LIHUE — A Hanalei man fined by the county for running a non-permitted bed and breakfast pleaded no contest to the criminal charges Tuesday in 5th Circuit Court.
Ed Ben-Dor, 63, received a second fine for illegally operating a single family transient vacation rental outside of a visitor destination area.
Ben-Dor, who is also a diamond broker, was represented by attorney Gregory Meyers. Meyers said the defendant decided not to fight the charges after being cited by the Planning Department. He agreed to stop operations immediately and paid the original $2,000 civil penalty.
“This is a case that could be fought, in my opinion,” Meyers said. “Mr. Ben-Dor just wants to put this behind him and move on.”
Ben-Dor said that he had been operating the bed and breakfast since 1987. He believed it was permitted, and when the county informed him it was not on Aug. 29, 2013, the signage and website were removed immediately.
Chief Judge Valenciano questioned the authority of the Planning Department to impose a $2,000 fine and initially ordered it to be returned before reconsidering. The misdemeanor criminal offense carries a possible $2,000 fine and up to one year in jail. Valenciano then assessed Ben-Dor with an additional $1,000 fine. He then urged the county to seek either an administrative or a criminal approach, but not both, in these matters.
Prosecuting Attorney Justin Kollar said the law was amended but a zoning code violation has always carried civil and criminal penalties. Prosecutions today are possible because there is a better working relationship with the Planning Department, he added.
“It’s not unusual for conduct to have both civil as well as criminal consequences, and our ordinance provides for both in this situation,” Kollar said. “Resolving matters with the Planning Department does not necessarily absolve him on the criminal side.”
Ben-Dor also waived his right to a pre-sentence diagnostic report and the opportunity to motion for a deferred acceptance of his plea, which could have expunged the conviction from his record with just one prior grubbing and grading violation.
Kollar said he was pleased the defendant took responsibility.
“Operating these unpermitted-permitted rentals in these areas not only damages the character of our rural neighborhoods, but also presents real public safety hazards by over-stressing limited infrastructure and making it more difficult to evacuate areas quickly,” he said.
Time share units, time share plans and transient vacation rentals are prohibited. However, the Planning Commission can grant a nonconforming use certificate. Ben-Dor is asking reconsideration of his special management area use permits that were denied in October.