HI Administrative Rules | NNA
Rule

HI Administrative Rules

Notary Law Update: HI Administrative Rules

State: Hawaii

Summary:

New administrative rules adopted by the Attorney General and effective May 5, 2008, provide many new standards for the performance of notarial acts, granting of commissions and regulation of the conduct of Notaries. However, due to the enactment of a new statute by the Hawaii Legislature, the administrative rule dictating the required elements in a Notary’s official seal maybe short-lived. Until January 1, 2009, the Notary’s commission number must appear in the official seal; starting January 1, 2009, it may not.

Signed:  May 05, 2008

Effective:  May 05, 2008

Chapter: N/A

Affects:

Title 5, Chapter 11 of the Hawaii Administrative Rules

Changes:

Notary Seal, Signature and Journal

  1. Prescribes that the Notary’s official seal must be a circular engraved seal or rubber stamp that is not over two inches in diameter and contains a serrated or milled edge border, the name of the Notary, the Notary’s commission number and the words “Notary Public” and “State of Hawaii.” (Note: newly enacted HB 2920, effective January 1, 2009, requires only the Notary’s name and the words “Notary Public” and “State of Hawaii” to appear in the seal. Thus, seals containing the Notary’s commission number may only be legal until the effective date of the new law.)
  2. Requires the Notary to sign every notarial certificate at the time of notarization, with the signature as filed with the clerk of the circuit court in the circuit in which the Notary resides and as the name appears on the Notary’s official seal.
  3. Requires a Notary to record all notarial acts in an official soft cover journal with consecutively numbered pages that does not exceed eleven inches in height and sixteen and one-half inches in width when fully opened.
  4. Requires a Notary to legibly print on the information page of each journal the Notary’s name, business address, commission number, commission expiration date, book number and the dates of the first and last notarial acts recorded in the journal, and the Notary’s name on the top left corner and commission number on the top right corner of every set of pages containing entries in the journal.
  5. Requires a Notary to notify the Attorney General within ten days of the loss, misplacement or theft of the Notary’s seal or journal and inform law enforcement in the case of theft. The Notary must provide a copy of the law enforcement agency’s report of theft to the Attorney General.

Notarial Acts, Identification and Certificates

  1. Lists the following notarial acts a Notary may perform: taking acknowledgments, administering
  2. oaths and affirmations, witnessing the signing of documents, attesting to the identity of document signers, noting protests and performing any other act allowed by HRS Chapter 456.
  3. Clarifies that any notarial act performed by a Notary after the termination, suspension or revocation of a commission is invalid.
  4. Prohibits a Notary from taking an acknowledgment, jurat or other instrument unless the person whose signature is notarized is personally known to the Notary or the signer’s identity is proven upon the oath or affirmation of a credible witness known to the Notary or by production of a current identification card or document issued by the United States, Hawaii, any other state or a national government containing the bearer’s photograph and signature.
  5. Requires every acknowledgment or jurat to be evidenced by a certificate signed and dated by a Notary and that contains the printed name of the Notary, the official seal, identification of the jurisdiction in which the act is performed, a description of the document being notarized in close proximity to the acknowledgment or jurat and the number of pages and date of such document.

Application, Commissioning and Status Changes

  1. Provides requirements for application for a Notary commission: (a) a new $10 non-refundable application fee (in addition to the current $40 commissioning fee); (b) a character recommendation from any Hawaii resident who is not a relative or an employer of the applicant; (c) a letter of justification from the Notary’s employer, the head of the governmental department employing the Notary (if the Notary is applying for a government Notary commission), or the Notary (if self-employed), stating the reasons why a commission is needed; and (d) completion of a notarized application in the applicant’s legal name with current residence, business and mailing addresses and proof that applicant is at least eighteen years of age and is a U.S. citizen or resident alien authorized to work in the U.S., the date and place of any conviction of a penal crime and any other information the Attorney General may require.
  2. Requires the Attorney General to take the following actions on a commission application within one year of filing: (a) conduct a background check, if the Attorney General deems it appropriate and (b) provide written notification to the applicant of the decision regarding the application, including reasons for denials and information about the applicant’s right to a hearing if the application is denied.
  3. Requires commission applicants to take and post a passing score of eighty percent on a written examination on general Notary principles, duties, laws and rules subject to the following procedures: (a) The applicant must take the examination on the date specified in the commission approval notice provided by the Attorney General and failure to take the examination on the scheduled date three times results in the applicant being required to submit a new application with updated supporting letters; (b) The Attorney General must notify the applicant of the examination results within thirty calendar days of the examination; (c) Applicants who fail the exam may take a re-examination without submitting a new application if the re-examination is taken within thirty calendar days of the date of notice of the previous test results and they pay the exam fees; and (d) Applicants who fail the examination twice must wait ninety days before reapplying for a commission.
  4. Provides requirements for renewal of a Notary commission: (a) the application must be filed before or on the expiration date of the Notary’s current commission; (b) the application must be notarized by a Hawaii Notary; and (3) the applicant must include all applicable fees.
  5. Prohibits any person from acting or advertising as a Notary without a commission.
  6. Clarifies that a knowing failure to submit a completed renewal application and applicable fees or complete the processing and filing of a commission for renewal by the expiration date of the Notary’s current commission results in forfeiture of the commission and requires any person seeking to restore a forfeited commission more than one year from the date of expiration of the current commission to reapply for a new commission.
  7. Specifies that to resign a commission, a Notary must surrender the commission certificate, seal and journals within ninety days of the resignation and cease performing notarial services.
  8. Requires a Notary to notify the Attorney General within ten days of the loss, misplacement or theft of the official commission certificate and inform law enforcement in the case of theft. The Notary must provide a copy of the law enforcement agency’s report of theft to the Attorney General.
  9. Requires a Notary to notify the Attorney General of any change of name, employer, residence and business address, telephone number and occupation in writing within thirty days of the change and prescribes the procedures for reporting a name and address change.

Ethical Standards; Disciplinary Sanctions

  1. Stipulates that a Notary must perform his or her duties in accordance with Chapter 456 of the Hawaii Revised Statutes, Chapter 5-11 of the Hawaii Administrative Rules and The Notary Public Code of Professional Responsibility as adopted and amended.
  2. Stipulates that a commission may not be suspended for more than five years and allows a person whose commission has been suspended to apply for reinstatement upon fulfillment of all terms and conditions imposed by the order of suspension and payment of applicable fees. Failure to file for reinstatement within thirty days after reinstatement results in forfeiture of the commission.
  3. States that resignation shall not bar the Attorney General from proceeding with any investigation or action against a Notary.
  4. States several grounds for refusal to renew, reinstate or restore, and for revocation, suspension, denial or condition of commissions, including: (a) Failing to meet and sustain the conditions and requirements to maintain a commission; (b) Submitting an application for a commission that contains a false statement, omission of fact or a substantial misstatement; (c) Failing to file the commission with the clerk of the circuit court of the judicial district in which the Notary resides; (d) Failing to maintain a business or residence address in Hawaii; (e) Being incapable of reading, writing or speaking the English language with understanding; (f) Allowing the Notary’s name or title to be used deceptively, engaging in false or misleading advertising or making untruthful or improbable statements; (g) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, cocaine or other drugs or derivatives of a similar nature; (h) Practicing as a Notary while impaired by alcohol, drugs or mental instability, or substantially impaired by physical disability; (i) Obtaining a commission through fraud; misrepresentation or deceit; (j) Professional misconduct, incompetence, gross negligence or manifest incapacity in the practice of a Notary; (k) Failing to maintain a record of competency, trustworthiness, financial integrity or fair dealing; (l) Conduct contrary to The Notary Public Code of Professional Responsibility;  (m) Violating any condition or limitation on which a conditional or temporary commission was issued; (n) Engaging in business under a past or present commission that causes injury to any member of the public; (o) Failure to comply with, observe or adhere to any law in such a manner that the Attorney General deems the holder of a commission to be unfit or unworthy of a commission; (p) Revocation, suspension, restriction or denial of a professional license if that action was for misconduct, dishonesty or any cause that relates to the duties of a Notary; (q) Conviction of or a plea of nolo contendere to a criminal offense related to the qualifications or duties of a Notary, or involving theft, fraud, dishonesty or false statement; (r) Failing to report in writing to the Attorney General any disciplinary decision issued against the Notary or applicant in another jurisdiction within thirty days of the decision; and (s) Violating Chapter 5-11 of the Hawaii Administrative Rules, any applicable laws governing Notaries or any rule or order of the Attorney General.
  5. Permits a person whose commission has been revoked to apply for a new commission after five years from the effective date of the revocation.

Display of Commission

  1. Requires a Notary to conspicuously display a sign no smaller than three inches by five inches bearing the words “Notary Public” within the premises of the place of business where the Notary is employed.
  2. Requires a Notary not in governmental service to provide notarial services to the public during all normal business hours of operation where the Notary is employed.

Notary Fees

  1. Prescribes the nonrefundable fees the Attorney General shall charge for administering the commissions of Notaries, including new $10 fees for a commission application, a name change, or a change in a judicial circuit. Also the price of the Notary Public Manual is raised to $3.00, or $3.85, if mailed.

Practice and Procedure

  1. Requires the Attorney General to notify a Notary or applicant for a commission in writing when disciplinary action is proposed or a commission application is denied stating the Attorney General’s intended action, reasons for such action and a statement informing the Notary or applicant of the right to a hearing if the Notary or applicant so desires.
  2. Permits a Notary or applicant to demand a hearing if the demand is filed with the Attorney General within sixty days of the date of the letter informing the Notary or applicant of the intent to discipline or denial of an application.
  3. Authorizes the Attorney General to grant an exception to any requirement of Chapter 5-11 of the Hawaii Administrative Rules if such requirement results in undue hardship for the Notary or applicant and the Attorney General determines that such action is in the best interest of the state.
Analysis:

The new rules promulgated by the Attorney General provide many new standards for the performance of notarial acts, granting of commissions and overseeing the conduct of Notaries. The rule prescribing the contents of the Notary’s official seal appears to be in conflict with a newly enacted law that prohibits any other information from appearing in the seal other than the name of the Notary and the words “Notary Public” and “State of Hawaii.” It appears that from May 5 to December 31, 2008, seals must contain the commission number of the Notary, as prescribed by the new administrative rules, but on or after January 1, 2009, the new law prohibits inclusion of the Notary’s commission number. The new rules disallow rectangular and other non-circular seal shapes. Also of interest in the new rules is a provision which makes the NNA’s Notary journals noncompliant, since when opened the journal page spread is wider than the maximum sixteenth and one-half inches. A new Hawaii-compliant journal is under development. Finally, the a new rule requires Hawaii Notaries to perform notarial acts in accordance with The Notary Public Code of Professional Responsibility. This requirement is a first of its kind and confirms the importance and value of the premier ethical code of conduct for Notaries Public in the United States.

Read the text of the administrative rule.

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