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.