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A District Court judge today fined a Honolulu man $200 for illegally selling “I Climbed Diamond Head” certificates at the summit of the volcanic crater.
Christopher P. Barclay pleaded no contest to the charge of soliciting and selling merchandise at Diamond Head without a required state permit for commercial activities.
Diamond Head Citizens’ Advisory Committee president Sid Snyder called the $200 fine “a slap on the wrist.” Snyder says Barclay’s certificate sales have been so profitable that it’s likely he will consider the fine simply a cost of doing business and soon resume his sales.
“I hope he does not come back,” said Snyder. “All he does is take up space at the top of Diamond Head. It is not fair. He is a bad ambassador for Hawaii.”
The state Department of Land and Natural Resources on March 8 issued Barclay a cease and desist order for setting up “a vendor station at the top of Diamond Head to sell $5 certificates to people saying ‘I Climbed Diamond Head.”
Conservation officers arrested Barclay when he returned to the crater the next day on a bench warrant for failure to show up in court to answer a 2015 charge of similar unauthorized soliciting and sales on Diamond Head.
State Parks Administrator Curt Cottrell says Barclay has been an unwanted fixture at Diamond Head for years. Cottrell says longtime park employees have told him that Barclay has been selling T-shirts and other merchandise in the crater for at least two decades.
Over the years I witnessed Barclay collecting fistfuls of cash at the summit as he assures his customers that the fees they are paying him for the certificates were donated to help keep Diamond Head clean. But Barclay admitted to me in an interview that all the cash goes into his pocket — “to pay me for my time for cleaning up the trail.”
Barclay, who pays few expenses to operate, has been in direct competition with the state’s only authorized vendor located in a kiosk at the entrance to the park.
He had no comment after his trial Friday.
His petty misdemeanor charge carried a maximum fine of up to $1,000 and up to 30 days in prison. District Court Judge Trish Morikawa imposed a fine of $200 after deputy prosecuting attorney Kai Golden asked her to fine Barclay $500.
Barclay’s defense attorney, Richard Holcomb, had urged the judge to fine Barclay the minimum allowed for a first-time offender: $100. He said, “Mr. Barclay believed and still believes that he was acting within the legal protection of his First Amendment rights.”
Tom Moore, who hikes to the Diamond Head summit every day, said he was disappointed that Barclay’s fine was so low and that the judge did not impose an order to prohibit Barclay from returning to Diamond Head. Moore is an adjunct professor of computer science at Kapiolani Community College.
Former State Rep. Barbara Marumoto, president of the nonprofit Diamond Head State Monument Foundation, said: “He really got off easy. He has been a pest at Diamond Head for 20 years; first selling T-shirts and now the certificates he thought he could get away with selling.”
Cottrell said that while Barclay’s fine of $200 may seem insignificant, “He finally admitted in his no contest plea that he was guilty.”
And Cottrell called it “precedent-setting that the prosecutor’s office has started to treat illegal sales activities at Diamond Head seriously.”
“The beauty is we have established good relations with the prosecutors,” he said. “The prosecutor’s office in the past trivialized such activities. Illegal vendors were getting away with hiding under protection of freedom of speech.”
Cottrell says if Barclay wants to exercise his First Amendment rights, he can apply for a permit to distribute literature at a designated place near the trailhead for freedom of speech activities.
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