HRS § 712-1207 - Street solicitation of prostitution; designated areas

(1) It shall be unlawful for any person within the boundaries of Waikiki and while on any public property to: (a) Offer or agree to engage in sexual conduct with another person in return for a fee; or (b) Pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct. (2) It shall be unlawful for any person within the boundaries of other areas in this State designated by county ordinance pursuant to subsection (3), and while on any public property to: (a) Offer or agree to engage in sexual conduct with another person in return for a fee; or (b) Pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct. (3) Upon a recommendation of the chief of police of a county, that county may enact an ordinance that: (a) Designates areas, each no larger than three square miles, as zones of significant prostitution-related activity that is detrimental to the health, safety, or welfare of the general public; or (b) Alters the boundaries of any existing area under paragraph (a); provided that not more than four areas may be designated within the State. (4) Notwithstanding any law to the contrary, any person violating this section shall be guilty of a petty misdemeanor and shall be sentenced to a mandatory term of thirty days imprisonment. The term of imprisonment shall be imposed immediately, regardless of whether the defendant appeals the conviction, except as provided in subsection (5). (5) As an option to the mandatory term of thirty days imprisonment, if the court finds the option is warranted based upon the defendant's record, the court may place the defendant on probation for a period not to exceed six months, subject to the mandatory condition that the defendant observe geographic restrictions that prohibit the defendant from entering or remaining on public property, in Waikiki and other areas in the State designated by county ordinance during the hours from 6 p.m. to 6 a.m. Upon any violation of the geographic restrictions by the defendant, the court, after hearing, shall revoke the defendant's probation and immediately impose the mandatory thirty-day term of imprisonment. Nothing contained in this subsection shall be construed as prohibiting the imposition of stricter geographic restrictions under section 706-624(2)(h). (6) Any person charged under this section may be admitted to bail, pursuant to section 804-4, subject to the mandatory condition that the person observe geographic restrictions that prohibit the defendant from entering or remaining on public property, in Waikiki and other areas in the State designated by county ordinance during the hours from 6 p.m. to 6 a.m. Notwithstanding any other provision of law to the contrary, any person who violates these bail restrictions shall have the person's bail revoked after hearing and shall be imprisoned forthwith. Nothing contained in this subsection shall be construed as prohibiting the imposition of stricter geographic restrictions under section 804-7.1. (7) Notwithstanding any other law to the contrary, a police officer, without warrant, may arrest any person when the officer has probable cause to believe that the person has committed a violation of subsection (5) or (6), and the person shall be detained, without bail, until the hearing under the appropriate subsection can be held, which hearing shall be held as soon as reasonably practicable. (8) For purposes of this section: "Area" means any zone within a county that is defined with specific boundaries and designated as a zone of significant prostitution by this section or a county ordinance. "Public property" includes any street, highway, road, sidewalk, alley, lane, bridge, parking lot, park, or other property owned or under the jurisdiction of any governmental entity or otherwise open to the public. "Sexual conduct" has the same meaning as in section 712-1200(2). "Waikiki" means that area of Oahu bounded by the Ala Wai canal, the ocean, and Kapahulu avenue. (9) This section shall apply to all counties; provided that if a county enacts an ordinance to regulate street solicitation for prostitution, other than an ordinance designating an area as a zone of significant prostitution-related activity, the county ordinance shall supersede this section and no person shall be convicted under this section in that county. [L 1998, c 149, §2; am L 2000, c 143, §1; am L 2011, c 145, §8] COMMENTARY ON Act 149, Session Laws 1998, added this section to require that as a mandatory condition of probation and bail, defendants are to observe geographic restrictions prohibiting them from entering or walking on the public streets or sidewalks of Waikiki during the hours from 6 p.m. to 6 a.m. Defendants that live in Waikiki and choose to remain in Waikiki during the prohibited hours are required to stay off the streets and sidewalks during those hours. The legislature believed that although the restriction covered a large physical space, it was narrowly tailored to cover only the hours most closely associated with the crime. Also, the restriction was sufficiently definite to provide adequate notice of the behavior that is prohibited. Act 149 also allowed the counties to enact ordinances regulating street solicitation that shall supersede the provisions of this section. Conference Committee Report No. 83. Act 143, Session Laws 2000, amended this section by expanding the prohibition of street solicitation of prostitution from Waikiki to other areas designated by the council of the appropriate county, but to not more than four areas of the State. The legislature found that allowing counties to designate additional areas as "prostitution-free zones" could provide counties with a way to address the proliferation of prostitution beyond the Waikiki area. This Act also provided for the denial of bail to those persons arrested for violating the terms of bail or probation upon entering the prohibited designated areas. Conference Committee Report No. 72. Act 145, Session Laws 2011, amended this section by extending the offense of solicitation of prostitution to include those who pay, agree to pay, or offer to pay a fee to another person to engage in sexual conduct. Conference Committee Report No. 76. Case Notes By the express terms of subsections (4) and (5), the offense of street solicitation under subsection (1) is probationable, and thus not excludable under §853-4(5); appeals court therefore erred in affirming trial court's refusal to consider defendant's motion for a deferred acceptance of no contest plea. 116 H. 519, 174 P.3d 358 (2007). Based on the clear and unambiguous language of this section, the offense of street solicitation of prostitution can only be committed by the person who offers or agrees to engage in sexual conduct with another person in a prohibited area "in return for a fee"; thus it is only the recipient of the fee, and not the payor of the fee, who can commit the offense. 120 H. 478 (App.), 210 P.3d 1 (2009).