Stay of Agency Enforcement Application - Hawaii

APPLICATION FOR STAY OF AGENCY ENFORCEMENT

STATE OF HAWAII

BEFORE THE [________________________________]

(Name of Agency)

In the Matter of:

[________________________________]
(Name of Applicant / Respondent)

Agency Docket / Case No.: [________________________________]

Enforcement Action / Order No.: [________________________________]

Date of Enforcement Action: [__/__/____]

COVER LETTER TO AGENCY

[__/__/____]

[________________________________]
(Name of Agency Director / Chairperson / Hearing Officer)
[________________________________]
(Agency Name)
[________________________________]
(Street Address)
[________________________________]
(City, Hawaii, ZIP Code)

RE: Application for Stay of Enforcement — [________________________________], Docket No. [________________________________]

Dear [________________________________]:

On behalf of [________________________________] ("Applicant"), enclosed please find the Application for Stay of Enforcement Action dated [__/__/____]. This application is submitted pursuant to the authority of the [________________________________] (name of agency) and the Hawaii Administrative Procedure Act, HRS Chapter 91.

The Applicant respectfully requests that this agency stay enforcement of its [________________________________] (describe order/notice/action) dated [__/__/____] pending [☐ contested case hearing / ☐ agency reconsideration / ☐ judicial review under HRS § 91-14]. As detailed in the enclosed application, a stay is warranted because:

1. There is a likelihood that the Applicant will prevail on the merits;
2. Irreparable damage will result if a stay is not ordered; and
3. No irreparable damage to the public will result from the stay.

☐ This application is submitted on an emergency / expedited basis due to [________________________________].

Enclosed with this application are [____] supporting exhibits. We respectfully request a ruling on this application within [____] days, or as soon as practicable.

Respectfully submitted,

[________________________________]
(Attorney Name / Hawaii Bar Number)
[________________________________]
(Firm Name)
[________________________________]
(Address)
[________________________________]
(Phone / Email)

cc: [________________________________] (Deputy Attorney General / Agency Counsel / Other Parties)

FORMAL APPLICATION FOR STAY OF AGENCY ENFORCEMENT

I. INTRODUCTION AND RELIEF REQUESTED

Applicant [________________________________] ("Applicant") respectfully submits this Application for Stay of Enforcement Action pursuant to the authority of the [________________________________] (agency name) and the Hawaii Administrative Procedure Act ("HAPA"), HRS Chapter 91.

The Applicant requests that this agency stay enforcement of [________________________________] (describe the specific order, notice, penalty, suspension, revocation, fine, or other enforcement action), issued on [__/__/____], pending:

☐ Resolution of the Applicant's contested case hearing under HRS § 91-9
☐ Disposition of the Applicant's request for reconsideration
☐ Judicial review in the Circuit Court under HRS § 91-14
☐ Judicial review in the Environmental Court (if applicable)
☐ Other: [________________________________]

The Applicant requests that the stay:

☐ Take effect immediately upon the agency's grant of this application
☐ Be made retroactive to [__/__/____]
☐ Remain in effect until final disposition of the underlying proceedings
☐ Be subject to reasonable conditions as determined by the agency

II. PARTIES AND PROCEDURAL HISTORY

A. Applicant Information

B. Agency and Action at Issue

C. Procedural History

1. On [__/__/____], the agency issued [________________________________] against the Applicant.
2. On [__/__/____], the Applicant [☐ requested a contested case hearing / ☐ requested reconsideration / ☐ filed for judicial review in Circuit Court].
3. The matter is currently pending before [________________________________].
4. The compliance deadline / enforcement date is [__/__/____].
5. Additional procedural history: [________________________________]

III. STATEMENT OF FACTS

[Provide a detailed, chronological statement of the relevant facts. Include the nature of the enforcement action, the regulatory or licensing context, the agency's findings, and any facts bearing on the three-factor stay test.]

1. [________________________________]
2. [________________________________]
3. [________________________________]
4. [________________________________]
5. [________________________________]

IV. LEGAL STANDARD FOR STAY

A. Statutory Framework Under HRS § 91-14(c)

Hawaii's Administrative Procedure Act establishes a specific three-factor test for stays of agency enforcement. Under HRS § 91-14(c):

"Proceedings for review shall not stay enforcement of the agency decision or the confirmation of any fine as a judgment; provided that the reviewing court may order a stay if the following criteria have been met:
(1) There is likelihood that the subject person will prevail on the merits of an appeal from the administrative proceeding to the court;
(2) Irreparable damage to the subject person will result if a stay is not ordered;
(3) No irreparable damage to the public will result from the stay order."

All three criteria must be met for a stay to be granted.

B. Agency Authority to Grant Stays

While HRS § 91-14(c) specifically addresses court-ordered stays, agencies in Hawaii possess inherent authority to stay their own enforcement actions pending further administrative proceedings. This authority is derived from:

☐ The agency's general adjudicatory power under its enabling statute
☐ HRS § 91-9 (contested case hearing procedures)
☐ Agency-specific rules: [________________________________]
☐ The agency's inherent authority to manage its own proceedings

C. Key Distinctions

1. Fines as Judgments: HRS § 91-14(c) explicitly addresses confirmation of fines as judgments — a stay does not prevent this confirmation unless specifically ordered.
2. Circuit Court vs. Environmental Court: For environmental matters, judicial review may proceed in the Environmental Court rather than the general Circuit Court.
3. 30-Day Filing Deadline: Proceedings for judicial review must be instituted within 30 days after the preliminary ruling or within 30 days after service of the certified copy of the final decision and order.

V. GROUNDS FOR STAY

A. Likelihood of Prevailing on the Merits (Factor 1)

The Applicant demonstrates a likelihood of prevailing on the merits of the appeal:

1. [________________________________]
2. [________________________________]
3. [________________________________]

The agency's decision is subject to reversal because:

☐ The agency's action was in violation of constitutional or statutory provisions (HRS § 91-14(g)(1))
☐ The agency's action was in excess of the statutory authority or jurisdiction of the agency (HRS § 91-14(g)(2))
☐ The agency's action was made upon unlawful procedure (HRS § 91-14(g)(3))
☐ The agency's action was affected by other error of law (HRS § 91-14(g)(4))
☐ The agency's action was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record (HRS § 91-14(g)(5))
☐ The agency's action was arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion (HRS § 91-14(g)(6))
☐ Other: [________________________________]

B. Irreparable Damage to the Applicant (Factor 2)

If a stay is not ordered, the Applicant will suffer the following irreparable damage:

☐ Loss or suspension of professional license or certification
☐ Forced business closure or cessation of operations
☐ Financial harm exceeding $ [________________________________] that threatens business viability
☐ Loss of established customer/client/patient relationships
☐ Reputational harm in the community or industry
☐ Loss of employment for [____] employees
☐ Harm to personal or family livelihood
☐ Constitutional rights deprivation
☐ Loss of real property rights or access
☐ Environmental or cultural resource harm that cannot be reversed
☐ Other: [________________________________]

Specific facts supporting irreparable damage: [________________________________]

C. No Irreparable Damage to the Public (Factor 3)

A stay will not cause irreparable damage to the public because:

1. [________________________________]
2. [________________________________]
3. [________________________________]

☐ The enforcement action does not address an imminent threat to public health or safety
☐ The Applicant has been operating without incident during the pendency of proceedings
☐ The Applicant proposes conditions that fully protect the public interest: [________________________________]
☐ The public benefits from continued operations by the Applicant: [________________________________]
☐ The enforcement action addresses historical conduct that has been corrected
☐ Adequate interim protections exist independently of the enforcement action
☐ Other: [________________________________]

D. Balance of Equities (Supplemental Argument)

Although the statutory test under HRS § 91-14(c) does not explicitly include a "balance of equities" factor, the equitable considerations further support a stay:

1. Harm to Applicant without a stay: [________________________________]
2. Harm to agency/public with a stay: [________________________________]
3. Proposed conditions to mitigate any potential harm: [________________________________]

VI. BOND OR SECURITY OFFER

☐ The Applicant offers to post a bond or other security in the amount of $ [________________________________].

☐ The Applicant proposes the following form of security:
☐ Surety bond
☐ Cash deposit
☐ Letter of credit
☐ Escrow arrangement
☐ Other: [________________________________]

☐ The Applicant requests that no bond be required because:
☐ The Applicant is a governmental entity
☐ The Applicant is unable to post bond and would suffer further irreparable harm
☐ The enforcement action does not involve monetary penalties or fines
☐ The proposed conditions adequately protect the agency's and public's interests
☐ Other: [________________________________]

☐ Regarding fine confirmation as judgment: The Applicant requests that the confirmation of the fine of $ [________________________________] as a judgment also be stayed because [________________________________].

VII. EMERGENCY OR EXPEDITED RELIEF

☐ This section applies — Applicant seeks emergency or expedited consideration.

A. Basis for Emergency Relief

☐ The enforcement compliance deadline is [__/__/____], which is [____] days away
☐ Enforcement is currently ongoing and causing immediate harm
☐ Delay will render any stay meaningless because [________________________________]
☐ The Applicant faces imminent [☐ license revocation / ☐ business closure / ☐ property seizure / ☐ other: [________________________________]]
☐ Other urgent circumstances: [________________________________]

B. Proposed Expedited Schedule

☐ An immediate temporary stay pending full briefing
☐ A ruling within [____] business days
☐ An expedited hearing on [__/__/____]
☐ Telephonic or electronic consideration

C. Notice to Opposing Parties

☐ Notice provided to [________________________________] on [__/__/____] by [________________________________].
☐ Unable to provide advance notice because [________________________________].

VIII. CONDITIONS PROPOSED BY APPLICANT

☐ Periodic compliance reporting every [____] days/weeks
☐ Maintenance of insurance coverage of $ [________________________________]
☐ Continued operation under supervision or monitoring by [________________________________]
☐ Partial compliance with specified provisions: [________________________________]
☐ Preservation of all records and evidence
☐ Escrow of disputed funds or fines: $ [________________________________]
☐ Cessation of specific conduct: [________________________________]
☐ Retention of a compliance monitor
☐ Environmental monitoring or mitigation measures: [________________________________]
☐ Cultural resource protection measures: [________________________________]
☐ Community notification requirements: [________________________________]
☐ Other: [________________________________]

IX. PROPOSED STAY ORDER

ORDER GRANTING STAY OF ENFORCEMENT

Upon consideration of the Application for Stay filed by [________________________________] on [__/__/____], and upon finding that (1) there is a likelihood that the Applicant will prevail on the merits; (2) irreparable damage to the Applicant will result if a stay is not ordered; and (3) no irreparable damage to the public will result from this stay order, it is hereby:

ORDERED that enforcement of [________________________________] (describe order/action), dated [__/__/____], Docket No. [________________________________], is STAYED effective [__/__/____], pending [________________________________] (final disposition of contested case / judicial review), subject to the following conditions:

1. [________________________________]
2. [________________________________]
3. [________________________________]

☐ The confirmation of the fine of $ [________________________________] as a judgment is also stayed pending resolution of the proceedings.

This stay shall remain in effect until [________________________________] or further order.

The agency reserves the right to modify or dissolve this stay upon a showing of changed circumstances, failure to comply with conditions, or a demonstration that irreparable damage to the public would result from continuation of the stay.

Dated: [__/__/____]

_______________________________________________
(Signature of Authorized Agency Official)
[________________________________]
(Printed Name and Title)

VERIFICATION

I, [________________________________], being duly sworn, depose and say that I am the [☐ Applicant / ☐ authorized representative of the Applicant] in this matter, that I have read the foregoing Application for Stay of Agency Enforcement, and that the factual statements therein are true and correct to the best of my knowledge, information, and belief.

_______________________________________________
(Signature of Applicant or Authorized Representative)

Sworn to and subscribed before me this [____] day of [________________], 20[____].

_______________________________________________
(Notary Public, State of Hawaii)
My Commission Expires: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of this Application for Stay of Agency Enforcement, together with all exhibits, was served upon:

☐ Deputy Attorney General assigned to the agency: [________________________________]
Method: ☐ Hand delivery ☐ First-class mail ☐ Certified mail ☐ Email: [________________________________]

☐ Agency counsel: [________________________________]
Method: ☐ Hand delivery ☐ First-class mail ☐ Certified mail ☐ Email: [________________________________]

☐ Other party/parties: [________________________________]
Method: ☐ Hand delivery ☐ First-class mail ☐ Certified mail ☐ Email: [________________________________]

_______________________________________________
(Signature)
[________________________________]
(Printed Name / Hawaii Bar Number)
Date: [__/__/____]

DOCUMENT CHECKLIST

Required Documents

☐ Completed Application for Stay (this document)
☐ Cover letter to agency
☐ Copy of the enforcement order / action being challenged
☐ Verification / affidavit
☐ Certificate of service

Supporting Exhibits

☐ Copy of request for contested case hearing (if filed)
☐ Copy of petition for judicial review in Circuit Court / Environmental Court (if filed)
☐ Declaration(s) / affidavit(s) regarding irreparable damage to Applicant
☐ Declaration(s) / affidavit(s) demonstrating no irreparable damage to the public
☐ Financial statements or business impact analysis
☐ Evidence of compliance efforts or proposed compliance plan
☐ Bond or security documentation (if applicable)
☐ Agency correspondence and relevant record excerpts
☐ Legal memorandum in support (if separate)
☐ Proposed stay order
☐ Environmental or cultural impact documentation (if applicable)
☐ Additional exhibits: [________________________________]

Filing Requirements

☐ Confirm agency-specific filing requirements and procedures
☐ Determine number of copies required
☐ Confirm filing fees (if any)
☐ Verify service on Deputy Attorney General and all parties
☐ Retain file-stamped copy for Applicant's records
☐ Note island / circuit for any judicial review filing

PRACTICE TIPS FOR HAWAII PRACTITIONERS

Statutory Framework

1. Three-Factor Test: Hawaii's stay standard under HRS § 91-14(c) requires satisfaction of all three factors: (1) likelihood of prevailing on the merits, (2) irreparable damage to the subject person, and (3) no irreparable damage to the public. All three are conjunctive — failure on any one is fatal.

2. No Automatic Stay: Proceedings for judicial review do not automatically stay enforcement or confirmation of fines as judgments. HRS § 91-14(c).

3. Fine Confirmation: HRS § 91-14(c) specifically addresses confirmation of fines as judgments — practitioners should request a stay of fine confirmation separately if applicable.

4. 30-Day Deadline: Judicial review must be filed within 30 days after the preliminary ruling or 30 days after service of the certified copy of the final decision and order. HRS § 91-14(b).

Strategic Considerations

5. "No Irreparable Damage to the Public" Factor: This third factor is unique to Hawaii and can be a decisive element. Prepare affirmative evidence that a stay will not harm the public, rather than merely arguing that harm has not been shown.

6. Agency-Level Stay vs. Court Stay: Consider seeking a stay at the agency level first. The agency is familiar with the subject matter and may be better positioned to craft appropriate conditions. If the agency denies the stay, the denial and reasoning support a court application.

7. Conditions: Propose specific, concrete conditions that address public safety concerns. This is particularly important given the "no irreparable damage to the public" requirement — conditions that eliminate or mitigate any public risk strengthen the application.

8. Environmental and Land Use Cases: Hawaii has a dedicated Environmental Court for certain matters. Verify the appropriate forum for judicial review and stay applications in environmental and land use enforcement cases.

Procedural Notes

9. Circuit Court Filing: Judicial review petitions are filed in the circuit court of the county where the contested case hearing was held or where the agency has its principal office. HRS § 91-14(b).

10. Deputy Attorney General: Most Hawaii state agencies are represented by the Department of the Attorney General. Serve all stay applications on the assigned Deputy Attorney General.

11. Contested Case Requirement: Judicial review under HRS § 91-14 applies only to contested case decisions. Verify that the agency action constitutes a "contested case" as defined by HRS § 91-1(5).

12. Standards of Review: The six grounds for reversal in HRS § 91-14(g) define the merits analysis. Frame the likelihood-of-success argument around these specific statutory grounds.

13. Hawaiian Cultural Considerations: In enforcement actions involving traditional and customary Hawaiian practices, cultural resources, or Native Hawaiian rights, address these considerations explicitly in the stay application and proposed conditions.

14. Written Ruling: Request a written ruling on the stay application with specific findings on each of the three statutory factors. This creates a reviewable record.

SOURCES AND REFERENCES

• Hawaii Administrative Procedure Act: HRS Chapter 91
• Judicial Review of Contested Cases: HRS § 91-14
• Stay Pending Review: HRS § 91-14(c)
• Contested Case Procedures: HRS §§ 91-9 through 91-13
• Definitions: HRS § 91-1
• Hawaii Rules of Civil Procedure (for judicial review proceedings)
• Hawaii Department of the Attorney General: https://ag.hawaii.gov
• Hawaii State Judiciary: https://www.courts.state.hi.us
• Office of Administrative Hearings, DCCA: https://cca.hawaii.gov/oah/