Opinion · Hawaii Court Opinions
STATE v. HAWKINS, 64 Haw. 499 (1982)
643 P.2d 1058
- Type
- Opinion
- Court
- Hawaii Court Opinions
- Jurisdiction
- Hawaii
- Date
- 1982-04-20
- Topic
- general
STATE v. HAWKINS, 64 Haw. 499 (1982) 643 P.2d 1058 STATE OF HAWAII, Plaintiff-Appellant, v. TRACEY L. HAWKINS,Defendant-Appellee NO. 8180Supreme Court of Hawaii. April 20, 1982 APPEAL FROM FIRST CIRCUIT COURT HONORABLE RICHARD Y.C.
Citator
UpLaw has not yet analyzed STATE v. HAWKINS, 64 Haw. 499 (1982). The absence of a flag is not a finding that it is good law.
STATEv.HAWKINS,64 Haw. 499(1982)
643 P.2d 1058
STATE OF HAWAII, Plaintiff-Appellant,v.TRACEY L. HAWKINS,
Defendant-Appellee
NO. 8180
Supreme Court of Hawaii.
April 20, 1982
RICHARDSON, C.J., LUM, NAKAMURA, JJ., AND RETIRED JUSTICES OGATA AND MENOR ASSIGNED BY REASON OF VACANCIES.
On the evening of November 12, 1980, at about 9:10 p.m., appellee was seen by the police stopping several pedestrians on the sidewalk near Lewers Street and giving them handbills which advertised a free breakfast if one attended a time-sharing presentation. Appellee was then given a citation for violating the ordinance in question today. After demanding a jury trial, appellee's case was transferred to circuit court whereupon a motion to dismiss was filed. After considering the memoranda and arguments presented, the circuit court delcared Section 26-6.2(b)(7), R.O.H., unconstitutional and dismissed the charge against appellee.
As amended by Ordinance No. 4302 (italicized material), Section 26-6.2, R.O.H., regulates peddling on streets, sidewalks and malls, and in other public places. That ordinance provides in pertinent part:
(b) Notwithstanding any ordinance to the contrary, it shall be unlawful for any person to sell or offer for sale,solicit orders for, or invite attention to orpromote in any manner whatsoever, directly orindirectly,goods, wares, merchandise, food stuffs, refreshments or other kinds of property or services,or to distribute commercial handbills, or to carryon or conduct any commercial promotional scheme,advertising program or similar activityin the following areas:
. . . .
(7) Waikiki peninsula — upon the public streets, alleys, sidewalks, malls, parks, beaches or other public places in Waikiki commencing at the entrance to the Ala Wai Canal to Kapahulu Avenue thence along the diamond head property line of Kapahulu Avenue to the ocean, thence along the ocean back to the entrance of the Ala Wai Canal.
The provisions of this subsection shall not apply tothe sale or offer for sale of daily newspapers ofgeneral circulation and to duly authorizedconcessions in public places.
InState v. Bloss, supra,we addressed the issue of whether Section 26-6.2(b)(7), R.O.H., violated the first amendment and the due process clause of the United States Constitution and the correspondingPage 501sections of the Hawaii Constitution.1We declared that the portion of Section 26-6.2(b)(7), which was amended by Ordinance No. 4302, was unconstitutional. We held that commercial speech is entitled to constitutional protection, albeit a lesser protection than other forms of speech. Thus, governmental regulation of commercial speech is constitutionally permissible when such speech concerns lawful activity and is not deceptive or misleading; that the regulation seeks to implement a substantial governmental interest; that the regulation directly advances that interest; and reaches no further than necessary to accomplish the given objective. Although Section 26-6.2(b)(7) had good intentions of trying to preserve the attractiveness of Waikiki for tourism, we determined that the instant ordinance was more extensive than necessary to serve that asserted governmental interest. The ordinance totally precluded commercial speech in an area where such speech would not be incompatible and that the ordinance did not leave open, ample alternative channels of communication. We further found that the instant ordinance was also unduly vague, thus violating the due process clause of the federal and state constitutions.
In the instant case, the State argues that Section 26-6.2(b)(7) is a valid exercise of the State's police power and that the impact of the regulation upon speech is minimal. However, our conclusion inBlossthat the instant ordinance is more extensive than necessary to serve the asserted governmental interest of preserving the attractiveness of Waikiki for tourism is equally applicable here. The ordinance in question totally prohibits protected commercial speech and provides no alternative channels of communication. Moreover, commercial speech is not incompatible with the commercial activity in Waikiki. Although this case involves in-person solicitation, which is unlike the situation inBlosswhere the handbills were affixed to the side of a van, nothing in the record compels us to conclude that the ordinance can be saved from constitutional attack. The rationale of preventing nuisances to preserve the attractiveness of tourism in Waikiki, on balance, is not sufficient to justify the total suppression of commercialPage 502speech.State v. Bloss, supra.The record does not indicate that the instant handbill was deceptive, false or misleading. Furthermore, the State has not shown that a more limited regulation could not adequately protect the asserted governmental interest.Id.
The State also argues that the instant ordinance is not unduly vague and does not violate the due process clause of the federal and state constitutions. We find no new arguments presented by the State which persuades us to change the conclusion reached inBlosson this precise issue. Thus, we adhere to our analysis and conclusion inBlossthat Section 26-6.2(b)(7), R.O.H., as amended by Ordinance No. 4302, is unconstitutionally vague.
We reaffirm our decision inState v. Bloss, supra,and declare Section 26-6.2(b)(7), R.O.H., as amended by Ordinance No. 4302, unconstitutional as violating the first amendment and the due process clause of the United States and Hawaii Constitutions.2
Affirmed.
- Free speech is guaranteed by the First Amendment to the United States Constitution and Article I, Section 4 of the Hawaii State Constitution. Due process protections are found in the Fourteenth Amendment of the United States Constitution and Article I, Section 5, Hawaii Constitution. ↩
- SinceBlossdeclared Section 26-6.2(b)(7), R.O.H., unconstitutional, the ordinance, as it read prior to the 1974 amendment, was reinstated. The ordinance that is presently in effect reads as follows:
Notwithstanding any ordinance to the contrary, it shall be unlawful for any person to sell or offer for sale goods, wares, merchandise, foodstuffs, refreshments or other kinds of property or services except newspapers of general circulation and by duly authorized concessions in public places in the following areas:
. . . . ↩