Bill Text: HI SB2275 | 2020 | Regular Session | Amended
Bill Title: Relating To Notarial Acts.
Spectrum: Moderate Partisan Bill (Democrat 9-1)
Status: (Enrolled - Dead) 2020-07-13 - Enrolled to Governor. [SB2275 Detail]
Download: Hawaii-2020-SB2275-Amended.html
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THE SENATE |
S.B. NO. |
2275 |
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THIRTIETH LEGISLATURE, 2020 |
S.D. 2 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO NOTARIAL ACTS.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to update the laws regarding notaries public including the following: to conform to the Revised Uniform Law on Notarial Acts (2018) (RULONA), the Hawaii Uniform Electronic Transactions Act, other state notary laws, and current notary practices.
SECTION 2. Chapter 456, Hawaii Revised Statutes, is amended by adding six new sections to be appropriately designated and to read as follows:
"§456-A Authority to refuse to perform notarial act. (a) A notary public may refuse to perform a notarial act if the notary public is not satisfied that:
(1) The person
executing the document is competent or has the capacity to execute the
document;
(2) The person's
signature is knowingly and voluntarily made; or
(3) The notary
public has proof of the signer's signature and identity or, if the person is a
remotely located individual, satisfactory evidence of the identity under section
456-B.
(b) A notary public may refuse to perform a
notarial act unless refusal is prohibited by law other than this chapter.
§456-B Notarial act performed for remotely
located individual.
(a) A remotely located individual may comply with
any requirement of law of this State to appear personally before or be in the
presence of a notary public at the time of the performance of a notarial act by
using communication technology to appear before a remote online notary public.
(b)
A remote online notary public located in
this State may perform a notarial act using communication technology for a
remotely located individual if:
(1) The remote online
notary public:
(A) Has
personal knowledge of the identity of the individual;
(B) Has
satisfactory evidence of the identity of the remotely located individual by
oath or affirmation from a credible witness appearing before the remote online notary
public under this chapter or this section; or
(C) Has
obtained satisfactory evidence of the identity of the remotely located
individual by using at least two different types of identity proofing;
(2) The remote online notary public is
reasonably able to confirm that a document before the remote online notary
public is the same document in which the remotely located individual made a
statement or on which the individual executed a signature;
(3) The remote online notary public, or a
person acting on behalf of the remote online notary public, creates an audiovisual
recording of the performance of the notarial act; and
(4) For a remotely located individual located outside the United States:
(A) The document:
(i) Is
to be filed with or relates to a matter before a public official or court,
governmental entity, or other entity subject to the jurisdiction of the United
States; or
(ii) Involves
property located in the territorial jurisdiction of the United States or involves
a transaction substantially connected with the United States; and
(B) The
act of making the statement or signing the record is not prohibited by the
foreign state in which the remotely located individual is located.
(c) If a notarial act is performed under this
section, any certificate of notarial act required by this chapter or other law
of the State shall indicate that the notarial act was performed using
communication technology.
(d)
A form of certificate of notarial act subject
to this section and authorized by law of the State, including a certificate of
acknowledgment provided in section 502-41, is sufficient if it:
(1) Complies with rules adopted under this
section; or
(2) Is in the form authorized by law of the
State and contains a statement substantially as follows: "This notarial act
involved the use of communication technology."
(e)
A remote online notary public, guardian,
conservator, or agent of a remote online notary public, or a personal
representative of a deceased notary public shall retain the audiovisual
recording created under this section or cause the recording to be retained by a
repository designated by or on behalf of the person required to retain the
recording. Unless a different period is
required by rule adopted under this section, the recording shall be retained for
a period of at least ten years after the recording is made.
(f)
Before a remote online notary public
performs the remote online notary public's initial notarial act under this
section, the remote online notary public shall notify the attorney general that
the remote online notary public will be performing notarial acts with respect
to remotely located individuals and identify the technologies that the remote online
notary public intends to use. The
technology selected by a remote online notary public to perform notarial acts for
remotely located individuals shall conform to the attorney general's standards
developed for this chapter.
(g)
In addition to adopting, amending, or
repealing rules under section 456-1.5 and section 456-8, the attorney general may
adopt, amend, or repeal rules pursuant to chapter 91 regarding the performance
of notarial acts under this section, including:
(1) Prescribing the means of performing a
notarial act involving a remotely located individual using communication
technology;
(2) Establishing standards for communication
technology and identity proofing;
(3) Establishing requirements and procedures to
approve providers of communication technology and the process of identity
proofing; and
(4) Establishing standards and a period of
retention of an audiovisual recording created under this section.
(h)
Before adopting, amending, or repealing
a rule governing the performance of a notarial act with respect to a remotely
located individual, the attorney general shall consider:
(1) The most recent standards regarding the
performance of a notarial act with respect to a remotely located individual
promulgated by national standard-setting organizations and the recommendations
of the National Association of Secretaries of State;
(2) The standards, practices, and customs of
other jurisdictions that have laws substantially similar to this section; and
(3) The views of governmental officials and
entities and other interested persons.
(i)
For purposes of this section, the
following definitions shall apply:
"Communication
technology" means an electronic device or process that:
(1) Allows a remote
online notary public and a remotely located individual to communicate with each
other simultaneously by sight and sound; and
(2) When necessary
and consistent with other applicable law, facilitates communication with a
remotely located individual who has a vision, hearing, or speech impairment.
"Foreign
state" means a jurisdiction other than the
"Identity
proofing" means a process or service by which a third person provides a remote
online notary public with a means to verify the identity of a remotely located
individual by a review of personal information from public or private data
sources.
"Outside
the
"Remote
online notary public" means an individual commissioned by the department of
the attorney general to perform notarial acts for remotely located individuals.
"Remotely
located individual" means an individual who is not in the physical
presence of the remote online notary public who performs a notarial act under
this section.
§456-C Application; qualifications. (a) A notary public or an
applicant for commission as a notary public may apply to the attorney general
to be commissioned as a remote online notary public in the manner provided by
this section.
(b) A person qualifies to be commissioned as a
remote online notary public by:
(1) Satisfying the qualification requirements
for commission as a notary public under this chapter;
(2) Paying the application fee; and
(3) Submitting to the attorney general an
application in the form prescribed by the attorney general that satisfies the
attorney general that the applicant is qualified.
(c) The attorney general may charge a fee for an
application submitted under this section in an amount necessary to administer
this section.
(d) The technology selected by a remote online
notary public to perform notarial acts shall conform to the attorney general's
standards developed under this section.
(e) The remote online notary public under this chapter
shall forthwith file a literal or photostatic copy of the person's commission
with the clerk of the circuit court of the circuit in which the remote online notary
public resides.
(f) An individual commissioned as a remote online notary
public by the attorney general under this section is a notary public for purposes
of this chapter and is subject to the requirements, powers, and duties of a notary
public under this chapter.
§456-D Notification regarding performance of
notarial act on electronic record; selection of technology; acceptance of
tangible copy of electronic record.
(a) A notary
public may select one or more tamper-evident technologies to perform notarial
acts with respect to electronic documents. A person may not require a notary public to perform
a notarial act with respect to an electronic document with a technology that
the notary public has not selected.
(b) Before a notary public performs the notary
public's initial notarial act with respect to an electronic document, a notary
public shall notify the attorney general that the notary public will be
performing notarial acts with respect to electronic documents and identify the
technology the notary public intends to use. The technology
selected by a remote online notary public for remote online notarizations shall
conform to the attorney general's standards developed for this chapter.
(c) The
registrar of conveyances may accept for recording under chapter 502 a tangible
copy of an electronic document containing a notarial certificate as satisfying
any requirement that a document accepted for recording be an original, if the
notary public executing the notarial certificate certifies that the tangible
copy is an accurate copy of the electronic document.
§456-E Validity of notarial acts.
Except as otherwise provided in section 456-14, the failure of a
notary public to perform a duty or meet a requirement specified in this chapter
does not validate or invalidate a notarial act performed by the notary public. The validity of a notarial act under this chapter
does not prevent an aggrieved person from seeking to invalidate the document or
transaction that is the subject of the notarial act or from seeking other
remedies based on law of the State other than this chapter or based on law of
the United States. This section does not
validate a purported notarial act performed by a person who does not have the
authority to perform notarial acts.
§456-F Relation to federal Electronic Signatures
in Global and National Commerce Act. This chapter modifies, limits, and
supersedes the federal Electronic Signatures in Global and National Commerce
Act, Title 15 United States Code section 7001, et seq., but does not modify,
limit, or supersede section 101(c) of that Act, Title 15 United States Code section
7001(c), or authorize electronic delivery of any of the notices described in
section 103(b) of that Act, Title 15 United States Code section 7003(b)."
SECTION 3. Section 456-1, Hawaii Revised Statutes, is amended to read as follows:
"§456-1 [Appointment;] Commission;
renewal. (a) The attorney general may, in the attorney
general's discretion, [appoint and] commission such number of notaries
public for the State as the attorney general deems necessary for the public
good and convenience. The term of [office]
commission of a notary public shall be four years from the date of the
notary's commission, unless sooner removed by the attorney general for cause
after [due] the opportunity for hearing; provided that after [due]
the opportunity for hearing the commission of a notary public may be
revoked or the notary public may be otherwise disciplined by the
attorney general in any case where any change occurs in the notary's [office,]
commission, occupation, residence, or employment [which] that
in the attorney general's judgment renders the holding of such commission by
the notary no longer necessary for the public good and convenience. Each notary shall, upon any change in the
notary's [office,] commission, occupation, residence, or
employment, forthwith report the same to the attorney general.
(b)
Each notary public shall be responsible for renewing the notary public's
commission on a timely basis and satisfying the renewal requirements provided
by law. The failure to renew a
commission in a timely manner [may] shall cause the commission to
be forfeited[, if the attorney general finds that the failure was done
knowingly]; provided that a forfeited commission may be restored by the
attorney general within one year after the date of forfeiture upon compliance
with the commission renewal requirements provided by law and upon written
application and payment of all applicable fees."
SECTION
4. Section 456-1.6, Hawaii Revised
Statutes, is amended as follows:
1.
Adding twelve new definitions to be appropriately
inserted and to read:
""Acknowledgment"
means a declaration by a person before a notary public that the person has
signed a document for the purpose stated in the document and, if the document
is signed in a representative capacity, that the person signed the document
with proper authority and signed it as the act of the person or entity identified
in the document.
"Document"
means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
"Electronic"
means relating to technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
"Electronic
signature" means an electronic symbol, sound, or process attached to or
logically associated with a document and executed or adopted by a person with
the intent to sign the document.
"In
a representative capacity" means acting as:
(1) An authorized
officer, agent, partner, trustee, or other representative for a person other than
an individual;
(2) A public
officer, personal representative, guardian, or other representative, in the
capacity stated in a document;
(3) An agent or
attorney-in-fact for a principal; or
(4) An authorized
representative of another in any other capacity.
"Notarial
act" means an act, whether performed with respect to a tangible or
electronic document, that a notary public may perform under the law of this
State. The term includes taking an
acknowledgment, administering an oath or affirmation, taking a verification upon
oath or affirmation, witnessing or attesting a signature, certifying or attesting
a copy, and noting a protest of a negotiable instrument.
"Notary
public" means an individual commissioned to perform a notarial act by the attorney
general under this chapter.
"Sign" means, with present
intent to authenticate or adopt a document:
(1) To
execute or adopt a tangible symbol; or
(2) To attach or
logically associate with the document an electronic symbol, sound, or process.
"Signature" means a
tangible symbol or an electronic signature that evidences the signing of a document.
"Stamping
device" means:
(1) A physical device
capable of stamping or impressing upon a tangible document a notary seal; or
(2) An electronic
device or process capable of attaching to or logically associating with an electronic
document a notary seal.
"Tamper-evident" means any changes to an electronic
document that display evidence of the change.
"Verification on oath or affirmation" means a declaration, made by a person on oath or affirmation before a notary public, that a statement in a document is true."
2. By amending the definition of "proof of
the signer's signature and identity" to read:
""Proof of the signer's signature
and identity" means [proof evidenced by production of a current
identification card or document issued by the United States, this State, any
other state, or a national government that contains the bearer's photograph and
signature.] satisfactory evidence of the identity of an individual
appearing before the notary public if the notary public can identify the
individual:
(1) By means of:
(A) Having
personal knowledge of the identify of an individual before the officer if the
individual is personally known to the notary public through dealings sufficient
to provide reasonable certainty that the individual has the identity claimed;
(B) A
passport, driver's license, or government issued nondriver identification card that
is valid or expired not more than three years before the performance of the
notarial act and contains the signature and photograph of the individual;
(C) Another
form of government identification issued to an individual that is valid or
expired not more than three years before performance of the notarial act,
contains the signature and photograph of the individual, and is satisfactory to
the notary public; or
(D) By
verification on oath or affirmation of a credible witness personally appearing before
the notary public and known to the notary public or whom the notary public can
identify on the basis of a passport, driver’s license, or government issued
nondriver identification card that is valid or expired not more than three
years before performance of the notarial act; or
(2) By requiring an individual to provide additional
information or identification credentials necessary to assure the notary public
of the identity of the individual."
3.
By repealing the definition of "personally knowing".
["Personally knowing" or
"personal knowledge" means having an acquaintance, derived from association
with the individual, which establishes the individual's identity with at least
a reasonable certainty."]
SECTION 5. Section 456-2, Hawaii Revised Statutes, is
amended to read as follows:
"§456-2 Qualifications; oath.
Every person [appointed] commissioned
as a notary public shall, at the time of the person's [appointment,]
commission, be a resident of the State, possess the other qualifications
required of [public officers] a notary public and be at least
eighteen years of age. Every person [appointed
to that office] before being commissioned as a notary public, shall[,
before entering thereon,] take and subscribe an oath for the faithful discharge
of the person's duties, which oath shall be filed in the department of the
attorney general."
SECTION 6. Section 456-3, Hawaii Revised Statutes, is amended to read as follows:
"§456-3
Seal. Every notary public shall
constantly keep [an engraved seal of office or] a rubber stamp [facsimile]
notary seal which shall clearly show, when [embossed,] stamped[,]
or impressed upon a tangible document[,] or when attached to
or logically associated with an electronic document, only the notary's
name, the notary's commission number, and the words, "notary public"
and "State of Hawaii". The notary
seal must be capable of being copied together with the document to which it is
stamped, impressed, or attached, or with which it is logically associated. The notary public shall authenticate all the
notary's official acts, attestations, certificates, and instruments therewith,
and shall always add to an official signature the typed or printed name of the
notary and a statement showing the date that the notary's commission expires. Upon resignation, death, expiration of term of
[office] commission without [reappointment,] renewal,
or [removal from] revocation, or abandonment of [office,] commission,
the notary public shall immediately deliver the notary's seal to the attorney
general who shall deface or destroy the same. [If any notary fails to comply with this
section within ninety days of the date of the notary's resignation, expiration
of term of office without reappointment, or removal from or abandonment of
office or if the notary's personal representative fails to comply with this
section within ninety days of the notary's death, then the notary public or the
notary's personal representative shall forfeit to the State not more than $200,
in the discretion of the court, to be recovered in an action to be brought by
the attorney general on behalf of the State.] If a notary public has
used an electronic stamping device, upon resignation, death, expiration of term
of commission without renewal, or revocation or abandonment of commission, the
notary public shall disable the electronic stamping device by destroying, defacing,
damaging, erasing, or securing it against use in a manner that renders it
unusable and shall submit a declaration to the attorney general that the electronic
stamping device was disabled and state the date and manner in which the device
was disabled."
SECTION 7. Section 456-4, Hawaii Revised Statutes, is amended to read as follows:
"§456-4 Filing copy of commission; authentication of acts. (a) Each person [appointed and] commissioned
as a notary public under this chapter shall forthwith file a literal or
photostatic copy of the person's commission, an impression of the person's tangible
seal, and a specimen of the person's official signature with the clerk of the circuit
court of the circuit in which the notary public resides. Each person [appointed and] commissioned
as a notary public under this chapter may also, at the person's option,
file the above-named documents with the clerk of any other circuit court.
Thereafter any clerk, when [thereunto] requested, shall certify to the official
character and acts of any such notary public whose commission, impression of tangible
seal, and specimen of official signature [is] are so filed in the
clerk's office. A notary public's
electronic seal is not subject to the requirements of this section.
(b) All documents filed under this section may be maintained in tangible or electronic format."
SECTION 8. Section 456-5, Hawaii Revised Statutes, is amended to read as follows:
"§456-5 Official bond. Each notary public forthwith and before entering
upon the duties of the notary's [office] commission shall
execute, at the notary's own expense, an official surety bond which shall be in
the sum of $1,000. Each bond shall be
approved by a judge of the circuit court.
The obligee of each bond, or bond continuation
certificate, shall be the State and the condition contained therein shall
be that the notary public will well, truly, and faithfully perform all the
duties of the notary's [office] commission which are then or may
thereafter be required, prescribed, or defined by law or by any rule made under
the express or implied authority of any statute, and all duties and acts undertaken,
assumed, or performed by the notary public by virtue or color of the notary's [office.]
commission. The surety on any such
bond, or bond continuation certificate, shall be a surety company
authorized to do business in the State. After approval the bond, or bond
continuation certificate, shall be deposited and kept on file in the office
of the clerk of the circuit court of the judicial circuit in which the notary
public resides. The clerk shall keep a
book to be called the "bond record", in which the clerk shall record
such data in respect to each of the bonds or bond continuation certificates
deposited and filed in the clerk's office as the attorney general may direct."
SECTION
9. Section 456-7, Hawaii Revised Statutes,
is amended by amending subsection (a) to read as follows:
"(a) A person commits the offense of unauthorized
practice as a notary public if the person knowingly engages in or offers to
engage in any duties of [the office of] a notary public without first
complying with all of the following:
(1) Being [appointed
and] commissioned as a notary public by the attorney general;
(2) Filing a copy of the person's commission, an impression of the person's seal, and a specimen of the person's official signature with the clerk of the circuit court of the circuit in which the person resides; and
(3) Executing an official surety bond pursuant to section 456-5."
SECTION
10. Section 456-8, Hawaii Revised
Statutes, is amended to read as follows:
"§456-8 Rules. The attorney general, subject to chapter 91,
may prescribe such rules as the attorney general deems advisable concerning the
administration of this chapter, the [appointment] commission and
duties of notaries public, [the duties of other officers thereunder,]
and such measures as may be necessary to prevent the fraudulent use of a
notarized document after placement of the notary's seal. The rules shall have the force and effect of
law."
SECTION
11. Section 456-9, Hawaii Revised Statutes,
is amended to read as follows:
"§456-9 Fees and administrative fines. (a) The
attorney general shall charge and collect the following fees for:
(1) Issuing the original
commission, $40; [and]
(2) Renewing the
commission, $40[.]; and
(3) Electronic processing
service fees of up to ten per cent of the amount of the transaction.
These fees may be adjusted, and any other
fees may be established and adjusted, by adopting rules pursuant to chapter 91.
(b) The
court fees for filing a copy of a commission and for each certificate of
authentication shall be specified by the supreme court.
(c) The
attorney general may impose and collect the following administrative fines for a
notary public's failure to:
(1) Maintain an
official seal of [one type, either a single engraved seal or] a single
rubber stamp [facsimile] seal, on which shall be inscribed the name of
the notary public, the commission number of the notary public, and the words
"notary public" and "State of Hawaii" only, $20;
(2) Surrender the
notary public's [seal] physical stamping device and certificate
to the attorney general within ninety days of resignation, [removal from office,]
revocation of commission, or the expiration of a term without renewal,
$200;
(3) Disable the notary public's electronic stamping device
within ninety days of resignation, revocation of commission, or the expiration
of a term without renewal, $200;
[(3)] (4) Authenticate every acknowledgment or
jurat with a certificate that shall be signed and dated by the notary, include
the printed name and official stamp or seal of the notary, identify the
jurisdiction in which the notarial act is performed, [describe in close
proximity to the acknowledgment or jurat the document being notarized, and
state the number of pages and date of the document,] $500;
[(4)] (5) [Record] Maintain a journal of
all of the notary public's transactions as prescribed by section 456-15 and
applicable rules, $200; and
[(5) Surrender the notary
public's record books to the attorney general within ninety days of the end
date of the commission, resignation, or removal from office, $500; and]
(6) Notify the attorney general within ten days after loss,
misplacement, or theft of the notary public's [seal, stamp,] stamping
device or any [record book,] journal, inform the appropriate
law enforcement agency in the case of theft, and deliver a copy of the law enforcement
agency's report of the theft to the attorney general, $20.
(d) The foregoing moneys collected by the attorney general pursuant to this section shall be deposited into the notaries public revolving fund established by section 456-9.5, except that if that fund is terminated, the foregoing moneys shall thereafter be deposited with the director of finance to the credit of the general fund.
(e) All unpaid fees, fines, and forfeitures shall
constitute a debt due and owing to the State."
SECTION 12. Section 456-9.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"§456-9.5 Notaries public revolving fund.
(a) There is established in the
state treasury the notaries public revolving fund into which shall be
deposited:
(1) All
fees, administrative fines, charges, or other payments received pursuant to
section 456-9;
(2) Penalties
and fines for violations of section 456-3[,] or 456-7[, or
456-16;];
(3) Appropriations
made for deposit into the notaries public revolving fund; and
(4) Interest earned on money in the notaries public revolving fund."
SECTION
13. Section 456-14, Hawaii Revised
Statutes, is amended to read as follows:
"§456-14 [Notary] Authority to perform notarial act; notary connected with a
corporation or trust company[;
authority to act].
(a) Except as otherwise provided in subsection (b):
(1) A notary public
may perform a notarial act authorized by this chapter or by law of the State other
than this chapter; and
(2) It shall be lawful
for any notary public, although an officer, employee, shareholder, or director
of a corporation or trust company to take the acknowledgment of any party to
any written instrument executed to or by the corporation or trust company, or
to administer an oath to any shareholder, director, officer, employee, or agent
of the corporation or trust company, or to protest for nonacceptance or nonpayment
of bills of exchange, drafts, checks, notes, and other negotiable instruments [which]
that may be owned or held for collection by the corporation or trust
company[; provided it shall be unlawful for any notary public to take the
acknowledgment of any party to an instrument, or to protest any negotiable
instrument, where the notary is individually a party to the instrument].
(b) A notary public may not perform a notarial act with respect to a document
to which the notary public or the notary public's spouse or civil partner is a
party or in which either of them has a direct beneficial interest. A
notarial act performed in violation of this section is voidable.
(c) A
notary public may certify that a tangible copy of an electronic document is an
accurate copy of the electronic document."
SECTION 14. Section 456-15, Hawaii Revised Statutes, is amended to read as follows:
"§456-15 [Record;] Journal; copies as evidence.
[Every notary public shall record at
length in a book of records all acts, protests, depositions, and other things,
by the notary noted or done in the notary's official capacity. For each official act, the notary shall enter
in the book:] (a) A notary public
shall maintain a journal in which the notary public chronicles all notarial
acts that the notary public performs. The notary public shall retain the
journal for ten years after the performance of the last notarial act chronicled
in the journal.
(b)
A journal may be created on a tangible
medium or in an electronic format. A notary
public shall maintain only one tangible journal at a time to chronicle all
notarial acts performed regarding tangible documents and one electronic journal
at a time to chronicle all notarial acts performed regarding electronic documents.
If the journal is maintained on a
tangible medium, it must be a permanent, bound register with numbered pages. If the journal is maintained in an electronic
format, it must be in a permanent, tamper-evident electronic format complying with
the rules of the attorney general.
(c)
A notary public having the care and
custody of the journal may cause the same to be photographed, microphotographed,
reproduced on film, or copied to an electronic format. Any device or electronic storage system used
to copy or reproduce the journal shall accurately reflect the information in
the original thereof in all details.
(d)
A photograph, microphotograph, reproduction
on film, or electronic copy of a journal shall be deemed to be an original
record for all purposes, including introduction in evidence in all courts or
administrative agencies. A transcript,
exemplification, facsimile, or certified copy thereof, for all purposes recited
in this section, shall be deemed to be a transcript, exemplification, facsimile,
or certified copy of the original record.
(e) An entry in a journal shall be made contemporaneously
with performance of the notarial act and contain the following information:
(1) The type, date, and time of day of the notarial act;
(2) The title or type and date of the document or proceeding and the nature of the act, transaction, or thing to which the document relates;
(3) The [signature,]
full printed name[,] and address of each person whose signature
is notarized and of each witness[;] and, if the journal is maintained
in a tangible medium, the signature of each such person;
(4) [Other parties
to the instrument; and] If identity of the person is based on personal
knowledge, a statement to that effect;
(5) [The manner in
which the signer was identified.] If identity of the person is based on
satisfactory evidence, a brief description of the method of identification and
the identification credential presented, if any, including the identification
number and date of expiration of any identification credential; and
(6) The fee, if any, charged by the notary
public.
(f)
If a notary public's journal is lost or
stolen, the notary public shall promptly notify the attorney general on
discovering that the journal is lost or stolen.
(g)
On resignation from, or the expiration,
revocation, or suspension of, a notary public's commission, the notary public
shall retain the notary public's journal in accordance with this section and
inform the attorney general where the journal is located.
(h)
On the death or adjudication of incompetency
of a current or former notary public, the notary public's personal representative
or guardian or any other person knowingly in possession of the journal shall
transmit it to the attorney general or a repository approved by the attorney
general.
(i)
All copies or certificates granted by
the notary shall be under the notary's hand and notary seal and shall be
received as evidence of such transactions.
(j)
The journals are subject to such reasonable
periodic, special, or other audits or inspections by the department of the
attorney general, within or without this State, as the attorney general
considers necessary or appropriate. An
audit or inspection may be made at any time and without prior notice. The department of the attorney general may copy,
and remove for audit or inspection copies of, all records the department of the
attorney general reasonably considers necessary or appropriate to conduct the
audit or inspection. If any notary fails
to comply with this section, then the notary shall be subject to an
administrative fine of not less than $50 nor more than $500. All unpaid fees, fines, and forfeitures shall
constitute a debt due and owing to the State."
SECTION 15. Section 456-17, Hawaii Revised Statutes, is amended to read as follows:
"§456-17 Fees. Subject to section 456-18, every notary public
is entitled to demand and receive the following fees:
For noting the protest of mercantile paper, $5;
For each notice and certified copy of protest, $5;
For noting any other protest, $5;
For every notice thereof, and certified copy of protest, $5;
For every deposition, or official certificate, $5;
For the administration of oath, including the certificate of the oath, $5; for affixing the certificate of the oath to every duplicate original instrument beyond four, $2.50;
For taking any acknowledgment, $5 for each party signing; for affixing to every duplicate original beyond one of any instrument acknowledged before the notary, the notary's certificate of the acknowledgment, $2.50 for each person making the acknowledgment.
For
any of the foregoing notarial acts performed for a remotely located individual
under section 456-B, other than affixing a notary's certificate to a duplicate original,
$25."
SECTION
16. Section 456-19, Hawaii Revised Statutes,
is amended to read as follows:
"[[]§456-19[]] Notary
signing for disabled person. A notary may sign the name of a person
physically unable to sign or to make a mark on a document presented for notarization;
provided that the notary is satisfied that the person has voluntarily given
consent for the notary to sign on the person's behalf, if the notary writes, in
the presence of the person: "Signature
affixed by notary pursuant to section 456-19, Hawaii Revised Statutes." beneath
the signature, and if a doctor's written certificate is provided to the notary
certifying that the person is unable to physically sign or make a mark because
of the disability, and that the person is capable of communicating the person's
intentions. The certificate shall be
attached to the document."
SECTION
17. Section 456-20, Hawaii Revised
Statutes, is amended by amending its title and subsection (a) to read as
follows:
"[[]§456-20[]]
Failure to verify identity and signature.
(a) A person commits the offense of failure to verify
identity [and signature] if the person is a commissioned notary public
and knowingly notarizes a document and[:
(1) If] if
a witness to the signing of the instrument, fails to verify the identity of the
signer by [personally knowing the signer or by comparing the personal
appearance of the signer with satisfactory proof of the signer's identity; or]
proof of the signer's signature and identity, or by obtaining satisfactory
evidence of identity under section 456‑B of a remotely located individual.
[(2) If not a witness
to the signing of the instrument, fails to verify the identity of the signer by
personally knowing the signer or by comparing the personal appearance of the
signer with satisfactory proof of the signer's identity; or fails to verify the
signature of the signer by recognizing the signature of the signer by personal
familiarity with the signature, or by comparing the signature with satisfactory
proof of the signer's signature.]"
SECTION
18. Section 456-21, Hawaii Revised
Statutes, is amended to read as follows:
"[[]§456-21[]] Failure to authenticate with a certification
statement. (a)
A person commits the offense of failure
to authenticate with a certification statement if the person is a commissioned
notary public and knowingly notarizes a document and fails to include any of
the following in the notary certification:
(1) Date of notarization and signature of the notary public;
(2) The printed name,
date of expiration, and stamp or seal of the notary public; and
(3) Identification of
the jurisdiction in which the notarial act is performed[;
(4) Identification
or description of the document being notarized, placed in close proximity to
the acknowledgment or jurat; and
(5) A statement of the number of pages and date
of the document].
(b) If a notarial act regarding a tangible record
is performed by a notary public, an official stamp shall be affixed to or embossed
on the certificate. If a notarial act is
performed regarding a tangible record by a notary public and the certificate contains
the information specified in this section, an official stamp shall be affixed
to the certificate. If a notarial act regarding
an electronic record is performed by a notarial public and the certificate
contains the information specified in this section, an official stamp shall be attached
to or logically associated with the certificate.
[(b)]
(c) Any person who violates this section
shall be guilty of a misdemeanor and shall be sentenced in accordance with
chapter 706.
[(c)]
(d) A conviction under this section
shall result in the automatic revocation of the notary public's commission."
SECTION
19. Section 502-42, Hawaii Revised
Statutes, is amended to read as follows:
"§502-42 Certificate, contents. The certificate of acknowledgment shall state in
substance that the person who executed the instrument appeared before the [officer]
notary public granting the certificate and acknowledged or stated that
the person executed the same, and that [such] the person was
personally known to the [officer] notary public granting [such]
the certificate to be the person whose name is subscribed to the
instrument as a party thereto, or was proved to be [such] the party
by the oath or affirmation of a credible witness known to the [officer] notary
public whose name shall be inserted in the certificate[.] or by
other satisfactory evidence of identity under the law of this State. If the person who executed the instrument
appeared before a notary public as a remotely located individual under section
456-B, then the certificate shall indicate that the notarial act was performed
using communication technology in a manner provided in section 456-B. It shall not be ground for the rejection of any
[such] certificate, or for refusing to accept [such] the
instrument for record or in evidence, that the certificate fails to state that the
person making the acknowledgment stated or acknowledged that the instrument was
executed freely or voluntarily by the person or as the person's free act and
deed."
SECTION
20. Section 502-48, Hawaii Revised
Statutes, is amended to read as follows:
"§502-48 Identification of person making. No acknowledgment of any conveyance or other
instrument, except as provided by this chapter, whereby any real estate is
conveyed or may be affected, shall be taken, unless the person offering to make
the acknowledgment is personally known to the [officer] notary public
taking the acknowledgment to be the person whose name is subscribed to the
conveyance or instrument as a party thereto, or is proved to be such by the
oath or affirmation of a credible witness known to the [officer] notary
public, or by production of a [current] valid identification
card or document issued by the United States, this State, any other state, or a
national government that contains the bearer's photograph and signature[.],
or by obtaining satisfactory evidence of identity of a remotely located individual
under section 456-B."
SECTION 21. Section 502-72, Hawaii Revised Statutes, is amended to read as follows:
"§502-72
Disposition of records. [Except
as otherwise provided in respect to notaries public by section 456-16, the]
The books of record so kept shall every five years, and upon the
resignation, death, or removal from office of such judge or other officer, be deposited
with the clerk of the circuit court of the judicial circuit for and in which
the judge or other officer was or is authorized to act."
SECTION
22. Section 456-16, Hawaii Revised Statutes,
is repealed.
["§456-16 Disposition of records; penalty.
The records of each notary public shall be deposited
with the office of the attorney general upon the resignation, death, expiration
of each term of office, or removal from or abandonment of office. If any
notary fails to comply with this section within ninety days of the date of the
resignation, expiration of any term of office, or removal from or abandonment
of office or if the notary's personal representative fails to comply with this
section within ninety days of the notary's death, then the notary or the notary's
personal representative shall forfeit to the State not less than $50 nor more
than $500, in the discretion of the court, in an action brought by the attorney
general on behalf of the State."]
SECTION
23. This Act does not affect rights and
duties that matured, penalties that were incurred, and proceedings that were begun
before its effective date.
SECTION 24. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION
25. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 26. This Act shall take effect on July 1, 2021.
Report Title:
Notaries Public; Remote Notarization; Electronic Documents
Description:
Updates laws concerning notaries public to conform to the Revised Uniform Law on Notarial Acts (2018), the Hawaii Uniform Electronic Transactions Act, other state notary laws, and current notary practices. Effective 7/1/2021. (SD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
