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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
14-OCT-2026
07:55 AM
Dkt. 12 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---________________________________________________________________
STEWART NORRIE,
individually and as Trustee of the Stewart Norrie Trust,
Respondent/Appellant-Appellant,
vs.
MAUI COUNTY BOARD OF VARIANCES AND APPEALS;
JACKY TAKAKURA, in her official capacity as Director of the
Department of Planning for the County of Maui;
DEPARTMENT OF PLANNING, COUNTY OF MAUI,
Petitioners/Appellees-Appellees.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2CCV-XX-XXXXXXX)
OCTOBER 14, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT
JUDGE CASTAGNETTI, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This is a secondary agency appeal. The Intermediate Court
of Appeals (“ICA”) reversed a Maui County Board of Variances and
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Appeals’ (“BVA”)1 decision and order based on the violation of a
procedural rule stating that a decision and order, accompanied
by findings of fact and conclusions of law, must be rendered
within forty-five days of a triggering date.
We hold that the deadline in the rule is directory, not
mandatory, and that there was no actual prejudice to appellant’s
substantial rights. We therefore vacate the ICA’s judgment on
appeal and reinstate the decisions of the Circuit Court of the
Second Circuit (“circuit court”).2
The Department of Planning, County of Maui (“Department”)
revoked Stewart Norrie (“Norrie”)’s bed and breakfast (“B&B”)
permit and imposed a two-year ban on future B&B applications.
This decision was sustained by the BVA. At its November 24,
2021 meeting, the BVA stated on the record that it was upholding
the Department’s decision. The BVA did not vote to adopt the
draft findings of fact and conclusions of law (“FOF/COL”) until
its January 13, 2022 meeting. The actual FOF/COL were not filed
until January 31, 2022.
1 The BVA “[h]ears and determines applications for variances from the strict application of any general plan, zoning, subdivision or building ordinances. Holds public hearing prior to ruling on a variance application and issues findings of fact and conclusions of law on decisions granting or denying variance applications.” Board of Variances & Appeals, Cnty. of Maui, https://www.mauicounty.gov/172/Board-of-Variances-Appeals [https://perma.cc/HZB4-ETHL].
2 The Honorable Kelsey T. Kawano presided.
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Norrie appealed to the circuit court, arguing in part that
BVA Rules of Practice and Procedure (“RPP”) § 12-801-60 (eff.
1999) (the “45-day rule”) required the BVA to file its FOF/COL
within forty-five days of oral argument and that, therefore, the
BVA decision and order had to be reversed. RPP § 12-801-60
provides:
A proceeding shall stand submitted for decision by the
board after the taking of evidence, the submission of a
report by the hearing officer, and the filing of such
briefs or the presentation of such oral argument as may
have been allowed. A party to the proceeding may submit a
proposed decision and order which shall include proposed
findings of fact. Said proposals shall be mailed to each
party to the proceeding and an opportunity given to each
party to comment thereon.
Every decision and order adverse to a party to the
proceeding, rendered by the board in a contested case,
shall be in writing or stated in the record and shall be
accompanied by separate findings of fact and conclusions of
law. If any party to the proceeding has filed proposed
findings of fact, the board shall incorporate in its
decision a ruling which addresses such findings. Such
decisions and orders in contested cases shall be rendered
within forty-five days from the presentation of oral
argument by the parties.
The circuit court affirmed the BVA’s decision. On Norrie’s
appeal to the ICA, the parties repeated the arguments they had
made below. In supplemental briefing ordered by the ICA,
however, the BVA conceded that RPP § 12-801-60 is “mandatory.”
The ICA reversed the circuit court and BVA decisions. See
Norrie v. Maui Cnty. Bd. of Variances & Appeals, No. CAAP-23-0000668, 2026 WL 1266063 (Haw. App. May 8, 2026) (SDO). It held
that the BVA’s violation of its own 45-day rule required
reversal of the two-year ban because the FOF/COL were rendered
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more than forty-five days after the November 24, 2021 hearing.
The ICA also concluded that reversal of the BVA’s decision was
required due to prejudice to Norrie’s substantial right to
operate a B&B.
On certiorari, the BVA argues that the ICA erred because it
satisfied RPP § 12-801-60 when it orally stated its decision in
the record on November 24, 2021. It also argues abrogating an
entire administrative proceeding and denying appellate review on
the merits because of a short delay in the FOF/COL is unjust.
We are not bound by the BVA’s apparent concession of law
before the ICA that the 45-day deadline is mandatory. Umberger
v. Dep’t of Land & Nat. Res., 140 Hawaiʻi 500, 520 n.38, 403 P.3d
277, 297 n.38 (2017). Under our precedent, administrative rule
deadlines are directory, not mandatory, unless a consequence is
provided for failure to meet the deadline.
We hold that because there is no consequence provided in
RPP § 12-801-60, the 45-day rule is directory, not mandatory.
We also hold that to the extent the ICA based its reversal on
Hawaiʻi Revised Statutes (“HRS”) § 91-14(g)(3) (2012 & Supp.
2022), which authorizes reversal for agency decisions made upon
unlawful procedure, it also erred. There was no prejudice to
Norrie’s substantial rights based on the short delay in the
BVAʻs issuance of its FOF/COL.
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We therefore vacate the ICA’s June 12, 2026 judgment on
appeal and affirm the circuit court’s September 21, 2023
findings of fact, conclusions of law, and decision and order, as
well as its October 6, 2023 final judgment.
II. Background
A. Factual Background
Norrie ran a B&B on Maui since 2015. He last renewed his
permit in 2018 with a 2023 expiration date. The B&B permit
required the owner to stay on property with guests and to comply
with agency and government regulations.
In February 2020, Norrie’s neighbor complained to the
Department that Norrie was violating his B&B permit by not
residing on the property while guests were present and by having
guests who did not comply with quiet hour requirements. In
March 2020, a neighbor contacted the Maui Police Department
(“MPD”) to complain about excessive noise from Norrie’s B&B.
Norrie responded that the B&B stopped operating in March
2020 due to the COVID-19 pandemic. But on April 6, 2020, a
neighbor contacted the MPD regarding a party that was occurring
at the B&B in violation of COVID-19 Public Health Emergency
Rules. Norrie admitted to police to having “several friends
over to his residence for a social gathering.”
During its investigation, the Department saw an Expedia.com
advertisement and Norrie’s comment on his website. In that
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comment, Norrie said he owned two homes on Maui and sometimes
lived at his second home instead of at the B&B. Norrie did not
deny that he made this statement.
On May 8, 2020, the Department issued a notice of warning
for violations of Norrie’s B&B permit, including the requirement
to comply with agency and government regulations. Yet, in June
and July of 2020, neighbors continued to contact the MPD to
complain about loud music from the B&B.
Hence, on August 5, 2020, the Department issued a “Two-Year
Owner Ban and Revocation of a Bed and Breakfast (B&B) Home
Permit” (“ban”). The Department concluded that Norrie had
violated the following provisions of the Maui County Code
(“MCC”):
MCC, Section 19.64.065(A)(1)(c): Evidence of non-responsive
management;
MCC, Section 19.64.065(A)(1)(d): Police reports of noise or
other disturbances on the property;
MCC, Section 19.64.065(A)(1)(e): Warnings or violations
resulting from requests for service;
MCC, Section 19.64.065(A)(1)(t): Neighbor complaints of
noise and other disturbances relating to bed and breakfast
home operations; provided that the department has received
at least three complaints about the bed and breakfast home
within a twelve-month period. Complaints must be from
property owners or lessees of record located on two or more
different lots within a five-hundred-foot radius of the bed
and breakfast home;
MCC, Section 19.64.065(A)(1)(g): Noncompliance with permit
conditions; and
MCC, Section l9.64.065(A)(1)(h): Noncompliance with this
chapter.
MCC § 19.64.065(A)(1) (2018).
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On September 3, 2020, Norrie filed an appeal to the BVA.3
The BVA was initially scheduled to hold a hearing on March 11,
2021, but the hearing was rescheduled multiple times at Norrie’s
request. Then, on August 9, 2021, Norrie filed a motion for
automatic reversal based on HRS § 91-13.5 (2012), discussed in
Section II.B.2.b below.
On August 12, 2021, the BVA deferred the matter to
September 23, 2021, to allow for additional briefing.
On September 23, 2021, the BVA held a contested case
hearing. BVA’s counsel told the BVA it “would need to render
[a] decision within 45 days of the close of oral argument” and
stated that the “deadline is important — important to follow,
obviously.”
Norrie testified that he lived on his property and the
majority of the noise complaints occurred after he had stopped
operating a B&B due to COVID-19 restrictions. He said he
instead began offering the property as a long-term rental.4 A
3 Under RPP § 12-801-8 (eff. 1999), the BVA is composed of “nine members, appointed by the mayor and approved by the council.” RPP § 12-801-22(a) (eff. 2005) regulates voting of the BVA and requires “an affirmative vote of a majority of the membership to which the board is entitled.” RPP § 12-801-11 (eff. 1999) provides that the quorum necessary to transact business is a majority of all members to which the board is entitled; it also provides that the concurrence of a majority of all members to which the board is entitled shall be necessary to take any action. Therefore, five members are required for a quorum and five votes are needed to reach a decision.
4 The circuit court later found Norrie’s testimony unreliable, particularly as it was contradicted by his written statements about often not being at the B&B.
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neighbor testified that he had complained to Norrie several
times about the noise and regularly saw large gatherings of
people at the B&B.
All five BVA members present voted to deny Norrie’s motion
for automatic approval based on HRS § 91-13.5, but two of the
five voted to grant his appeal. The BVA therefore failed to
reach the required five-vote threshold for a decision. The BVA
deferred the matter.
On October 28, 2021, the BVA reconvened with six of its
nine members, but was again unable to reach a five-vote majority
decision. BVA October 28, 2021 Meeting,
https://archive.org/details/211028-bc-bva
[https://perma.cc/GM2G-99BQ].5 The final vote was 4-2 to deny
the appeal. BVA October 28, 2021 Meeting Minutes Summary,
https://www.mauicounty.gov/AgendaCenter/ViewFile/Minutes/_102820
21-804 [https://perma.cc/4A7R-PFPP].
At the end of the October 28, 2021 meeting, the BVA
reopened the hearing for additional argument, and Norrie’s
appeal was deferred to November 10, 2021. The parties were
5 Apparently, there was some dispute between the parties about getting all the transcripts included in the record on appeal. Although not part of the record, this court takes judicial notice of the relevant BVA video recordings and meeting minutes summaries. See Hawai‘i Rules of Evidence Rule 201(b) (2016) (“A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”).
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ordered to “present closing arguments addressing key concerns,
including COVID-19 related operational restrictions and neighbor
complaints.” BVA October 28, 2021 Meeting Minutes Summary.
On November 8, 2021, Norrie filed another motion for the
appeal to be automatically approved under HRS § 91-13.5 as well
as RPP § 12-801-60 because forty-five days had passed since the
initial oral argument in September. On November 10, 2021, the
BVA reconvened and heard additional oral argument, but was still
unable to reach a decision and deferred the matter (the final
vote was 2-3 to grant the appeal). BVA November 10, 2021
Meeting Minutes Summary,
https://www.mauicounty.gov/Archive.aspx?AMID=42
[https://perma.cc/U9X3-A5ZF].
The parties filed post-hearing briefs on November 21 and
24, 2021.
On November 24, 2021, the BVA reconvened with seven members
for further deliberations. The BVA Chair stated that no
additional oral argument would be necessary. BVA November 24,
2021 Meeting, at 17:20-30. After five members finally agreed on
a decision, the BVA stated on the record that it was denying
Norrie’s motion for automatic approval as well as his appeal of
the ban (the final vote was 5-2). BVA November 24, 2021
Meeting, at 20:30-26:30, https://archive.org/details/211124-bcbva_202112 [https://perma.cc/J3CD-8HNL].
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Also, at the November 24, 2021 meeting, BVA’s counsel
indicated a draft of the FOF/COL would be provided to the Chair
by December 10, 2021. The Chair indicated she would sign it the
following week.6 BVA November 24, 2021 Meeting, at 24:30-26:00,
https://archive.org/details/211124-bc-bva_202112
[https://perma.cc/YB7T-JUMH].
The BVA adopted the Department’s proposed FOF/COL affirming
the two-year ban on January 13, 2021. This is reflected in the
BVA’s January 13, 2022 meeting minutes. BVA Meeting Minutes
Summary January 13, 2022,
https://www.mauicounty.gov/Archive.aspx?AMID=42
[https://perma.cc/EJ8L-XPG2].
January 13, 2022, was fifty days from November 24, 2021.
On January 31, 2022, the BVA filed its FOF/COL, affirming
the two-year ban. This date was sixty-eight days from November
24, 2021.
B. Appellate Proceedings
1. Circuit Court Proceedings
On February 11, 2022, Norrie appealed the BVA’s decision to
the circuit court, arguing that the BVA clearly erred and did
not issue its decision and order within forty-five days of oral
argument as required by HRS § 91-13.5 and § RPP 12-801-60.
6 But it appears, based on the January 13, 2022 meeting, that all BVA members voting in the majority had to approve the FOF/COL.
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On September 21, 2023, the circuit court issued its
decision affirming the BVA. The circuit court determined that
Norrie did not comply with the terms of his B&B permit based on
numerous complaints against him by neighbors, his failure to
reside at the B&B when it was in operation, and his violation of
COVID-19 protocols by having friends over at the property. The
circuit court concluded that the Department’s issuance of a twoyear ban was not arbitrary or capricious. The court rejected
Norrie’s argument based on HRS § 91-13.5 and did not directly
address Norrie’s argument based on RPP § 12-801-60.
2. ICA Proceedings
a. Supplemental Briefing
Norrie timely appealed to the ICA, raising the same
arguments. Before ruling, the ICA directed the parties (1) to
show cause as to whether or not the case was moot and (2) to
file supplemental briefing on whether the rule was mandatory or
directory as to the filing of FOF/COL within forty-five days.
Norrie argued that the case was not moot because he had
suffered prejudice and that the rule was mandatory.
The BVA argued the case was moot as the two-year ban had
already expired. Its filing regarding the rule stated, “on the
plain language of [RPP] § 12-801-60[, the BVA] does not dispute
the forty-five-day deadline provided in the rule should be
accorded mandatory effect.” But the BVA argued that the
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mandatory or directory effect of the rule was irrelevant,
because it satisfied the rule when it stated its decision on the
record on November 24, 2021.
b. Summary Disposition Order
The ICA’s summary disposition order rejected Norrie’s
argument that reversal was required by HRS § 91-13.5 (2012).
HRS § 91-13.5 provides, in relevant part:
§ 91-13.5 Maximum time period for business or developmentrelated permits, licenses, or approvals; automatic
approval; extensions. (a) Unless otherwise provided by
law, an agency shall adopt rules that specify a maximum
time period to grant or deny a business or developmentrelated permit, license, or approval[.]
(c) All such issuing agencies shall take action to
grant or deny any application for a business or
development-related permit, license, or approval within the
established maximum period of time, or the application
shall be deemed approved[.]
(d) Notwithstanding any other law to the contrary,
any agency that reviews and comments upon an application
for a business or development-related permit, license, or
approval for a housing project developed under section
201H-38 shall respond within forty-five days of receipt of
the application, or the application shall be deemed
acceptable as submitted to the agency.
(g) For purposes of this section, “application for a
business or development-related permit, license, or
approval” means any state or county application, petition,
permit, license, certificate, or any other form of a
request for approval required by law to be obtained prior
to the formation, operation, or expansion of a commercial
or industrial enterprise[.]
Norrie, 2026 WL 1266063, at *5 (emphasis added).
The ICA ruled that the statute only provides for automatic
approval when certain types of permit applications are not
granted by specified deadlines and that the statute does not
pertain to appeals of permit revocations. Id. at *4-5. Because
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he prevailed on the 45-day rule argument, Norrie did not file a
certiorari application, so this ruling is not before this court.
But we agree with the circuit court and ICA rulings on the
inapplicability of HRS § 91-13.5 to this appeal.
With respect to the issue before us on certiorari, the ICA
assumed that the BVA rule’s 45-day deadline commenced on
November 24, 2021. Id. at *4. It determined that the January
31, 2022 FOF/COL were issued more than forty-five days after
this date. Id. The ICA ruled that the BVA therefore did not
comply with its own rule. Id.
In so ruling, the ICA cited the BVA’s concession that RPP §
12-801-60 is mandatory. Id. at *5. The ICA also referenced
Norrie’s assertions regarding prejudice to economic interests he
allegedly suffered due to the delay. Id. The ICA said Norrie
“articulated prejudice to his financial security interests and
consequences to his economic livelihood as a result of the BVA’s
failure to follow its own rule, which the County does not
dispute.” Id.
To support its crafting of a judicial remedy for the BVA’s
violation of its own procedural rule, the ICA cited HRS § 91-14(g), which allows a court to “reverse or modify the decision
and order” if a petitioner’s “substantial rights” are
prejudiced, and this court’s recent decision in Martell v. Emp.
Ret. Sys., 158 Hawaiʻi 139, 146, 588 P.3d 1153, 1159 (2026), Id.
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The ICA recognized that the BVA rules do not specify any
consequence for violation, but it relied on RPP § 12-801-4 (eff.
1999), which states that its rules and regulations should be
construed to secure “just and efficient determination of
proceedings.” Id. Applying this principle, the ICA held that
the BVA’s violation did not facilitate its “just and efficient”
determination of Norrie’s appeal. Id.
The ICA concluded that reversing the BVA’s decision
upholding the two-year ban was warranted because of the rule
violation and the prejudice suffered by Norrie. Id.
3. Certiorari Proceedings
In its certiorari application, the BVA maintains it
satisfied RPP § 12-801-60 when it stated its decision in the
record on November 24, 2021. It also argues that abrogating an
administrative proceeding and denying appellate review on the
merits because of the timing of the issuance of the FOF/COL is
unjust. The BVA also contends Norrie did not suffer prejudice
from the delay.
In response, Norrie argues that the ICA’s decision should
be affirmed.
III. Standards of Review
A. Agency Appeal
Our review of a circuit court decision on an HRS § 91-14
agency appeal is a secondary appeal, in which we decide whether
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the circuit court was right or wrong, by applying the standards
of HRS § 91-14(g) to the BVA’s decision and order. Flores v.
Bd. of Land & Nat. Res., 143 Hawai‘i 114, 120, 424 P.3d 469, 475
(2018). HRS § 91-14(g) provides:
Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:
(1) In violation of constitutional or statutory
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or
(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise
of discretion.
B. Interpretation of Agency Rules
The general principles of construction which apply to
statutes also apply to administrative rules. As in
statutory construction, courts look first at an
administrative rule’s language. If an administrative
rule’s language is unambiguous, and its literal application
is neither inconsistent with the policies of the statute
the rule implements nor produces an absurd or unjust
result, courts enforce the rule’s plain meaning.
Int’l Bhd. of Elec. Workers, Local 1357 v. Hawaiian Tel. Co., 68
Haw. 316, 323, 713 P.2d 943, 950 (1986).
An agency’s interpretation of its own rules is generally
entitled to deference. Gillan v. Gov’t Emps. Ins. Co., 119
Hawai‘i 109, 125, 194 P.3d 1071, 1087 (2008) (“Arguably, where an
agency promulgates a rule, we will accord consideration to its
interpretation of its own rules.” (citation omitted)).
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But this court does not defer to agency interpretations
that are “plainly erroneous or inconsistent with the underlying
legislative purpose.” In re Wai‘ola O Moloka‘i, Inc., 103 Hawai‘i
401, 425, 83 P.3d 664, 688 (2004).
IV. Discussion
A. RPP § 12-801-60 generally instructs the BVA to file FOF/COL
within 45-days.
Before we address the effect of the rule, we address its
interpretation.
1. The 45-day deadline actually began when the case was
“submitted for decision” on November 24, 2021.
RPP § 12-801-60 provides:
A proceeding shall stand submitted for decision by the
board after the taking of evidence, the submission of a
report by the hearing officer, and the filing of such
briefs or the presentation of such oral argument as may
have been allowed. A party to the proceeding may submit a
proposed decision and order which shall include proposed
findings of fact. Said proposals shall be mailed to each
party to the proceeding and an opportunity given to each
party to comment thereon.
Every decision and order adverse to a party to the
proceeding, rendered by the board in a contested case,
shall be in writing or stated in the record and shall be
accompanied by separate findings of fact and conclusions of
law. If any party to the proceeding has filed proposed
findings of fact, the board shall incorporate in its
decision a ruling which addresses such findings. Such
decisions and orders in contested cases shall be rendered
within forty-five days from the presentation of oral
argument by the parties.
(Emphasis added.)
The language in the rule is somewhat confusing, and the
parties disagree on whether RPP § 12-801-60’s 45-day deadline
was triggered on September 20, 2021, or November 24, 2021. The
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ICA assumed the clock began running on November 24, 2021, and
held that the BVA in any event violated RPP § 12-801-60.
Norrie, 2026 WL 1266063, at *4. Norrie argues that this ruling
was incorrect and that the BVA improperly reopened the oral
argument on October 28, 2021, so the oral argument on September
20, 2021 triggered the 45-day deadline.
The second paragraph of RPP § 12-801-60 says that FOF/COL
must be entered within forty-five days of oral argument. But
the first paragraph says that “a proceeding shall stand
submitted for decision by the board after the taking of
evidence, the submission of a report by the hearing officer, and
the filing of such briefs or the presentation of such oral
argument as may have been allowed.” RPP § 12-801-60. And RPP §
12-801-59 (eff. 1999) empowers the BVA to “reopen the docket and
take further evidence or may make other disposition of the case
that is necessary under the circumstances.”
The rule is confusing as to when the 45-day deadline begins
to run. The second paragraph says the 45-day deadline is
triggered by oral argument. But the first paragraph says that a
matter is not “submitted for decision” until briefing has
concluded. As in this case, it is possible for briefing to be
concluded after oral arguments. Depending on the complexity of
issues before the BVA, post-hearing briefing might even be
concluded more than forty-five days after an oral argument. It
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would be unworkable and absurd for a 45-day deadline for
rendering FOF/COL to be triggered when briefing has not
concluded.
We therefore hold that the 45-day deadline under this rule
begins to run when the case is “submitted for decision,” in
other words, when everything applicable to a specific hearing
under RPP § 12-801-60 has occurred: the “taking of evidence, the
submission of a report by the hearing officer, and the filing of
such briefs or the presentation of such oral argument as may
have been allowed.”
Hence, Norrie’s argument that the deadline began on
September 20, 2021, is without merit. RPP § 12-801-59
authorized the BVA to reopen the docket, which it did. The BVA
initially heard oral argument on September 23, 2021, but it was
unable to reach a decision and reopened the matter for
additional argument and briefing.
On November 8, 2021, Norrie filed a post-hearing motion
requesting automatic approval under RPP § 12-801-60. On
November 10, 2021, the BVA was unable to reach a decision, and
the parties filed post-hearing briefs on November 21 and 24,
2021.
Because the final brief was filed on November 24, 2021,
that is the day the issue was “submitted for decision.”
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Therefore, we hold that the 45-day deadline began to run on
November 24, 2021.7
2. The ICA properly held that FOF/COL are part of the
decisions and orders.
The BVA argues it did not violate RPP § 12-801-60 because
its denial of the appeal was “stated in the record” on November
24, 2021. This argument ignores the rule’s plain language.
The requirement of FOF/COL in RPP § 12-801-60 actually
effectuates HRS § 91-12 (2012). That statute requires that an
agency decision in a contested case be “accompanied by separate
findings of fact and conclusions of law.” Therefore, the
statute requires findings of fact and conclusions of law for all
agency decisions in contested cases.
The general principles of construction which apply to
statutes also apply to administrative rules. Int’l Bhd. of
Elec. Workers, Local 1357, 68 Haw. at 323, 713 P.2d at 950. As
in statutory construction, courts look first at an
administrative rule’s language. Id. If an administrative
rule’s language is unambiguous, and its literal application is
neither inconsistent with the policies of the statute the rule
7 The delay in the BVA’s decision was partially attributable to attendance issues. The BVA is not alone as a volunteer board with such issues. See Taylor Nāhulukeaokalani Cozloff, Missing Members And Muscle, Hawaiʻi Ethics Board Struggles To Function, Honolulu Civil Beat (Apr. 1, 2026), https://www.civilbeat.org/2026/04/who-holds-hawaii-county-accountablenot-the-ethics-watchdog/ [https://perma.cc/BL8A-RVX5].
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implements nor produces an absurd or unjust result, courts
enforce the rule’s plain meaning. Id.
Turning to the language of the rule, it expressly provides
that “[e]very decision and order . . . shall be accompanied by
separate [FOF/COL].” RPP § 12-801-60. Furthermore, the rule
states “the board shall incorporate in its decision a ruling
which addresses [proposed findings of fact filed by any party].”
Id. (emphasis added). Contrary to the BVA’s position, FOF/COL
are clearly a part of the “decision and order.” As “decisions
and orders . . . shall be rendered within forty-five days,” the
plain and unambiguous language requirement is for FOF/COL to
also be “rendered” within the 45-day deadline.
HRS § 91-12 only requires that FOF/COL accompanying the
decision be made in a reasonable time and does not require a
strict deadline. Yet, the BVA clearly had authority to
promulgate RPP § 12-801-60.
But, as we discuss in Section IV.B below, the 45-deadline
under the rule is not mandatory.
3. Although the BVA still did not rule within forty-five
days, it did comply on January 13, 2022, through
adopting proposed FOF/COL that were part of the
record.
As noted, the BVA’s argument that RPP § 12-801-60 only
instructed it to “state in the record” its decision within
forty-five days is without merit, because FOF/COL were also
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required. But this does not mean that the rule was not
satisfied until January 31, 2022, when the FOF/COL were
separately filed.
This is because on January 13, 2022, the BVA reviewed and
revised the “Proposed [FOF/COL,] and Decision & Order” and moved
to and then agreed to accept them. The proposed FOF/COL were
already part of the record. Therefore, on that date, the BVA
“stated in the record” its decision and order “accompanied by
separate [FOF/COL].” RPP § 12-801-60. Hence, the rule‘s
requirements were met on January 13, 2022.
We therefore hold that the ICA erred by ruling that the BVA
did not satisfy RPP § 12-801-60 until January 31, 2022.
January 13, 2022, is still fifty days after November 24,
2021, but the FOF/COL were five days late, not twenty-three days
late.
B. In any event, RPP § 12-801-60 is a directory, not
mandatory, rule.
Before the ICA, the BVA said it “does not dispute the 45-day deadline provided in the rule should be accorded mandatory
effect.” But we are not bound by the BVA’s concession or
interpretation of law. Umberger, 140 Hawaiʻi at 520 n.38, 403
P.3d at 297 n.38. “While an agency’s interpretation of its own
rules is generally entitled to deference, this court does not
defer to agency interpretations that are plainly erroneous or
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inconsistent with the underlying legislative purpose.” Kaupiko
v. Bd. of Land & Nat. Res., 154 Hawaiʻi 456, 468-69, 555 P.3d
143, 155-56 (2024) (citation omitted).
In determining whether the language of a rule or regulation
is mandatory or directory, common law principles of statutory
construction apply.
RPP § 12-801-60 states “decisions and orders . . . shall be
rendered within forty-five days.” It is true that, generally,
“[w]here the language of a statute is plain and unambiguous that
a specific time provision must be met, it is mandatory and not
merely directory.” Tataii v. Cronin, 119 Hawaiʻi 337, 339, 198
P.3d 124, 126 (2008) (per curiam) (citation omitted). But we
have also held that “the use of the word ‘shall’ in [a] statute
is not dispositive of the issue of whether the statute is
mandatory rather than directory.” Jack Endo Elec., Inc. v. Lear
Siegler, Inc., 59 Haw. 612, 616, 585 P.2d 1265, 1269 (1978)
(citation omitted). The court explained:
In determining whether a statute is mandatory or directory
the intention of the legislature must be ascertained. The
legislative intent may be determined from a consideration
of the entire act, its nature, its object, and the
consequences that would result from construing it one way
or the other. In general, a statute is directory rather
than mandatory if the provisions of the statute do not
relate to the essence of the thing to be done or where no
substantial rights depend on compliance with the particular
provisions and no injury can result from ignoring them.
59 Haw. at 617, 585 P.2d at 1269 (cleaned up) (emphasis
added).
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Critically, this court has held that “when a statute
specifies what result will ensue if its terms are not complied
with, the statute is deemed mandatory . . . Conversely, when a
statute merely requires certain things to be done and nowhere
prescribes the results that shall follow if such things are not
done, the statute is merely directory.” Narmore v. Kawafuchi,
112 Hawai‘i 69, 82, 143 P.3d 1271, 1284 (2006) (internal
quotations and citation omitted); see also Perry v. Planning
Comm’n of Hawaii County, 62 Haw. 666, 676, 619 P.2d 95, 103
(1980) (“Seemingly absolute time periods for administrative
action . . . are often considered mere guides for the conduct of
business with dispatch and for orderly procedure. They have
generally been characterized as directory[.]” (citation
omitted)).
Stated differently, a statute specifying a time within
which public officials are required to perform an act is
directory unless the statute denies the exercise of power
after such time, or the nature of the act or the statutory
language indicates that the time was intended to be a
limitation.
Malahoff v. Saito, 111 Hawai‘i 168, 192, 140 P.3d 401, 425
(2006).
While RPP § 12-801-60 states “decisions and orders . . .
shall be rendered within forty-five days,” the rule does not
contain any consequences for non-compliance. In contrast with
the clear consequences within HRS § 91-13.5, which was addressed
and properly distinguished by the ICA, the rule does not provide
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that an appeal must be approved if a decision is not issued
within forty-five days.
Further, in Narmore, this court identified several
circumstances in which the word “shall” is construed as
directory:
First, “shall” can be read in a nonmandatory sense when a
statute’s purpose confutes the probability of a compulsory
statutory design. Second, “shall” will not be read as
mandatory when unjust consequences result. Third, the word
“shall” may be held to be merely directory, when no
advantage is lost, when no right is destroyed, when no
benefit is sacrificed, either to the public or to the
individual, by giving it that construction.
112 Hawai‘i at 83, 143 P.3d at 1285 (cleaned up).
Applying Narmore, first, the lack of a consequence in the
rule supports an interpretation that it is directory. In
addition, the legislative purpose behind HRS § 91-12 supports an
interpretation that the rule is directory. The statute, which
mandated the rule, only requires that parties be informed of
decisions “within a reasonable time.” HRS § 91-12. The statute
does not impose a requirement that the decision be issued within
forty-five days.
Second, a mandatory reading of the 45-day deadline would
lead to unjust consequences. A BVA decision involving multiple
hearing dates and significant witness testimony would have to be
reversed if FOF/COL are not issued within forty-five days.
Third, Norrie did not lose any advantage, suffer
destruction of rights, or sacrifice any benefits. As further
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discussed below, the five-day delay did not prejudice Norrie.
The merits of his appeal have been addressed by the BVA and the
courts.
For all these reasons, we hold that the 45-day deadline in
RPP § 12-801-60 is directory, not mandatory.
But our holding that RPP § 12-801-60 is directory does not
mean that the BVA is free to disregard the 45-day deadline. The
45-day deadline is “directory” insofar as the non-compliance
does not automatically require reversal of the BVA’s decision
and order. But an appellant can still challenge a delay by the
BVA on HRS § 91-14(g)(3) grounds, as discussed in the following
section.
C. Norrie also does not prevail under HRS § 91-14(g) and
Martell.
Even if a procedural rule is directory and not mandatory,
HRS § 91-14(g) permits the court to “reverse or modify the
decision and order” if a petitioner’s “substantial rights” are
prejudiced. The ICA cited HRS § 91-14(g) and this court’s
recent decision in Martell, which held that “[w]here an
administrative agency, by failure to follow its rules,
prejudices the substantial rights of a party before it, it may
be necessary for the court, under the power to modify the
decision and order of the agency, to fashion relief
appropriately remedying the prejudice caused.” Norrie, 2026 WL
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1266063, at *5 (quoting Martell, 158 Hawaiʻi at 146, 588 P.3d at
1159).
Martell pointed out that HRS § 91-14(g)(3) “authorizes
reversal for decisions made upon unlawful procedure.” 158
Hawaiʻi at 142, 588 P.3d at 1155. A reversal under HRS § 91-14(g)(3) requires “prejudices [to] the substantial rights of a
party[.]” Martell, 158 Hawaiʻi 139 at 146, 588 P.3d 1152 at
1159. Martell also noted that where there is a procedural
violation, Nakamine v. Emps.’ Ret. Sys., controls as to the
remedy. Martell, 158 Hawaiʻi at 146, 588 P.3d at 1159 (citing
Nakamine, 65 Haw. 251, 255, 649 P.2d 1162, 1165 (1982)).
With respect to remedies, Nakamine focused on the
“prejudice to substantial rights” requirement. Nakamine was an
appeal of a circuit court order reversing the Employees’
Retirement System’s (“ERS”) denial of the claimant’s retirement
benefits based on HRS § 91-14(g)(3) because the ERS had violated
its own procedural rules. 65 Haw. at 254, 649 P.2d at 1164.
This court vacated8 and remanded because the circuit court had
8 This 1982 opinion used the term “reversed” instead of “vacated.” Nakamine, 65 Haw. at 255, 649 P.2d at 1165. The opinion was issued before Hawaiʻi Rules of Appellate Procedure (“HRAP”) Rule 35 was amended; HRAP Rule 35(e) now provides:
(e) Terminology. When used in an opinion or dispositional
order, the word “reverse” ends litigation on the merits,
and the phrase “vacate and remand” indicates the litigation
continues in the court or agency in accordance with the
appellate court's instruction. HRAP Rule 35(e) (eff.
2008).
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reversed the denial solely based on procedural irregularities
without addressing whether the claimant’s substantial rights had
been prejudiced. 65 Haw. at 255, 649 P.2d at 1165.
This court held that courts may reverse or modify agency
decisions based on HRS § 91-14(g), but only if a claimant’s
substantial rights have been prejudiced by the procedural error.
65 Haw. at 255, 649 P.2d at 1165. This holding is consistent
with HRS § 91-14(g)(3), which provides: “Upon review of the
record the court may . . . reverse or modify the decision . . .
if the substantial rights of the petitioners may have been
prejudiced because the . . . decision[] [is] (3) [m]ade upon
unlawful procedure[.]”
Norrie’s reliance on Martell is misplaced. Martell held
that the unlawful procedure engaged in by the ERS, improper
rulemaking, substantially prejudiced the petitioner “by
yank[ing] her benefits by memorandum.” 158 Hawaiʻi at 147, 588
P.3d at 1160. These were benefits to which the retiree had been
entitled until the memorandum’s improper issuance.
In contrast, the procedural irregularity in Norrie’s case
did not result in prejudice to his substantial rights. The ICA
did not order an automatic reversal based on the delay in the
issuance of the FOF/COL. It instead addressed the prejudice
alleged by Norrie. Norrie, 2026 WL 1266063, at *4-5. The ICA
said Norrie “articulated prejudice to his financial security
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interests and consequences to his economic livelihood as a
result of the BVA’s failure to follow its own rule, which the
County does not dispute.” Id. at *5. Therefore, although the
ICA deemed the 45-day deadline to be “mandatory,” it actually
treated it as “directory.” In other words, the ICA applied HRS
§ 91-14(g)(3).
But the ICA erred with respect to how “prejudice to
substantial rights” is to be analyzed and measured. The
question is not whether Norrie was prejudiced because his permit
was revoked, as the ICA reasoned. The issue is whether his
“substantial rights” were prejudiced because of the procedural
error. In other words, the question is whether Norrie’s
substantial rights were prejudiced due to the five-day delay in
the FOF/COL (or twenty-three days, under the ICA’s analysis).
Whether the delay was five or twenty-three days, Norrie did
not suffer prejudice to his substantial rights from the
procedural error. The ICA indicated that a remedy should be
provided to Norrie based on RPP § 12-801-4, which states that
rules and regulations should be construed to secure “just and
efficient determination of proceedings.” But Norrie does not
assert any “prejudice to substantial rights” other than having
lost his B&B permit. This was not due to the procedural error.
This was because he violated requirements of his B&B permit.
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The five-day delay in the rendering of the FOF/COL did not
prejudice Norrie’s substantial rights.
Norrie’s appeal fails on the merits. The record strongly
supports the Department’s revocation of Norrie’s B&B permit and
imposition of a two-year ban. It would not be “just” to reverse
the ban and revocation based on a five-day delay in the BVA’s
issuance of its FOF/COL.
Therefore, Norrie also does not prevail under HRS § 91-14(g)(3) and Martell.
V. Conclusion
For these reasons, we reverse the ICA’s June 12, 2026
judgment on appeal and affirm the circuit court’s September 21,
2023 findings of fact, conclusions of law, and decision and
order, as well as its October 6, 2023 final judgment.
Brian A. Bilberry, /s/ Vladimir P. Devens
Kristin K. Tarnstrom
for petitioners /s/ Sabrina S. McKenna
Terrance M. Revere, /s/ Todd W. Eddins
Magdalena Bajon
for respondent /s/ Lisa M. Ginoza
/s/ Jeannette H. Castagnetti
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