Opposition Brief — Spirit of Aloha Temple, a Hawaii Nonprofit Corporation, et al., Petitioners v. Maui County, Hawaii, et al.

Supreme Court briefOct 14, 2025

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No. 24-1327

IN THE

Supreme Court of the United States

————

SPIRIT OF ALOHA TEMPLE, et al.,

Petitioners,

v.

COUNTY OF MAUI,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF IN OPPOSITION

————

VICTORIA J. TAKAYESU

Counsel of Record

BRIAN A. BILBERRY

Deputy Corporation Counsel

DEPARTMENT OF THE

CORPORATION COUNSEL

COUNTY OF MAUI

200 South High Street

Wailuku, Maui, HI 96793

(808) 270-7741

victoria.takayesuhamilton@co.maui.hi.us

brian.bilberry@co.maui.hi.us

Counsel for Respondent

October 14, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

COUNTERSTATEMENT TO

QUESTION PRESENTED

Petitioners urge review of a decision of the circuit

court which Petitioners allege “conflicts” with a legal

standard applied by other circuits and this Court.

Petitioners narrowly assert the question is over

whether a religious organization making a “substantial

burden” claim pursuant to the Religious Land Use and

Institutionalized Persons Act [42 U.S.C. § 2000cc,

et. seq.] must prove the unavailability of other land for

its religious use and/or must prove a municipality’s

reasons for denying a land use permit are arbitrary.

Rather, Petitioners argue, a court considering the

imposition of a substantial burden on religious practice

should apply a “totality of the circumstances” test in

determining whether a substantial burden has been

imposed. This case does not present the issue(s) raised

by Petitioners for reasons not the least of which is that

the circuit court below expressly applied the “totality of

the circumstances” test Petitioners advocate.

Moreover, under the legal standard as correctly

stated by the circuit court, the determination of a

substantial burden is whether Maui County’s actions

were oppressive on religious exercise, and not whether

Petitioners can prove a burden that cannot be

mitigated, or whether Petitioners can prove denial of

their special permit was arbitrary.

The circuit court correctly concluded under the correct

legal standard that the totality of the circumstances in

this case did not demonstrate Maui County’s actions

were oppressive on Petitioners’ exercise of their faith,

or “imposed a significantly great restriction or onus

upon such exercise.”

(i)

TABLE OF CONTENTS

Page

COUNTERSTATEMENT TO QUESTION

PRESENTED ...................................................

i

TABLE OF AUTHORITIES ................................

iv

INTRODUCTION ................................................

1

COUNTERSTATEMENT OF THE CASE..........

1

I. Factual Background .................................

1

II. Legal Background .....................................

10

III. Proceedings Below ....................................

17

REASONS FOR DENYING THE PETITION ....

20

I. The Ninth Circuit Court expressly considered the “totality of the circumstances”

in ruling against the substantial burden

claim as is consistent with interjurisdictional decisional law .................................

20

II. Petitioners’ argument invites this Court

to ignore the totality of the circumstances

they incorrectly assert the Ninth Circuit

Court failed to consider ............................

23

CONCLUSION ....................................................

24

APPENDIX

(iii)

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Andon, LLC v. City or Newport News,

813 F.3d 510 (4th Cir. 2016) ..................... 16, 17

Applera Corp.-Applied Biosystems Group

v. Illumina, Inc.,

No. C 07-02845 WHA, 2009 WL 8755606

(N.D. Cal. Mar. 6, 2009), aff’d, 375

Fed.Appx. 12 (Fed. Cir. 2010)...................

15

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751, 189 L.Ed.2d 675 (2014) ..

11

Christian Gospel Church, Inc. v. City and

County of San Francisco,

896 F.2d 1221 (9th Cir. 1990) ...................

13

Civil Liberties for Urban Believers v.

City of Chicago,

342 F.3d 752 (7th Cir. 2003) .....................

13

Episcopal Student Found. v.

City of Ann Arbor,

341 F. Supp. 2d 691 (E.D. Mich. 2004) ....

14

Erickson v. Pierce Cty.,

960 F.2d 801 (9th Cir.1992) ......................

15

Founding Church of Scientology of

Washington, D. C. v. United States,

409 F.2d 1146 (D.C. Cir. 1969) .................

11

Guru Nanak Sikh Soc’y of Yuba City v.

County of Sutter,

456 F.3d 978 (9th Cir. 2006) .....................

13

v

TABLE OF AUTHORITIES—Continued

Page(s)

Harper v. Poway Unified School Dist.,

445 F.3d 1166 (9th Cir. 2006), reh’g en

banc denied, 455 F.3d 1052 (9th Cir.

2006) ..........................................................

14

Livingston Christian Schools,

858 F.3d 996 (6th Cir. 2017) .....................

16

Lyng v. Nw. Indian Cemetery

Protective Ass’n,

485 U.S. 439 (1988) ...................................

14

Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214 (11th Cir. 2004) .................

14

New Harvest Christian Fellowship v.

City of Salinas,

29 F.4th 596 (9th Cir. 2022) ................... 5, 6, 21

San Jose Christian Coll. v.

City of Morgan Hill,

360 F.3d 1024 (9th Cir. 2004) ...................

21

Sananikone v. United States,

623 Fed.Appx. 324 (9th Cir. 2015) ...........

15

Sherbert v. Verner,

374 U.S. 398 (1963) ...................................

14

Spirit of Aloha Temple v. County of Maui,

49 F.4th 1180 (9th Cir. 2022) ............ 1-3, 18, 19

Spirit of Aloha Templ v. County of Maui,

384 F.Supp.3d 1231 (Dist. Haw. 2019) ....

18

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Spirit of Aloha Temple v. Cnty. of Maui,

No. CV 14-00535 SOM/RLP, 2023 WL

5178248 (D. Haw. Aug. 11, 2023),

reconsideration denied, No. CV 14-00535

SOM/RLP, 2023 WL 5754107 (D. Haw.

Sept. 6, 2023), and rev’d in part, 132

F.4th 1148 (9th Cir. 2025), and aff’d

in part, appeal dismissed in part,

No. 23-3453, 2025 WL 943143

(9th Cir. Mar. 28, 2025) ............... 4, 6, 11, 20-22

Thomas v. Review Bd. of the Ind.

Employment Sec. Div.,

450 U.S. 707 (1981) ...................................

14

Westchester Day School v.

Village of Mamaroneck,

504 F.3d 338 (2nd Cir. 2007) ....................

16

CONSTITUTION

U.S. Const. amend. I .................................... 14, 18

STATUTES

42 U.S.C. § 2000cc(a) ....................................

15

42 U.S.C. § 2000cc(b) ....................................

15

42 U.S.C. § 2000cc(b)(1) ...............................

17

RULES

H.A.R. § 15-15-95(c)......................................

19

H.A.R. § 15-15-95(c)(2) .................................

18

H.A.R. § 15-15-95(c)(3) .................................

18

vii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

146 Cong. Rec. S7774-01 (2001) ................... 13, 15

Spirit of Aloha Temple, website, spiritof

aloha.org (last visited Oct. 9, 2025)..........

7, 9

INTRODUCTION

Over the nearly eleven-years of litigation this case

as traversed, and what the Petition for Writ of Certiorari

labels a “tortuous path,” the evidence and “totality of

the circumstances” adduced at two separate jury trials

and two circuit court appeals demonstrated that

Petitioners Fred Honig and Spirit of Aloha Temple

sought religious protection for what very clearly was a

commercial and profit seeking enterprise.

This matter should have culminated with the circuit

court’s most recent and sound determination that the

County of Maui’s (“Maui County”) denial of Petitioners’

special permit to continue this commercial activity in

state and county conservation and agricultural land,

even if considered “church” activity, was not “oppressive”

or imposing “a significantly great restriction or onus”

on Petitioners’ religious exercise.”

The circuit court expressly considered the “totality

of the circumstances” in coming to this conclusion.

COUNTERSTATEMENT OF THE CASE

I. Factual Background

On the record of the first of two separate jury

trials on two different sets of claims, it was established

that in 1994 Petitioner Fredrick Honig bought land

in Haiku, Maui zoned for coastal conservation and

agricultural use (the “property”). Honig knew the land

was subject to environmental protections and reserved

for agricultural use. Spirit of Aloha Temple, et al. v.

County of Maui, 49 F.4th 1180, 1184 (9th Cir. 2022).

Honig immediately began developing the land without

seeking any permits – clearing, grading, and cutting

the contours of the protected coast, cutting in roads,

and altering a natural watercourse. Id. Honig built

2

illegal structures on the land and installed illegal

cesspools near drinking water wells. Id. Honig failed

to obtain monitoring and preservation plans required

by law for several known Hawaiian archeological sites

on the land, including an agricultural terrace, burial

crypt, and irrigation ditch. Id.

Honig then through a non-profit entity used the

property as a venue to conduct commercial weddings,

vacation rentals, retreats, and special events, all without required permits. Id. Well Being International,

Inc., the non-profit entity through which the business

was run, eventually registered three trade names;

“Maui Gay Weddings,” “A Marriage Made in Heaven,”

and “Maui Wedding Planners.” App. 68a, 91a, 94a, 97a,

100a. The property was marketed and advertised for

weddings, wedding planning services, and as a

wedding venue in the Yellow Pages and on the internet

through at least two of the trade names. App. 74a.1

Honig’s services included helicopter transportation and

landings on conservation land for his wedding clients

and other guests. App. 78a, 79a, 118a, 143a, 144a.

Approximately 550 tourist destination weddings

were conducted on the property by late 2015. Spirit of

Aloha Temple, 49 F.4th at 1184. The couples who were

1

The property was advertised on the internet “dream vacation[s],”

“personalized retreats,” vacation rental accommodations, and

weddings services to include oceanfront “Honeymoon cottages.”

App. 68a, 83a-87a, 106a-107a. At least one internet advertisement

noted vacation accommodations were available at “Daily &

Weekly Rates[.]” Id. The property was also advertised as “an

ocean front waterfall pavilion for weddings, engagements or vow

renewal,” offering “wedding planners and event consultants[,]”

“beautiful ocean front cottages[,]” and “six vacation rentals[.]” Id.

Hospitality services offered included on-site massage, yoga and

mediation sessions, and private or group surf lessons were offered

as well. Id.

3

married on the property during this period arrived

from 46 out of the 50 United States and 7 different

countries. App. 103a. All of these business and

commercial activities were conducted on the property

without any required permits. Spirit of Aloha Temple,

49 F.4th at 1148. Later, during an original permitting

application hearing on March 23, 2010, HONIG admitted

to the Maui Planning Commission (“Commission”) as the

approving agency for his permit application, as follows:

MR. HONIG: Yeah, that -- we lost $20,000.

I have -- I am not -- I have a C.P.A. doing our

bookkeeping. Everything is kept in there. I

have not -- you know, we spent thousands of

dollars on advertising trying because our

business was going down. And we’re not able

to advertise in the papers because of you

people. Like otherwise, we could put in the

paper let’s have an event here, something like

that, but we have not.

So, we spent all of this money on advertising and running a business. And I’m not the

greatest businessman. It is not my forte. I’m

a monk. App. 80a.

One of Maui County’s Planning Commissioners at

this same hearing reported seeing an internet ad

marketing $9,900 wedding packages on the property.

App. 81a.

Honig was repeatedly put on notice that these

activities required appropriate permits but continued

to violate land use regulations. Spirit of Aloha Temple,

49 F.4th at 1184.

In 2007 Honing formed Spirit of Aloha Temple, a

new non-profit entity to take over the business, and

called it a “church.” Spirit of Aloha Temple entered a

lease for the property with Honig. App. 145a, 171a. Honig

4

and Spirit of Aloha Temple then applied for a special

permit for a “church, church[-]operated bed and

breakfast establishment, weddings, special events, day

seminars, and helicopter landing pad.” Spirit of Aloha

Temple, 132 F.4th at 1148. The County of Maui Planning

Commission denied that special permit, noting several

buildings without proper permits; general problems

with the helicopter pad; and potential adverse impacts

to surrounding properties from loud music, helicopter

noise, and increased traffic. Id.

In 2012 Honig and Spirit of Aloha Temple filed a

second application seeking to hold “weekly church

service,” “sacred programs, educational, inspirational,

or spiritual including Hawaiian cultural events, and

spiritual commitment ceremonies such as weddings,”

with limitations on the number of attendees. Id.

The County of Maui Planning Commission denied

the second application.

In its decision affirming the second jury verdict

adverse to Honig and Spirit of Aloha Temple, the

circuit court reviewed the “totality of the circumstances,” as follows:

When the Commission denied Plaintiffs’

second special-use-permit application, it

noted that the proposed uses would increase

traffic and burden public agencies. The

Commission also noted safety concerns for

drivers and pedestrians on Haumana Road.

Haumana Road is a narrow road, between

eleven and eighteen feet wide at different parts.

In contrast, the average rural or agricultural

road is about twenty-two feet wide. Haumana

Road contains no streetlights, no sidewalks,

no shoulder, and no lane markings. And in

5

certain places, two cars cannot pass each

other unless one pulls off the road.

The Commission found compelling the

testimony of several nearby property owners

on Haumana Road, who expressed concerns

about pedestrian safety. Residents testified

that children regularly walk home from

school on the road and that the road has

several blind turns, which pose a safety issue.

Other residents noted concerns about flooding

on the road during storms that made the road

difficult to pass, although Plaintiffs challenge

the severity and frequency of such flooding.

Given the conditions of Haumana Road, the

County’s concerns about traffic and road

safety are well supported in the record and

are not arbitrary. New Harvest, 29 F.4th at

602. Moreover, the County’s reasons for denying

the permit have been consistent, and the

County has not exhibited “conflicting rationalizations for repeated denials.” Id. at 603.

It is also undisputed that Plaintiffs were not

“precluded from using other sites in the

[County].” Id. Plaintiffs did not attempt to

relocate, nor is there evidence that Plaintiffs

even considered other locations, despite being

aware of the zoning restrictions and the

remoteness of the land. In fact, Honig testified

that, when he bought the land in 1994, he was

looking specifically for agricultural land.

After acquiring the land, he began building

immediately, without the required permits.

For years, Plaintiffs continued to use the

property without complying with the

permitting requirements.

6

See Spirit of Aloha Temple, et al. v. County of Maui, 132

4th 1148, 1157 (2025) (also concluding “the County’s

actions have not been significantly oppressive[.]”)

(citing New Harvest Christian Fellowship v. City of

Salinas, 29 F.4th 596, 602, 603 (9th Cir. 2022)).

Petitioner does not dispute any of these factual

circumstances on this appeal.

The evidence introduced at the second jury trial of

this case, and the record with the circuit court further

established that neither Honig or his alter ego Spirit

of Aloha Temple were ever precluded from engaging in

the practices and religious gatherings that Honig

acknowledged were central and essential to the tenets

of his faith.

Honig described the “experience of God consciousness [as] the most important thing” in his faith. App.

124a. This experience involves “com[ing] to the level of

our deepest reality[,] to be freed from the bonds of

egoism [] – and the illusion of thinking we are all

separate.” App. 151a. Honig also designates this

experience “unitive consciousness,” and admits that he

has not been prohibited from engaging in this

meditation practice on his property. App. 124a-125a,

126a. Honig also describes the practices of this belief

as group meditation, chanting, pranayama breathing,

and yoga postures. App. 153a.

Honig also testified that practicing marriage

counseling and performing nuptials [App. 133a, 170a],

teaching group meditation [App. 138a, 169a], holding

prayer circles [App. 111a, 113a, 119a, 140a, 169a,

170a], were all part of his faith. Honig acknowledged

to a jury on September 29, 2023, the second day of trial

on Petitioners’ RLUIPA and constitutional claims, that

he had been engaged in of all these aforementioned

7

essential practices and activities on his property since

his special permit was denied in 2014. App. 137a.

Moreover, both the pages on Spirit of Aloha Temple’s

website [spiritofaloha.org] and videos on its YouTube

channel depict these same essential religious practices

and activities occurring on the property since before

the denial of the special permit and up to the present

day. App. 155a, 162a-168a.2

The practices, activities, and events identified and

depicted in the spiritofaloha.org webpages and videos

on its YouTube channel include “private sacred events,”

“ceremonial gatherings,” “[w]aterfall [b]aptisms,

“[m]arriage [p]roposals,” nuptials, weddings, group

yoga and meditation, fire dancing, group gatherings

and prayer, music performances, memorial services,

and initiation rites, not exclusively. App. 155a-168a;

see also footnote 2, above.

In the mix of all of these spiritual practices and

faith-based activities, Honig admitted that performing

weddings is not essential to the practice of his faith:

A. The goal -- I'm not married to weddings,

and that's not my -- the only thing that I can

do to serve humanity. My greatest passion is

to teach meditation and to teach yoga. So -and also to have a community of people who

are like-minded and to develop the gardens

into a botanical garden. App. 123a.

Honig testified that he has distilled the essential

tenants of his faith down to a one-page document. App.

147a. Honig testified that anyone can become a member

of his faith by signing the document and e-Mailing the

2

Defense Trial Exhibits D-113 and D-115 are the videos from

Spirit of Aloha Temple’s YouTube channel. See App. 111a-120a,

162a-168a.

8

signed copy to him. App. 148a. Honig estimates that

approximately 1200 people have signed the document

and joined his faith. Id. Honig issues a newsletter to

the 1200 members who have signed up for his faith.

App. 63a. Honig currently offers services on his

property that he considers essential to those who sign

up for his faith. App. 60a-61a, 111a-120a.

There is nothing in the Maui County Code or

Hawai´i Revised Statutes that otherwise precludes

Honig or Spirit of Aloha Temple from engaging in

Honig’s faith-based practices and activities on his

property. Former Maui County Planning Director Will

Spence testified at trial that nothing in Maui’s zoning

code prohibits any persons from engaging in religious

practices on their land in the agricultural zone. App.

57a. Maui County Planning Commissioner Wayne Hedani

and several other commissioners advised Honig that

nothing prevented him from performing wedding

services for couples on his property. App. 47a-48a.

Honig, however, does not feel like this is enough, and

when asked about how he and Spirit of Aloha Temple

are burdened in the practice of their faith, Honig

admits he wants a permit to “advertise” his services.

App. 64a, 80a. When asked if he was prohibited from

engaging in his apparent interdenominational beliefs

and practices,3 Honig also testified:

3

Honig belatedly claimed to be a “Hindu” monk only after

initiating this lawsuit in 2013. Nowhere in Plaintiffs’ Complaint

does it allege that Honig is a Hindu monk, or even Hindu. App.

1a-40a. Nor does the Complaint allege any particular Hindu

rituals or religious practices in which Plaintiffs engage, let alone

that they have been precluded from engaging in. Id. At no time in

this litigation have Plaintiffs identified any doctrinal or liturgical

Hindu religious practice at all. Rather, Honig claims to recognize

9

A. Not from my personal use, but I'm

restricted only in sharing with a group of

people or advertising that I would like to hold

a program or an event. That’s what I’m not

able to do.

Q. Okay. So you can’t advertise.

A. That’s correct. App. 129a.

Honig otherwise acknowledges that he can broadcast

his religious practices and activities to the world

through his spiritofaloha.org website and YouTube

Channel. App. 64a-65a.

Petitioners’ counsel also acknowledged the essential

commercial character of the activities that Honig and

Spirit of Aloha Temple claim have been burdened faith

practices:

MR. STORZER: Oh, that’s not – that’s not

true, Your Honor. What we have established, I

believe, or what we’re certainly arguing is

that commercial weddings -- you know, the

County has talked about this idea of commercial weddings. Commercial weddings are okay

if you’re Ali’i Kula Lavender Farm. Commercial

weddings are okay if your other churches as

well. So both in terms of religion and religious

denomination, commercial weddings are

something that the County doesn’t have any

problem with, but other botanical gardens,

commercial weddings are okay.

It’s only when you're talking about Spirit

of Aloha Temple that somehow commercial

and practice all religions, Hinduism being just one among many.

App. 127a-128a.

10

weddings become[] a problem, whether it’s

respect to religious denomination or religion

generally. App. 54a-55a.

Of course, what this retreating argument by

counsel exposed, what counsel was in fact pointing to,

is the actual activity that was allegedly burdened by

denial of the land use permit, i.e., commercial

advertising.

After receiving a substantial quantity of evidence at

trial in 2023, the jury found that Honig and Spirit of

Aloha Temple failed to prove by a preponderance of the

evidence that Maui County substantially burdened

Honig and Spirit of Aloha Temples’ exercise of religion

and failed to prove by a preponderance of the evidence

that Maui County discriminated against them on the

basis of religion as protected under federal and state

constitutional and statutory authority. App. 41a-43a.

II. Legal Background

Throughout what the Petition labels as the “tortuous

path,” and over the nearly eleven-years of litigation

this case has traversed, the evidence and “totality of

the circumstances” adduced at two separate jury trials

demonstrated that Honig and Spirit of Aloha Temple

sought religious protection for what very clearly was a

commercial and profit seeking enterprise.

The district trial court below on the facts before it on

summary judgment recognized that:

It might be possible to show that a selfproclaimed religion was merely a commercial

enterprise, without the underlying theories of

man's nature or his place in the Universe

which characterize recognized religions.

Though litigation of the question whether a

11

given group or set of beliefs is or is not

religious is a delicate business,[] our legal

system sometimes requires it so that secular

may not unjustly enjoy the immunities

granted to the sacred.

See Spirit of Aloha Temple v. Cnty. of Maui, No. CV 1400535 SOM/RLP, 2023 WL 5178248 at 16 (D. Haw. Aug.

11, 2023), reconsideration denied, No. CV 14-00535

SOM/RLP, 2023 WL 5754107 (D. Haw. Sept. 6, 2023),

and rev'd in part, 132 F.4th 1148 (9th Cir. 2025), and

aff'd in part, appeal dismissed in part, No. 23-3453,

2025 WL 943143 (9th Cir. Mar. 28, 2025) (quoting

Founding Church of Scientology of Washington, D. C. v.

United States, 409 F.2d 1146, 1160 (D.C. Cir. 1969); see

also Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct.

2751, 189 L.Ed.2d 675 (2014), fn. 28 (“a corporation’s

pretextual assertion of a religious belief in order to

obtain an exemption for financial reasons would fail.”).

Forging the “tortured path” of this case, Petitioners

concocted and sustained a false dichotomy of “religious”

wedding versus “commercial” wedding:

Q. You had mentioned again commercial

weddings, and I was going to say just so the

jury isn’t confused, again there is no such

thing as a, quote, commercial wedding use in

Maui County zoning code or in the State of

Hawaii’s land use regulations, right?

A. Well, Maui County code has a definition of

commercial purpose, and it includes growing,

manufacturing, processing, providing services

such as weddings, providing services for

consideration or profit.

Q. I understand that.

12

A. So we would look at what Mr. Honig

wanted to do. We looked at the history of what

had taken place. Again, we went over

yesterday the volume of what he wanted to do.

And we were looking at websites with

advertising, looking at his trade names, and

we’re going this is a commercial operation.

App. 54a.

This false dichotomy was directed at supporting the

erroneous and overbroad approach Petitioners take

that RLUIPA protects against 1) regulation of any

activity that may possibly harbor a scintilla of faithbased or religious conduct, and/or 2) regulation of

any activity performed by a religious assembly or

institution that purports to support its faith-based or

religious mission. On the facts of this case, the alleged

protected activity is advertising, for what Petitioners

admit is commercial conduct incidental to and

allegedly in support of faith-based practice.

It was not the intent of the legislature that the

protections provided by RLUIPA were to be so broad:

Definition of religious exercise The definition of ‘‘religious exercise’’ under

this Act includes the ‘‘use, building, or

conversion’’ of real property for religious

exercise. However, not every activity carried

out by a religious entity or individual

constitutes ‘‘religious exercise.’’ In many

cases, real property is used by religious

institutions for purposes that are comparable

to those carried out by other institutions.

While recognizing that these activities or

facilities may be owned, sponsored or

operated by a religious institution, or may

13

permit a religious institution to obtain

additional funds to further its religious

activities, this alone does not automatically

bring these activities or facilities within the

bill’s definition or ‘‘religious exercise.’’ For

example, a burden on a commercial building,

which is connected to religious exercise

primarily by the fact that the proceeds from

the building’s operation would be used to

support religious exercise, is not a substantial

burden on ‘‘religious exercise.’’

See 146 Cong. Rec. S7774-01, S7776 (2001) (joint

statement of Sens. Hatch & Kennedy); see also

Christian Gospel Church, Inc. v. City and County of

San Francisco, 896 F.2d 1221, 1224 (9th Cir. 1990)

(“The burden on religious practice is not great when

the government action, in this case the denial of a use

permit, does not restrict current religious practice but

rather prevents a change in religious practice.”); see

also Civil Liberties for Urban Believers v. City of

Chicago, 342 F.3d 752, 762 (7th Cir. 2003) (“[N]o . . .

free pass for religious land uses masquerades among

the legitimate protections [that] RLUIPA affords to

religious exercise.”).

It was demonstrated at trial that Honig and Spirit

of Aloha Temple have been, are continuously, and

freely engage on the land and in the structures which

they own, lease, and inhabit, in the practices and

activities they claim are essential to their faith. The

denial of Petitioners’ special permit has not caused any

burden, let alone substantial, on Petitioners’ ability to

do so. Cf. Guru Nanak Sikh Soc’y of Yuba City v.

County of Sutter, 456 F.3d 978, 988 (9th Cir. 2006)

(plaintiff must show that defendant’s conduct placed

“‘substantial pressure on an adherent to modify his

14

behavior and to violate his beliefs,’” or that the

defendant’s conduct had a “‘tendency to coerce

individuals into acting contrary to their religious

beliefs.’”). (quoting Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 450-451 (1988) and

Thomas v. Review Bd. of the Ind. Employment Sec. Div.,

450 U.S. 707, 717-18 (1981)); see also Midrash

Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 122627 (11th Cir. 2004) (substantial burden occurs only

when “an individual is required to ‘choose between

following the precepts of her religion . . . and

abandoning one of the precepts of her religion . . . on

the other’”—that is, where “a regulation completely

prevents the individual from engaging in religiously

mandated activity, or . . . requires participation in an

activity prohibited by religion[.]”) (quoting Sherbert v.

Verner, 374 U.S. 398, 404 (1963)).

In Harper v. Poway Unified School Dist., 445 F.3d

1166, 1188 (9th Cir. 2006), reh’g en banc denied, 455

F.3d 1052 (9th Cir. 2006), the court articulated the

traditional “substantial burden” test under the Free

Exercise Clause. See also Sherbert v. Verner, 374 U.S.

at 402 (“The door of the Free Exercise Clause stands

tightly closed against any governmental regulation of

religious beliefs as such, . . . Government may neither

compel affirmation of a repugnant belief, . . . nor

penalize or discriminate against individuals or groups

because they hold religious views abhorrent to the

authorities, . . . nor employ the taxing power to inhibit

the dissemination of particular religious views[.]”).

RLUIPA employs the same test. See Episcopal

Student Found. v. City of Ann Arbor, 341 F. Supp. 2d

691, 701 (E.D. Mich. 2004) (“As several courts have

observed, the RLUIPA’s history demonstrates that

Congress intended to leave intact the traditional

15

‘substantial burden’ test, as defined by the Supreme

Court’s free exercise jurisprudence.”); 146 Cong. Rec.

7774-01, 7776 (joint statement of Sens. Hatch & Kennedy)

(“The term ‘substantial burden’ as used in [RLUIPA]

is not intended to be given any broader interpretation

than the Supreme Court’s articulation of the concept

of substantial burden on religious exercise”).

Although the district court below determined that

both Honig and Spirit of Aloha Temple had standing

under RLUIPA as “persons,” a jury had already

determined that Spirit of Aloha Temple was not entitled

to protection as a “religious assembly or institution.”

App. 41a-43a.4 Nothing in RLUIPA provides that the

definition of a “religious assembly or institution” is

different for purposes its substantial burdens provision

[42 U.S.C. § 2000cc(a)] than it is for the statutes’

discrimination and exclusion provisions [42 U.S.C.

§ 2000cc(b)]. To interpret the statue otherwise is absurd.

Finally, among the circumstances surrounding

Appellants’ substantial burden claim, the factual

record supports that where they knowingly bought

and leased land in the state agricultural and conservation district, and county agricultural zone, Honig and

4

Petitioners did not appeal either of the jury verdicts in

this case. See Sananikone v. United States, 623 Fed.Appx.

324, 325 (9th Cir. 2015) (“[T]his court may only set aside a jury

verdict if ‘it is clear that the evidence and its inferences cannot

reasonably support a judgment in favor of the opposing party.’”)

(citing Erickson v. Pierce Cty., 960 F.2d 801, 804 (9th Cir.1992));

Applera Corp.-Applied Biosystems Group v. Illumina, Inc., No. C

07-02845 WHA, 2009 WL 8755606, at *2 (N.D. Cal. Mar. 6, 2009),

aff'd, 375 Fed.Appx. 12 (Fed. Cir. 2010) (“Keeping in mind the

clear-and-convincing standard and keeping in mind the deference

we must give to jury verdicts, it would be wrong to set aside the

verdict. Simply put, Applied did not carry its burden of proof—at

least a reasonable jury could have so concluded.”).

16

Spirit of Aloha Temple had no reasonable expectation

that land could be developed and used to advertise for

and operate a commercial wedding business, retreat,

and event venue, even if questionably designated as a

“church.” See Livingston Christian Schools, 858 F.3d

996, 1004 (6th Cir. 2017) (“[t]he plaintiff ’s own actions

have also been found relevant in determining whether

a burden is considered substantial. Several circuits

have held that, when a plaintiff has imposed a burden

upon itself, the government cannot be liable for a

RLUIPA substantial burden violation) (citing Westchester

Day School v. Village of Mamaroneck, 504 F.3d 338, 352

(2nd Cir. 2007). (emphasis added).

The court in Livingston Christian Schools held as a

matter of law that the plaintiff imposed a burden on

itself when, after its proposed classroom use was

denied, it had made an alternative property it owned

unavailable to itself by leasing that alternative

property to a third-party. In Andon, LLC v. City or

Newport News, 813 F.3d 510, 515 (4th Cir. 2016), the

Fourth Circuit Court held the plaintiffs failed to show

a substantial burden as a matter of law, because they

“knowingly entered into a contingent lease agreement

for a non-conforming property.” See Andon, 813 F.3d at

515. Specifically, the plaintiffs entered into a lease

with Andon which would have required a zoning

variance to a setback requirement for the operation of

a church. The variance request was denied. The Fourth

Circuit in Andon further noted:

We further observe that if we agreed with the

plaintiffs that the BZA’s denial of a variance

imposed a substantial burden on their

religious exercise, we effectively would be

granting an automatic exemption to religious

organizations from generally applicable land

17

use regulations. Such a holding would usurp

the role of local governments in zoning

matters when a religious group is seeking

a variance, and impermissibly would favor

religious uses over secular uses.

Andon, 813 F.3d at 516 (we emphasize that a critical

function of RLUIPA’s substantial burden[s] restrictions

is to protect a plaintiff ’s reasonable expectation to use

real property for religious purposes).

Appellants below misplaced their reliance on having

a reasonable expectation of getting their proposed use

because of the affirmative recommendation(s) from

Maui County’s Planning Department for approval to

the Maui Planning Commission. Those recommendations came well over a decade after Honig bought the

property in 1994, and several years after Spirit of

Aloha Temple in 2011 knowingly entered into a lease

for protected conservation and agriculturally purposed

land after its first special permit SUP2 2007/009 was

denied in 2010, the year before.

III. Proceedings Below

Trial of Spirit of Aloha Temple’s “equal terms” claim

under 42 U.S.C. § 2000cc(b)(1) commenced on August

6, 2019. On August 23, 2019, a jury rendered a special

verdict against Plaintiffs, finding that Spirit of Aloha

Temple failed to prove by a preponderance of the

evidence it is a “religious assembly or institution.” App.

41a-43a. The jury also found that that Spirit of Aloha

Temple was not discriminated against as compared to

a nonreligious entity by the Maui County Planning

Commission’s application of the relevant zoning

criteria when it denied Petitioners’ special permit. Id.

Plaintiffs did not appeal this jury verdict.

18

Rather, Plaintiffs appealed to the circuit court from

a prior ruling adverse to them on summary judgment,

making the contention that Hawai´i Administrative

Rule sub-§ 15-15-95(c)(2), as one of five (5) subprovisions in the rule giving guidelines for an

approving agency to consider when assessing a state

special permit application, constituted a facially

invalid, unconstitutional prior restraint. The circuit

court agreed that the language of subsection (c)(2)

allowing for an agency determination whether a

proposed special use “adversely affects” surrounding

property was too “general, flimsy, and ephemeral[.]”

Spirit of Aloha Temple, et al. v. County of Maui,

49 F.4th 1180, 1192 (2022).

Importantly, the district court’s summary judgment

ruling that Petitioners had appealed from, expressly

declined and did not make any determination either

way as to the constitutionality of sub-provision (c)(2).

Spirit of Aloha Temple, et al. v. County of Maui, 384

F.Supp.3d 1231, 1255 (Dist. Haw. 2019). Rather, it held:

[E]ven if subsection 15-15-95(c)(2) does run

afoul of the First Amendment (something

this court is expressly not ruling on),

that would not give Plaintiffs an entitlement

to receive the requested permit because

subsection 15-15-95(c)(3) [which the Planning

Commission relied on to deny SUP2

2012/0009] would still present an impediment

to such a grant. Id., 384 F.Supp.3d at 1255,

supra. (emphasis added).

The district court ruled that “the required examination [pursuant to 15-15-95(c)(3)] of the burden on

agencies with respect to ‘roads and streets, sewers,

water drainage and school improvements, and police

and fire protection’ provides a sufficiently specific,

19

narrow, objective, and definite standard for the Maui

Planning Commission to consider.” The circuit court

has likewise already observed that the remaining subprovisions of § 15-15-95(c) are “more specific

guidelines” and “more objective criteria[.]” Spirit of

Aloha Temple, 49 F.4th at 1192.

The circuit court on the first appeal also reversed the

district court’s dispositive ruling on the remaining

RLUIPA and constitutional claims in Petitioners’

Complaint, where that ruling gave preclusive effect to

legal findings by the Maui Planning Commission that

it had met the constitutional and RLUIPA standard of

strict scrutiny when the Commission denied Petitioners’

special permit. The Panel remanded the case for

further proceedings.

The remaining RLUIPA substantial burdens claim,

non-discrimination claim, and corollary constitutional

free exercise and equal protection claims were on

remand tried to a jury commencing on September 28,

2023. On October 11, 2023, the jury rendered a special

verdict against Plaintiffs, finding that both Honig and

Spirit of Aloha Temple failed to prove by a preponderance of the evidence that Maui County substantially

burdened their religious exercise as alleged, under

either RLUIPA or under the United States and

Hawai‘i State constitutions. (Petition, App. 126a). The

jury also found that neither Honig or Spirit of Aloha

Temple were discriminated against based on religion

under any of these laws. Id.

20

REASONS FOR DENYING THE PETITION

I. The Ninth Circuit Court expressly considered the “totality of the circumstances”

in ruling against the substantial burden

claim as is consistent with interjurisdictional decisional law

The Petition principally argues that in deciding

whether Petitioners’ religious exercise was substantially

burdened, the Ninth Circuit Court mistakenly imposed

an evidentiary burden on Petitioners to prove that

1) they were “precluded” from exercising their faith at

any other location(s), and/or 2) that the denial of their

special permit by the Maui Planning Commission was

“arbitrary.” Petitioners argue that this requirement of

a showing “as a matter of law” is inconsistent with

other circuits that consider the “totality of the

circumstances” in deciding whether a substantial

burden has been imposed.

In its ruling on the principal RLUIPA substantial

burden claim the circuit court expressly decided:

Looking at the totality of the circumstances,

we conclude as a matter of law that the

County did not impose a substantial burden

on Plaintiffs.

Spirit of Aloha Temple, 132 F.4th at 1158. (emphasis

added).

The circuit court clearly recognized that the law

examines foremost whether Maui County’s actions

imposed a substantial burden on Petitioners’ religious

exercise.

It should be apparent to Petitioners, and it likely is,

that the circuit court’s consideration of whether Honig

and Spirit of Aloha Temple were “precluded” from

21

exercising their faith at any other location(s) and

whether the denial of their special permit was

“arbitrary,” were circumstances considered among a

number of others by the circuit court to determine

whether the actions of the Maui Planning Commission

were “oppressive” on Honig and Spirit of Aloha Temples’

exercise of their faith, or “imposed a significantly great

restriction or onus upon such exercise.” Spirit of Aloha

Temple, 132 F.4th at 1156 (citing San Jose Christian

Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th

Cir. 2004)).

The circuit court expressly noted in its review and

decision that:

We consider “the totality of the circumstances,” including, but not limited to,

whether the County’s reasons for denying the

special use permit were arbitrary and could

apply to Plaintiffs’ future applications; whether

Plaintiffs have ready alternatives or whether

those alternatives would require “substantial

uncertainty delay, or expense”; whether

Plaintiffs were precluded from other locations

in the county; and whether Plaintiffs imposed

the burden upon themselves.

Spirit of Aloha Temple, 132 F.4th at 1158 (citing

New Harvest, 29 F.4th at 602). (emphasis added).

With this framework in place, the circuit court

considered a comprehensive totality of different

circumstances in deciding whether Maui County’s

denial of Petitioners’ special permit was oppressive on

Petitioners’ exercise of their faith, including:

The limitations on the use of agricultural land

under Hawai‘i law;

22

Honig’s awareness of the zoning restrictions

when he bought the land in 1994;

Honig’s failure to consider any other sites for

the alleged religious purpose he intended for the

land;

Honig’s immediate clearing, grading, and

building on the land without any development

permits and his continued use of the property

without any land use permits;

Whether Petitioners’ proposed use of the land

would burden public agencies to provide private

roads and streets, sewers, water, drainage, not

exclusively;

The narrowness of Haumana Road which

visitors would use to access Honig’s property;

The Commission’s findings that Petitioners

proposed use would increase traffic on

Haumana Road and burden public agencies;

The Commission’s concerns for the safety of

drivers and pedestrians on Haumana Road;

The absence of any streetlights, sidewalks, road

shoulder, and lane markings on Haumana Road;

The safety of pedestrians and children who

regularly walk the road;

The existence of several blind spots along

Haumana Road; and

The flooding of Haumana Road

inclement weather, not exclusively.

during

Spirit of Aloha Temple, 132 F.4th at 1157-58.

None of these circumstances were considered as

factual or legal showings or evidentiary burdens

23

required from Petitioners. Rather they were considered

in determining whether Maui County’s actions were

oppressive on religious exercise.

The circuit court correctly concluded under the legal

standard interjurisdictionally recognized that under

these circumstances Maui County’s actions were not

oppressive as to Petitioners’ religious exercise.

II. Petitioners’ argument invites this Court to

ignore the totality of the circumstances

they incorrectly assert the Ninth Circuit

Court failed to consider

It should also be apparent to Petitioners that their

attempt to narrow and misdirect this Court’s focus on

whether 1) Petitioners should have considered any

other locations for their religious exercise, and/or

2) Petitioners were required to show that the denial

of their special permit by the Maui Planning

Commission was “arbitrary” “as a matter law” not only

misstates what the circuit court held, but invites this

court to ignore the totality of the circumstances the

circuit court expressly considered.

Nowhere in the circuit court’s decision is there

language or meaning suggesting Petitioner must show

as a matter of law that they were “precluded” from

exercising their faith at other sites on Maui-island.

Nowhere in the circuit court’s decision is there

language or meaning suggesting Petitioners must

show the Commission’s decision was “arbitrary.” By

this narrow misconstruction of the circuit court’s

review and decision, Petitioners are soliciting this

Court to ignore all of the other circumstances within

the totality the circuit court expressly considered

when it affirmed the second jury verdict in this case.

24

CONCLUSION

There is no appropriate question before this Court

for review, and the petition for writ of certiorari should

be denied.

Respectfully submitted,

VICTORIA J. TAKAYESU

Counsel of Record

BRIAN A. BILBERRY

Deputy Corporation Counsel

DEPARTMENT OF THE

CORPORATION COUNSEL

COUNTY OF MAUI

200 South High Street

Wailuku, Maui, HI 96793

(808) 270-7741

victoria.takayesuhamilton@co.maui.hi.us

brian.bilberry@co.maui.hi.us

Counsel for Respondent

October 14, 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Complaint, Civil No. 14-00535

SOM-WRP (November 26, 2014) .....................

1a

APPENDIX B: Verdict Form (August 23,

2019) .................................................................

41a

APPENDIX C: Excerpted Trial Transcript,

October 6, 2023 ................................................

44a

APPENDIX D: Excerpted Trial Transcript,

October 5, 2023 ................................................

50a

APPENDIX E: Excerpted Trial Transcript,

October 4, 2023 ................................................

58a

APPENDIX F: Excerpted trial Transcript,

October 2, 2023 ................................................

68a

APPENDIX G: Supplemental Excerpts

Of Record Case Nos. 23-3453 & 23-3633

(9th Cir.) ...........................................................

80a

APPENDIX H: Excerpted Trial Transcript,

October 3, 2023 ................................................ 108a

APPENDIX I: Excerpted Trial Transcript,

September 29, 2023.......................................... 121a

APPENDIX J: Excerpted Trial Transcript,

September 28, 2023.......................................... 130a

APPENDIX K: Excerpted Trial Transcript,

September 27, 2023.......................................... 149a

APPENDIX TABLE OF CONTENTS—Continued

Page

APPENDIX L: Defendant’s Trial Exhibit

D-105 ................................................................ 155a

APPENDIX M: Excerpted Defendant’s Trial

Exhibit D-113 ................................................... 162a

APPENDIX N: Excerpted Defendant’s Trial

Exhibit D-115 ................................................... 166a

APPENDIX O: Plaintiffs’ Trial Exhibits 135I,

135J, 135H, and 135W ..................................... 169a

APPENDIX P: Defendant’s Trial Exhibit 18 .... 171a

1a

APPENDIX A

IN THE UNITED STATES DISTRICT CIRCUIT

FOR THE DISTRICT OF HAWAII

————

Civil No. CV14-00535

————

SPIRIT OF ALOHA TEMPLE, a Hawaii nonprofit

corporation, and FREDRICK R. HONIG,

Plaintiffs,

vs.

COUNTY OF MAUI, and MAUI PLANNING COMMISSION,

Defendants.

————

DURRETT, ROSEHILL & MA, LLP

JONATHAN S. DURRETT (3184)

ADAM G. LANG (9375)

SHAUNA L. SILVA BELL (7004)

Davies Pacific Center

841 Bishop Street, Suite 1101

Honolulu, Hawaii 96813

Tel.: (808) 526-0892

Fax: (808) 533-4399

jdurrett@drmhawaii.com

alang@drmhawaii.com

sbell@drmhawaii.com

2a

STORZER & GREENE, P.L.L.C.

ROMAN P. STORZER

ROBERT L. GREENE

Applications for admission pro hac vice pending

1025 Connecticut Avenue, Northwest

Suite One Thousand

Washington, D.C. 20036

Tel.: (202) 857-9766

Fax: (202) 315-3996

storzer@storzerandgreene.com

Attorneys for Plaintiffs

SPIRIT OF ALOHA TEMPLE

and

FREDRICK R. HONIG

————

COMPLAINT

Plaintiffs SPIRIT OF ALOHA TEMPLE, a Hawaii

nonprofit corporation, (the “Temple”) and FREDRICK

R. HONIG (“Honig”) (collectively, “Plaintiffs”), by and

through their attorneys, Durrett, Rosehill & Ma, LLP,

hereby complains of Defendants COUNTY OF MAUI,

and MAUI PLANNING COMMISSION (collectively,

the “Defendants”) as follows:

NATURE OF ACTION

1. This action is commenced by Plaintiffs to

redress violations of its civil rights, as protected by the

Free Exercise, Free Speech and Equal Protection

Clauses of the United States Constitution, 42 U.S.C.

§ 1983, the Religious Land Use and Institutionalized

Persons Act of 2000, 42 U.S.C. § 2000cc et seq.

(“RLUIPA”), and Article I §§ 4-5 of the Hawaii

Constitution caused by the Defendants’ burdensome,

discriminatory and unreasonable land use regulations

3a

and intentional conduct that has prohibited and

continues to prohibit the Spirit of Aloha Temple from

conducting religious services and activities in exercise

of its religious beliefs in already existing structures on

its property at 800 Haumana Road, Haiku, Maui,

Hawaii (the “Property”).

2. The Maui County Planning Department (the

“Planning Department” or “Department”), based on

substantial review, comments by other governmental

agencies, and proposed conditions to mitigate any land

use impacts, recommended approval of the Plaintiffs’

application for a State Land Use Commission Special

Permit (the “Permit”) to allow the religious use.

Nevertheless, the Planning Commission denied the

Permit based on the affirmative vote of three of its

eight members, and the abstaining of two of its

members.

3. By its denial of the Plaintiffs’ Permit to conduct

religious observances at the Property (which is

currently being used as a botanical garden open to the

public), the Planning Commission has determined that

groups of people may visit the Property for various

secular purposes, have the same land use impacts, and

to engage in any number of other activities permitted

by Maui County Code § 19.30A.050(B)(11), but not to

engage in religious observances.

4. Plaintiffs allege that the Planning Commission’s denial of the Permit—which satisfied all criteria

under the relevant zoning regulations—was based on

misapplication of state and local laws, ad hoc factors

specifically and specially designed to prevent religious

exercise on the Property, and unequal treatment as

compared to similarly situated entities in Maui County.

4a

5. Plaintiffs further allege that the denial of the

Permit, which would allow Plaintiffs to operate a

place of worship for religious observance, services

and education, substantially burdens the Plaintiffs’

religious exercise without using the least restrictive

means of achieving the compelling governmental

interest that the Planning Commission alleges exists

to deny the Permit.

6. Plaintiffs also allege that the Planning Commission’s application of unwritten and ad hoc “standards,”

particularly with respect to traffic standards, to deny

the Permit constitutes a prior restraint on the Plaintiffs’

protected First Amendment activity, does not provide

reasonable notice to Permit applicants of whether

proposed places of worship meet the standards for

a Permit, and is therefore vague and allows for

unbridled discretion on the part of the Commission.

PARTIES

7. Plaintiff SPIRIT OF ALOHA TEMPLE, INC. is

a domestic nonprofit corporation formed under the

Laws of the State of Hawaii on September 17, 2007.

8. Plaintiff FREDRICK HONIG resides at 800

Haumana Road, Maui, Hawaii, and is a licensed

minister.

9. Defendant COUNTY OF MAUI is a local

governmental entity organized under Hawaii law.

10. Defendant MAUI PLANNING COMMISSION

is a Planning Commission established pursuant to

Titles 6 and 13 of the Hawaii Statutes.

JURISDICTION AND VENUE

11. The subject matter jurisdiction of this Court

is founded upon 28 U.S.C. § 1331 (federal question

jurisdiction) in that this action is brought under 42

5a

U.S.C. § 2000cc et seq., and 42 U.S.C. § 1983. This Court

also has supplemental jurisdiction of Counts VIII, IX

and X under 28 U.S.C. § 1367(a) for claims brought

under Hawaii law.

12. Venue is proper in this Court pursuant to 28

U.S.C. § 1391(b) in that all of the events giving rise to

the claims herein occurred in this District and the

Defendants are subject to personal jurisdiction in this

District as of the commencement of this action.

FACTUAL ALLEGATIONS

Plaintiffs’ Religious Exercise

13. The Spirit of Aloha Temple, Inc., incorporated in

2007, is a religious assembly and institution.

14. The Temple and Honig’s religious faith and

practices are known as “Integral Yoga.”

15. Integral Yoga is a path of integral seeking of the

Divine whose adherents believe that all people are in

the end liberated out of the ignorance and its undivine

formations into a truth beyond the mind, a truth not

only of highest spiritual status but of a dynamic

spiritual self-manifestation in the universe.

16. Integral Yoga was described in several works in

the early part of the twentieth century by Sri

Aurobindo, an Indian yogi and guru.

17. Sri Aurobindo’s vision, shared by the Plaintiffs,

was the evolution of human life into a life divine. He

believed in a spiritual realization that not only

liberated man but also transformed his nature,

enabling a divine life on earth.

18. Integral Yoga International was established in

the United States, by Sri Swami Satchidananda in

1966 and is a worldwide religious organization.

6a

19. Adherents of Integral Yoga believe that the goal

and the birthright of all individuals is to realize the

spiritual unity behind the diversity throughout

creation and to live harmoniously as members of “one

universal family.”

20. This goal is attained through asanas (yoga

postures), pranayama (extension of the life force), the

chanting of holy names, self-discipline, selfless action,

mantra japa (sacred utterances), meditation, study,

and reflection.

21. Honig, also known as Swami Swaroopananda, is

a licensed minister and teacher of Integral Yoga.

22. Honig was ordained in 1977 by the acclaimed

ecumenical leader, Sri Swami Satchidananda, who was

ordained in 1949 by the renowned Sri Swami

Sivananda, Founder of The Divine Life Society and

The All-World Religions Federation.

23. For twenty years, starting at age 21, Honig

lived, studied, taught and served as a monastic

member of Satchidananda Ashrams and Integral Yoga

Institutes.

24. For the past twenty years, Honig has served the

Spirit of Aloha Temple, Botanical Gardens and Bird

Sanctuary on the north shore of Maui. The Gardens

are dedicated to living in harmony with Nature,

through alignment with its 12 Organizing Principles:

Peace, unity, gratitude, humility, respect, simplicity,

cooperation, honesty, happiness, love, responsibility,

and freedom.

25. Plaintiffs believe that these twelve universal

truths are the essence of all world religions, and also

derive inspiration from the accomplishments of orders

from varied traditions such as the Hindu Missions of

7a

Swami Vivekananda, Swami Sivananda and Swami

Satchidananda; the Christian missions of Saint

Francis, Saint Damian, Mother Teresa, Thomas

Mertin as well as the Shaker Communities; the Jewish

Missions of The Essenes; the Islamic Missions of the

Sufis; and the Buddhist Missions of The Dalai Lama

and the Tibetan Monasteries.

26. The Spirit of Aloha Temple, Inc., an Internal

Revenue Code, Section 501(c)(3) tax-exempt organization, was incorporated as a church in 2007 to further

the principles of Integral Yoga, and specifically (as

stated in its Bylaws) “No promote Individual and

Global Health, Harmony and Well-Being through

Education, Instruction, Guidance and Research.”

27. A significant element of the Temple’s ministry

is to be a living classroom for sustainable organic

horticulture and plant-based nutrition, which is in

furtherance of its religious beliefs.

28. In furtherance of these beliefs, the Plaintiffs

seek to engage in various religious practices, including

holding customary religious services such as weekly

meetings and weddings, offering classes on their

spiritual beliefs, and holding communal meals.

29. Other than the subject Property, the Temple

does not own or operate any other facilities for

purposes of its religious worship and exercise.

30. The Plaintiffs have no other location in which to

hold weekly church services.

31. The Plaintiffs have no other location to conduct

sacred programs, educational, inspirational and

spiritual, and spiritual commitment ceremonies.

32. The Plaintiffs have no other location to operate

spiritual classes.

8a

33. The lack of a place of worship severely burdens

the religious exercise of the Plaintiffs because the

Temple lacks any facility to hold its worship services,

events and classes.

34. In order to accommodate its religious exercise,

the Temple requires a facility that can accommodate

its members and others for such religious worship and

activities.

35. The Property is uniquely capable

accommodating the Plaintiffs’ religious exercise.

of

The Property and Current Uses

36 The Property is approximately 11 acres located

at 800 Haumana Road, Haiku, Maui.

37. The Property is described as Tax Map Key No.

(2) 2-8-004:032.

38. The Property is located in the State

Agricultural District, Paia-Haiku Community Plan,

and the County Agricultural Zone.

39. The Property’s Land Use Category is Agriculture.

40. The Property is located within the Special

Management Area.

41. The Property is approximately one mile makai

of the Hana Highway.

42. It contains a main farm dwelling, second farm

dwelling, a potting shed, a building denominated the

Waterfall Pavilion, Potting Shed, and other accessory

buildings, all duly permitted by the County.

43. The Property is owned by the Fredrick R. Honig

Revocable Living Trust (the “Trust”).

9a

44. The Trust leases the Property to The Spirit of

Aloha Temple, Inc. through a perpetual lease that is

recorded with the State Bureau of Conveyances.

45. Currently, the property is used for limited

“secular” uses, including a botanical garden, bird

sanctuary and staff housing.

46. The Temple operates the Property in accordance

with its religious beliefs, which include aligning with

“Nature’s Organizing Principles.”

47. The Property is stewarded by a volunteer team

of “Nature Guardians,” who see God as Nature and

their service to Nature as worship.

48. This also includes promoting Hawaiian plantbased horticulture and nutrition, and restoring the

historic Taro Lo’i. Such activities are currently

permitted by the Defendants.

49. Plaintiffs additionally seek to use the Property

as a “Church” use, which would include religious

services, meetings, lectures and events for small

numbers of people.

50. The soil productivity rating of the Property

according to the Land Study Bureau is mostly “C9”

with some “E97” on a scale with “A” being the best

agricultural land and “E” the worst. H.R.S. § 205-4.5

provides different use limitations for parcels with

various soil productivity ratings, higher scores being

more restricted.

51. According to the Land Study Bureau Detailed

Land Classification for the Island of Maui (1967), the

Property is assigned an overall productivity rating of

“C”, indicating moderate productive capacity, and rRR,

indicating very low overall productive capacity.

10a

52. The Plaintiffs had previously applied (SUP

2007/0009) for a special use permit to conduct religious

activities on the Property, which was denied by the

Planning Commission on March 23, 2010 with reconsideration also denied on December 14, 2010. A findings of fact, conclusions of law and decision and order

was issued on February 8, 2012.

53. The components of Plaintiffs’ proposed religious

use at issue in Plaintiffs’ special use permit application

discussed infra are interdependent and inseparable from

the current “agricultural” uses of the Property.

54. Providing worship services, classes and ceremonies at another location would be wholly impracticable,

given Plaintiffs’ religious beliefs and exercise.

55. The Temple does not have any realistic opportunity to purchase land elsewhere on Maui in order to

construct its proposed religious facility with botanical

use, and any such course of action would involve

unreasonable delay, uncertainty, and expense due to

the Defendants’ land use regulations listed infra.

The Relevant Land Use Regulations

56. The Subject Property is located in the State

Agricultural District with a Land Use Classification of

“Agricultural.”

57. A use on the Property must be permitted by the

Hawaii Revised Statutes, the Maui County Code, and

because within the Special Management Area, by the

Community Plan.

58. Permitted uses in the Agricultural District

include Agricultural Parks. Permitted accessory uses

include Parks and Open land recreation including:

hiking; noncommercial camping; fishing; hunting;

equestrian activities; rodeo arenas; arboretums;

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greenways; botanical gardens; guided tours that are

accessory to principal uses, such as farm or plantation

tours, petting zoos, and garden tours; hang gliding;

paragliding; and mountain biking. M.C.C. § 19.30A.050.

59. The Plaintiffs’ botanical garden on the Property

is a permitted use in the Agricultural District.

60. “Guided garden tours” are permitted on the

Property under H.R.S. § 205-2(d)(12) and as an

accessory use of “open land recreation” under M.C.C.

§ 19.30A.050(B)(11).

61. The County has informed the Plaintiffs that

“uses such as weddings, special events, seminars, group

instructions . . . are not permitted” on the Property.

62. The County has also informed the Plaintiffs

that “classes, demonstrations, conferences, and seminars on plant-based nutrition, health and well-being

(e.g., yoga, meditation)” are not permitted on the

Property.

63. Bed and breakfast homes are permitted in the

Agricultural zone in conjunction with a bona fide

agricultural operation.

64. Special permit uses in the Agricultural District

include, among others, Farmer’s markets, Public and

quasi-public institutions that are necessary for agricultural practices; Major utility facilities as defined in

section 19.04.040 of this title; Open land recreation

uses including commercial camping, gun or firing

ranges, archery ranges, skeet shooting, paint ball,

bungee jumping, skateboarding, rollerblading, playing

fields, accessory buildings and structures; Cemeteries,

crematories, and mausoleums; Mining and resource

extraction; Landfills; Solar energy facilities that are

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greater than fifteen acres; and Short-term rental

homes. M.C.C. § 19.30A.060.

65. H.R.S. § 205-2(d) states “Agricultural districts

shall include . . . [a]gricultural tourism on a working

farm, . . .[a]agricultural tourism activities, . . . [o]pen

area recreational facilities, . . . and [a]gricultural-based

commercial operations,” among others.

66. Churches and religious institutions are also

permitted as a special use in the Agricultural district.

67. The Plaintiff ’s application for a State Land

Use Commission Special Permit is governed by H.R.S.

§§ 205, 205A and 226, 15-15-95 H.A.R., and Maui

County Code Chapter 19.30A.

68. The relevant land use regulations permit

Plaintiffs to conduct tours on its property as part of its

botanical garden use.

69. The applicable land use regulations do not limit

the number of persons that may use the Property for

such tours.

70. The Temple does conduct such tours as part of

its botanical garden use, with an average of twenty

people participating, and up to a maximum of 120

people.

71. The certificate of occupancy for Spirit of Aloha’s

multi-purpose tent structure permits occupancy of 176

persons.

72. H.R.S. § 205-6(a) provides that a “clunty

planning commission may permit certain unusual and

reasonable uses within agricultural and rural districts

other than those for which the district is classified.”

73. The Maui County Planning Department noted

that “[t]he State Land Use Law provides flexibility in

allowing for unusual conditions that have evolved

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since a property was classified

Agricultural District.”

in

the

State

74. Section 15-15-95 of the Hawaii Administrative

Rules lists the following guidelines established in

determining an “unusual and reasonable use”:

i. The use shall not be contrary to the

objectives sought to be accomplished by

chapters 205 and 205A, HRS, and the rules

of the Land Use Commission;

ii. The desired use would not adversely affect

surrounding property;

iii. The use would not unreasonably burden

public agencies to provide roads and streets,

sewers, water, drainage, and school improvements, and police and fire protection;

iv. Unusual conditions, trends and needs have

arisen since the district boundaries and

rules were established; and,

v. The land upon which the proposed use is

sought is unsuited for the uses permitted

within the district.

75. H.R.S. § 205-6(c) states that a “county planning

commission may, under such protective restrictions as

may be deemed necessary, permit the desired use, but

only when the use would promote the effectiveness

and objectives of this chapter; provided that a use

proposed for designated important agricultural lands

shall not conflict with any part of this chapter.”

76. Maui County Code § 19.510.070(B) states that

the standards for a special use permit to be used by

the planning commission required that each of the

following criteria must be met:

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1. The proposed request meets the intent of the

general plan and the objectives and policies of

the applicable community plan of the county;

2. The proposed request is consistent with the

applicable community plan land use map of the

county;

3. The proposed request meets the intent and

purpose of the applicable district;

4. The proposed development will not adversely

affect or interfere with public or private schools,

parks, playgrounds, water

5. The proposed development will not adversely

impact the social, cultural, economic, environmental, and ecological character and quality of

the area;

6. That the public shall be protected from the

deleterious effects of the proposed use;

7. That the need for public service demands created

by the proposed use shall be fulfilled; and

8. If the use is located in the state agricultural and

rural district, the commission shall review

whether the use complies with the guidelines

established in section 15-15-95 of the rules of

the land use commission of the State.

77. Maui County Code § 19.510.070(E) permits the

planning commission to “impose conditions on the

granting of a request for a special use if the conditions

are reasonably conceived to mitigate the impacts

emanating from the proposed land use.”

78. These land use regulations allow the Defendant

Planning Commission to make individualized assessments of all applications for Special Permits.

15a

79. The inherently subjective land use regulations

governing special use permits give the Defendant

Planning Commission broad discretion over any

decision on a special use permit application, enabling

it to accept or reject applications on a case-by-case

basis according to its own unwritten and ad-hoc

standards.

80. It is the policy of the State of Hawaii, as

described in H.R.S. § 205-41, that “There is a

compelling state interest in conserving the State’s

agricultural land resource base and assuring the longterm availability of agricultural lands for agricultural

use to achieve the purposes of: (1) Conserving and

protecting agricultural lands; (2) Promoting

diversified agriculture; (3) Increasing agricultural selfsufficiency; and (4) Assuring the availability of

agriculturally suitable lands, . . . .”

81. Furthermore, H.R.S. § 205-6(f) states that

“Land uses substantially involving or supporting

educational ecotourism, related to the preservation of

native Hawaiian endangered, threatened, proposed,

and candidate species, that are allowed in an approved

habitat conservation plan under section 195D-21 or

safe harbor agreement under section 195D-22, which

are not identified as permissible uses within the

agricultural district under sections 205-2 and 205-4.5,

may be permitted in the agricultural district by special

permit under this section, on lands with soils classified

by the land study bureau’s detailed land classifications

overall (master) productivity rating class C, D, E, or U.”

82. H.R.S. § 205-12 states: “The appropriate officer

or agency charged with the administration of county

zoning laws shall enforce within each county the use

classification districts adopted by the land use commission and the restriction on use and the condition

16a

relating to agricultural districts under section 205-4.5

and shall report to the commission all violations.”

83. Additionally, “[a]ny person who violates any

provision under section 205-4.5, or any regulation

established relating thereto, shall be fined not more

than $5,000, and any person who violates any other

provision of this chapter, or any regulation established

relating thereto, shall be fined not more than $1,000.”

H.R.S. § 205-13.

84. Thus, Hawaii and Maui law provide for various

mechanisms to ensure that their land use goals are

protected.

Plaintiffs’ Special Use Permit Application

85. On November 21, 2012 the Plaintiffs filed an

application (the “Application”) for a State Land Use

Commission Special Permit (SUP2 2012/0032) to

hold weekly church services for up to 20 people on

Saturdays from 10:00am to 2:00pm, operate a living

classroom for nature guardian skills for up to 23

people 4 times per week, and conduct sacred programs,

educational, inspirational and spiritual, and spiritual

commitment ceremonies such as weddings for up to 80

persons 24 times per year and up to 40 persons 24

times per year at the Property.

86. The Plaintiffs proposed to use the existing

structures for purposes of the church use.

87. Groups of people of the same size or larger are

currently permitted on the Property for non-religious

purpose of visiting the botanical garden.

88. The Plaintiffs amended their application regarding events to request only 12 events per year for up to

20 people, 12 events per year for up to 40 people, 12

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events per year for up to 60 people, and 12 events per

year for up to 80 people.

89. The Planning Department provided its recommendation to the Planning Commission, recommending

approval of the Application, with 21 conditions.

90. After consultation with the Maui County Planning Department, the Plaintiffs agreed to further limit

the proposed use as follows:

i. The classroom was to be limited to use by no

more than 24 persons, including staff;

ii. There were to be no more than four classes per

week, all between the hours of 10:00 a.m. and

2:00 p.m.;

iii. Church services were to be limited to one per

week with a maximum of 24 attendees and

would usually be conducted on Saturdays

between the hours of 10:00 a.m. and 2:00 p.m.;

iv. No more than 48 church-related events per year,

of those no more than half could have between

25 and 40 participants and staff;

v. No more than two events with 25 to 40 persons

could be conducted per month;

vi. There could be no more than four churchrelated events per month,

vii. All church-related events were to take place

between 10:00 a.m. and 8:00 p.m.;

viii. Shuttle buses were to be used to transport

participants to the church-related events that

involved between 25 and 40 participants;

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ix. The shuttles would use privately owned

facilities, not public ones, for drop off and pick

up;

x. There would be no more than 25 people on the

Property except for 59 days a year;

xi. The attendance would further be limited by the

waste water system’s limits;

xii. Records of events, dates, attendance and type

would be maintained and submitted to two

separate County agencies each year. Failure to

submit them could result in revocation of the

permit;

xiii. Obtaining approvals from the State Historic

Preservation Division;

xiv. Several specific Department of Health Safe

Water Drinking Branch Test results for a

variety of chemicals and bacteria;

xv. Approval of the Department of Health

Environmental Health Services Division

regarding all food consumed on the premises;

xvi. No food was to be prepared on the premises for

any event;

xvii. A parking plan had to be approved by the

Zoning and Enforcement Division and

submitted to the Planning Department;

xviii. The permit would expire on March 31, 2016,

subject to applications for renewal; and

xix. A hardened driveway approved by the Fire

Department and Department of Public Works.

91. After extensive revision of the Application from

November 2012 through February 2014, on February

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11, 2014 the Maui Planning Department deemed the

application complete and scheduled a public hearing

before the Maui Planning Commission for March 25,

2014.

92. On February 21, 2014, Plaintiffs mailed the

requisite notice of public hearing to owners and lessees

adjacent to the Property and across the street.

93. A notice of hearing on the application was

published in the Maui News on February 21, 2014 by

the Planning Department.

94. The Planning Department issued a Report and

Recommendation (“Recommendation”) that the Permit

be issued.

95. The Planning Department noted that no new

buildings or structures were proposed, that the church

use will use the existing structures in a shared use

arrangement, and that “[t]he church is intended to

complement and support the existing agricultural uses

of the property and the open and rustic setting of the

area.”

96. The Department also determined that “[i]f

approved with conditions, the applicant will implement

mitigative measures to limit impacts on the surrounding

area, including noise, traffic and burdens on public

service.”

97. State and County agency review comments

were provided regarding potable water availability,

wastewater capacity, traffic, police and fire department

access, archeology, and adherence with the agricultural

zoning of the Property.

98. The Department noted that the use would

“place little burden on public sewers, water systems,

drainage systems or educational facilities.”

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99. With respect to the narrow road conditions of

Haumana Road, the Planning Department stated: “the

Department has worked with the applicant and public

safety agencies to limit the number of visitors, events,

and hours of events.”

100. With respect to the State zoning statutes, the

State Plan, H.R.S.

i. Improving opportunities to experience natural

beauty and biodiversity for present and future

generations;

ii. Educating

residents

about

responsible

stewardship and interconnections with the

environment;

iii. Improving land use management;

iv. Preserving and enriching residents’ quality of

life;

v. Protecting the Island’s natural beauty;

vi. Improving its economy;

vii. Strengthening the Island’s sense of place; and

viii. Protecting and enhancing architectural and

landscape characteristics.

101. The Department also considered the Application

in light of the local Paia-Haiku Community Plan and

again found that it promoted the goals of that land use

plan.

102. The Department also reviewed the requirements

for a Special Use Permit in the Agricultural District,

found in H.R.S. §§ 205 and 205A. It specifically found

that the proposed use meets those standards, that it

will complement and support agricultural use, and

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that it will not adversely affect surrounding property

or burden public services.

103. The Recommendation noted that any concern

about possible vehicular and pedestrian traffic impact

had been addressed by both the Police and Fire

Departments. It states that “[i]n light of these

comments the Department discussed the matter with

public safety agencies and developed conditions to

mitigate the effect on traffic and public services.”

104. In order to mitigate traffic impacts along

Haumana Road, the Department of Public Safety/

Police Department recommended that the number of

visitors and hours of operation for church related

events be limited. Those limitations were adopted and

made part of the Application as finally submitted.

105. Significantly, the Department’s Recommendation

quoted the Police Department’s comment as stating:

“There is no objection to the progression of this project

at this time, from the police standpoint in regards to

pedestrian and vehicular movement.”

106. The Recommendation also noted that “the

proposed church and agricultural education uses will

complement existing agricultural uses of the property

using existing buildings and structures.”

107. The Department’s Recommendation included a

conclusion of law that “[t]he application for a State

Land Use Commission Special Permit complies with

the applicable standards for an ‘unusual and reasonable’

use within the State Agricultural District.”

108. With regard to impact on surrounding properties,

the Recommendation stated: “If approved with conditions

the applicant will implement mitigative measures to

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limit impacts on the surrounding area, including noise,

traffic and burdens on public service.”

109. That Recommendation further noted that

“[c]hurch or related uses are not uncommon in the

State Agricultural District under the provisions of a

State LUC Special Use Permit.”

110. Plaintiffs’ proposed use would be consistent

with the policy goals of H.R.S. § 205-41.

111. However, there was substantial public

opposition by nearby residents to the Plaintiffs’ use.

112. On March 25, 2014 the Commission held a

public hearing on the Application.

113. During the March 25 hearing and at the

request of Planning Commissioner Wakida, William

Spence, Director of the Maui Planning Department,

testified:

That botanical garden use it’s supposed

to—it’s an accessory use listed under in the

Agricultural Zoning Code. So whatever

farming, whatever agricultural activities are

going on as a part of that and that could be,

you know, agriculture is pretty broadly

defined. They could have people down there

to, you know, as with other botanical gardens

you could, you know, see the different species

and take a tour and those kinds of things.

Minutes of Maui Planning Commission, March 25,

2014 at 72.

114. There are no limitations in the relevant state

and county land use regulations that regulate the

number of persons who may attend the non-religious

use of the botanical garden.

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115. There are no limitations in the relevant state

and county land use regulations that regulate

specifically how persons may arrive at the nonreligious use of the botanical garden.

116. At the conclusion of the public hearing, the

following comments and motion of the Planning

Commission took place:

Mr. Freitas: I’d like to make a motion to

deny and I have a . . . (inaudible) . . . reason

why I am voting to deny. I run a tow business

and road safety is so important to me and that

road I feel is not safe with pedestrians

walking up and down the highway and people

with bicycles and what have you. And I have

been on that road with our tow truck and it is

a very narrow . . . especially when it rains. So

that’s my prime reason for making the motion

to deny the applicant.

Mr. Medeiros: I second.

Chairperson Lay: Motion by Commissioner

Freitas to deny, seconded by Commissioner

Medeiros. Any discussion on the motion?

Commissioner Wakida?

Ms. Wakida: I concur with Mr. Freitas about

the concern for safety on the road. And we’ve

heard from neighbors that they feel the road

is unsafe for a certain amount of excess traffic

which the applicant sounds like he will

generate. And as well, there seems to be some

issues raised about water and wastewater

that I think are of concern.

24a

Chairperson Lay: Any more discussion on

the motion? Director can repeat? Oh,

Commissioner Medeiros?

Mr. Medeiros: Yeah, I seconded the motion

mostly because while I respect his rights

to religion, it’s not safe. Okay, maybe the

Planning Commission, the State Department

of Health recommended all of these things to

us as satisfactory, but it’s still not safe not to

the degree where I would be comfortable with.

Okay. I respect human life. I wanna protect it.

Minutes of Maui Planning Commission, March 25,

2014, pp. 80-81 (emphasis added).

117. The motion passed with six ayes voting for

denial and two excused. The special use permit was

denied.

118. Plaintiffs thereafter requested reconsideration

of the denial.

119. The Plaintiffs submitted a reduction in the

church events in support of its request for reconsideration as follows: 6 programs per month for up to 4 hours

and for up to 24 participants, from 10 a.m. to 4 p.m.

and 2 programs per month for up to 6 hours and up to

40 participants (1 from 10 a.m. to 4 p.m, and 1 from 10

a.m. to 8 p.m.).

120. On April 8, 2014, the Commission reconsidered

the Application.

121. Plaintiffs again amended their application to

further reduce the number and size of church related

events that they would hold.

122. A motion to rescind the previous denial passed

by a vote of 5 to 1 with 2 excused.

25a

123. Plaintiffs orally amended the Application to

reduce the proposed number of church events to

include eight per month with a maximum of ten cars

per event. Two of the events could have up to 40 people

and the remaining six events could have up to 24

people. Seven of the eight events would end by 4 p.m.,

with the remaining event ending by 8 p.m.

124. The Planning Department again recommended

approval of the Application, subject to conditions.

125. At the conclusion of the deliberations on

reconsideration, a motion was made to deny the State

Land Use Commission Special Use Permit.

126. Initially, in the first vote only two members of

the Planning Commission assented to the Motion to

deny the permit. Three members abstained. Three

members dissented.

127. After this vote, the Planning Commission

determined that the Chair needed to vote and could

not abstain, so another vote was taken.

128. K. Ball assented in this second vote and voted

to deny the application.

129. The second vote was three assents to the

Motion, two abstentions, and three dissents.

130. Thus, only three of eight members of the

Planning Commission voted to deny the special use

permit.

131. However, under the Maui County Planning

Commission Rules of Practice and Procedure, § 12201-24(c), an abstention (unless as a result of

disqualification for conflict of interest) is counted as an

affirmative vote. Thus the vote to deny the Permit

passed 5-3.

26a

132. On October 30, 2014, the Commission issued its

Findings of Fact, Conclusions of Law and Decision

and Order, SUP 2012/0032. It made the following

Conclusions of Law:

i. “[A]fter hearing testimony from neighbors that

live adjacent to or nearby the Property and after

questioning the Applicant and Consultant, the

Commission concluded that the uses requested

in the Application did not constitute an ‘unusual

and reasonable’ use in the Agricultural District.”

ii. “The Commission found that the uses proposed

in the Application would adversely affect the

surrounding properties in conflict with 15-1595(2) HAR. The Commission received substantial

negative written testimony from nearby property owners on Haumana Road and North

Holokai Road. Additionally during the hearing

nearby property owners submitted additional

oral visual and written testimony regarding

concerns about the safety of Haumana Road for

both potential visitors and property owners

along Haumana Road. The Commission found

such testimony reliable and compelling.”

iii. “The Commission found that granting the uses

would increase traffic and burden public

agencies providing roads and streets, police and

fire protection, in conflict with 15-1595(3), HAR,

and gave the following reasons for a denial of

the Application on that basis: significant

concerns about the narrowness of Haumana

Road and vehicle and pedestrian safety both to

potential visitors to the property and property

owners along Haumana Road and the fact that

and the fact that the Property is at the terminus

of Haumana Road and therefore traffic to the

27a

Property would negatively impact residents

safety and use of Haumana Road.”

133. Thus, the Planning Commission stated that it

denied the Plaintiffs’ special use permit based on the

traffic impacts of such proposal.

134. The only evidence presented to the Planning

Commission regarding traffic, other than that from the

government agencies as described above, was the

135. The Planning Commission’s decision and order

states that “[t]he Commission was concerned about the

number of objection letters received from property

owners in the nearby neighborhood and noted the

paucity of support letters from adjacent neighbors.”

136. Issues relating to Haumana Road are due to

encroachment by adjoining property owners.

137. Safety concerns regarding the Application were

addressed and confirmed by government agency

comment letters.

138. The Planning Department included as a

condition of approval:

That in order to reduce the amount of traffic

on Haumana Road, the applicant shall use a

shuttle system (vans and limousines) to bring

guests to and from the property for all events

that will have more than 25 persons in

attendance. Every effort should be taken to

shuttle or carpool event guests to all activities.

Shuttles shall use privately owned facilities,

such as hotels, for their operations such as

drop-offs and pick-ups.

139. The Plaintiffs were and continue to be willing

to accept any reasonable condition to address per-

28a

ceived impacts on traffic and other governmental

interests.

140. The Planning Commission was informed about

the applicability of RLUIPA to the Application.

141. The County, through its Planning Department,

stated that “the Religious Land Use and Institutionalized

Persons Act (RLUIPA) is a federal law protecting a

person’s religious liberties and right to assembly.”

142. Nevertheless, the Planning Commission determined that the burden on the Temple’s religious

exercise was justified by the “compelling” governmental

interest in traffic.

143. The Commission’s refusal to permit religious

exercise on the Property is irrational, arbitrary,

capricious and not rationally related to any compelling

governmental interest.

144. The Commission’s stated traffic justification for

the denial of the special use permit application is

arbitrary, capricious, discriminatory and does not give

reasonable notice to applicants of the standards for a

special use permit.

145. Plaintiffs made numerous concessions limiting

their proposed church use, adequately addressing any

purported governmental interests.

146. The proposed church use would have less

impact on surrounding properties and governmental

interests than the existing, permitted botanical

garden use.

147. The Planning Commission had the authority to

impose further conditions on Plaintiffs’ proposed use.

148. Another condition recommended by the Planning Department was that the “Maui Planning Com-

29a

mission may modify, suspend or revoke this permit for

good cause.”

149. The Planning Depaitment Planner Kurt

Wollenhaupt had begun to review potential conditions

of approval of the Application, including enforcement

of potential conditions and on revising the number of

permitted events on the Property.

150. However, the Planning Commission failed to

use any less restrictive means of achieving governmental interests and voted to deny the Application

outright.

Differential Treatment of Plaintiffs

151. The Maui Planning Department’s Report noted

that “[c]hurches or related uses are not uncommon in

the State Agricultural District under the provisions of

a State LUC Special Use Permit.”

152. Upon information and belief, organized wedding

services are conducted at a minimum of five other

botanical gardens on the Island of Maui, presumably

with appropriate approvals from the Defendants.

153. Upon information and belief, traffic conditions

at several of these locations are less safe than at the

subject Property.

154. Furthermore, Maui County Code § 19.30A.050.B.11

permits gatherings of many types, without limitation

as to size in the Agricultural District and even on the

subject Property.

155. Thus, the Commission’s refusal to permit

religious exercise on the Property discriminates

against religious assembly uses.

156. There are other churches on similar types of

roads in Maui County.

30a

157. For example, Kaulanapueo Church and Door of

Faith Church in Huelo, Maui are accessed by Door of

Faith Road, which at points is approximately 10 feet

wide.

158. The denial of Plaintiffs’ special use permit was

based on no objective criteria or standards for road

requirements.

159. The Planning Commission’s refusal to allow the

Temple to use its facility for religious purposes

severely impedes and prevents the Plaintiffs’ exercise

of its religion.

160. Defendants, through their land use regulations

and the actions of the Planning Commission, have

rendered the Temple’s religious exercise effectively

impracticable.

161. The use of the Property as a place of worship

would affect interstate commerce, including its use as

a site for ongoing fundraising; its receipt of charitable

donations from persons working or living outside of

the State of Hawaii; providing a place of worship for

the families of congregants visiting from other states;

providing religious education to individuals from other

states; the use of means of interstate communication

to facilitate its ongoing operations; the employment of

any part-time or full-time employees; the purchase of

goods and services related to the Temple’s ongoing

operations and maintenance; and the hosting of any

religious leaders visiting the Temple from out of state.

162. The Defendants’ actions described above all

took place under color of state law.

163. The harm to the Temple caused by the

Defendants’ laws and actions, which prevent it from

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operating a place of worship to accommodate its

religious needs, is immediate and severe.

164. Plaintiffs have no adequate remedy at law for

the harm and damage caused by Defendants’ wrongful

laws and actions.

COUNT I

Violation of Religious Land Use and Institutionalized

Persons Act of 2000 — “Substantial Burdens,”

42 U.S.C. § 2000cc(a)

165. Paragraphs 1 through 163 are incorporated by

reference as if set forth fully herein.

166. Defendants have deprived and continue to

deprive the Spirit of Aloha Temple and Frederick

Honig of their right to the free exercise of religion, as

secured by RLUIPA, by imposing and implementing

land use regulations in a manner that places

substantial burden on the Plaintiffs’ religious exercise

without using the least restrictive means of achieving

a compelling governmental interest.

COUNT II

Violation of Religious Land Use and Institutionalized

Persons Act of 2000 — “Nondiscrimination,”

42 U.S.C. § 2000cc(b)(2)

167. Paragraphs 1 through 166 are incorporated by

reference as if set forth fully herein.

168. Defendants have deprived and continue to

deprive the Spirit of Aloha Temple and Frederick

Honig of their right to the free exercise of religion, as

secured by RLUIPA, by imposing and implementing

land use regulations in a manner that discriminates

against the Plaintiff on the basis of religion and

religious denomination.

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COUNT IV

Violation of Religious Land Use and Institutionalized

Persons Act of 2000 — “Equal Terms,”

42 U.S.C. § 2000cc(b)(1)

169. Paragraphs 1 through 168 are incorporated by

reference as if set forth fully herein.

170. Defendants have deprived and continue to

deprive Spirit of Aloha Temple and Frederick Honig of

their right to the free exercise of religion, as secured

by RLUIPA, by treating the Plaintiffs on less than

equal terms as nonreligious assemblies and institutions.

COUNT V

United States Constitution

42 U.S.C. § 1983: First Amendment -- Prior Restraint

171. Paragraphs 1 through 170 are incorporated by

reference as if set forth fully herein.

172. The standards set forth in the County of Maui’s

zoning regulations governing special permits for

places of worship, and the standards applied by the

Commission in reviewing and denying Spirit of Aloha

Temple and Frederick Honig’s Special Use Permit do

not provide a person of ordinary intelligence a

reasonable opportunity to understand whether such

land uses are permitted or prohibited and, as such,

constitutes an unconstitutional prior restraint on

Plaintiff ’s protected expression and religious exercise

under the First Amendment. Such standards unconstitutionally afford the Commission unbridled discretion

in its review of a Special Use Permit application for a

place of worship.

33a

COUNT VI

United States Constitution

42 U.S.C. § 1983: First Amendment -Free Exercise of Religion

173. Paragraphs 1 through 172 are incorporated by

reference as if set forth fully herein.

174. Defendants have deprived and continue to

deprive the Spirit of Aloha Temple and Frederick

Honig of their right to free exercise of religion, as

secured by the First Amendment to the United States

Constitution and made applicable to the States by the

Fourteenth Amendment, by substantially burdening

Plaintiffs’ religious exercise without using the least

restrictive means of achieving a compelling governmental interest, and by discriminating against the

Plaintiffs on the basis of religion.

175. Defendants have further deprived and continue

to deprive the Plaintiffs of their right to free exercise

of religion, as secured by the First Amendment to the

United States Constitution and made applicable to the

States by the Fourteenth Amendment, by burdening

their religious exercise in a manner that is not

rationally related to a legitimate governmental interest.

COUNT VII

United States Constitution

42 U.S.C. § 1983: Fourteenth Amendment -Equal Protection

176. Paragraphs 1 through 175 are incorporated by

reference as if set forth fully herein.

177. Defendants have deprived and continue to

deprive the Spirit of Aloha Temple and Frederick

Honig of their right to equal protection of the laws, as

secured by the Fourteenth Amendment to the United

34a

States Constitution, by discriminating against

Plaintiffs in the imposition and implementation of

their land use regulations.

COUNT VIII

Hawaii Constitution Article I § 4 -Free Exercise of Religion

178. Paragraphs 1 through 177 are incorporated by

reference as if set forth fully herein.

179. Defendants have deprived and continue to

deprive the Spirit of Aloha Temple and Frederick

Honig of their right to free exercise of religion, as

secured by Article I § 4 of the Hawaii Constitution by

substantially burdening their religious exercise

without using the least restrictive means of achieving

a compelling governmental interest, and by discriminating against the Plaintiffs on the basis of religion.

COUNT IX

Hawaii Constitution Article I § 5

Equal Protection of the Law

180. Paragraphs 1 through 179 are incorporated by

reference as if set forth fully herein.

181. Defendants have deprived and continue to

deprive the Spirit of Aloha Temple and Frederick

Honig of their right to equal protection of the laws, as

secured by Hawaii Constitution Article I § 5 by

discriminating against Plaintiffs in the imposition and

implementation of their land use regulations.

COUNT X

H.R.S. § 91-14 Appeal from Agency Action

182. Paragraphs 1 through 181 are incorporated by

reference as if set forth fully herein.

35a

183. Defendant Maui Planning Commission’s Final

Decision and Order dated October 28, 2014 denying

Plaintiffs’ Special Use Permit was based on Findings

of Fact that were clearly erroneous and not supported

by necessary reliable, probative and substantial

evidence of the whole record.

184. Finding of Fact No. 68 provides the MPC’s basis

for denying the SUP application by stating in

pertinent part as follows:

The Commission finds that there is evidence

of record that the proposed uses expressed in

this Application should they be approved

would increase vehicular traffic on Haumana

Road, which is narrow, winding, one-lane in

areas, and prone to flooding in inclement

weather. The Commission finds that Haumana

Road is regularly used by pedestrians,

including children who use the road to access

the bus stop at the top of the road. The

Commission that granting the Application

would adversely affect the health and safety

of residents who use the roadway, including

endangering human life. The Commission

finds that the health and safety of the

residents’ and public’s use of Haumana Road

is a compelling government interest and that

there is no less restrictive means of ensuring

the public’s safety while granting the uses

requested in the Application.

185. Based on the record of the hearing, this finding

of fact appears to solely be based on the anecdotal

testimony provided by residents of Haumana Road

who neighbor the site of Spirit of Aloha Temple and as

such have significant biases to denying Spirit of

Aloha’s SUP. The Findings of Fact make no mention of

36a

the supplemental evidence of reports from the Maui

Police Department and Maui Fire Department,

disinterested expert parties, stating that they had no

objections to the SUP in regard to pedestrian and

vehicular movement. These reports were made based

on the original SUP application that included a larger

number of events, people and vehicles.

186. Disinterested reports from the Maui Police

Department and the Maui Fire Department concluded

that vehicular and pedestrian safety were not

endangered by the scope of activities proposed in

Spirit of Aloha’s SUP application.

187. The Maui Department of Planning recommended

approval of the SUP application with the reduced

events with several conditions.

188. Finding of Fact No. 68 states that Haumana

Road is “prone to flooding”; however, the evidence in

the record states that the water runs off into a culvert

and that the road drains well.

189. Finding of Fact No. 68 states that Haumana

Road is “one-lane in areas” and while this is supported

by evidence in the record, this statement fails to

account for the context that while the asphalt may

only be as wide as one-lane in certain areas, the road

still is passable as the road maintains a recorded 20foot right of way and vehicles are able to pass each

other by pulling narrowed width is the result of

encroachment by property owners along Haumana

Road.

190. Finding of Fact No. 67 described the voting

results on the Motion to Deny the State Land Use

Commission Special Use Permit from the April 8, 2014

Maui Planning Commission meeting. It states that J.

Freitas and W. Hedani assented to the Motion; M. Tsai,

37a

I. Lay, and K. Ball abstained; and J. Medeiros, P.

Wakida, and R. Higashi dissented. However, the

signatures at the end of the Decision and Order

include Commissioner Ball’s signature in the “In

Agreement” category rather than in the “Abstained”

category. All other signatures for agreement or disagreement with the Motion corresponded to how the

commissioners voted, or abstained, in the minutes of

the hearing and as reported in Finding of Fact No. 67.

191. Conclusion of Law No. 5 states, “The

Commission found that granting the uses would

increase traffic and burden public agencies providing

roads and streets, police, and fire protection . . . .” No

evidence was presented to support the finding that the

burden of public agencies providing roads and streets,

police and fire protection would be increased.

192. The Maui police and fire departments both

provided reports that were in support of the SUP

application. Therefore, this finding is not supported by

any probative or reliable evidence.

193. Conclusion of Law No. 9 states, “The

Commission further found that there were compelling

public health and safety issues implicated by the likely

significant increase in traffic attributable to the uses

proposed by the Application, creating conditions that

would be foreseeably dangerous or potentially deadly

to drivers and pedestrians, including children walking

on the road to and from the bus stop at the top, using

the small rural roadway.” These findings are not based

on probative, reliable and substantial evidence

particularly as it pertains to children walking to and

from the bus stop since the proposed start & end times

for the events included in the SUP Application do not

coincide with normal school start/end times.

38a

194. Conclusion of Law No. 9 states, “The

Commission found that these compelling public health

and safety issues could not be adequately addressed by

the implementation of any permit condition or use

restriction,” to support its position that the denial of

the SUP was the least restrictive means of furthering

the compelling governmental interest in protecting the

health, lives and safety of the public. However, while

the Commission based its findings primarily on the

narrowness of Haumana Road, little if any discussion

was conducted pertaining to conditions regarding

making the road wider or safer. Therefore, less

restrictive means were not explored.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that

this Court grant the following relief:

1. A declaration that the denial of the Spirit of

Aloha Temple and Frederick Honig’s Special Use

Permit application is void, invalid and unconstitutional on the ground that it violates the Free Exercise

and Free Speech Clauses of the First Amendment to

the United States Constitution, the Equal Protection

Clause of the Fourteenth Amendment to the United

States Constitution, the Religious Land Use and

Institutionalized Persons Act, and the Hawaii

Constitution Article I §§ 4 and 5;

2. A declaration that the standards set forth in the

land use regulations governing Special Use Permit

applications for religious exercise, and the standards

applied by the Commission in reviewing and denying

the Spirit of Aloha Temple and Frederick Honig’s

Application are an unconstitutional prior restraint on

protected expression and religious exercise under the

First Amendment;

39a

3. An order sustaining Plaintiffs’ zoning appeal

pursuant to H.R.S. 91-14, and finding the Planning

Commission’s action in denying Plaintiffs’ Special Use

Permit application to be unlawful;

4. An order directing the Planning Commission to

grant the Spirit of Aloha Temple and Frederick Honig,

Inc. the Special Use Permit necessary to conduct

church activities on the Property as applied for in its

Application;

5. An order enjoining the Defendants, their

officers, employees, agents, successors and all others

acting in concert with them from applying their laws

in a manner that violates the Free Exercise and Free

Speech Clauses of the First Amendment to the United

States Constitution, the Equal Protection Clause of

the Fourteenth Amendment to the United States

Constitution, the equivalent protections of the Hawaii

Constitution, and the Religious Land Use and

Institutionalized Persons Act, or undertaking any and

all action in furtherance of these discriminatory and

disparate acts, and specifically enjoining the

Defendants to approve all plans and applications

submitted by the Plaintiffs in furtherance of its

development of the Property without delay;

6. An award of compensatory damages against

Defendants in favor of the Spirit of Aloha Temple and

Frederick Honig, Inc. in such amount as the Court

deems just for the loss of the Plaintiffs’ rights under

the First and Fourteenth Amendments to the United

States Constitution, the Religious Land Use and

Institutionalized Persons Act, and the Hawaii

Constitution incurred by the Spirit of Aloha Temple

and Frederick Honig, and caused by the Defendants’

laws and actions;

40a

7. An award to the Spirit of Aloha Temple and

Frederick Honig, Inc. of full costs and attorneys’ fees

arising out of Defendants’ actions and land use

decisions and out of this litigation; and

8. Such other and further relief as this Court may

deem just and appropriate.

DATED: Honolulu, Hawaii; November 26, 2014.

/s/ Jonathan S. Durrett

JONATHAN S. DURRETT

ADAM G. LANG

SHAUNA L. SILVA BELL

Attorneys for Plaintiffs

SPIRIT OF ALOHA TEMPLE

and FREDRICK R. HONIG

41a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

————

CIVIL NO. 14-00535 SOM/RLP

————

SPIRIT OF ALOHA TEMPLE,

Plaintiff,

vs.

COUNTY OF MAUI,

Defendant.

————

Verdict Form

We the jury in the above entitled matter find (please

mark appropriate blanks):

1) Has Plaintiff Spirit of Aloha Temple proved by a

preponderance of the evidence that Spirit of Aloha

Temple is a religious assembly or institution?

X

Yes

No

If you answered “Yes” to Question 1, skip question 2

and go to Question 3. If you answered “No” to Question

I, go on to Question 2.

42a

2) Has Defendant County of Maui proved by a

preponderance of the evidence that Spirit at Aloha

Temple is not a religious assembly or institution?

X

Yes

No

Please note that your answers to Questions 1 and 2

cannot both be “Yes,” but they may both be “No”

(although they need not be). Go on to Question 3.

3) Has Plaintiff Spirit of Aloha Temple proved by a

preponderance of the evidence that, with respect to

accepted zoning criteria, Defendant County of Maui

treated Plaintiff Spirit of Aloha Temple on less than

equal terms as compared to the way the County

of Maui treated a similarly situated nonreligious

assembly or institution?

X

Yes

No

If you answered “Yes” to Question 3, skip question 4

and sign and date this Verdict Form. If you answered

“No” to Question 3, go on to Question 4.

4) Has Defendant County of Maui proved by a

preponderance of the evidence that, with respect to

accepted zoning criteria, it did not treat Plaintiff Spirit

of Aloha Temple on less than equal terms as compared

to the way the County of Maui treated a similarly

situated nonreligious assembly or institution?

X

Yes

No

Please note that your answers to Questions 3 and 4

cannot both be “Yes,” but they may both be “No”

(although they need not be). Please sign and date this

verdict form.

43a

/s/ [Illegible]

Signature of Jury Foreperson

August 23, 2019

Date

44a

APPENDIX C

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

————

CIVIL NO. 14-00535 SOM-WRP

————

SPIRIT OF ALOHA TEMPLE, a Hawaii nonprofit

corporation, and FREDRICK R. HONIG,

Plaintiffs,

vs.

COUNTY OF MAUI and MAUI PLANNING COMMISSION

and STATE OF HAWAII,

Defendants.

————

Honolulu, Hawaii

October 6, 2023

————

TRANSCRIPT OF JURY TRIAL (DAY 8)

BEFORE THE HONORABLE SUSAN OKI

MOLLWAY, SENIOR UNITED STATES

DISTRICT COURT JUDGE

APPEARANCES:

For the Plaintiffs:

ADAM G. LANG, ESQ.

CLARISSE M. KOBASHIGAWA, ESQ.

Durrett Lang Morse, LLLP Pacific Guardi

an Center Mauka Tower

737 Bishop Street, Suite 1850

Honolulu, Hawaii 96813

45a

ROMAN P. STORZER, ESQ.

Admitted Pro Hac Vice

Storzer & Associates, P.C.

1025 Connecticut Avenue, NW #1000

Washington, D.C. 20036

[2] APPEARANCES: (CONTINUED)

For the Defendants:

BRIAN A. BILBERRY, ESQ.

Department of the Corporation Counsel

County of Maui

200 S High St Fl. 3

Wailuku, HI 96793

Official Court Reporter:

Gloria T. Bediamol, RPR RMR CRR FCRR

United States District Court

300 Ala Moana Boulevard

Honolulu, Hawaii 96850

Proceedings recorded by machine shorthand, transcript

produced with computer-aided transcription (CAT).

[3] INDEX

PLAINTIFF WITNESSES:

PAGE NO.

WAYNE HEDANI

DIRECT EXAMINATION BY MR. LANG

5

CROSS-EXAMINATION BY MR. BILBERRY

21

REDIRECT EXAMINATION BY MR. LANG

60

RECROSS-EXAMINATION BY MR. BILBERRY 64

RANDALL OKANEKU

DIRECT EXAMINATION BY MR. LANG

CROSS-EXAMINATION BY MR. BILBERRY

REDIRECT EXAMINATION BY MR. LANG

66

122

139

46a

DEFENSE WITNESS:

PAGE NO.

MARILYN NIWAO

DIRECT EXAMINATION BY MR. BILBERRY 144

* * *

[20] with Swaroop about his application previously?

A In the course of the commission’s proceedings, I

indicated to him and to the commission that, in my

opinion, his activities would not be prevented from

happening, in terms of conducting marriage ceremonies

between two people.

Q But did you tell him that if it hadn’t been for the

weddings that you would have rejected his application?

A

It wasn’t for the –

Q Let me rephrase. Did you tell Swaroop that if it

wasn’t for the weddings he was conducting on the

property that you would have voted to approve the

application?

A

I never told him that.

MR. LANG: I have no further questions question,

Your Honor.

THE COURT: Okay.

Mr. Bilberry.

THE COURT: So this is another witness where I

think there is an agreement between the parties, is

that right, about Mr. Bilberry’s examination including

both cross-examination within the scope of Mr. Lang’s

direct plus whatever direct questioning Mr. Bilberry

could do in his own case in chief. Is that the

agreement?

47a

MR. LANG: In an effort to speed things along, Your

Honor, yes, that is correct.

THE COURT: Okay. Go ahead. 3.

* * *

[32] unless I did not hear the answer to the first

question, and counsel appears to be testifying.

MR. BILBERRY: It’s cross-examination.

THE COURT: Overruled. Overruled. You can

answer. THE WITNESS: Yes.

BY MR. BILBERRY:

Q So you do believe that Mr. Honig’s personal

activity in marrying a couple on his property is in fact

a religious activity?

A

Yes.

Q

You told Mr. Honig that he was free to do that?

A Exactly. Several people on the commission told

him that.

Q Thank you. Did you take into consideration

Mr. Honig’s religion when you voted to deny his

application?

A

No.

Q As I understand it, you weren’t completely clear

what Mr. Honig’s religion was?

A Right. I understand that he focuses on 12

principles that he talks about – 12 different areas in

his botanical garden that he dedicates to 12 principles

which are shared by all religions. And he said his own

religion was to worship nature. I don’t know how that

relates to the 12 principles or the 12 different religions

48a

that he was advocating for each of those areas within

his botanical garden.

Q

Okay. But you didn’t doubt his beliefs?

* * *

[34] Q And he wasn’t precluded from doing so,

correct?

A

No.

Q And, again, you advised him that he was free to

take small groups of people onto his property on a

botanical garden tour, or for whatever reason, take

them to his waterfall pavilion, or anywhere else he

wanted to on his property, and perform a wedding

ceremony?

THE COURT: Okay, hold on.

MR. LANG: Objection, Your Honor. Leading is one

thing. This is counsel testifying, lacks foundation as to

taking people to the botanical gardens. I just object to

the question as lacking foundation, and counsel is

testifying.

THE COURT: Actually –

MR. BILBERRY: I’ll withdraw it.

THE COURT: Okay.

BY MR. BILBERRY:

Q You testified earlier that you personally advised

Mr. Honig that if he wanted to take a couple on his

property with a small group into a botanical garden

tour and marry them, he was free to do that?

A

Exactly. He’s free to do that today.

Q And as far as you recall, his second application

was much like the first?

49a

A It was very much like the first. They had deleted

some things.

50a

APPENDIX D

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

————

CIVIL NO. 14-00535 SOM-WRP

————

SPIRIT OF ALOHA TEMPLE, a Hawaii nonprofit

corporation, and FREDRICK R. HONIG,

Plaintiffs,

vs.

COUNTY OF MAUI and MAUI PLANNING COMMISSION

and STATE OF HAWAII,

Defendants.

————

Honolulu, Hawaii

October 5, 2023

————

TRANSCRIPT OF JURY TRIAL (DAY 7)

BEFORE THE HONORABLE SUSAN OKI

MOLLWAY, SENIOR UNITED STATES

DISTRICT COURT JUDGE

APPEARANCES:

For the Plaintiffs:

ADAM G. LANG, ESQ.

CLARISSE M. KOBASHIGAWA, ESQ.

Durrett Lang Morse, LLLP

Pacific Guardian Center Mauka Tower

737 Bishop Street, Suite 1850

Honolulu, Hawaii 96813

51a

ROMAN P. STORZER, ESQ.

Admitted Pro Hac Vice

Storzer & Associates, P.C.

1025 Connecticut Avenue, NW #1000

Washington, D.C. 20036

[2] APPEARANCES: (CONTINUED)

For the Defendants:

BRIAN A. BILBERRY, ESQ.

Department of the Corporation Counsel

County of Maui

200 S High St Fl. 3

Wailuku, HI 96793

Official Court Reporter:

Gloria T. Bediamol, RPR RMR CRR FCRR

United States District Court

300 Ala Moana Boulevard

Honolulu, Hawaii 96850

Proceedings recorded by machine shorthand, transcript

produced with computer-aided transcription (CAT).

[3] INDEX

PLAINTIFF WITNESS:

PAGE NO.

WILLIAM SPENCE

RESUMED DIRECT EXAMINATION BY

MR. STORZER

5

CROSS-EXAMINATION BY

MR. BILBERRY

95

REDIRECT EXAMINATION BY

MR. STORZER

145

RECROSS EXAMINATION BY

MR. BILBERRY

173

DEPOSITION OF JOHN RAPACZ WAS READ

TO THE JURY

177

52a

EXHIBITS:

PAGE NO.

Plaintiffs’ Exhibit 47 was received in evidence

Plaintiffs’ Exhibit 15 was received in evidence

Plaintiffs’ Exhibit 12 was received in evidence

Plaintiffs’ Exhibit 145 was received in evidence

16

19

34

155

* * *

[11] weddings?

A

Yes.

Q Have you ever seen any application for a special

use permit that involved weddings that was so limited

in scope as – as this ultimate request?

A There are always limitations on scope based on

the facts of the particular location. But, yes, this is –

this is – at least what Fred offered here is – is pretty

limited.

Q And again, I think we went over this yesterday,

but if he did not abide by these conditions, his permit

could have been revoked, right?

A It could have been. That involves a very long

process with the Planning Commission and –

Q

But he could have lost the permit.

A

It’s possible.

Q Okay. Mr. Spence, at this point after

reconsideration was granted and after the scope of the

request went down even further with respect to

weddings, because I believe the Planning Commission

or Planning Department in general didn’t have an

issue with the other uses on the property, correct?

MR. BILBERRY: Your Honor, that’s – well, never

mind. Never mind.

53a

BY MR. STORZER:

Q Let me withdraw that and focus and rephrase

that question.

It was mainly the wedding activity that the County

was [12] concerned with; is that correct?

A

No.

Q

I thought that’s what you testified to yesterday.

A No, it was – I mean, the special use permit was

for all of his activities.

Q

For the entire church?

A For the church, for the commercial weddings.

You know, we were concerned about the buildings with

no building permits. I mean we were concerned with

all of that –

Q

Okay. And just so –

A

– the water system.

Q

Just so the jury isn’t confused –

MR. BILBERRY: Your Honor, could you ask Mr.

Storzer to stop interrupting Mr. Spence?

THE COURT: I – I hear you. I think the witness

paused in his answer, so counsel thought he was done.

BY MR. STORZER:

Q Mr. Spence, I apologize if I cut you off. I thought

you had finished your answer.

A

No worries.

Q

But if you have more to add, please do so.

A

Okay. Please ask the next question.

54a

Q You had mentioned again commercial weddings,

and I was going to say just so the jury isn’t confused,

again there is no such thing as a, quote, commercial

wedding use in Maui County [13] zoning code or in the

State of Hawaii’s land use regulations, right?

A Well, Maui County code has a definition of

commercial purpose, and it includes growing,

manufacturing, processing, providing services such as

weddings, providing services for consideration or

profit.

Q

I understand that.

A So we would look at what Mr. Honig wanted to

do. We looked at the history of what had taken place.

Again, we went over yesterday the volume of what he

wanted to do. And we were looking at websites with

advertising, looking at his trade names, and we’re

going this is a commercial operation.

Q I understand, Mr. Spence, but that wasn’t my

question. My question was, is the term “commercial

wedding” a term that exists in any land use regulation

that applies here?

A

No.

Q Okay. So let me get back to the Planning

Commission. After the Planning Commission granted

reconsideration and after there was further discussion,

and after there was further reduction in the special

events to the extent that you haven’t seen before with

any other application, do you believe that Mr. Honig

and the Spirit of Aloha Temple could reasonably have

believed that the application could be granted?

A

I can’t say what Mr. Honig thought.

Q No, I’m asking you, Mr. Spence, do you believe –

let me

55a

* * *

[70] the basis of religion or religious denomination.

THE COURT: But the only unequal treatment you

can point to is the handling of the permit.

MR. STORZER: Oh, that’s not – that’s not true, Your

Honor. What we have established, I believe, or what

we’re certainly arguing is that commercial weddings –

you know, the County has talked about this idea of

commercial weddings. Commercial weddings are okay

if you’re Ali’i Kula Lavender Farm. Commercial

weddings are okay if your other churches as well. So

both in terms of religion and religious denomination,

commercial weddings are something that the County

doesn’t have any problem with, but other botanical

gardens, commercial weddings are okay.

It’s only when you’re talking about Spirit of Aloha

Temple that somehow commercial weddings becomes

a problem, whether it’s respect to religious denomination

or religion generally. I think that that’s a very clear

argument, and it falls under the nondiscrimination

claim.

THE COURT: Right. But the commercial wedding

issue is part of denying the permit. So the only action

that you’re pointing to is denial of the permit, and the

denial of the permit was not seen as treatment of

Spirit of Aloha Temple on less than equal terms as

compared to the lavender farm.

MR. STORZER: But that –

THE COURT: I’m very concerned that we are – you

* * *

56a

[119] Q And can you characterize for us what you

meant?

A Originally Mr. Honig wanted – I forget, it gets

blurry – originally he wanted 48 events every year,

some with 80, some with 40.

Q And when you say some with 80 and some with

40, you mean some with 80 people, some with 40

people?

A Yes, with people attending those events. And for

a number of months, sometimes daily we will get

emails from Mr. Honig changing that. It got very

complex. We tried to accommodate him – when I say

“we,” I mean the Planning Department – we tried to

accommodate him over and over again.

And ultimately we said, Okay, this is what – I’m

overanswering. Ultimately the Planning Department

said, This is what, you know, we’re – we’re going to

recommend, and just drew the line. Because it kept

going and going and things changed so often, we just

said, Okay, we need to stop this. We’re going to

recommend this.

Q And do you have any knowledge or

understanding as to whether Mr. Honig had been

landing a helicopter on his property?

A Yes. Back in 2000 and – I think it was for that

2007 application, neighbor complaints were that

helicopters were flying in brides and grooms and

landing on the property.

Q And it’s true that Haumana Road is a singlelane road?

A

That’s correct.

* * *

57a

[145] Q

Mr. Spence, are ag – sorry, are religious

practices precluded in the agricultural district?

A You mean – if I could clarify that, do you mean

that people cannot practice religion or their personal

beliefs in an ag zone?

Q Yeah, the question is, is an individual or a

small group of people, are they prohibited from

exercising or engaging in their religious practices in

the agricultural zone?

A

No, they’re not.

Q It does not require a special permit for people to

engage in simple religious practices in the agricultural

zone?

A

No, there – there’s no permit required for that.

MR. BILBERRY: Thank you, Mr. Spence.

THE COURT: Okay. He might be redeemed.

MR. BILBERRY: Was that – actually it was more

than one question.

MR. STORZER: I counted two, Your Honor.

MR. BILBERRY: Yeah.

THE COURT: Okay, then you know, I don’t know

about your future.

Mr. Storzer.

MR. STORZER: Thank you, Your Honor.

REDIRECT EXAMINATION

BY MR. STORZER:

Q

Mr. Spence.

58a

APPENDIX E

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

————

CIVIL NO. 14-00535 SOM-WRP

————

SPIRIT OF ALOHA TEMPLE, a Hawaii nonprofit

corporation, and FREDRICK R. HONIG,

Plaintiffs,

vs.

COUNTY OF MAUI and MAUI PLANNING COMMISSION

and STATE OF HAWAII,

Defendants.

————

Honolulu, Hawaii

October 4, 2023

————

TRANSCRIPT OF JURY TRIAL (DAY 6)

BEFORE THE HONORABLE SUSAN OKI

MOLLWAY, SENIOR UNITED STATES

DISTRICT COURT JUDGE

APPEARANCES:

For the Plaintiffs:

ADAM G. LANG, ESQ.

CLARISSE M. KOBASHIGAWA, ESQ.

Durrett Lang Morse, LLLP

Pacific Guardian Center Mauka Tower

737 Bishop Street, Suite 1850

Honolulu, Hawaii 96813

59a

ROMAN P. STORZER, ESQ.

Admitted Pro Hac Vice

Storzer & Associates, P.C.

1025 Connecticut Avenue, NW #1000

Washington, D.C. 20036

[2] APPEARANCES: (CONTINUED)

For the Defendants:

BRIAN A. BILBERRY, ESQ.

Department of the Corporation Counsel

County of Maui

200 S High St Fl. 3

Wailuku, HI 96793

Official Court Reporter:

Gloria T. Bediamol, RPR RMR CRR FCRR

United States District Court

300 Ala Moana Boulevard

Honolulu, Hawaii 96850

Proceedings recorded by machine shorthand, transcript

produced with computer-aided transcription (CAT).

[3] INDEX

PLAINTIFF WITNESSES:

PAGE NO.

FREDRICK R. HONIG

RESUMED REDIRECT EXAMINATION BY

MR. STORZER

13

RECROSS EXAMINATION BY

MR. BILBERRY

59

REDIRECT EXAMINATION BY

MR. STORZER

118

RECROSS EXAMINATION BY

MR. BILBERRY

118

60a

WILLIAM SPENCE

DIRECT EXAMINATION BY MR. STORZER

EXHIBITS:

120

PAGE NO.

Plaintiffs’ Exhibit 187 was received in evidence

24

Defendants’ Exhibit 105 was received in evidence 108

Plaintiffs’ Exhibit 6 was received in evidence

136

Plaintiffs’ Exhibit 56 was received in evidence

142

* * *

[60] about.

Q Okay. Well, he asked you about these last few

weddings that occurred in 2011 through 2015 in order

to demonstrate that the numbers of weddings you

were doing had diminished significantly. Do you recall

that?

A

Yes.

Q Okay. And you said that you had done a few

weddings in these years for close friends and family.

Do you remember that?

A

Yes.

Q Now, if you look at this summary we have, it

shows that the wedding that occurred on September 6,

2011, was a couple from Texas. Do you see that?

A

Yes.

Q

Who – who were they?

A I can’t possibly remember, you know, who I

married in 2011, who that would have been.

Q

Even if they were friends and family?

A

I can’t remember things like that.

Q

Okay. Do you have friends and family in Texas?

61a

A I have friends and family all over the world. We

have 900 members of our organization who don’t live

in Hawaii.

Q Okay. So when you say “friends and family,”

you’re referring to those 900 people as well?

A

Yes.

[61] Q Okay.

A They are my friends and family. I don’t have a

personal family. My friends and family are the people

who are the members of our organization.

Q And you indicated that in addition to the 900

you identified elsewhere than Maui, you have a total

of 1200 members?

A

Approximately.

Q And those are the people you were referring to

when you talk about friends and family.

A

Yes.

Q So when you say that you’re still providing

religious services and engaging in religious practices

and religious exercise with friends and family, you

mean as many as 1200 people.

A I don’t keep regularly – necessarily have contact

with all those people, but I consider all those people

my friends and family.

Q Right. So when you testified when your counsel

was questioning you that you’re still providing

religious services, religious practices, and religious –

and engaging in religious exercise with friends and

family, you meant all 1200 of those people, correct?

A Those 1200 people, I – if those people asked me

to serve them, I would try to serve those people.

62a

[62] Q Okay, thank you. If you look at wedding

number 586 on Defense Exhibit 123, that’s a couple

from California. Do you see that?

A

Yes.

Q

Do you know who they were?

A I can’t remember. That was – that was over a

decade over ago.

Q Okay. And if you look at 587, it was a couple

from New Jersey. Do you know who they were?

A

No.

Q And if you look at 588, it was another couple

from California. Do you know who they were?

A

No.

Q And if you look at 590, it does look like there was

a couple from Maui. Do you know who they were?

A

I can’t remember things like that.

Q And then 591, it was another couple from

California. Do you remember who they were?

A

No.

Q You do indicate – you did indicate that you do

issue a newsletter, correct?

A

Yes.

Q And you indicated that newsletter goes to all of

your members, correct?

A

Yes.

[63] Q So it goes to as many as 1200 people?

A

Yes.

63a

Q So you have a pretty broad base of members

who can participate and can be advised of through

these newsletters of events and religious exercises and

religious practices that are occurring on your property,

correct?

A No, because we don’t necessarily send advertisements to those people. We send mostly updates. We

just tell them what we’re doing. So we’re not

advertising to them to come and do a program with us.

We’re not advertising programs. We’re more or less in

our newsletters giving the news of what we are doing

here and what activities have happened, like that

when you saw –

Q

Okay, that answers the question.

So any of those 1200 members is being advised of

what’s happening at your property through the

newsletter.

A For instance, those videos for the 1920 – for

2021, the highlights, you know –

Q Mr. Honig, we’re talking about the newsletter –

we’re talking about the newsletter right now.

A

That’s what I’m talking about too.

THE COURT: I thought you were talking about

videos now.

THE WITNESS: I’m saying when we – when those

videos, the 2021 and 2022 videos, we send them out at

New Year’s to

* * *

[66] THE COURT: I got your question.

MR. BILBERRY: Sorry, Your Honor.

THE COURT: Overruled.

64a

Answer the question.

THE WITNESS: I’m sorry, you may have to pretty

the question.

BY MR. BILBERRY:

Q So you are able to do what you say you want to

be able to do as your religious practice, which is engage

in practices and exercise that you call religious on your

property with groups of 10 to 15 people that you can

then broadcast out to the entire world on your web

page, your Facebook page, or your YouTube channel,

correct?

A We’re not able to – if I were to advertise for a –

say for a teachers training course that I would like to

do at the gardens, I believe that I would be issued a

fine for that.

I have never been told by the Planning Department

that I have the right to do a teachers training course

or even to advertise to do a yoga class. Just to – if I

wanted to advertise and say, Come here for a yoga

class, I’m not permitted to do that. I am not permitted

to advertise for a meditation course to be taught at the

gardens.

Q

But you are doing – you are doing yoga –

MR. STORZER: Your Honor, I don’t think the

witness was finished answering the question.

* * *

[69] create an income stream to be able to fulfill its

mission. It means that all the money that comes in

for – to the organization is used for the purpose of the

mission of the organization.

Q Okay, Mr. Honig, when your counsel was asking

you about the two videos that showed highlights from

65a

2021 and highlights from 2022, he asked you isn’t it

true that those videos only show you with groups of

two to four people, and you corrected him and you said

no, there were groups of about 15 to 20 in those videos

in 2021 and 2022, and we saw that there were more

than one occasions of those groups.

And you’ve indicated that those were religious

practices, correct?

A

Yes.

Q And we saw pictures of groups of 15 to 20 people

in the – posed in the religious gesture that you called

as indicating namaste, correct?

A

Yes.

Q And then we also saw images of the service of

food which you called Soulution, which is embracing

and sharing vegetarian nutrition that has been going

on in ‘21 and ‘22?

A

Yes.

Q You could broadcast all that live on your

YouTube channel, correct?

A

Yes.

* * *

[109] modified in the manner I’ve articulated.

MR. BILBERRY: Okay. Thank you, Your Honor. I

would like to publish D-105 to the jury.

THE COURT: You may do so. But you’re going to

have to skip over that one page.

MR. BILBERRY: Melissa, let’s unpublish it, and

we’ll take out – we can extract page 6 really quickly.

66a

BY MR. BILBERRY:

Q

Okay, Mr. Honig –

MR. BILBERRY: Or, Your Honor, I would now

request to publish Defense Exhibit 105 to the jury.

THE COURT: Yes.

MR. STORZER: I’m sorry, Your Honor, I didn’t notice

at the end there appears to be a declaration or

something.

THE COURT: No, that will be taken out.

MR. STORZER: Oh, okay.

THE COURT: Right, we had this discussion for a

previous exhibit. That’s just an authentication.

BY MR. BILBERRY:

Q All right. Mr. Honig, the pages that we have

shown you today and which we’re going to go through

with the jury, this is – these are pages that are on the

Spirit of Aloha Temple’s web page currently, correct?

A

Yes.

Q And the first page we’re looking at here is the

home page [110] of the website?

A

Yes.

MR. BILBERRY: And if you could go to the second

page, Melissa.

BY MR. BILBERRY:

Q What we’re looking at here is also current

content on Spirit of Aloha Temple’s website?

A It’s just – just a part of it. Like what you’re

seeing here, I think that there were six items, and this

67a

is just two of the items in that that you put on this

page. There wasn’t one page that had just these two.

Q Fair enough. But Spirit of Aloha Temple is

currently offering private sacred events at the

property, correct?

A

In certain circumstances.

Q And private sacred events would include events

such as the event being depicted in this photograph,

correct?

A

For members only.

Q

Who are these two in the photograph?

A That is a photo of a wedding that happened very

long ago, and I don’t remember their names, but I was

the minister for their wedding.

Q

Okay. Do they live here on Maui?

A

No.

Q

Where do they – where do they come from?

A

I don’t remember.

68a

APPENDIX F

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

————

CIVIL NO. 14-00535 SOM-WRP

————

SPIRIT OF ALOHA TEMPLE, a Hawaii nonprofit

corporation, and FREDRICK R. HONIG,

Plaintiffs,

vs.

COUNTY OF MAUI and MAUI PLANNING COMMISSION

and STATE OF HAWAII,

Defendants.

————

Honolulu, Hawaii

October 2, 2023

————

TRANSCRIPT OF JURY TRIAL (DAY 4)

BEFORE THE HONORABLE SUSAN OKI

MOLLWAY, SENIOR UNITED STATES

DISTRICT COURT JUDGE

APPEARANCES:

For the Plaintiffs:

ADAM G. LANG, ESQ.

CLARISSE M. KOBASHIGAWA, ESQ.

Durrett Lang Morse, LLLP

Pacific Guardian Center Mauka Tower

737 Bishop Street, Suite 1850

Honolulu, Hawaii 96813

69a

ROMAN P. STORZER, ESQ.

Admitted Pro Hac Vice

Storzer & Associates, P.C.

1025 Connecticut Avenue, NW #1000

Washington, D.C. 20036

[2] APPEARANCES: (CONTINUED)

For the Defendants:

BRIAN A. BILBERRY, ESQ.

Department of the Corporation Counsel

County of Maui

200 S High St Fl. 3

Wailuku, HI 96793

Official Court Reporter:

Gloria T. Bediamol, RPR RMR CRR FCRR

United States District Court

300 Ala Moana Boulevard

Honolulu, Hawaii 96850

Proceedings recorded by machine shorthand, transcript

produced with computer-aided transcription (CAT).

[3] INDEX

PLAINTIFF WITNESS:

PAGE NO.

FREDRICK R. HONIG

RESUMED CROSS-EXAMINATION BY

MR. BILBERRY

EXHIBITS:

5

PAGE NO.

Defense Exhibit 101 was received in evidence

Defense Exhibits 81, 82, 84 and 85 were

received in evidence

Defendants’ Exhibits D-22 and D-23 were

received in evidence

Defense Exhibit 88 was received in evidence

36

52

66

68

70a

Defense Exhibit 123 was received in evidence

Defense Exhibit 14 was received in evidence

Defense Exhibit 9 was received in evidence

Defense Exhibit 16 was received in evidence

Defense Exhibit 17 was received in evidence

Defense Exhibit 139 was received in evidence

Defense Exhibit 140 was received in evidence

70

82

115

145

155

176

178

* * *

[17] to come to what are the annual reports that were

filed by – well, first actually –

MR. BILBERRY: Yeah, go ahead, scroll a little more,

Melissa. Okay, right there.

BY MR. BILBERRY:

Q First we’re going to come to what are

applications for trade names. And we have discussed

these before.

So as president of Well Being International, Inc., you

applied for several trade names under the name of this

aegis or under the name of this nonprofit corporation,

correct?

A

Yes.

Q And those three trade names were, the first one

we’re looking at here on the screen, which is Maui Gay

Weddings, right?

A

Yes.

MR. BILBERRY: And if you scroll down, Melissa, to

the next page. Keep going.

BY MR. BILBERRY:

Q

Another one you applied again for the –

MR. BILBERRY: Scroll up just a little bit.

71a

BY MR. BILBERRY:

Q

The next year 2000 –

MR. BILBERRY: No. Sorry, down – no, up. Upside

down.

BY MR. BILBERRY:

[18] Q In 2003, you again applied for a trade name

for Maui Gay Weddings, right?

A

Oh, is this a different year?

Q

I believe so.

MR. BILBERRY: Why don’t we scroll back up to the

first one so we can double-check the year.

BY MR. BILBERRY:

Q So it looks like you applied for the trade name

or Well Being International, Inc., you through you

applied for the trade name Maui Gay Weddings in

2002. Do you see that?

A

Yes.

MR. BILBERRY: And then if you scroll down again,

Melissa, to the next application.

BY MR. BILBERRY:

Q And then it looks like in 2003, you applied again

for the trade name Maui Gay Weddings, correct?

A

Yes.

MR. BILBERRY: And then if you scroll down,

Melissa, to the next application. It looks like in – go on

down to the date.

BY MR. BILBERRY:

Q In 2003, you applied for a second trade name, A

Marriage Made in Heaven, correct?

72a

A

Yes.

MR. BILBERRY: And then if you scroll down to the

next [19] application, Melissa.

BY MR. BILBERRY:

Q It looks like you then also applied in 2003 for a

third trade name, Maui Wedding Planners?

A

Yes.

MR. BILBERRY: And then if you scroll down,

Melissa, I believe there may be one more application.

BY MR. BILBERRY:

Q And then in 2007 you applied again for the

trade name A Marriage Made in Heaven, correct?

A

Yes.

Q

And if you look at the –

MR. BILBERRY: Scroll back up to the Maui

Wedding Planners application, Melissa. Yeah, right

there, keep going. And stop just before Mr. Honig’s

signature there.

BY MR. BILBERRY:

Q That’s your signature on the application, Mr.

Honig?

A

Yes.

Q

And it’s dated May 28, 2003?

A

Yes, it’s my signature.

Q Okay. And this is an application for the trade

name Maui Wedding Planners, correct?

A

Yes.

73a

Q And when you look at number point 7, it says,

“The nature of the business for which the trade name

is being used,” and it [20] says “wedding planning and

services.”

A The other one said counseling, and this one

should –

Q

We’re looking at –

THE COURT: You’re talking over each other again.

Let him finish.

Go ahead, you can answer.

THE WITNESS: I noticed that all the other ones

said counseling and wedding ceremonies or services.

This one doesn’t say counseling, it should have, but

what it says on here is wedding planning and services.

BY MR. BILBERRY:

Q Right. It says wedding planning and services,

correct?

A

Yes.

Q

And we’ll go ahead and in fairness to you –

MR. BILBERRY: Scroll up to the first one, Melissa,

so we can see what Mr. Honig was referring to.

BY MR. BILBERRY:

Q If you look at this one for A Marriage Made in

Heaven, it says counseling and marriage ceremonies.

MR. BILBERRY: Okay. And scroll up, Melissa, to the

next one.

BY MR. BILBERRY:

Q And if you look at the first application for Maui

Gay – or the second application for Maui Gay

Weddings, it

ceremonies.

says

74a

counseling

and

commitment

* * *

[22] Q Well, okay, let’s break it down more. You used

the trade name Maui Wedding Planners to advertise

for weddings in the Yellow Pages, correct?

A I remember that we did do some advertisement

in the Yellow Pages, but I’m not sure if I thought it was

under A Marriage Made in Heaven.

Q Well, you did do Yellow Page ads with the trade

name A Marriage Made in Heaven as well, right?

A

I’m sorry, could you repeat the question?

Q So you did do – you do remember advertising in

the Yellow Pages with the trade name A Marriage

Made in Heaven, correct?

A I remember that we did at one point advertise

in the Yellow Pages because that was before the

internet. There was a time that, you know, the internet

had – wasn’t up yet. And so we did advertise our

services in the Yellow Pages, yes.

Q Okay. Well, the

incorporated in 2002.

A

Sorry?

Q

Withdrawn.

first

trade

name

was

Okay. So you do recall that you advertised in the

Yellow Pages through the trade name A Marriage

Made in Heaven, correct?

A I’m not positive which – like I know that we did

not advertise for – I believe that that’s the one that we

advertised for.

75a

* * *

[26] THE COURT: So if you’re refreshing recollection, tell the witness to close the deposition, ask him to

testify with his refreshed recollection. Otherwise, the

witness is continuing to look at the deposition. I’m not

so sure he’s testifying with refreshed recollection. So

you continue to say you’re refreshing, do the refreshing

procedure.

BY MR. BILBERRY:

Q Before you close it, Mr. Honig, let’s put a

bookmark in there so you can get back to it quickly.

Okay. Now, is your recollection refreshed at having

testified that you used the trade name A Marriage

Made in Heaven to advertise in the Yellow Pages?

A

Yes.

Q And is your recollection refreshed of having

used A Marriage Made in Heaven as a trade name to

advertise on the internet?

A

Yes.

Q

And then – let me just – okay.

Is your recollection refreshed at having used the

trade name Maui Wedding Planners to advertise in the

Yellow Pages?

A

I don’t recall that.

Q And is your recollection refreshed at having

used Maui Wedding Planners to advertise on the

internet?

A Yes, we used Maui Wedding Planners on the

internet.

76a

[27] Q Okay. But you just don’t recall using Maui

Wedding Planners in the Yellow Pages.

A

I don’t recall that.

Q Okay. So you did use both the trade names A

Marriage Made in Heaven and Maui Wedding

Planners to advertise for weddings on the internet.

A

Yes.

Q And you used the trade name A Marriage Made

in Heaven to also advertise in Yellow Pages.

A I don’t believe we did them both at the same

time. We did one, and then we switched to another.

Q Fair enough. But you did use A Marriage Made

in Heaven to also advertise in the Yellow Pages at

some point.

A

Yes.

Q Okay. Mr. Honig, let me ask you, why does an

organization with a religious purpose need to have

three registered trade names to advertise for weddings?

MR. STORZER: Your Honor, I believe – objection on

the lack of foundation. I don’t believe it’s been

established that he used all three to advertise.

MR. BILBERRY: I’ll withdraw that question.

BY MR. BILBERRY:

Q Why does an organization with a religious

purpose need to advertise on the internet through two

trade names, one being A Marriage Made in Heaven

and one being Maui Wedding Planners?

* * *

[40] A Yes.

Q

And weddings? And weddings?

77a

A

I don’t see that.

MR. BILBERRY: Maybe scroll up a little bit,

Melissa. No, no, I’m sorry. There we go.

BY MR. BILBERRY:

Q

Yeah, do you see that, weddings?

A

Yes.

Q Okay. And then she’s also offering a honeymoon

cottage at our oceanfront waterfall nature sanctuary,

right?

A

Yes.

Q And if you look at the contact, it’s

MauiWeddingPlanners.com, which is one of your trade

names, right?

A

Yes.

Q Doesn’t “honeymoon cottages available at our

oceanfront waterfall nature sanctuary” refer to your

property?

A

Yes.

Q

Thank you.

And if you look at her web page – and again, if you –

anytime you want the paper copy so you can scroll at

your discretion, but if you look at her wedding page –

her website pages advertising for personal retreats,

accommodations, cottages, nowhere in these web pages

does it mention religious purpose, does it? A religious

purpose.

* * *

[42] MR. STORZER: I’m finding it warm.

THE COURT: I’m sorry. I don’t know. I’m okay. She’ll

check the thermometer.

78a

What? You want to call?

She’ll call.

MR. BILBERRY: Thank you.

THE WITNESS: Okay.

BY MR. BILBERRY:

Q Okay. So the web pages don’t mention the word

“religion,” correct?

A It doesn’t mention, but it’s all about what our

religion is. She’s teaching classes in stress management, yoga, meditation and spiritual weddings, and

those are the services that we offer under our mission

of Well Being International, which is a spiritual

nonprofit organization.

Q And in these web pages your sister through

Well Being International, Inc., is also offering vacation

rentals, correct?

A Accommodations for people who are partaking

in our services.

Q So vacation rentals for people who are getting

married on the property?

A

Yes.

Q And there’s a daily and weekly rate for that,

right, according to the web pages?

* * *

[47] A They what?

Q They cleared a space on your property so that

they could land the helicopter there.

A

No, they did not.

79a

Q You don’t recall that there was a space cleared

on the property approximately 280 feet from the

shoreline with a big “X” marked on it?

A We didn’t clear that for that purpose. It was just

a lawn that we have – it’s still there, it’s just a lawn.

And we had an X in the lawn. And as I mentioned

before, perhaps between five and ten times a helicopter

did land there.

Q And one of those times the helicopter landed

there, you had flown out the owner of Federal Express

to attend a catered lunch event at a waterfall on the

property, correct?

A

Yes.

Q And you yourself were picked up twice on the

property to be flown out to conduct weddings at other

locations, correct?

A

I only remember one time.

Q

Do you remember testifying that it was twice?

A

I don’t remember that.

Q

Okay. Well, we’ll just pass on that.

And so you never obtained a permit to have a

helicopter land on your property prior to allowing

helicopters to bring guests to the property, correct?

MR. STORZER: Objection, lack of foundation.

80a

APPENDIX G

* * *

[103] to be able to do is figure out way a way to

preserve it to move it. forward.

CHAIRMAN HEDANI: Thank you very much, Mr.

Honig. Any additional questions from the Commission

for the Applicant? Mr. Marfdin.

COMMISSIONER MARFDIN: Yeah. You

mentioned you have a negative cash flow.

just

MR. HONIG: Yes.

COMMISSIONER MARFDIN: Before we went to

lunch, there was testimony that you made $400,000 a

year or this.

MR. HONIG: Yeah, that – we lost $20,000, I have –

I am not – I have a C.P.A. doing our bookkeeping.

Everything is kept in there. I have not – you know, we

spent thousands of dollars on advertising trying

because our business was going down. And we’re not

able to advertise in the papers because of you people.

Like otherwise, we could put in the paper let’s have an

event here, something like that, but we have not.

So, we spent all of this money on advertising and

running a business, And I’m not the greatest businessman It’s not my forte. I’m a monk, and done my –

CHAIRMAN HEDANI: Mr. Marfdin.

MR. HONIG: I've done my best to, you know, to keep

this financially moving.

CHAIRMAN HEDANI: Mr. Marfdin.

* * *

81a

DIRECTOR HUNT: The question, I interpret it is if

you deny the application, will Mr. Honig cease his

operations? And we can’t speak on behalf of Mr. Honig.

We can tell you that we will try to enforce the laws that

the county has adopted. To be up front, enforcement is

a difficult task. And there’s been some criticism of the

department regarding enforcement in this particular

application and others.

And it’s a legitimate criticism, but we all have to

understand the limitations and constraints that

enforcement entails. Gathering evidence is difficult.

We have six inspectors for all three islands. We have a

past history or culture of permissiveness and turning

the other way, looking the other way. Our process is

somewhat complaint driven. We have some

organizations in our community and even editors of

papers that have openly suggested that enforcement of

our laws is wrong.

So it’s – it’s a challenging situation. The department

will enforce the law. We’ve instructed Mr. Honig to

cease his operations until he gets the necessary

permits. Whether he complies with that or not is up to

him.

CHAIRMAN HEDANI: Mr. Starr.

COMMISSIONER STARR: Yeah. I was just looking

at an advertisement that was apparently downloaded

from the Internet today. It’s dated today. I don’t know

where it [110] came from. But it is advertising for

wedding service on this property. I believe it’s $9,900

for the package. And so, it is being – business is being

solicited as we speak. And I’m wondering if that is

legal. I’m asking the director.

CHAIRMAN HEDANI: Director Hunt.

82a

DIRECTOR HUNT: Well, we would have to take a

look at the advertisement. I’m not questioning the

authenticity of that advertisement, but we have to be

objective in our investigation, make sure somebody

didn’t gin it up or that it’s not outdated or whatever.

So, I can’t make a conclusion as to whether Mr. Honig

is operating illegally currently. We will certainly

investigate and continue to investigate. I believe the

staff planner contacted the enforcement officers, and

they have been investigating.

In this particular case, we will talk to our inspectors

to make sure that this one is not just sliding through

the cracks. Apparently, it needs a little bit more

attention without picking on anyone unfairly.

CHAIRMAN HEDANI: Any additional discussion? A

question for the director. If the motion to deny is

approved, can the Applicant resubmit.

DIRECTOR HUNT: He can resubmit. He would

have to go through the process from step one. So, he

would have to submit a new application, new fees. We

would send that out

83a

Maui Accommodations

Keel Nui Botanical Gardens

Property Description

Our beautiful ocean front cottages have an exquisite

view of the ocean from the entire house. A couple can

feel like they are on the tropical vacation of their

dreams. You wake up in the morning to the sights and

sounds of the ocean and nature.

Our ocean front studios have exquisite views of the

ocean. from the interior and some have wrap around

covered decks. We have many walking paths that go

along creek beds, through our botanical garden, past

our on site waterfall and along the cliffs edge. During

different seasons we have fresh fruit and Rowers

available.

84a

If you’d like, we can schedule an on-site massage, yoga

or meditation session with one of Maui’s best. {please

inquire about pricing). We also nave private and group

surf lessons available for never-evers to advanced levels.

Close to us is both “JAWS” the famous big wave surf

beach, and ‘Twin Falls’ a beautiful hiking path that

winds along a fresh water stream to two incredible

waterfalls.

We are Located only nine miles from Paia. Paia has a

wealth of good restaurants, beaches and shopping.

Haiku is five miles and Makawao is 15 miles, All a

short distance and offer many activities for a tropical

vacation.

We can also nave an oceanfront waterfall pavilion for

weddings, romantic engagements or vow renewal. We

have onstaff wedding planners and event consultants.

(Please inquire for more information). Plan your next

retreat or group function with us.

We have six vacations rentals available on our lovely

premises and are able to accommodate up to 12 people

in separate private ocean front cottages (two of the

cottages are not oceanfront), Please call us for more

information.

Please contact directly at following locations

Phone: Carrie 808-542-4100

Email: carrie@mauiestate.com

Website: www.mauiestate.com/cottages

85a

Amenities

Mini-Kitchenettes

Some cottages have outdoor showers and outdoor

bathtubs

Washer/Dryer

Lanai

Wireless Internet

Oceanfront- excluding Nature and Tree Cottage

No Pesticides used on property

Bedrooms: 1

Total No. of Guests; 2 Rates

weekday: $75 - $200

Week: $0

Some cottages have indoor & outdoor bathtubs and

Indoor and outdoor showers, located on botanical

gardens

No Pets Allowed

Smoking Not Allowed

145/night + tax, $2175/month. Aloha Cottage

135/night + tax, $2025/month. Garden Level Cottage

200/night + tax, $3000/month. Angel Cottage

135/night + tax, $2025/month. Ocean Cottage

135/night + tax, $2025/month. Tree Cottage (located in

tropical gardens)

75/night + tax, $1125/month. Nature Cottage (located

in tropical gardens)

60.00 Cleaning Fee for ail rentals; One night free for

weekly reservation.

0% Kamaaina Discount w/HI ID. Reservations must be

paid in full before arrival.

Note: Until confirmed, rates are subject to change

without notice.

86a

87a

155 Haumana Rd. at Hana Highway google.map

yahoo.map

Location: Haiku

It’s NOT ok to contact this poster with services or

other commercial interests

88a

STATE OF HAWAII

DEPARTMENT OF COMMERCE AND

CONSUMER AFFAIRS

Business Registration Division

1010 Richards Street

Mailing Address: P.O. Box 4D, Honolulu,

Hawaii 96810

APPLICATION FOR REGISTRATION OF

TRADE NAME

(Chapter 482, Hawaii Revised Statutes)

PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK

1. Applicant’s Name: Well Being International, INC.

Applicants Address: 655 Haumana Rd, Haiku, Hawaii

96708

(Including city, state, and zip code)

2. Registration is (check one)  New OR  Renewal

3. Status of Applicant (check only one):

 Sole Proprietor  Corporation  Partnership

 LLC  LLP  Unincorporated Association

 Other(explain):

4. If applicant is an entity, list state or country of

incorporation/formation/organization:

Hawaii

5. Trade Name is: Maui Gay Weddings

6. Applicant is (check one):  Originator of name OR

 Assignee (one to whom name was assigned to by

another)

7. Nature of business for which the trade name is being

used: Counseling and commitment ceremonies

89a

I certify, under the penalties set forth in Section 4823.6, Hawaii Revised Statutes, that (check one):

 I am the applicant; or  I am the

assistant

(Office Held)

of the applicant named in the forgoing application and

that the statements made in the application are true

and correct to the best of my knowledge and belief.

Fredrick R. Honig

(Signature)

JUL 23, 2002

(Date)

SEE INSTRUCTIONS ON THE REVERSE SIDE.

Application must be certified by the applicant if an

Individual. For corporations, application must be

signed by an authorized officer of the corporation.

General or limited partnerships must be signed by a

general partner. For LLC, must be signed and certified

by a manager of a manager-managed company or by a

member of a member-managed company. LLP must be

signed and certified by a partner.

(DEPARTMENTAL USE ONLY)

Certificate of Registration No. 4002924

CERTIFICATE OF REGISTRATION OF

TRADE NAME

In accordance with the provisions of Chapter 482,

Hawaii Revised Statutes, this Certificate of

Registration is issued to secure the aforesaid applicant

the use of the said TRADE NAME throughout the

State of Hawaii for the term of: One (1) year(s) from

July 23, 2002 to July 22, 2003

90a

REGISTRATION OF A TRADE NAME WITH THE

DEPARTMENT DOES NOT GRANT YOU THE

OWNERSHIP OF THE TRADE NAME

DEPARTMENT OF COMMERCE AND CONSUMER

AFFAIRS STATE OF HAWAII

Dated: July 23, 2002

/s/ [Illegible]

(Director of Commerce and Consumer Affairs)

91a

STATE OF HAWAII

DEPARTMENT OF COMMERCE AND

CONSUMER AFFAIRS

Business Registration Division

1010 Richards Street

Mailing Address: P.O. Box 4D, Honolulu,

Hawaii 96810

APPLICATION FOR REGISTRATION OF

TRADE NAME

(Chapter 482, Hawaii Revised Statutes)

PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK

1. Applicant’s Name: Well Being International, INC.

Applicants Address: 655 Haumana Rd, Haiku, Hawaii

96708

(Including city, state, and zip code)

2. Registration is (check one)  New OR  Renewal

3. Status of Applicant (check only one):

 Sole Proprietor  Corporation  Partnership

 LLC  LLP  Unincorporated Association

 Other(explain):

4. If applicant is an entity, list state or country of

incorporation/formation/organization:

Hawaii

5. Trade Name is: Maui Gay Weddings

6. Applicant is (check one):  Originator of name OR

 Assignee (one to whom name was assigned to by

another)

7. Nature of business for which the trade name is being

used: Counseling and commitment ceremonies

92a

I certify, under the penalties set forth in Section 4823.6, Hawaii Revised Statutes, that (check one):

 I am the applicant; or

 I am the assistant President

(Office Held)

of the applicant named in the forgoing application and

that the statements made in the application are true

and correct to the best of my knowledge and belief.

Fredrick R. Honig

(Signature)

APR 14, 2003

(Date)

SEE INSTRUCTIONS ON THE REVERSE SIDE.

Application must be certified by the applicant if an

Individual. For corporations, application must be

signed by an authorized officer of the corporation.

General or limited partnerships must be signed by a

general partner. For LLC, must be signed and certified

by a manager of a manager-managed company or by a

member of a member-managed company. LLP must be

signed and certified by a partner.

(DEPARTMENTAL USE ONLY)

Certificate of Registration No. 4002924

CERTIFICATE OF REGISTRATION OF

TRADE NAME

In accordance with the provisions of Chapter 482,

Hawaii Revised Statutes, this Certificate of

Registration is issued to secure the aforesaid applicant

the use of the said TRADE NAME throughout the

State of Hawaii for the term of: TEN (10) year(s) from

July 23, 2003 to July 22, 2013.

93a

REGISTRATION OF A TRADE NAME WITH THE

DEPARTMENT DOES NOT GRANT YOU THE

OWNERSHIP OF THE TRADE NAME

DEPARTMENT OF COMMERCE AND CONSUMER

AFFAIRS STATE OF HAWAII

Dated: April 14, 2004

/s/ [Illegible]

(Director of Commerce and Consumer Affairs)

94a

STATE OF HAWAII

DEPARTMENT OF COMMERCE AND

CONSUMER AFFAIRS

Business Registration Division

1010 Richards Street

Mailing Address: P.O. Box 4D, Honolulu,

Hawaii 96810

APPLICATION FOR REGISTRATION OF

TRADE NAME

(Chapter 482, Hawaii Revised Statutes)

PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK

1. Applicant’s Name: Well Being International, Inc.

Applicants Address: 655 Haumana Rd, Haiku, Hawaii

96708

(Including city, state, and zip code)

2. Registration is (check one)  New OR  Renewal

3. Status of Applicant (check only one):

 Sole Proprietor  Corporation  Partnership

 LLC  LLP  Unincorporated Association

 Other(explain):

4. If applicant is an entity, list state or country of

incorporation/formation/organization:

Hawaii

5. Trade Name is: A Marriage Made in Heaven

6. Applicant is (check one):  Originator of name OR

 Assignee (one to whom name was assigned to by

another)

7. Nature of business for which the trade name is being

used: Counseling and Marriage ceremonies

95a

I certify, under the penalties set forth in Section 4823.6, Hawaii Revised Statutes, that (check one):

 I am the applicant; or  I am the

President

(Office Held)

of the applicant named in the forgoing application and

that the statements made in the application are true

and correct to the best of my knowledge and belief.

Fredrick R. Honig

(Signature)

APR 14, 2003

(Date)

SEE INSTRUCTIONS ON THE REVERSE SIDE.

Application must be certified by the applicant if an

Individual. For corporations, application must be

signed by an authorized officer of the corporation.

General or limited partnerships must be signed by a

general partner. For LLC, must be signed and certified

by a manager of a manager-managed company or by a

member of a member-managed company. LLP must be

signed and certified by a partner.

(DEPARTMENTAL USE ONLY)

Certificate of Registration No. 4002924

CERTIFICATE OF REGISTRATION OF

TRADE NAME

In accordance with the provisions of Chapter 482,

Hawaii Revised Statutes, this Certificate of

Registration is issued to secure the aforesaid applicant

the use of the said TRADE NAME throughout the

State of Hawaii for the term of: One (1) year(s) from

APR 15, 2003 to APR 14, 2004

96a

REGISTRATION OF A TRADE NAME WITH THE

DEPARTMENT DOES NOT GRANT YOU THE

OWNERSHIP OF THE TRADE NAME

DEPARTMENT OF COMMERCE AND CONSUMER

AFFAIRS STATE OF HAWAII

Dated: APR 15, 2003

/s/ [Illegible]

(Director of Commerce and Consumer Affairs)

97a

STATE OF HAWAII

DEPARTMENT OF COMMERCE AND

CONSUMER AFFAIRS

Business Registration Division

1010 Richards Street

Mailing Address: P.O. Box 4D, Honolulu,

Hawaii 96810

APPLICATION FOR REGISTRATION OF

TRADE NAME

(Chapter 482, Hawaii Revised Statutes)

PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK

1. Applicant’s Name: Well Being International, Inc.

Applicants Address: 655 Haumana Rd, Haiku, Hawaii

96708

(Including city, state, and zip code)

2. Registration is (check one)  New OR  Renewal

3. Status of Applicant (check only one):

 Sole Proprietor  Corporation  Partnership

 LLC  LLP  Unincorporated Association

 Other(explain):

4. If applicant is an entity, list state or country of

incorporation/formation/organization:

5. Trade Name is: Maui Wedding Planners

FRH

6. Applicant is (check one):  Originator of name OR

 Assignee (one to whom name was assigned to by

another)

7. Nature of business for which the trade name is being

used: Wedding Planning & Services

98a

I certify, under the penalties set forth in Section 4823.6, Hawaii Revised Statutes, that (check one):

 I am the applicant; or

 I am the President of Well Being International, Inc.

(Office Held)

of the applicant named in the forgoing application and

that the statements made in the application are true

and correct to the best of my knowledge and belief.

/s/ Fredrick R. Honig

(Signature)

May 28, 2003

(Date)

SEE INSTRUCTIONS ON THE REVERSE SIDE.

Application must be certified by the applicant if an

Individual. For corporations, application must be

signed by an authorized officer of the corporation.

General or limited partnerships must be signed by a

general partner. For LLC, must be signed and certified

by a manager of a manager-managed company or by a

member of a member-managed company. LLP must be

signed and certified by a partner.

(DEPARTMENTAL USE ONLY)

Certificate of Registration No. 4013186

CERTIFICATE OF REGISTRATION OF

TRADE NAME

In accordance with the provisions of Chapter 482,

Hawaii Revised Statutes, this Certificate of

Registration is issued to secure the aforesaid applicant

the use of the said TRADE NAME throughout the

State of Hawaii for the term of: One (1) year(s) from

Jun 29, 2003 to Jun 28, 2004

99a

REGISTRATION OF A TRADE NAME WITH THE

DEPARTMENT DOES NOT GRANT YOU THE

OWNERSHIP OF THE TRADE NAME

DEPARTMENT OF COMMERCE AND CONSUMER

AFFAIRS STATE OF HAWAII

Dated: Jun 29, 2003

/s/ [Illegible]

(Director of Commerce and Consumer Affairs)

100a

STATE OF HAWAII

DEPARTMENT OF COMMERCE AND

CONSUMER AFFAIRS

Business Registration Division

1010 Richards Street

Mailing Address: P.O. Box 4D, Honolulu,

Hawaii 96810

APPLICATION FOR REGISTRATION OF

TRADE NAME

(Chapter 482, Hawaii Revised Statutes)

PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK

1. Applicant’s Name: Well Being International, Inc.

Applicants Address: 655 Haumana Rd, Haiku, HI

96708, USA

(Including city, state, and zip code)

2. Registration is (check one)  New OR  Renewal

3. Status of Applicant (check only one):

 Sole Proprietor  Corporation  Partnership

 LLC  LLP  Unincorporated Association

 Other(explain):

4. If applicant is an entity, list state or country of

incorporation/formation/organization: Hawaii

5. Trade Name is: A Marriage Made in Heaven

6. Applicant is (check one):  Originator of name OR

 Assignee (one to whom name was assigned to by

another)

7. Nature of business for which the trade name is being

used: COUNSELING AND MARRIAGE CEREMONIES

101a

I certify, under the penalties set forth in Section 4823.6, Hawaii Revised Statutes, that (check one):

 I am the applicant; or

 I am the President (Office Held of the applicant

named in the forgoing application, and that the

statements made in the application are true and

correct to the best of my knowledge and belief.

Fredrick R. Honig

(Print Name)

Fredrick R. Honig

(Signature)

07/16/2007

(Date)

SEE INSTRUCTIONS ON THE REVERSE SIDE.

Application must be certified by the applicant if an

Individual. For corporations, application must be

signed by an authorized officer of the corporation.

General or limited partnerships must be signed by a

general partner. For LLC, must be signed and certified

by a manager of a manager-managed company or by a

member of a member-managed company. LLP must be

signed and certified by a partner.

(DEPARTMENTAL USE ONLY)

Certificate of Registration No. 4055386

CERTIFICATE OF REGISTRATION OF

TRADE NAME

In accordance with the provisions of Chapter 482,

Hawaii Revised Statutes, this Certificate of

Registration is issued to secure the aforesaid applicant

the use of the said TRADE NAME throughout the

State of Hawaii for the term of five years from July 16,

2007 to July 15, 2012.

102a

REGISTRATION OF A TRADE NAME WITH THE

DEPARTMENT DOES NOT GRANT YOU THE

OWNERSHIP OF THE TRADE NAME

DEPARTMENT OF COMMERCE AND CONSUMER

AFFAIRS STATE OF HAWAII

Dated: July 16, 2007

/s/ [Illegible]

(Director of Commerce and Consumer Affairs)

103a

Def. Exhibit 88

STATE/COUNTRY

Alabama

Alasaka

Arizona

Arkansas

California

Colorado

Connecticut

D.C.

Delaware

Florida

G

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