Months after concerns were raised, the city is still drafting rules to prohibit something that was already against the rules.
By Denby Fawcett / September 13, 2016 Reading time: 7 minutes. Share StoryHonolulu law prohibits peddling in city parks.
Yet the city continues to allow so-called First Amendment permit holders to sell merchandise in Oahu parks in violation of the city’s own rules.
The city says it is making new rules to address the problem but in the meantime, it has not revoked the permits of any violators.
Now, First Amendment permit holders at Hanauma Bay Marine Preserve are illegally selling items that directly compete with city concessionaires — who have to pay hundreds of thousands of dollars each year to operate there, says Lisa Bishop, president of Friends of Hanauma Bay, an organization of volunteers who advocate for the marine preserve.
“In addition,” Bishop says, “the vendors are selling reef walker shoes that can encourage visitors to walk on the coral where they’ll harm the marine life.”
“This directly contravenes the marine preservation mission of Hanauma Bay Nature Preserve,” she says.
Bishop is frustrated by the city’s inability to stop blatant rule-breaking by First Amendment permit-holders at Hanauma Bay and other city parks. “They are truly being allowed to set up a rent-free and tax free storefront on city property” at the marine conservation district.
Each month, the city gives permits to qualified nonprofit organizations to distribute literature and sell products with their message.
The rules allow organizations with First Amendment permits to sell items but the merchandise must “bear a message which is inextricably intertwined with the purpose and activities of the permittee.”
Yet permit holders in parks I have visited sell T-shirts, sarongs, beach hats and rubber slippers either with no message or a vague saying unrelated to their organization. They are selling items that could be found at any swap meet or big box store.
Bishop says none of the items permit holders are selling at Hanauma Bay bear a printed message directly related to the purpose of the nonprofit.
Under the city’s rules, permit holders are allowed to distribute “sanctified foodstuff” in exchange for “monetary contributions.” But the city has no definition of what constitutes “sanctified foodstuff.”
First Amendment permittee Narayani Sarkar was selling Pringles, chips and sodas Friday at Hanauma Bay. When I asked if the Pringles were sanctified, she said she didn’t know.
State Rep. Cynthia Thielen is fed up with the situation. She has been urging the city for months to take action after receiving complaints from her Kailua constituents.
“The permit holders are just hawking goods to tourists,” she says. “This is not right in our parks.”
Thielen hopes to meet with Parks and Recreation Director Michele Nekota this week to find out why none of the violators’ permits have been revoked.
“The parks should not be used for commercial purposes,” Thielen says.
In May, Thielen. who is an attorney, sent Nekota two pages of detailed suggestions on ways to strengthen the rules.
“The city is not enforcing flagrant violations of its own rules,” Thielen says. “It leaves the public angry and frustrated and the public should be mad. The message this sends is ‘just say you are a religion and set up shop in the parks because the city is not going to do anything about it.’”
Nekota said in an email Friday that the city is still in the process of drafting new rules to stop the commercial activity by permit violators.
She says the city has not yanked the permits of the vendors who are apparently violating the rules because “the current rules are vague and difficult to enforce, and we are, therefore, working on tightening up the rules.”
Nekota did not specify why the current regulations are so difficult to enforce when they clearly prohibit commercial activity by First Amendment permit holders.
Most of the permits are held by a small group of people who are related by birth or marriage and are living at the same address.
Seven of the 15 First Amendment permits granted this month have gone to Dipak and Narayani Sarkar who are married and live at the same Puuiki street address in Waialua. Another permit was issued to Bishnu Sarkar who lists the same Puuiki address on his permit.
Two other permits have gone to Dipak Sarkar’s former wife, Hema Sarkar, whose address is on Kinau Street in Makiki.
Bishop says two to three First Amendment vendors set up at Hanauma Bay every day the park is open from 8 a.m. until 4 p.m. She says they sell food, underwater cameras and beach apparel in direct competition with Hanauma Bay concessionaires.
According to the city’s comprehensive annual financial report, the Hanauma Bay gift shop concessionaire paid the city $237,000 to operate at the park in fiscal 2015. The food concessionaire paid $291,000.
Alan Hong, who managed the Hanauma Bay preserve for 21 years, says he inherited the First Amendment vendors at the bay when he became manger in 1990. He says there were more than a dozen tables of First Amendment vendors then.
“They are exploiting their First Amendment privilege to conduct commercial business that otherwise would be prohibited on public property,” Hong says.
To be clear, some of the First Amendment vendors at Hanauma Bay are following the city’s rules. When I visited the bay Friday, a permit holder showed me literature promoting the Jehovah’s Witnesses faith. He offered religious pamphlets from his stand to passersby for free.
First Amendment permitees are currently allowed at eight Oahu parks, including Kailua Beach Park, Hanauma Bay and Koko Head-Sandy Beach Park as well as on the North Shore at Haleiwa Alii Beach Park, Waimea Bay, Pupukea Beach Park, Sunset Beach Park and Ehukai Beach Park.
The city’s intent with the First Amendment permits was to give nonprofits the opportunity to distribute their literature and freely express their views.
First Amendment permits were an outgrowth of the city’s lengthy court battle in the mid-1990s to rid Kalakaua Avenue sidewalks of a large group of T-shirt vendors. The vendors unsuccessfully argued they were exercising their First Amendment rights.
In 1996, the city, hoping to avoid future legal challenges, created rules to allow carefully regulated free speech activities in certain Oahu parks rather than on the sidewalks of the Waikiki tourist district.
But since then, the city’s enforcement has been lax.
“They just seem to let things go,” Bishop says. “They don’t seem to have the energy or the desire to enforce their own rules.”
Even though it has been more than six months since the issue was first raised, it doesn’t seem like any action will be coming from the city soon.
Nekota writes in her email: “The city is still drafting the new rules concerning First Amendment activities requiring the use of a City park. As a result, there is currently no date set for a public hearing concerning these rules. The Department of Parks and Recreation (DPR) will be announcing the public hearing at least 30 days in advance of the public forum.”
She would not say what restrictions she is considering or how she will make them enforceable.
Bishop and Thielen are hoping the new rules for permit holders will stress that they may continue to distribute merchandise in the future but only for free — items like buttons, bumper stickers and pamphlets bearing the organization’s message.
