use and has proper set backs.

In some occasions you can get a variance to allow for some type of use not allowed in the zone, such as the shape of the lot allows you a different setback.  It is also possible to get a Land Use Approval for others kinds of use.  However, in general to get a variance or Land Use Approval it can be a long process.

For more information on the matter (for Oahu) visit the City and County of Honolulu’s Department of Planning and Permitting page.  In addition, when dealing with zoning laws it is best to seek an attorney and other land use professionals to help best explain the complex system.

Licensing and Permitting

Before I end out this Draw the Law, I’d like to make brief mention with licensing and permitting, which dovetails nicely with zoning.  I already made mention of building permits above, but suppose you say you start your business and you have structures you want to alter or demolish.  You will need a building permit for such actions.  There is even a sign permit if you want to install, construct, alter or move any sign on the property!

Certain businesses also require a license to be operational for business.  The best example of this is the liquor license.  A bar cannot operate even though it meets all the other zoning requirement without a liquor license.  For example, let’s say it is the right-sized building for bar operation on a lot in Waikiki or Downtown that allows bars, but the owner fails to obtain the proper liquor license to sell drinks.  He would not be able to open his bar and sell drinks until he gets approval from the Liquor Commission via a license.

Therefore, the need of having all your ducks lined up when opening certain businesses is paramount.  It takes a lot of time, paperwork, review, and discussion with the government.

As always if you like this post or any of my other series please Subscribe to this blawg to receive updates to your e-mail.  In addition, follow me on Twitter @Rkhewesq and Like Me on Facebook under Ryan K. Hew.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

See you on the next Draw the Law!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.