When Hawaii was a fledgling state, public access to Waikiki beach was basically being walled off by hotels. Chief Justice William S. Richardson penned a Hawaii Supreme Court decision holding that public beaches, by necessity, include the public’s right to access. The hotels had to allow the public to pass through their lobbies to get to the beach.

Richardson’s seminal decision reached back to native Hawaiian custom and tradition. He embedded in Hawaii law the principal of protecting and perpetuating the public’s right to access public lands and ocean and prohibiting the private commercialization of these areas.

When I was chair of the state Department of Land and Natural Resources, the most common complaint I heard was about private businesses commercializing public lands. We changed the permitting process to prohibit commercial businesses from setting up shop on beaches.

Kailua Beach Mokapu. 26 april 2016.

Access to Hawaii beaches is a protected public right, thanks to a state Supreme Court decision written decades ago by Chief Justice William S. Richardson.

Cory Lum/Civil Beat

We were sued by several beach wedding operators who argued that the freedom of religion meant they could set up ceremonies with altars and pews on public beaches. Judge Sam King ruled that the State of Hawaii has a compelling interest in keeping public beaches open and free of commercialization, and the restrictions were upheld.

Today, the threat of commercializing beaches is coming from Airbnb. Dozens of “hosts” are offering overnight stays at public beaches and campsites. In some cases they direct the camper to use nearby public restrooms and showers. In other cases they offer a tarp, a secluded beach without a restroom, and direct users to “go old school.”

Any backpacker traveling through Hawaii can become an Airbnb “host” just by using a smartphone. Take a few pictures, type in a bit of text and, voila! You’re in business and can fund your Hawaii vacation by renting out a couple sleeping bags at “a location that is not exactly the same for every booking.”

Airbnb is asking the Legislature to pass House Bill 1850. Reportedly, the bill was written by Airbnb and clearly favors the company’s business model. It exempts them from tax laws that apply to our local property managers and allows them to hide illegal operators, like these hosts offering beach camping.

Dozens of “hosts” are offering overnight stays at public beaches and campsites. In some cases they offer a tarp, a secluded beach without a restroom, and direct users to “go old school.”

The Senate passed an amendment requiring Airbnb to pre-screen hosts to prevent posting of beach camping and the like. The company can easily do so by adding a simple algorithm to their program that would flag and route camping sites to pre-screening.

The company response: “Airbnb is an open platform, meaning we do not pre-screen or control the listings posted by hosts…”

This attitude is astounding, given that Airbnb has now surpassed Marriott International in value and, I believe, number of units. According to the Wall Street Journal, Airbnb is estimated at a value of $25 billion, with annual revenues of $900 million. Requiring the company to meet a bare minimum level of corporate responsibility is not too much to expect.

Realizing that their sweetheart legislation is in jeopardy, Airbnb is now rapidly removing beach camping from its website. Although they have informed us that these offerings don’t meet their company standards, they refuse to pre-screen listings. They ask us to trust them to remove such postings in the future – after we pass their special legislation.

After reading the experiences in other jurisdictions, where illegal postings regularly resurface on Airbnb, I don’t trust them. I also don’t trust the traveling entrepreneur to abide by vague company standards that are not enforceable. We’ve already seen removed hosts popping back up in Hawaii under different names.

Airbnb is framing HB 1850 as necessary for the state to collect taxes on vacation rentals. That is untrue. We passed a law last year that allows the Tax Department to easily cite and fine people advertising vacation rentals online without posting a tax identification number. We can start collecting taxes today, without HB 1850.

If Airbnb is solely motivated by being a good member of the community, they can already collect and remit taxes for all their listings today, without HB 1850.

Chief Justice Richardson gave all Hawaii residents and visitors an extremely valuable gift. He legally protected our unique custom and tradition that public lands belong to everyone, and that no one has the right to turn them to personal profit.

Legislators have an obligation to safeguard and perpetuate that gift for today’s and future generations. We should not sell out or weaken that public right simply because a powerful company is seeking a competitive advantage over local property managers.

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