Solicitation Requires Proof of Request or Demand for Money

By Benjamin Lowenthal -
State v. Abel (HSC September 24, 2014)
Background. James Abel was charged with the city ordinance of solicitation with animals in Waikiki, a violation of ROH § 29-13.2(b). At trial, HPD Sergeant Stacey Christensen testified that one day she was “enforcing parking violations” in Waikiki. She saw Abel “with birds fronting the Outrigger standing on the sidewalk.” Abel was putting birds on people and taking pictures of them with their cameras and the people would give him money. She couldn’t make out what they were saying and could not discern how much money was given to Abel. Abel moved to acquit and argued that the elements had not been met because the prosecution could not prove solicitation. The motion was denied. Abel argued that there was still insufficient evidence to show solicitation, which is basically defined as a demand for gifts or money. During his closing, Abel argued that “[m]erely extending the gesture of placing birds on someone and taking a photo is just an extension of the aloha spirit. It’s not meant to . . . be a solicitation.” Abel was found guilty and sentenced to a fine of $300 and a court fee of $30. Abel appealed, and the ICA affirmed. Abel petitioned for cert.

 Breaking Down a Criminal Offense. “The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct as: (a) Are specified by the definition of the offense, and (b) Negative a defense[.]” HRS § 702-205. In this case, Abel was prosecuted for violating ROH § 29-13.2(b):

In the Waikiki special district, no person shall use any live animal in furtherance of any solicitation on any public property . . .
. . . .
(b) The person conducting the solicitation shall not place the animal on or otherwise transfer the animal to any other person.

Id. The HSC broke this ordinance down into the following elements: (1) a solicitation, (2) use of a live animal in furtherance of the solicitation, (3) a transferring of the animal by the person conducting the solicitation onto another person, and (4) the occurrence of the solicitation on public property in the Waikiki Special District. Id. “Solicitation” means “to request or demand money or gifts.” ROH § 29-13.1.

Solicitation Requires Proof of a Demand or Request. The crux of this case came down to interpreting the word “solicitation.” The HSC noted that even though the language of the ordinance—to request or demand money or gifts—is straightforward, it was still free to look elsewhere to ascertain its meaning. The HSC explained that “the plain language rule of statutory construction . . . does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review.” Keliipuleole v. Wilson, 85 Hawaii 217, 227, 941 P.2d 300, 304 (1997). One place to look would be the legislative history in order to “discern the underlying policy [that] the legislature sought to promulgate.” State v. McKnight, 131 Hawaii 379, 388, 319 P.3d 293, 307 (2013). When the court cannot glean the policy through legislative history, the court could be unable to determine if the literal construction would produce an absurd or unjust result. Keliipuleole, 85 Hawaii at 221, 941 P.2d at 304.

Luckily, there was plenty of evidence for the HSC to ascertain the policy underlying this ordinance. In the end, the HSC noted that the City Council passed this ordinance to regulate those requesting or demanding money from tourists in exchange for using animals. It was not designed to prevent folks from displaying and presenting animals to tourists or even prevent them from having tourists snap pictures with them.

Witnessing a Transaction is Not Enough to Prove “Solicitation.” Turning to this case, the HSC noted that there was only evidence of people paying Abel after he took a picture of them with parrots on them. The prosecution, however, has to prove a demand or request for money or gifts. No such demand was proven. According to the HSC, “Sgt. Christensen did not hear any conversations between Abel and other individuals, or overhear any statement or comment regarding a fee. There was no evidence that Abel had a sign requesting money or a tip jar on the public sidewalk that would imply money was expected. Likewise, there was no evidence that Abel made any hand or head gestures indicating a request for money.” And so, the conviction was reversed for lack of evidence.

Proving a Demand or Request. The HSC has drawn a very fine line. Folks standing around with birds in Waikiki can put their birds on tourists and let them take pictures with them so long as they don’t “request or demand” money or gifts. That means you can’t ask, put your hand out, or even have a tip jar “that would imply money was expected.” What about a “DONATIONS WELCOMED, (BUT NOT REQUESTED)” sign? Surely that’s not a demand, but perhaps it’s more of a request. So what if the sign said “DONATIONS WELCOMED (BUT NOT REQUESTED)”? Perhaps at that point a birdman would be tempting fate. What about a jar full of dollar bills and no sign at all? Would that “imply money was expected?” At least these guys are happy for now.

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