Honolulu city law prohibits peddling in city parks.
But a small group of individuals — some of them operating out of a ramshackle residence in Waialua — appears to have found a way to get around that law.
They sell soda, chips and other snacks along with T-shirts piled high on their makeshift kiosks in city parks around the island. Their tables can be found daily at high-use locations such as Kailua Beach Park, and Waimea Bay and Ehukai parks on the North Shore.
“It is basically just a scam,” says Kailua community activist Lisa Cates, a longtime advocate of keeping Oahu’s public parks commerce-free.
The city allows qualified nonprofit organizations to set up informational tables in certain parks after they’ve been issued what’s called a First Amendment permit.
Those permittees currently are allowed at eight Oahu parks including Kailua Beach, Hanauma Bay and Sandy Beach. And on the North Shore at Haleiwa Alii, Waimea Bay, Pupukea Beach, Sunset and Ehukai.
The bar appears to be set very low for any organization to qualify as a nonprofit seeking the permits.
The city’s rules say a nonprofit must show that it would qualify for tax-exempt status with the Internal Revenue Service, not that the organization does qualify for the status.
And that’s where it gets shaky. Only the IRS has the expertise and authority to determine who “would qualify” for tax-exempt status and to grant that status. Not just this city but any city lacks the expertise and the authority to determine who would quality for the federal tax-exempt status.
The city’s intention with First Amendment permits is to give nonprofits the opportunity to distribute their literature and freely express their views.
In the mid-1990s, the city won a lengthy court battle to rid Kalakaua Avenue sidewalks of a large group of T-shirt vendors who had argued they were exercising their First Amendment rights.
Soon after, in 1996, the Parks Department created rules to allow carefully regulated free speech activities in certain parks rather than on sidewalks of the Waikiki tourist district.
But the Parks Department seems lax in its enforcement of the rules permittees are required to follow to avoid permit revocation.
The mayor’s information officer, Andrew Pereira, says, “the city’s parks permits manager does check for current nonprofit status, insurance, and food permit (if a person or group is selling food).”
Recently, there have not been any permits revoked.
A check of the records of the State Department of Commerce and Consumer Affairs, where non-profits must register, shows three of the groups with current city First Amendment permits are “not in good standing.”
The organizations are Neighbors In Action, Project Need, and Open Art International.
DCCA spokesman William Nhieu says that means they are registered with the DCCA but they have not kept their non-profit incorporation papers current.
Two other nonprofits with permission to set up tables in parks, Siri Guar Nitai and Gathering Place of Gods Ministries, are shown not to be registered at all with the state.
Michelle Nekota, director of the Department of Parks and Recreation, said she has not yet gone out to the parks to see First Amendment permit holders in action.
“I have been to the parks but not when the vendors are set up,” says Nekota.
Lani-Kailua Outdoor Circle board member Claudia L. Webster says, “the parks department has not done its due diligence on the groups which claim First Amendment rights.”
Community activist Cates says, “Clearly a small group is profiting from this rule. They have used it to set up illegal rent-free store fronts in our parks.”
Instructions on the permits prohibit the sale of food and drinks, but the vendors’ tables offer Pringles, corn chips, sodas, bottled water, coffee drinks and other packaged snacks. At a vendor’s table I visited in Kailua, the operator was selling rubber slippers for $10 a pair with Walmart tags still on them.
“They are selling food and items at outrageous prices. The same things you could buy down the street at Kalapawai Market for half the price,” says Webster.
Under the rules, permit holders are allowed to distribute “sanctified foodstuff” in exchange for “monetary contributions.”
The city was unable to provide a definition of “sanctified foodstuff,” but I am not persuaded that Pringles potato chips and bottled Starbuck’s coffee drinks qualify.
The rules say any merchandise the non-profits distribute must be printed with a message directly related to the group’s purpose.
Yet when I visited vendors at Kailua, Waimea and Ehukai parks last week, the messages on the T- shirts piled up on their tables featured vague messages such as “protect and preserve” and “protect our oceans “ — sayings you might routinely see on T-shirts in Waikiki shops; messages clearly unrelated to the Hindu charities the vendors’ permits say they are representing.
Biplab Biswas, a vendor whose permit says he represents the Siri Hari Society, told me, “It doesn’t matter. It can be any message on the shirt.”
Biswas said he was unfamiliar with the regulation mandating that the merchandise for sale must “bear a message which is inextricably intertwined with the purpose and activities of the permittee …”
A woman vendor at Kailua Beach Park was telling tourists the money they spent on T-shirts with the message “protect our oceans” would go to the homeless, and then when I asked her about that message she simply said her group was dedicated to protecting the ocean.
Permits are supposed to be visible at all times at First Amendment tables, but her group’s was not posted. She said her nonprofit was affiliated with the Iskcon Hindu Temple in Nuuanu. But Iskcon Hawaii is not registered with the city for a First Amendment permit.
“They are just hawking goods to tourists. This is not the right way to use our parks,” says state Rep. Cyththia Thielen.
Thielen met with City Parks Director Nekota on March 18 to urge her to stop the illegal commerce at Oahu parks.
“And to enforce the current rules which provide very specific terms for the permits. Vendors should not be selling T-shirts and sodas. They should not be allowed to be there in the parks every day,” says Thielen.
Nekota says the Parks Department will instruct the police to step up enforcement. But Kailua resident Cates says the Parks Department, not HPD, should be in charge of enforcement because it understands what constitutes a violation.
“It’s difficult for police to know the many different restrictions the city imposes on permit holders,” says Cates.
Nekota says the Parks Department will draft new rules for First Amendment park permits.
“The rules are 20 years old. We have to bring them up to date,” says Nekota.
City rule-making can be a lengthy process involving draft revisions and public hearings.
“The permits of the violators should be revoked now,” says Cates.
A review I did with Cates of the registered permit-holders for March shows nine of the 15 non-profits with permits list the same address: 67-446 Puuiki St., Waialua 96791.
Eight of those Waialua organizations list as their director either Dipak Sarkar or Narayani Sarkar. Another non-profit at the same Waialua address lists Bishnu Sarkar as its agent.
In state filing papers, their Waialua address is listed variously as a yoga center, a place of public worship, a sanctified food manufacturer, and a book distribution center.
When I drove to Waialua to check out the 67-466 Puuiki St. address, I found a small, rundown house with two old recreational vehicles parked in front and with cinder-block supports. Dipak Sarkar was not home, but a man living in one of the seemingly immovable RVs — he said his name is Ranjit Sarkar — told me they sold T-shirts but he said there was no church or yoga center on the premises or a sanctified food facility. He said if I was looking for a church, there was a Christian church down the street.
I called Dipak Sarkar later to ask him more about the purposes of the many charities run by him or Narayani Sarkar out of his Waialua address. I also wanted to ask him if was registering a single charity under nine different names to circumvent the city’s rule that allows only one First Amendment permit a month to each nonprofit.
Dipak answered my call, but after I started asking him about his charities he said he was driving and couldn’t talk. He made an appointment to talk to me at noon Sunday. I called him many times Sunday but he didn’t answer the phone or return my phone messages later in the day.
Interestingly, Dipak Sarka was served with a cease and desist order by the Hawaii Attorney General’s office in December 2011.
That was when Dipak and and another man named Jahav Balaji were selling “I climbed Diamond Head” certificates inside Diamond Head crater. They claimed the “donations” they collected were going to the Diamond Head Preservation Society.
The Attorney General’s office said that there was no such group in the state.
Rep. Thielen says she’s hopeful the city will soon put a stop to what looks like a few vendors taking advantage of the city’s First Amendment permit system for their own personal gain rather than for the charitable good of the community.
Here is a list of the nonprofits granted First Amendment permits for March 2016: