OPINION OF THE COURT BY
LUM, C.J.
Appellants, beneficiaries of a program assuring that priority is given to the blind and visually handicapped in the establishment of vending operations in public buildings, brought this action in the circuit court claiming violations of the substantive and procedural law governing the program. The circuit court granted summary judgment against Appellants’ claims. We reverse and remand to the circuit court with the direction that the court remand to the involved agency for an administrative hearing.
Opinion of the Court
I.
Since 1937, Hawaii law has provided for the blind to operate vending facilities in public buildings. In 1981, the Department of Human Services (DHS) was given administrative responsibility for adopting rules and implementing the program assuring the blind and visually handicapped priority in the allocation of vending facilities in public buildings.
Pursuant to this power, the DHS adopted Hawaii Administrative Rules (HAR) § 17-402-17 governing the vending facility program. The rule provides, inter alia, for announcing vacancies to qualified blind persons and for providing such persons the opportunity to apply for such vacancies.
II.
In 1970, before the enactment of the current statute or regulations, it was decided to expand the blind vendor program to the Honolulu International Airport. Because the blind vendors were unable to provide enough trained vendors, supervision or capital, Maka‘ala, Inc., a Hawaii non-profit corporation, was formed as an alternative. Maka'ala gives employment preferences to handicapped people. All of its employees are handicapped. The employees’ handicaps include blindness, deafness, mental illness, cerebral palsy, quadriplegia, and orthopedic knee and fool disability. Since 1971, the Department of Transportation, at the direction of DHS, has leased space at the airport to Maka‘ ala for a retail concession.
Despite the language of the current statute and its own rules, DHS decided to renew Maka‘ala’s airport lease effective February 1,1984. No notice of vacancy or opportunity to apply for the concession was given to the blind vendors. The renewal of Maka‘ala’s lease raises questions of the legality of DHS’s action under the statutory and administrative rules: Does the program give priority to the blind over other handicapped people? Can Maka'ala be considered a qualified blind person? Was notice of vacancy and an opportunity to submit an application for airport concessions required to be given by DHS to all qualified vendors?
III.
The DHS contends that these and other involved issues could have been brought exclusively through a DHS administrative hearing. DHS argues that persons who can present their claims for an
administrative hearing and obtain subsequent HRS § 91-14 circuit court appellate review must follow this process and cannot bring an original action in the circuit court for injunctive and declaratory relief. However, we need not decide this issue. Under the doctrine of primary jurisdiction, when a court and an agency have concurrent original jurisdiction to decide issues which.have been placed within the special competence of an administrative agency, the judicial process is suspended pending referral of such issues to the administrative body for its views.
Kona Old Hawaiian Trails Group v. Lyman,
69 Haw. 81, 93, 734 P.2d 161, 168 (1987). Thus, the DHS agency process, if available, is the appropriate forum for an initial determination of the issues raised in this case.
We believe an agency hearing is available and disagree with DHS’s contention that Appellants are now time barred under HAR § 17-400-4(2)(G) because they failed to request an agency full and fair hearing within 90 days of receiving an adverse decision in the informal administrative review. For a number of reasons this case should not be time barred at the agency level.
A.
The 90 day time bar of HAR § 17--400-4(2)(G) should not even apply. Section 17-402-17 regulates the blind vendor program,
and the statute creating the blind vendor program, HRS
§ 102-14, is listed as an authorizing statute. Section 17-400-4 regulates the state’s vocational rehabilitation program, and the statute creating the blind vendor program is not listed as an authorizing statute. Although the part of the blind vendor rules that governs informal review of grievances makes specific reference incorporating the relevant vocational rehabilitation mies, there is no similar incorporation in the part of the blind vendor mies that govern a full and fair hearing. In fact, the blind vendor full and fair
hearing rules and the vocational rehabilitation rules conflict. The blind vendor rule requires requests for a full and fair hearing to be in writing while the vocational rehabilitation rules allow such requests to be made either orally or in writing.
B.
The process which the DHS claims to be an administrative review began when Esrom Nihoa, as Chairman of the Hawaii State Committee of Blind Vendors,
wrote to the DHS by letter dated December 23,1983, inquiring on behalf of five of the individual Appellants why no announcement of vacancies and opportunity to apply for airport vending space had been made. The letter said that the vendors believed that the DHS had already decided to allow Maka’ala to continue its airport vending operation. The Committee’s letter requested an administrative review pursuant to § 17-402-17. A follow-up letter of January 19,1984, was sent making the same inquiries and allegations and naming the remaining five individual Appellants as bringing complaints.
The DHS, in the person of administrator Toshio Nishioka, responded by letter dated January 19,1984. Nishioka’s letter said that Maka’ala would be allowed to continue at the airport location and that there was no vacancy. The letter went on to express the hope that all grievances were satisfied by the letter and said if the vendors were not satisfied, they could request a fair hearing under § 17-400-4(2) of the State’s vocational rehabilitation rules.
In her affidavit, Appellant Charlotte Kauhanc, the designated recipient of the DHS correspondence to the Committee, stated that between January 2,1984, and June 1984, she received no word from DHS regarding the status of the grievance. Apparently responding to a telephone inquiry, a copy of Mr. Nishioka’s January 19 letter was sent to Kauhane along with a cover letter dated June 26,1984.
In the meantime, Appellants commenced this action in the circuit courts.
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OPINION OF THE COURT BY
LUM, C.J.
Appellants, beneficiaries of a program assuring that priority is given to the blind and visually handicapped in the establishment of vending operations in public buildings, brought this action in the circuit court claiming violations of the substantive and procedural law governing the program. The circuit court granted summary judgment against Appellants’ claims. We reverse and remand to the circuit court with the direction that the court remand to the involved agency for an administrative hearing.
Opinion of the Court
I.
Since 1937, Hawaii law has provided for the blind to operate vending facilities in public buildings. In 1981, the Department of Human Services (DHS) was given administrative responsibility for adopting rules and implementing the program assuring the blind and visually handicapped priority in the allocation of vending facilities in public buildings.
Pursuant to this power, the DHS adopted Hawaii Administrative Rules (HAR) § 17-402-17 governing the vending facility program. The rule provides, inter alia, for announcing vacancies to qualified blind persons and for providing such persons the opportunity to apply for such vacancies.
II.
In 1970, before the enactment of the current statute or regulations, it was decided to expand the blind vendor program to the Honolulu International Airport. Because the blind vendors were unable to provide enough trained vendors, supervision or capital, Maka‘ala, Inc., a Hawaii non-profit corporation, was formed as an alternative. Maka'ala gives employment preferences to handicapped people. All of its employees are handicapped. The employees’ handicaps include blindness, deafness, mental illness, cerebral palsy, quadriplegia, and orthopedic knee and fool disability. Since 1971, the Department of Transportation, at the direction of DHS, has leased space at the airport to Maka‘ ala for a retail concession.
Despite the language of the current statute and its own rules, DHS decided to renew Maka‘ala’s airport lease effective February 1,1984. No notice of vacancy or opportunity to apply for the concession was given to the blind vendors. The renewal of Maka‘ala’s lease raises questions of the legality of DHS’s action under the statutory and administrative rules: Does the program give priority to the blind over other handicapped people? Can Maka'ala be considered a qualified blind person? Was notice of vacancy and an opportunity to submit an application for airport concessions required to be given by DHS to all qualified vendors?
III.
The DHS contends that these and other involved issues could have been brought exclusively through a DHS administrative hearing. DHS argues that persons who can present their claims for an
administrative hearing and obtain subsequent HRS § 91-14 circuit court appellate review must follow this process and cannot bring an original action in the circuit court for injunctive and declaratory relief. However, we need not decide this issue. Under the doctrine of primary jurisdiction, when a court and an agency have concurrent original jurisdiction to decide issues which.have been placed within the special competence of an administrative agency, the judicial process is suspended pending referral of such issues to the administrative body for its views.
Kona Old Hawaiian Trails Group v. Lyman,
69 Haw. 81, 93, 734 P.2d 161, 168 (1987). Thus, the DHS agency process, if available, is the appropriate forum for an initial determination of the issues raised in this case.
We believe an agency hearing is available and disagree with DHS’s contention that Appellants are now time barred under HAR § 17-400-4(2)(G) because they failed to request an agency full and fair hearing within 90 days of receiving an adverse decision in the informal administrative review. For a number of reasons this case should not be time barred at the agency level.
A.
The 90 day time bar of HAR § 17--400-4(2)(G) should not even apply. Section 17-402-17 regulates the blind vendor program,
and the statute creating the blind vendor program, HRS
§ 102-14, is listed as an authorizing statute. Section 17-400-4 regulates the state’s vocational rehabilitation program, and the statute creating the blind vendor program is not listed as an authorizing statute. Although the part of the blind vendor rules that governs informal review of grievances makes specific reference incorporating the relevant vocational rehabilitation mies, there is no similar incorporation in the part of the blind vendor mies that govern a full and fair hearing. In fact, the blind vendor full and fair
hearing rules and the vocational rehabilitation rules conflict. The blind vendor rule requires requests for a full and fair hearing to be in writing while the vocational rehabilitation rules allow such requests to be made either orally or in writing.
B.
The process which the DHS claims to be an administrative review began when Esrom Nihoa, as Chairman of the Hawaii State Committee of Blind Vendors,
wrote to the DHS by letter dated December 23,1983, inquiring on behalf of five of the individual Appellants why no announcement of vacancies and opportunity to apply for airport vending space had been made. The letter said that the vendors believed that the DHS had already decided to allow Maka’ala to continue its airport vending operation. The Committee’s letter requested an administrative review pursuant to § 17-402-17. A follow-up letter of January 19,1984, was sent making the same inquiries and allegations and naming the remaining five individual Appellants as bringing complaints.
The DHS, in the person of administrator Toshio Nishioka, responded by letter dated January 19,1984. Nishioka’s letter said that Maka’ala would be allowed to continue at the airport location and that there was no vacancy. The letter went on to express the hope that all grievances were satisfied by the letter and said if the vendors were not satisfied, they could request a fair hearing under § 17-400-4(2) of the State’s vocational rehabilitation rules.
In her affidavit, Appellant Charlotte Kauhanc, the designated recipient of the DHS correspondence to the Committee, stated that between January 2,1984, and June 1984, she received no word from DHS regarding the status of the grievance. Apparently responding to a telephone inquiry, a copy of Mr. Nishioka’s January 19 letter was sent to Kauhane along with a cover letter dated June 26,1984.
In the meantime, Appellants commenced this action in the circuit courts. The complaint was filed on January 23,1984.
On September 25,1984, Plaintiffs requested DHS’s full and fair hearing procedure. The record contains no agency response to this request.
Before a right to relief is barred because of the failure to seek administrative full and fair hearing, the agency process ought to be of such a nature as to impress fully upon the litigant the opportunity for recourse it supplies and the consequence of failure to seek such recourse. The process in the present case was not of such a nature. The Committee, on behalf of the Appellants, not the individual Appellants themselves, requested a review of grievances. Nishioka’s letter should not by itself be able to constitute an informal administrative review, as the rules imply a hearing at which parties participate and are physically present. In addition, under the rules there is no reason to think that one informal procedure precludes conducting another on the same issues when appropriate.
C.
Finally, we hold, in the alternative, under the facts of this case, that the 90 day limitations period, if applicable, was tolled by the filing of the instant action in the circuit court.
Cf. Bowen v. City of New York,
476 U.S. 467 (1986).
Reversed and remanded to the circuit court with directions to remand to the DHS for an agency full and fair hearing.
Evan R. Shirley
for Appellants.
Thomas D. Farrell,
Deputy Attorney General, for Appellees of the State of Hawaii.
Leroy E. Colombe (William H. Dodd
with him on the brief) for Appellee' Maka‘ ala, Inc.