RADKE OIL COMPANY, INC., Appellee, v. KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT and JAMES J. O'CONNELL as SECRETARY OF THE KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT, Appellants.
1.	A specialized agency interpreting a statute which it has the duty to implement should be granted deference if the agency's statutory interpretation is supported by a rational basis. Yet, an agency's interpretation is not binding. If an agency is mistaken as to a question of law, the court has an obligation to cure the agency's action.
2.	Generally, environmental statutes are given a broad, liberal interpretation to afford the full protection of the act which is being construed. However, a penalty provision in a statute should be strictly construed in favor of the person being penalized.
3.	The legislature intended to provide both criminal and civil penalties in K.S.A. 65-34,113(a).
4.	The use of the words "in addition" in K.S.A. 65-34,113(a) does not preclude an agency from proceeding either criminally or civilly.
5.	There is no requirement in K.S.A. 65-34,113(a) that the remedies be cumulative.
6.	A district court's findings of fact and conclusions of law set forth in the journal entry control over the original oral pronouncement. K.S.A. 60-258.
Appeal from McPherson District Court; THEODORE B. ICE, judge. Opinion filed April 11, 1997. Reversed and remanded.
William L. Anderson, of Kansas Department of Health and Environment, for appellants.
Casey R. Law, of Bremyer & Wise, P.A., of McPherson, for appellee.
GERNON, J.: Radke Oil Company, Inc., (Radke) appealed the Kansas Department of Health and Environment's (KDHE) order assessing civil penalties against Radke. The district court, on its own motion, ruled that KDHE lacked jurisdiction to assess a civil penalty under K.S.A. 65-34,113(a) without first convicting Radke of a criminal offense under K.S.A. 65-34,109. The district court voided KDHE's order for lack of jurisdiction. KDHE appeals the district court's ruling and its interpretation of K.S.A. 65-34,113(a).
On May 12, 1994, KDHE issued a civil penalty order against Radke. The civil penalty order was issued due to a KDHE environmental scientist's inspection of the Zip-In convenience store on August 24, 1993. The scientist reported that the Zip-In did not have valid operating permits as required by K.S.A. 65-34,109. At the time of the inspection, the old permits had expired. Invoices supplied to the scientist showed that Radke had delivered gasoline on two separate days when clearly the storage tank permits had expired. The invoices were falsely marked to show that the facility had a valid permit on August 7, 1993.
KDHE assessed a civil penalty of $2,000 for the violations stated in the civil penalty order against Radke. Radke appealed the order on May 24, 1994. A hearing officer upheld the $2,000 penalty. Radke then filed a petition for review with the Secretary of KDHE. The Secretary issued a final order which upheld the $2,000 penalty. Radke then filed a petition for judicial review with the district court.
"1. This Court has jurisdiction of the parties and of the subject matter.
"10. Radke was never criminally convicted of a violation of K.S.A. 65-34,109(a); therefore KDHE lacked jurisdiction to impose a civil penalty upon Radke under K.S.A. 65-34,113 by reason of a supposed violation of K.S.A. 65-34,109(a).
The court voided KDHE's order as a matter of law and neither heard evidence nor made findings of fact as to the merits of Radke's administrative appeal, in which Radke claimed that it had not violated K.S.A. 65-34,109(a).
This is an issue of statutory construction.
"(b) Any person who violates any provision of subsection (a) shall be guilty of a class A misdemeanor and, upon conviction thereof, shall be punished as provided by law."
KDHE asks this court to reverse the district court's order and find that K.S.A. 65-34,109 and K.S.A. 65-34,113(a) provide two separate procedures for punishment and are not interdependent upon each other.
In reviewing KDHE's argument, this court should grant KDHE deference if its interpretation is supported by a rational basis. See National Council on Compensation Ins. v. Todd, 258 Kan. 535, 539, 905 P.2d 114 (1995). However, KDHE's interpretation is not binding on this court. If KDHE is mistaken as to the interpretation of these statutes, which is a question of law, this court has an obligation to cure the agency's action. See 258 Kan. at 539.
K.S.A. 65-34,109 is a strict liability criminal statute. A violation of K.S.A. 65-34,109(a) is a class A misdemeanor. K.S.A. 1996 Supp. 21-4502(1)(a) and K.S.A. 1996 Supp. 21-4503a(b)(1) provide that any person convicted of a class A misdemeanor may be sentenced to confinement for a term not to exceed 1 year and, in addition to or instead of, may be assessed a fine not to exceed $2,500. Additionally, K.S.A. 65-34,113(a) assesses a civil penalty for violating K.S.A. 65-34,109.
The question before this court is whether KDHE must prosecute and convict Radke under K.S.A. 65-34,109 before assessing a civil penalty under K.S.A. 65-34,113(a).
"Generally, environmental statutes are given a broad, liberal interpretation in order to afford the full protection of the act which is being construed." 3A Sutherland, Statutory Construction § 75.06, p. 430 (5th ed. 1992). However, "[a] penalty provision in a statute should be strictly construed in favor of the person being penalized." 3A Sutherland, § 75.06, p. 431. See Attorney General v. Biewer Co., 140 Mich. App. 1, 9, 363 N.W.2d 712 (1985).
The argument that Radke relies upon to support the district court's interpretation is that the language, "in addition to any other penalty provided by law," (K.S.A. 65-34,113[a]) requires another penalty to be asserted before the assessment of a civil penalty under K.S.A. 65-34,113. The term "in addition to," by itself, does not require that another penalty be asserted. Rather, the legislature's use of the term "in addition to" suggests that the legislature either contemplated or intended that parties would be liable for both civil and criminal penalties for violation of K.S.A. 65-34,109(a). However, "in addition to" does not, by itself, create a condition precedent.
We are persuaded that the holding in a New York case which interpreted a similar statue is correct and conclude that given our reliance on the reasoning of that case, this case must be reversed.
"The Legislature obviously intended to provide both criminal sanctions and civil penalties. The use of the words 'in addition' appears to intend that the penalties might be cumulative, although there is no apparent intention to preclude the city from proceeding either criminally or civilly. Generally, the courts have refused to impose cumulative penalties in the absence of a clear and definite legislative intent to so provide. [Citation omitted.] However, there is no requirement that the remedies be cumulative. See People v. Briggs (114 N. Y. 56) where the statute made its violation a misdemeanor and also provided for a civil penalty." 48 Misc. at 142.
The New York court held that Carolla's acquittal under Section 692f-1.0 (subd. f, par. a), requiring proof beyond a reasonable doubt, did not bar a civil action under Section 692f-1.0 (subd. f, par. b), requiring only a fair preponderance of the evidence. 48 Misc. 2d at 142.
Radke points to the fact that other jurisdictions have held that the term "in addition to" does not mean "in lieu of." Radke's argument is that the absence of "in the alternative" or "in lieu of" language shows the legislature intended that a criminal conviction serve as a prerequisite to a civil penalty. Radke emphasizes that both K.S.A. 65-34,109 and K.S.A. 65-34,113(a) are penal in nature, and, therefore, this court must construe them strictly against the State and in favor of the accused. See State v. Schlein, 253 Kan. 205, 209, 854 P.2d 296 (1993).
Our rules of statutory construction are longstanding and often repeated. We look to the plain language of the statute and the overall purpose of the Kansas Storage Tank Act (KSTA), K.S.A. 65-34,100 et seq., to detect the legislative intent behind K.S.A. 65-34,109 and 65-34,113. The KSTA was introduced by the Senate Committee on Ways and Means on April 26, 1989, and was passed on April 27, 1989, with no documented discussion. Therefore, this court is without documented legislative history on which to draw. Additionally, there is no case law interpreting either of these two statutes.
Of significance is a similarly worded statute, K.S.A. 82a-1216. K.S.A. 82a-1216(a) states: "Any person who violates any provision of the Kansas groundwater exploration and protection act, any rules and regulations adopted thereunder or any order issued by the secretary thereunder shall incur in addition to other penalties provided by law, a civil penalty not to exceed $5,000 for each violation." (Emphasis added.) This statute refers to K.S.A. 82a-1214, which makes it a class B misdemeanor to willfully violate any lawful rule or regulation relating to water wells. However, the procedural applicability of assessing a civil penalty before a criminal conviction has not been adjudicated under K.S.A. 82a-1216.
The purposes of the KSTA are to "preserve, protect and maintain the waters and other natural resources of this state, and . . . to provide for the prompt investigation and cleanup of sites contaminated by a release from a storage tank." K.S.A. 65-34,105.
By changing K.S.A. 65-34,109(a) to a strict liability crime, the legislature lessened the burden on KDHE to establish, beyond a reasonable doubt, that an accused violated K.S.A. 65-34,109. The legislative history is silent as to why K.S.A. 65-34,109(a) was changed to a strict liability crime. However, it is clear that the Kansas Legislature chose to make it easier to prosecute crimes included in K.S.A. 65-34,109(a) and broadened the class of persons who could be convicted under K.S.A. 65-34,109(a).
In 1989, the Kansas Legislature enacted the KSTA, authorizing the use of environmental plans and programs relating to storage tanks. L. 1989, ch. 186, § 1. In 1984, the federal government enacted the Hazardous and Solid Waste Amendments, requiring the Environmental Protection Agency to promulgate rules and regulations governing underground storage tanks containing petroleum and other hazardous materials. See 42 U.S.C. § 6991 et seq. (1994).
One interpretation of the applicable federal law is that civil penalties are the preferred or presumptive penalty to be imposed. Under this theory, K.S.A. 65-34,113(a) should be interpreted in a way that is consistent with a preference toward imposing civil penalties rather than imposing criminal penalties.
KDHE complains that if the district court's interpretation of K.S.A. 65-34,113(a) is adopted, double jeopardy would prevent KDHE from ever assessing civil penalties against violators of K.S.A. 65-34,109.
A case which illustrates the authority to charge and convict a defendant of a criminal offense and then subsequently assess civil penalties for the same offense is Helvering v. Mitchell, 303 U.S. 391, 82 L. Ed 917, 58 S. Ct. 630 (1938). KDHE relies on Helvering to support its proposition that 65-34,113(a) imposes a civil penalty and, therefore, requires a lower burden of proof than 65-34,109. KDHE argues that 65-34,113(a) must have a lower burden of proof to withstand double jeopardy or res judicata effects. K.S.A. 65-34,113(a) appears to have a lower burden of proof. However, if a conviction is always a prerequisite to K.S.A. 65-34,113, then a party acquitted on a reasonable doubt standard of proof could never be tried under a clear and convincing evidence standard of proof.
"The difference in degree of the burden of proof in criminal and civil cases precludes application of the doctrine of res judicata. The acquittal was 'merely . . . an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.' [Citation omitted.] It did not determine that Mitchell had not wilfully attempted to evade the tax. That acquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based has long been settled. [Citations omitted.]" 303 U.S. at 397.
Here, if we adopted the district court's interpretation of K.S.A. 65-34,113(a), an acquittal under K.S.A. 65-34,109 would always be a bar to assessing a civil penalty. However, a conviction under K.S.A. 65-34,109 would allow KDHE to bring a civil action under K.S.A. 65-34,113(a) against the defendant. Therefore, double jeopardy would not prevent the application of K.S.A. 65-34,113(a) against an acquitted defendant; however, the result would be the same.
Radke complains that KDHE can use K.S.A. 65-34,113(a) to impose a harsher penalty fine than it could under K.S.A. 65-34,109. Under K.S.A. 65-34,113(a), KDHE can impose a fine, not to exceed $10,000 per day, by merely meeting a clear and convincing evidence standard of proof. Under K.S.A. 65-34,109, KDHE would have to meet a beyond a reasonable doubt standard of proof to obtain a maximum $2,500 fine. Therefore, Radke complains that it is always in KDHE's best interest to impose K.S.A. 65-34,113(a). The potential problems are: (1) Defendants are being denied their constitutional protections under the law, and (2) K.S.A. 65-34,109(b) may become surplusage.
Radke makes a valid argument as to the imposition of fines. However, the simple fact that K.S.A. 65-34,109(b) provides that a penalty of confinement may be imposed prevents this statute from becoming surplusage. See K.S.A. 1996 Supp. 21-4502(a); K.S.A. 65-34,109(b).
KDHE's argument that the district court lacked jurisdiction to hear this appeal is based on the fact that the district court stated in its oral ruling from the bench that it lacked jurisdiction to hear the appeal. However, KDHE fails to note that the district court clarified or corrected itself in the journal entry.
Here, the parties do not dispute the fact that Radke exhausted all of his administrative remedies and filed a timely notice of appeal to the district court. Moreover, there has been no evidence presented to this court that would suggest that the district court did not have jurisdiction to hear Radke's appeal.
One could reasonably interpret the district court's statement that it lacked jurisdiction to hear the appeal as a statement that it lacked jurisdiction to hear the merits of the appeal. This interpretation is supported by: (1) The district court raised KDHE's lack of jurisdiction on its own motion, and it was not originally part of Radke's appeal; (2) the district court did not dismiss the case upon finding that it lacked jurisdiction, rather the district court voided KDHE's order; and (3) the district court clearly stated that it did have jurisdiction to hear Radke's appeal in the journal entry.
The district court's findings of fact and conclusions of law set forth in the journal entry control over the original oral pronouncement. K.S.A. 60-258 states: "No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court." Under K.S.A. 60-258, the journal entry filed with the clerk of the court is the effective judgment rather than the district court's oral pronouncement. Therefore, KDHE should have requested the district court to enter a nunc pro tunc order to conform the journal entry to the district court's oral pronouncement. However, KDHE has not done this, nor has it argued on appeal that the journal entry is invalid. Moreover, KDHE is limited by its notice of appeal filed in this case.
This notice of appeal could be read to limit the judicial review of the district court's decisions to those put forth in its journal entry. In the journal entry, the district court clearly states that it had jurisdiction to hear this case. Neither party has presented any evidence, nor does the record reveal, that the district court was in fact without jurisdiction. Therefore, KDHE's reliance upon the district court's oral pronouncement stating that it was without jurisdiction to hear this appeal is without merit.
The district court did not hear any evidence or make any factual findings as to KDHE's final order. KDHE's final order was voided solely on the issue of lack of jurisdiction. Therefore, this issue is not ripe for appeal.
Reversed and remanded for a hearing on the merits of Radke's appeal of the administrative order for violating K.S.A. 65-34,109.


text:
Although the focus of most of our pieces has been on U.S. patent law, there is occasion to report on developments of note from abroad. One such patent case decided last month in Great Britain deserves our attention. On July 12th, the United Kingdom Supreme Court (UKSC) redefined patent infringement laws as related to infringement by equivalents, i.e. under what we know here in the U.S. as the “Doctrine of Equivalents”. To elaborate, under this doctrine, a party can be found liable for patent infringement even though the accused item or process does not fall within the literal scope of a patent claim. The current legal test in the U.S. determines whether the difference between the accused item or process and the patent claim is “insubstantial” so that it is equivalent to an invention falling within the scope of the claim. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co. (1997). Although well established in the U.S., the doctrine has been anathema under U.K. law.
In the case of Actavis UK Limited and others v. Eli Lilly and Company ( UKSC 48), Eli Lilly held a patent on pemetrexed disodium salt (marketed as Alimta®) as a lung cancer treatment. However, the generics division of Teva Pharmaceuticals, Actavis Generics, filed patents for different variants of pemetrexed, including pemetrexed diacid, pemetrexed ditromethamine, and pemetrexed dipotassium. Since their variants do not contain disodium ions, as Lilly’s pemetrexed does, Actavis sought declarations of non-infringement for their compounds in the UK, as well as in France, Italy, and Spain.
The UKSC had previously developed a set of questions, known as the Improver/Protocol Questions, which had been used to decide whether infringement had in fact occurred. Based on these Questions, the High Court and Court of Appeal originally ruled that since the Lilly patent specifically claimed the disodium version of pemetrexed, Actavis’ pemetrexed variants did not infringe upon the Lilly patent. However, the UKSC intervened and re-vamped the Improver/Protocol Questions, citing that they only covered the specific claims of a patent and were too narrow in scope. The UKSC also invoked two new questions: (1) does the variant infringe any of the claims as a matter of normal interpretation; and (2), if not, does the variant nonetheless infringe because it varies from the invention in a way or ways which is or are immaterial? If the answer to either question is “yes”, then infringement has occurred. This directly parallels the “insubstantial” standard in the U.S. doctrine.
In the context of the current case, the UKSC cited that although the Lilly patent only claimed pemetrexed disodium, it should also be inclusive of other pemetrexed variants because these variants are obvious to those skilled in the art. Using these new metrics, the UKSC ruled that Actavis did in fact infringe upon the Lilly patent. The UKSC court ruling also applies to Actavis’ patents in France, Italy, and Spain as well. As an aside, the extension of the UK decision to other courts was previously determined in another case. This British ruling and the expanded interpretation by which infringement is interpreted under the Doctrine of Equivalents have vast potential for the future of UK patent protection and litigation.

matches: v. v. UKSC UKSC UKSC UKSC UKSC UKSC UKSC


§ 269-1 Approval and adoption.
§ 269-6 Fee to be paid in advance.
§ 269-7 Availability or posting of license.
§ 269-8 Inspections; notice, failure to comply.
§ 269-9 Temporary closing in case of emergency.
§ 269-10 Rules of operation.
§ 269-11 Violations and penalties.
The following rules and regulations of the Board of Health, Marple Township, Delaware County, Pennsylvania, governing the design, construction, equipment and operation of swimming pools and public bathing places within the Township, and the licensing thereof within the Township, adopted by the Board of Health on Tuesday, March 19, 1957, be and the same are hereby adopted and approved.
Rules and Regulations of the Board of Health, Marple Township, Governing the Design, Construction, Equipment and Operation of Swimming Pools and Public Bathing Places and the Licensing Thereof Within the Township.
For the purpose and within the meaning of these rules and regulations, the following definitions shall obtain.
Includes, but shall not be limited to, diving boards, sanitary facilities, dressing rooms, eating areas, lounging areas and other facilities used in connection with the pool.
The Board of Health, Marple Township, Delaware County, Pennsylvania.
Any natural person, association, partnership, firm or corporation, and any agent, servant, employee or representative thereof.
Includes any structure, whether permanent or portable, fashioned of stone, concrete, cement, cinder or cement block, earth, fiberglass, rigid plastic, tile or other material either permanently affixed on or into the ground, filled or partially filled with water, or portable and having a diameter exceeding eight feet and being capable of being filled with water to a depth exceeding two feet, or having a square foot area exceeding 100 feet and being capable of being filled with water exceeding two feet, and in all cases being intended for swimming or public bathing by human beings.
Includes any pool located on residential or other property, the use of which is limited by the owner thereof to his or her own family and such guests as shall be admitted to the pool and its accessory facilities by the owner thereof.
Includes any pool open to the general public with or without the payment of a fee for the use of the pool or its accessory facilities.
Includes any pool the use of which is limited to persons qualifying for membership in a club, association, organization or similar organizations, or the guests of such person or persons purchasing bonds or other obligations of a club, association, company, corporation, organization or similar organization, as a prerequisite to use of the pool or its accessory facilities.
Refers to Standard Methods for the Examination of Water, Sewage and Industrial Wastes, 10th Edition, 1955, prepared and published jointly by the American Public Health Association, the American Water Works Association and the Federation of Sewage and Industrial Wastes Associations, or such later edition as may be published following the adoption of these regulations.
In these rules and regulations, the singular shall include the plural, and the masculine shall include the feminine and the neuter.
No public or semipublic pool or other public or semipublic bathing place shall be constructed except in accordance with at least the minimum requirements for such structures set forth in the Report of the Joint Committee on Bathing Places of the American Public Health Association and Conference of State Sanitary Engineers: Recommended Practice for the Design, Equipment and Operation of Swimming Pools and Other Public Bathing Places, 1949, or later edition, published by the American Public Health Association. Any persons desiring to construct such public or semipublic swimming pool or other public bathing place shall, prior to such construction, submit to the Board for approval a plan or sketch of the proposed construction, in sufficient detail to permit determination of compliance with the minimum specifications set forth above, and shall not begin such construction until approval of the proposed plan or sketch has been received, in writing, from the Board.
No private pool or other bathing place shall be constructed in the Township unless, prior to such construction, a plan or sketch in sufficient detail to permit determination that the proposed construction will not constitute a health hazard in the Township shall be submitted to and shall be approved in writing by the Board.
Public or semipublic pools or bathing places: as set from time to time by resolution of the Board of Commissioners.
Private pools or bathing places: as set from time to time by resolution of the Board of Commissioners.
In the event that the required plan or sketch referred to in Subsections A and B of these rules and regulations is not approved by the Board, the application fee described in Subsection C shall not be returned to the applicant, but the applicant shall be permitted to submit a corrected or amended plan or sketch to the Board for approval without payment of an additional fee.
In the case of a pool or other bathing place the construction of which is completed after May 1 of any calendar year, the license fee as described in § 269-5 shall be paid to the Township before such pool or bathing place is placed in operation. In all cases the full annual license fee shall be paid without regard to the date on which application for such license is made.
The annual license issued by the Township as described above shall be plainly posted or readily produced by the operator of the pool for examination by agents or representatives of the Township or the Board.
The Board shall, at its discretion, make inspections of all pools or bathing places in the Township at such times and frequency as the Board shall deem advisable in order to determine that no condition exists in or at the pool or bathing place which shall constitute a health hazard to the Township or the users of the pool or bathing place or their accessory facilities. In the event that a health hazard is detected, the owner or operator of the pool or bathing place shall be so notified and shall be given such time as the Board shall deem sufficient to correct the condition or defect which creates the health hazard. Failure to correct the condition or defect creating the health hazard within the time period authorized by the Board shall result in either revocation of the annual license issued for the pool or bathing place by the Township and the closing of the pool or bathing place or the imposition of such fines or penalties as are prescribed by these rules and regulations, or both.
Whenever in the opinion of the Board an emergency of a health nature exists in the Township, the Board may order the temporary closing of any or all pools or bathing places in the Township until such time as the Board directs that the health emergency no longer exists.
The following rules of operation of pools or public bathing places within the Township shall be observed effective with the date of approval of these rules and regulations by the Board of Commissioners of the Township.
All pools shall be treated with such agents as are suitable to maintain the bacterial content of the water in the pool at a level consistent with safe use by human beings.
The introduction of the bactericidal agent referred to in Subsection A above shall, in the case of public or semipublic pools or bathing places, be made by approved metering devices unless otherwise authorized by the Board.
The introduction of the bactericidal agent referred to in Subsection A above shall, in the case of private pools, be made in such fashion as will maintain a satisfactory bactericidal level of the agent in the water.
All pools shall be treated with such agents as are suitable to maintain the algicidal content of the water in the pool at a level consistent with safe use by human beings.
The requirements for introduction of the algicidal agent described in Subsection B above shall be made as described for public or semipublic pools or bathing places in Subsection A(1) above and for private pools or bathing places in Subsection A(2) above.
Other agents: as approved by the Board.
The minimum required concentration of algicidal agent in all pools shall be that approved by the Board for the particular agent proposed for use by the owner or operator of the pool or other bathing place.
Every person operating a pool or other bathing place shall, at the frequency described below, perform or have performed tests according to standard methods to determine that the quality of the water in the pool is safe for human beings.
Residual bactericidal-agent-content test: as often as necessary during periods of heavy use of the pool but not less frequently than four times daily at approximately equal intervals during the daily period in which the pool is in use.
Determination of total bacterial count: not less frequently than once each week during the period the pool is in use.
Coliform bacteria determination: not less frequently than once each week during the period in which the pool is in use.
All tests shall be performed as frequently as is required to ensure the maintenance of the pool in a condition safe for use by human beings.
The standards for a bacteriologically safe water shall be those described in the aforementioned Recommended Practice for Design, Equipment and Operation of Swimming Pools and Other Pools and Other Public Bathing Places, 1949 or later Edition, issued by the American Public Health Association, and the laboratory performing the required tests shall state that the test results do or do not meet the required standards.
The time, date, results and the name and address of the person by whom performed, of all tests required by Subsection E above, shall be recorded and such records preserved for examination by the Board for a period of 12 months from the date of performance of the test.
In the event that the bacteriological test results indicate that the water in the pool is unsuitable for use by human beings, the pool shall be immediately closed to use and shall remain closed until subsequent bacteriological test results indicate that the pool is again safe for human use. On receipt of any report that a pool is bacteriologically unsafe for use by humans, a copy of the report will be immediately delivered to the Board, together with a statement that the pool has been closed and will remain closed until found to be safe for use.
Public and semipublic swimming pools shall be equipped with an efficient, approved-type filtration system designed to circulate and filter the pool water. An efficient system or apparatus shall be used to maintain the bottom of the pool in a clean and sanitary condition. The pool and its accessory facilities shall at all times be kept in a state of good repair and free of defects which might adversely affect the health of those using the pool.
Private pools shall be maintained in such manner and with such equipment as will keep the water clean and free of debris and the pool bottom clean.
All public and semipublic pools or other public bathing places shall be equipped with washroom and sanitary facilities constructed in accordance with standard practices and existing Township ordinances. Such pools may or may not be equipped with dressing room facilities, but when so equipped the dressing room or rooms shall be maintained in a clean and sanitary condition.
No food shall be served or consumed within the limits of any pool nor within an area of 20 feet from the sides of the pool. Where the service and consumption of food outside of the above area is permitted by the owner or operator of the pool, suitable containers shall be provided for the disposal of unconsumed food, food wrappings, containers, etc. Such disposal containers shall be such as to prevent access to the contents by flies and other insects.
The areas surrounding all pools, washroom facilities, dressing room facilities, eating areas, etc., shall at all times be maintained in a clean and sanitary condition. At least once each day, or oftener if required, all such areas and facilities shall be cleaned and sprayed or otherwise treated with approved disinfecting agent in such concentration as shall render the areas and facilities safe for human use. When necessary, an approved extermination agency or firm shall be employed to maintain the pool and its adjacent areas in a rodent-free condition.
The discharge of water from any pool, including pool backwash water and pool cleaning wastewater, is not permitted to be discharged into any Township sanitary or storm sewer, street right-of-way, stream, drainage ditch, creek, pond, waterway or onto any adjoining property. The emptying or discharge of water from any pool shall be carried out in such a manner as to not create either a health hazard or nuisance to the pool owners, adjoining property owners or the Township.
No person with open lesions of the skin shall be admitted to any pool in the Township.
No animals shall be permitted in any pool intended for human use nor in or on the accessory facilities of the pool. A conspicuous notice warning users of the pool of the prohibition against the admission of animals shall be plainly posted at the entrance to all public or semipublic pools or other public bathing places.
Any person, firm or corporation who or which shall violate any of the rules and regulations aforesaid, shall, upon conviction thereof, be punishable by a fine of not more than $1,000, plus costs of prosecution, and in default of payment of such fine and costs by imprisonment for not more than 30 days. It is hereby declared that each refusal or neglect to comply with the terms of these rules and regulations shall be considered as a separate violation thereof, and notice to the offender by the Board of Health or the Township shall not be necessary in order to constitute an offense.


This is an unofficial version of the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (“UIPA”). It contains all amendments enacted through the Legislature’s 2017 regular session.
The policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, as embodied in section 6 and section 7 of Article I of the Constitution of the State of Hawaii.
“Agency” means any unit of government in this State, any county, or any combination of counties; department; institution; board; commission; district; council; bureau; office; governing authority; other instrumentality of state or county government; or corporation or other establishment owned, operated, or managed by or on behalf of this State or any county, but does not include the nonadministrative functions of the courts of this State.
“Government record” means information maintained by an agency in written, auditory, visual, electronic, or other physical form.
“Person” means an individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity.
§92F-11 Affirmative agency disclosure responsibilities. (a) All government records are open to public inspection unless access is restricted or closed by law.
(b) Except as provided in section 92F-13, each agency upon request by any person shall make government records available for inspection and copying during regular business hours.
(c) Unless the information is readily retrievable by the agency in the form in which it is requested, an agency shall not be required to prepare a compilation or summary of its records.
(d) Each agency shall assure reasonable access to facilities for duplicating records and for making memoranda or abstracts.
§92F-14 Significant privacy interest; examples. (a) Disclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interests of the individual.
(10) Information that if disclosed would create a substantial and demonstrable risk of physical harm to an individual.
§92F-15 Judicial enforcement. (a) A person aggrieved by a denial of access to a government record may bring an action against the agency at any time within two years after the agency denial to compel disclosure.
(b) In an action to compel disclosure, the circuit court shall hear the matter de novo; provided that if the action to compel disclosure is brought because an agency has not made a record available as required by section 92F-15.5(b) after the office of information practices has made a decision to disclose the record and the agency has not appealed that decision within the time period provided by 92F-43, the decision of the office of information practices shall not be subject to challenge by the agency in the action to compel disclosure. Opinions and rulings of the office of information practices shall be admissible and shall be considered as precedent unless found to be palpably erroneous, except that in an action to compel disclosure brought by an aggrieved person after the office of information practices upheld the agency’s denial of access to the person as provided in section 92F-15.5(b), the opinion or ruling upholding the agency’s denial of access shall be reviewed de novo. The circuit court may examine the government record at issue, in camera, to assist in determining whether it, or any part of it, may be withheld.
(c) The agency has the burden of proof to establish justification for nondisclosure.
(d) If the complainant prevails in an action brought under this section, the court shall assess against the agency reasonable attorney’s fees and all other expenses reasonably incurred in the litigation.
(e) The circuit court in the judicial circuit in which the request for the record is made, where the requested record is maintained, or where the agency’s headquarters are located shall have jurisdiction over an action brought under this section.
[§92F-15.3] Notice to the office of information practices. When filing a civil action that is under, related to, or is affected by this chapter, a person shall notify the office of information practices in writing at the time of the filing. The office of information practices may intervene in the action.
§92F-15.5 Alternative method to appeal a denial of access. (a) When an agency denies a person access to a government record, the person may appeal the denial to the office of information practices in accordance with rules adopted pursuant to section 92F-42(12). A decision to appeal to the office of information practices for review of the agency denial shall not prejudice the person’s right to appeal to the circuit court after a decision is made by the office of information practices.
[§92F-17] Criminal penalties. (a) An officer or employee of an agency who intentionally discloses or provides a copy of a government record, or any confidential information explicitly described by specific confidentiality statutes, to any person or agency with actual knowledge that disclosure is prohibited, shall be guilty of a misdemeanor, unless a greater penalty is otherwise provided for by law.
(2) Take steps to assure that all its employees and officers responsible for the collection, maintenance, use, and dissemination of government records are informed of the requirements of this chapter.
(12) The number of written requests for access within the preceding year, the number denied, the number of lawsuits initiated against the agency under this part, and the number of suits in which access was granted.
(11) Otherwise subject to disclosure under this chapter.
§92F-21.5 REPEALED. L 199O, c 250, §4.
(B) Reports prepared or compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through confinement, correctional supervision, and release from supervision.
(2) The disclosure of which would reveal the identity of a source who furnished information to the agency under an express or implied promise of confidentiality.
(3) Consisting of testing or examination material or scoring keys used solely to determine individual qualifications for appointment or promotion in public employment, or used as or to administer a licensing examination or an academic examination, the disclosure of which would compromise the objectivity, fairness, or effectiveness of the testing or examination process.
(4) Including investigative reports and materials, related to an upcoming, ongoing, or pending civil or criminal action or administrative proceeding against the individual.
92F-23 Access to personal record; initial procedure. Upon the request of an individual to gain access to the individual’s personal record, an agency shall permit the individual to review the record and have a copy made within ten working days following the date of receipt of the request by the agency unless the personal record requested is exempted under section 92F-22. The ten-day period may be extended for an additional twenty working days if the agency provides to the individual, within the initial ten working days, a written explanation of unusual circumstances causing the delay.
[§92F-24] Right to correct personal record; initial procedure. (a) An individual has a right to have any factual error in that person’s personal record corrected and any misrepresentation or misleading entry in the record amended by the agency which is responsible for its maintenance.
§92F-25 Correction and amendment; review procedures. (a) Not later than thirty business days after receipt of a request for review of an agency refusal to allow correction or amendment of a personal record, the agency shall make a final determination.
§92F-27 Civil actions and remedies. (a) An individual may bring a civil action against an agency in a circuit court of the State whenever an agency fails to comply with any provision of this part, and after appropriate administrative remedies under sections 92F-23, 92F-24, and 92F-25 have been exhausted.
(b) Opinions and rulings of the office of information practices shall be admissible and shall be considered as precedent unless found to be palpably erroneous, except that the opinion or ruling upholding the agency’s denial of access to the aggrieved person shall be reviewed de novo. The circuit court may examine the record at issue, in camera, to assist in determining whether it, or any part of it, may be withheld.
(c) In any action brought under this section the court may order the agency to correct or amend the complainant’s personal record, to require any other agency action, or to enjoin such agency from improper actions as the court may deem necessary and appropriate to render substantial relief.
(2) The costs of the action together with reasonable attorney’s fees as determined by the court.
(e) The court may assess reasonable attorney’s fees and other litigation costs reasonably incurred against the agency in any case in which the complainant has substantially prevailed, and against the complainant where the charges brought against the agency were frivolous.
§92F-27.5 Alternative method to appeal a denial of access. (a) When an agency denies an individual access to that individual’s personal record, the individual may appeal the denial to the office of information practices in accordance with rules adopted pursuant to section 92F-42(12). A decision to appeal to the office of information practices for review of the agency denial shall not prejudice the individual’s right to appeal to the circuit court after a decision is made by the office of information practices.
(2) The comptroller shall not have the power to supervise or control the office of information practices in the exercise of its functions, duties, and powers under section 92F-42.
(b) The governor shall appoint a director of the office of information practices to be its chief executive officer and who shall be exempt from chapter 76.
(c) All powers and duties of the office of information practices are vested in the director and may be delegated to any other officer or employee of the office.
(d) The director may employ any other personnel that are necessary, including attorneys and clerical staff. The office of information practices shall follow and be subject to all applicable personnel laws. All personnel of the office of information practices shall be employed without regard to chapter 76.
(3) The agency’s principal place of business is located.
(b) The agency shall give notice of the complaint to the office of information practices and the person who requested the decision for which the agency seeks judicial review by serving a copy of the complaint on each; provided that the office of information practices and the person who requested the decision shall not be required to participate in the proceeding; and provided further that the court shall proceed to review the decision pursuant to the rules applicable to a special proceeding, upon the expiration of time that an answer to the complaint would otherwise need to be filed under the rules of court by the office of information practices or the person upon whom the complaint was served. The office of information practices or the person who requested the decision may intervene in the proceeding.


The Golz Fed.Cir. decision was published in January 2010, here are some of the first applications of that decision on VA’s duty to obtain records, as explained and cited by these Veteran Court Judges. As these are but long excerpts, one needs to read the complete decision to understand what is being said.
Relevant records . . . are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim.” Id. at 1321 (emphasis added).
states that he is receiving Social Security benefits awarded in 1993 and that “VA never sought to obtain these records.” App. Br. at 7.
those records were included in the record before the Agency. Sec’y Br. at 6, R. at 32-80. Further, the Secretary argues that the appellant failed to adequately identify what records VA had failed to obtain from SSA.
VA’s duty to assist includes making “reasonable efforts to assist a claimant in obtaining evidence necessaryto substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A(a)(1), (b); see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing requirement that the records be adequately identified). VA is not required to assist a claimant in obtaining identified records “if no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2); see Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010).
The duty to assist “is not boundless in its scope” and “not all medical records or all SSA disability records must be sought –only those that are relevant to the veteran’s claim.” Golz, 590 F.3d at 1320-21 (emphasis added).
(2002); Clarkson v. Brown, 4 Vet.App. 565, 567-68 (1993); Murincsak v.
Derwinski, 2 Vet.App. 363, 366, 370 (1992).


The Massachusetts Department of Industrial Accidents Reviewing Board evaluated an appeal involving MGLA 152 § 34 workers’ compensation benefits in the matter of Adrian Aleman v. City of Boston. The parties appealed from a decision awarding the employee § 34 benefits after a work-related accident was found to be a traumatic aggravation of an underlying lumbar disc derangement. The employer argued that the medical evidence supporting the finding was insufficient and that the employee had not met his burden of proof under MGLA 152 § 1(7A).
The employee began working for the City of Boston as a meter servicer in 1994. The employee had sustained previous, non-work-related injuries to his back from two car accidents that occurred in 1996 and 2006. In 2008, the employee was injured while working when he stepped on uneven concrete, twisting his right foot and ankle. He received § 34 total incapacity benefits until July 4, 2009, when he returned to limited duty work. He then began receiving § 35 partial incapacity benefits until he returned to full duty work in October 2009. The employee continued to work full time until July 25, 2012, when he fell in the course of his employment, resulting in the leg and back pain injury at issue.
Under Massachusetts workers’ compensation laws, if a compensable injury combines with a pre-existing condition, which resulted from an injury that was not covered by workers’ compensation, and thereby causes or prolongs a disability or a need for treatment, the resulting condition is covered only to the extent that such an injury remains a major but not necessarily predominant cause of a disability or a need for treatment. MGLA 152 § 1(7A).
In Aleman, the medical evidence provided by multiple doctors indicated that the July 25, 2012 injury was an aggravation of a preexisting condition causing a total disability. The employee’s back pain was also directly attributed to the work-related injury on July 25, 2012. Adopting these opinions, the administrative judge found that the employee met his burden of proof under MGLA 152 § 1(7A), despite the statutory language requiring the incident to be a major cause of the disability.
On appeal, the Reviewing Board found that the medical evidence was insufficient to support a finding of major causation pursuant to MGLA 152 § 1(7A). The Board explained that while strict adherence to specific statutory language is not necessarily required to satisfy the MGLA 152 § 1(7A) burden of proof, the medical language must be substantially equivalent to that language. In Aleman, the Board found that the medical evidence only established that the July 25, 2012 incident aggravated the pre-existing condition, and it did not support a finding that the injury remains a major cause of the employee’s disability or need for treatment. In particular, the records failed to address the relative degree to which compensable and non-compensable causes (i.e., the 1996 and 2006 car accidents) have brought about the employee’s disability. The Board therefore reversed the award of § 34 benefits.
If you have suffered a work-related injury, you may be entitled to coverage for your medical treatment and expenses and lost wages under the Massachusetts Workers’ Compensation Act. At Pulgini & Norton, our experienced attorneys provide aggressive and thorough legal representation to clients seeking workers’ compensation benefits in Massachusetts. To discuss your benefits claim with one of our lawyers, contact our office at (781) 843-2200 or online and schedule a free consultation.