Avenida de la Playa a free-for-all for kayak rentals

Fees to rise from $500 a year to $500 a month

If the worst that could befall sidewalk diners were a swinging kayak paddle whacking margaritas off their table, they’d be lucky. It would be irksome nonetheless. And that is one reason pressure is mounting in La Jolla Shores these days to bring the kayak-rental business under a bit more control. Most of the paddles are obtained from five kayak-rental outlets on Avenida de la Playa. The companies truck the kayaks to a boat launch on the beach. People who rent the kayaks, often in wet suits, then walk seaward along the avenue, carrying their paddles and trying to maintain them upright. The paddles are usually longer than their bearers are tall. In the kayakers’ balancing acts, which must navigate the tables of several restaurants, overhanging awnings, and heavy foot traffic, the paddles sometimes hit visitors as well as stiff drinks.

Restaurant owners aren’t the ones complaining. The kayakers bestow on them a land-office business, especially in summertime. Local residents, however, are experiencing congestion problems, from increased traffic and losses of neighborhood parking to more crime and trash in the community’s Kellogg Park. The main voice for area residents is a neighborhood advisory council called the La Jolla Shores Association.

Sharon Luscomb is an association boardmember. Her husband Michael owns La Jolla Kayak, one of the oldest kayak-rental businesses on Avenida de la Playa. “Kayaking is a popular and growing business,” says Sharon Luscomb. “San Diego has made the top ten travel destinations in the country, and kayaking has been called one of the top five things to do in town.” But with it come the neighborhood problems. So despite being nervous about what the future may bring, Luscomb accepts a recent decision by the City of San Diego to put kayak-rental concessions out to bid. The move, whose specific provisions have yet to be determined, would probably reduce the number of operators in La Jolla Shores from ten current license holders to four. The goal, in Luscomb’s view, is to better regulate and organize the industry to help address local residents’ concerns.

Not so fast, says Rod Watkins, owner of Scuba San Diego. Besides renting kayaks and teaching scuba diving, Watkins leads tours of the La Jolla Underwater Park and its ecological reserve. His is one of five businesses that have licenses to rent kayaks in La Jolla Shores but do not have storefronts there. From their headquarters elsewhere, they bring kayaks to their customers at the Avenida de la Playa boat launch. Watkins operates out of the Mission Bay Hilton, where he also leads recreational activities for guests. He has been taking people to the La Jolla Shores boat launch for 40 years. It is the only ocean launch between San Diego Bay and Del Mar, he tells me.

On a public beach, there should be no concessions, according to Watkins. Watkins’s hackles first went up in 2006, when the City said it would raise the fee for his business permit from $500 a year to $500 a month. That amounts to an 1100 percent yearly increase. Watkins suspected there would be further trouble after the Park and Recreation Department’s John Hudkins gathered all ten of the operators in January 2007 to plan a way to cooperate. Hudkins, who is about to retire and did not return phone calls, is head of the department’s Coastal Parks Division.

Watkins tells me that Hudkins wanted the group “to form a launch schedule down here.” We are standing next to the beach, at the entrance to the boat launch, and Watkins is calling my attention to a small pickup truck coming off the sand with a load of stacked kayaks. “That bigger one near the water is mine,” he says. “It’s a 14-foot box truck. I use it to bring both the kayaks and the paddles down here.

“Well, several of the operators were constantly having serious accidents,” Watkins continues, “and the lifeguards were getting fed up with them. So Hudkins tried to get us to agree to the schedule. We laid out all the times during the day — it only applied to summer — and people put their names in a hat and drew out their launch time. Everybody agreed to all those launch times, and Hudkins was saying, ‘Great, you guys avoided us having to go to [requests for proposals].’ If he couldn’t get an agreement, the park department was going to throw up their hands and say, ‘Screw it, we’re now going to give this to the City to handle.’ That was about a year ago.

“At the beginning of this year, I went to Brazil, came back, and everything was in the toilet. Two of the operators went crying to [city councilman] Scott Peters. They said they couldn’t live with the schedules, and the park department did this and that, whatever. Peters didn’t know what to do and couldn’t give them any firm answers. From there, they went crying to the mayor’s office,” says Watkins.

“Suddenly the city council and the mayor became aware of the millions of dollars being done down here in the kayak business. Before, there was no attention on this. Nobody in city hall cared, except that they’re now close to being bankrupt, and they want to use these illegal revenue-raising schemes to help pay the city debt. So those operators shot themselves in the foot, really.”

While Watkins was in Brazil, he asked his friend Dick Henderson, a retired San Diego attorney, to attend a January 9 meeting in Balboa Park. Henderson first was puzzled about why the meeting had been called by the City’s Real Estate Assets Department. The meeting, according to Henderson, started out as a “spit-and-growl session” for La Jolla Shores residents over kayaking. Eventually the discussion got around to the request for proposals. Henderson says he asked the meeting leaders by what authority the City could put the kayaking business in La Jolla Shores out to bid. Already he wondered why the operators’ license fees had gone up so precipitously.

Later, Henderson looked further into the kayak operators’ situation. He subsequently wrote to the City: “You may consider this letter as a demand for return of the excess kayak user charges paid by Mr. Watkins.”

In the letter, dated March 10, Henderson argued that “the present fee process is an illegal revenue raising tax.” It is beginning to resemble another request for proposals, he continued, that the City put out several years ago for four surf-camp operations on the beach north of Kellogg Park in La Jolla Shores. The camps’ purpose is to teach people how to enjoy surfing safely.

In that evolution, a number of existing surf-camp operators went out of business or had to move to other locations where the City was putting out similar requests for proposals. “We reviewed the [San Diego] City Manager’s report dated November 23, 2005 and learned that the…concessions [for] surf instruction camps on city beaches are projected to provide a significant and growing income stream in which the City is guaranteed $100,000 in fiscal year 2006 and $125,000 in…2007. This can not be anything but revenue raising.”

The city manager’s report also showed how the City’s profits are achieved. The surf camps are charged a yearly fee of $7500 plus 10 percent of the operators’ gross revenues. In 2005, the camps cost the City $30,902 from the general fund, mainly for lifeguard services. But the revenues from the concessions were $121,712, leaving a profit of $90,810.

It’s as though the City were charging rents for the public beach, which is owned by the state and comes under the jurisdiction of the California Coastal Commission. And Henderson claims that it is illegal for a municipality, even a charter city, such as San Diego, to charge companies more in fees than their businesses cost the City. “If they do, it’s a tax, pure and simple,” says Henderson.

“And here’s our city council president, Scott Peters, running for city attorney. He’s supposed to know the law. If he wins, will he just rubber-stamp whatever kind of scheme the City comes up with?”

If the bidding process for kayaking concessions follows the surf-camp model, several currently licensed operators could go out of business. That would probably give the storefront businesses in La Jolla Shores a monopoly over kayak renting, according to Henderson. For that reason, the former attorney suspects the storefront owners of encouraging the City to take control of kayaking activities on the boat launch at the foot of Avenida de la Playa.

But, notes Henderson, pleasure boaters, fishermen, and noncommercial kayakers also use the boat launch without paying fees. None of the users goes onto land owned by the City.

“And what services at the La Jolla boat launch,” asks Henderson, “are the new city fees paying for, anyway? Of course, the City could just admit they’re assessing a tax. But Proposition 218 requires a vote of the people for that.”

“If the request for proposals goes through, I could go out of business,” says Rod Watkins, who does not object to legal and reasonable city licensing fees. He says he must fight what the City is up to but wants to cooperate with the other owners. The group of operators now doing business could use more cooperation, for instance, to take those dangerous paddles down to the beach for customers to pick up there. The operators could also oppose the City, according to Watkins. “But some of them are out there fighting each other for every last dollar,” he says.

John Metzger, owner of OEX Dive and Kayak Centers, thinks the City’s action is a way of weeding out some of the businesses that don’t care about the quality of life in La Jolla Shores. “Nobody’s forbidden from doing business in La Jolla Shores,” he says. But they have to have a city permit, operate safely, and respect local residents.

The La Jolla Shores Association’s Sharon Luscomb wonders what will happen to the monies the City might someday raise from the concessions. She hopes that all of them don’t go into the general fund. The minutes of the association’s October meeting put her view succinctly. A member suggested that the organization “should be proactive with the City to make sure that the revenues generated from…kayak permits, surfing, scuba, etc., should come back to the local areas.” A motion to that effect passed.

But some of the current kayak operators could still lose their businesses, right? Several plans are being discussed. In a controversial approach, a currently licensed operator who does not get one of the four concessions could be allowed to piggyback on another’s permit.

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This is the same thing that happened in PB. People come in and buy homes and are not aware of how it works when you live in a tourist-driven coastal community. Let the people kayak, they were paddling long before most of you lived in LaJolla Shores. If you want a quiet neighborhood with a good view, move to a lake or the mountains but don't take away the rights of the tax paying public to enjoy the ocean. New homeowners and old folks that don't even enjoy the beach anymore took away the right to drink on the beach in P.B, O.B, and Mission, when there were plenty of other locations on the coast for family oriented enjoyment. That so-called riot on the beach was an excuse foer the politicians to take away more rights so they can get votes and make their wallets fatter.

The City is in violation of the following laws related to the surf camp RFP process and the proposed Kayak RFP process:

Civil Code 670 Revenue and Taxation Code 17041.5 Government Code 53978 Heckendorn, 42, cal 3d 481(1986) California State Proposition 218 Coastal Commission Act sec. 30213 Coastal Commission Act sec. 30222

They have also opened the door to tort claim lawsuits by all the surf camp operators that were forced out of business by the illegal and excessive fees.

A claim will be filed with the City on 04/03/08 for the recovery of all fees paid to it by this operator. It will have 45 days to respond before we take legal action to recover the fees from the City.

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