Legal

On Thursday the California Coastal Commission denied San Diego's request to extend its time operating the Point Loma sewage treatment facility at sub-standard levels. The effect of this ruling could force San Diego to spend $1.5 billion to upgrade its facility. San Diego loses major sewage treatment battle
 

The Point Loma plant treats sewage from 2.2 million people inside and outside the city limits, and it discharges about 170 million gallons a day into the Pacific Ocean. It's by far the largest wastewater facility in the nation that doesn't meet the federal threshold of “secondary” treatment.

Mayor Jerry Sanders has worked for more than two years to convince regulators that San Diego is meeting the terms of its current exemption and should be permitted to keep processing sewage without a major retrofit. The city seemed to be headed for success after collecting support from the San Diego Regional Water Quality Control Board, the EPA, the Coastal Commission's technical experts and some environmentalists.

We All Float On
With the 4th right around the corner, we have been receiving may inquiries about the current beach and park rules. Here's the scoop:

Alcohol at the Beach or Bay

Police will enforce consumption or possession of an opened alcohol beverage using San Diego Municipal Code 56.54 or CA Business and Professions Code 25620. It is not illegal to possess unopened containers or to possess opened alcoholic beverage containers for the purpose of recycling or other related activity.

If you are over the age of 21, police officers cannot order you to pour out sealed containers of alcoholic beverages merely for possessing them. They may request that you pour out the remainder of an alcoholic beverage if you are consuming it (breaking the law).

Can I Drink in The Water?

While it is still unclear if it is actually illegal to consume alcohol below the mean high tide line, the police have taken the position that if you consume alcohol while your feet are touching sand (in or out of the water), you are breaking the law and you will be cited.

It is, however, perfectly legal to enjoy a cold one while floating on the bay on an inner tube or other flotation device. The police have confirmed to us that they will not spoil your floating fun, but strongly discourage dangerous home-made floating platforms, and will enforce littering laws so PLEASE bag up your empties and deposit them in one of our convenient recycling boxes. DO NOT sink your empties in the bay.

A bit about the 4th Amendment (to the US Constitution)

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is also our understanding that without probable cause or a search warrant, police may NOT execute a search of your possessions at the beach. This includes sniffing your beverage. If an officer performs a search without consent, you are entitled to know what they considered probable cause. If they ask for permission and you don't want someone's nose in your soda, simply say, 'NO'.

If you are sticking close to home

It is not illegal to consume alcoholic beverages on residential private property. It is perfectly legal to consume alcoholic beverages in your front yard regardless of whether it is fenced or not. Keep in mind that the sidewalk is public property.


And finally, here is a list of city parks that still allow responsible adults to enjoy a beer with their barbecue.

Legal parks to enjoy your freedom

...and the municipal code to prove it


Enforcement Issues?

If you have a dispute with a police officer regarding any of these laws or any other laws, do not force the issue, simply request to speak with a superior officer. If you have the same problem with a sergeant, ask to speak with a lieutenant.

If you feel your rights are being violated or observe a violation of others, please take photos, videotape the incident and send us your story. You can also contact:


The Chief of Police

The Mayor's office

The City Attorney's office


Disclaimer

Nothing in this e-mail is meant to constitute legal advice. If you have specific questions about the applicability of any law, we suggest you consult a private attorney. incoming@freepb.org

This week Chicago could remove a ban on surfing in Lake Michigan. The ban was enacted decades ago to prevent accidental drownings. If caught surfers faced a $500 fine.

Still, aficionados continued to sneak into the water, and after one ticket too many, a group of surfers last December sent Chicago's Park District a proposal asking that surfing be allowed at four of the city's beaches during the traditional beach season, Memorial Day to Labor Day, as well as year-round at a fifth beach. Officials are still sorting through various details of regulating surfing, such as whether there should be an age requirement and what, exactly, signs along beaches should say (for example, "Surf at Your Own Risk"?).

Today Seth Cravens was found guilty of the second-degree murder of pro-surfer Emery Kauanui. Sentencing will be held on January 12. For a short time the jury was reported deadlocked 11-1 however they reached an agreement today.

Cravens' attorney, Mary Ellen Attridge, had told jurors that her client acted in self-defense. Prosecutors contended that the only person who acted in self-defense was Kauanui, who suffered a skull fracture and died in the hospital four days later.

The five men, all graduates of La Jolla High School, were known as "The Bird Rock Bandits" and had engaged in many alcohol-fueled fights in the neighborhood over several years, prosecutors said during the trial.
The other members of the group pleaded guilty and have received jail sentences ranging from 90 days to 349 days.

The US coast guard is now going to classify stand up paddle boards as a boat and require all the safety measures of a real boat

Stand-up paddleboards (SUP) are now no different than vessels in the eyes of the U.S. Coast Guard. This new classification means that SUP users --when outside surf or swim zones or bathing areas -- are required to carry a lifejacket, or Personal Floatation Device (PFD), a whistle and, if out after dark, a flashlight to give fair warning to other boaters that they're in the area.

The Coast Guard is very clear, however, that SUPs in the surf zone will not be subject to the regulations of the new classification.

So, why the sudden need to officially recognize SUP as a vessel?

The city council of Carlsbad voted 4-1 in a closed session to possibly sue the state Coastal Commission for allowing the department to install a machine to collect the $8 per day fee to park at the popular Tamarack beach. The vote came as negotiations to reduce or remove the fee are on-going between the city and state.

The city might sue because it failed to undertake necessary environmental studies before granting the parks department's fee request. For instance, more people will park on side streets to avoid the fee and that impact was never studied.

City Attorney Ron Ball said yesterday that the city is trying to work out a deal with the state parks department so the surfers, swimmers and strollers who use the Tamarack lot won't be charged.

“We want to finish negotiating or at least put our last, best final offer in writing” before the city files a lawsuit, Ball said.

Brian Ketterer, superintendent for the Torrey Pines, San Elijo and Carlsbad state beaches, confirmed that the two sides have discussed how the fee can be avoided.

He said the state estimates it can collect $340,000 to $500,000 at Tamarack. A fee machine hasn't been installed while the two sides negotiate.

“What's the total lump sum? We don't know,” Ketterer said. He said the city has offered to perform services at the beach to offset all or part of the fee, so it can be reduced to $4.

Previous SurfSD Posts:

$8 Fee Approved For Tamarack

$8 To Park At Tamarack Surf Beach

Our friends at FreePB.org have compiled a primer on the current status of beach booze laws and your rights on the beach. It's a good read for anyone concerned with the slow erosion of rights and how to enforce the ones remaining.

Enjoy your summer by knowing your rights

With the beach season in full swing, we have heard many troubling stories and had many questions about park and beach laws. Here is what you need to know to protect your rights.

First is a list of city parks that still allow responsible adults to enjoy a beer with their barbecue

Legal parks to enjoy your freedom

...and the municipal code to prove it


Alcohol at the Beach or Bay

Police will enforce consumption or possession of an opened alcohol beverage using San Diego Municipal Code 56.54 or CA Business and Professions Code 25620. It is not illegal to possess unopened containers or to possess opened alcoholic beverage containers for the purpose of recycling or other related activity.

Police officers cannot order you to pour out sealed containers of alcoholic beverages merely for possessing them. They may request that you pour out the remainder of an alcoholic beverage if you are consuming it (breaking the law).


The 4th Amendment to the United States Constitution

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is also our understanding that without probable cause or a search warrant, police may NOT execute a search of your possessions at the beach. This includes sniffing your beverage. If an officer performs a search without consent, you are entitled to know what they considered probable cause. If they ask for permission and you don't want someone's nose in your soda, simply say, 'NO'.


Can I Drink in The Water?

It is now illegal to consume alcoholic beverages in many coastal parks, the beach or on any land area of Mission Bay. The City of San Diego has defined the boundary line between land and water in Mission Bay Park is the mean high tide line. Based on the following documents it seems clear that is not illegal to consume alcoholic beverages below the mean high tide line, however, police and lifeguards have said they will ticket anyone touching sand, whether below the mean high tide line or not. So feel free to float in your inner tube, but please be safe.

September 1988 Memorandum of Law

Excerpt from Mission Bay Park survey report

Mission Bay Park survey maps

Note that Mission Bay Park has been divided into five zones where the mean high line differs based on the tidal flow.

Also note that the mean high tide line is a vertical measurement above sea level. Most tide tables measure the tide above mean lower low water. This website allows you to select the correct datum.

Link to NOAA tide website


Private Property

It is not illegal to consume alcoholic beverages on residential private property. It is perfectly legal to consume alcoholic beverages in your front yard regardless of whether it is fenced or not. Keep in mind that the sidewalk is public property.


Draconian Enforcement Issues?

If you have a dispute with a police officer regarding any of these laws or any other laws, do not force the issue, simply request to speak with a superior officer. If you have the same problem with a sergeant, ask to speak with a lieutenant.

If you feel your rights are being violated or observe a violation of others, please take photos, videotape the incident and send us your story. You can also contact:


The Chief of Police

The Mayor's office

The City Attorney's office

The Union-Tribune Editorial department

The Beach & Bay Press Editorial department

KUSI News

...and if you'd like to contact your City Councilperson, here's a link to their site.


Stay tuned for even more information about your beaches and parks.



Sincerely,

Your friends and neighbors at FreePB.org


Disclaimer

Nothing in this e-mail is meant to constitute legal advice. If you have specific questions about the applicability of any law, we suggest you consult a private attorney.

Giving the finger to the California taxpayer but also "Expressing sympathy for the state Department of Parks and Recreation's fiscal woes" the California Coastal Commission voted 11-1 to grant the agency to install a machine to collect fees to park at the popular Tamarack Surf Beach in Carlsbad.

Tamarack beach parking to cost $8 as fee is OK'd

The decision leaves just one state beach with free parking out of 12 in the county. Ironically, the remaining free lot also is in Carlsbad, at North Ponto State Beach.

"We share the philosophy that parks should be free," Ronilee Clark, state parks superintendent for the San Diego Coast District, told the commission as it met in Marina del Rey. "Unfortunately, we face a budgetary situation that hasn't been faced before."

...

Parks officials have said the fee can generate $250,000 to $500,000 a year at the lot, just south of downtown Carlsbad. The 122-space lot is popular with visitors who stop for an hour or two to eat lunch, surf or stroll along the city's beachfront promenade.

Carlsbad Mayor Bud Lewis spoke against the fee and criticized state officials as poor fiscal managers.

"This proposal goes against the spirit of affordable coastal access (for) all visitors," Lewis told the commission. "Charging young families, seniors and other coastal users an $8 fee to attempt to fund the (state's) projected $20 billion deficit is not the way to make ends meet."

He called for "proper fiscal discipline at the state level." The city and neighbors complained that the fee will only encourage beach users to park on city streets.

I wonder how much of this is about the $8 fee or the parking ticket for not paying... 

Previous SurfSD Posts:

$8 To Park At Tamarack Surf Beach

News today that the popular Tamarack Surf Beach in Carlsbad may cost $8 per day to park... even if you're just there for a quick session. The state's Parks and Recreation Department is looking to help fill a $13.3 million budget gap by charging people to park in the 122-space parking lot but the city of Carlsbad has asked for a one-month postponement while it considers the proposal: State's rising tide of debt may be felt by beachgoers

The idea of paying for parking doesn't sit well with surfers and other people parked at the Tamarack lot this week.

Nowell Lantz said he used to live across the street and still goes to the Tamarack beach, officially named Carlsbad State Beach, regularly to surf. He said he has a private place to park if the state beach starts charging a fee.

"If I didn't have that I'd be pissed," said Lantz, who lives in Encinitas. "A lot of people wouldn't be happy about paying if they paid taxes in Carlsbad." 

The state has always had the right to charge for parking but previously Carlsbadhad paid the $36,000 a year to keep the parking lot free.

The Booze Ban frenzy has reached Torrey Pines. Fearing rioters will move their rioting to other beaches Torry Pines will be the next in line to enact the controversial ban. District superintendent Ronilee Clark said blogs had been highlighting the Torrey Pines exemption. Once she signs the ban into effect drinking alcohol at Torrey Pines beach will cease April 1st

That whittles to three the number of beaches in the county where drinking is allowed: Del Mar, Solana Beach and the Silver Strand State Beach in Coronado.

Drinking will continue to be allowed at the state beach in Coronado because problems aren't expected to arise there, Clark said.

Drinking is not allowed at the four other state beaches in the county: Cardiff, San Elijo, South Carlsbad and Carlsbad State, all in North County. Historically, there have been problems with drinking at those beaches, which is why it was banned, Clark said.

Although others admit there had not been issues previously, ban opponents could not stop what is becoming the inevitable solution to the beach melee

Allowing alcohol hasn't led to serious problems, said Brian Ketterer, sector supervisor for the area. On the south end, near Black's Beach, some underage drinking went on, and policing it took extra resources, he said.

The ban will free up lifeguards to do more vital work, Ketterer said.

Those who fought the city's ban said they're not surprised by this latest restriction.

"You're going to continue to see such punishments spiral," said Jacob Pyle, a member of the group FreePB, which opposed the ban.

UPDATE on 03/10/2008 08:03 am:

Michael Stetz from the Union Tribune has an article on the other activities banned on San Diego beaches. Apparently surfing is illegal on San Diego beaches

In Del Mar, for instance, hitting golf balls and playing horseshoes on the beach are not allowed. It's about safety concerns, said Mark Rathsam, deputy director of Del Mar Lifeguards, and the worry that wayward golf balls could end up in the ocean.

That's nothing compared to San Diego beaches, where it's against the law, technically at least, "to play any game of ball or engage in any sport," according to the city's municipal code.

Toss a Frisbee or chuck a football and there could be consequences. Lifeguards "do monitor it at times for safety concerns and will enforce it," said Lt. John Greenhalgh, of the city's Lifeguard Services.

In Coronado, kite-flying is prohibited along most of the beach, but there's a good reason. Kites could interfere with aircraft using the nearby Naval Air Station North Island.

At several beaches, it's against the law for beach-goers to pitch tents, even during the day. People might use the cover to do something illicit, different lifeguard agencies said.

Four years ago, San Diego banned furniture at the beach because people were hauling out old couches and recliners to sit on, then leaving them there.

The use of fire rings, which have burned several children over the years, became limited, too. They can't be used from midnight to 6 a.m.

The law banning sports at the beach is on page 5 of the city municipal code (pdf document)

With the beach booze ban in effect since January, residents in beach communities have noticed their beaches not only free from "frat-boy" binge drinkers but also the hardcore drinkers. The transients, who claim they only "play music and make people happy", are upset they are being forced to drink away from the newfound family wholesomeness of San Diego beaches.

However, many residents in the beach areas are happy with the change and welcome police enforcement of the new ban. Residents enjoy the lack of vomit and urine smell in the spots where groups of drunken panhandlers used to loiter.

Since the ban took effect Jan. 15, 24 citations have been issued in Mission Beach, Pacific Beach and Ocean Beach. First-time violators can be fined up to $250. Repeat offenders can face a maximum fine of $1,000 and up to six months in jail.

Police gave warnings during the ban's first 30 days, but several people at the Ocean Beach sea wall had to be cited during that grace period because they repeatedly ignored warnings, Munoz said.

With the hardcore drinkers not drinking on the beach many are wondering where are they drinking and what impact it will have on those areas.

Some doubt the ban will solve the transient problem at the beach areas. The hardcore drinkers may not be drinking on the sand, but they're still in the area, said Al Sessler, manager of the Ocean Park Inn in Pacific Beach.

He's had problems with the homeless passing out in the front lawn of his business. And he says the dwindling number of hardcore drinkers at the beach may be just a temporary lull.

"Wait for the weather to turn nice.

The law bans smoking at nine city-operated beaches, including overlooks and vistas, 17 public parks and five trails, including their parking lots.

Smoking will be allowed on state-operated beaches, such as Cardiff State Beach, that are within Encinitas city limits. It also would be permitted on outdoor patios at bars.

Violation of the law is an infraction under the city's municipal code, calling for fines of $100 for a first offense, $200 for a second and $500 for a third.

After 12 hours of deliberations the California Coastal Commission shot down a proposed toll road that would cut through a wilderness reserve and San Onofre State Beach by an 8-2 vote yesterday.

Commissioner Larry Clark, a councilman from Palos Verdes, called the project “fatally flawed” and contended the highway is intended to accommodate high-end housing development at the expense of less wealthy park visitors and campers.

“I think we need to seize the moment and articulate that this project is dead,” Clark said.

But the commission's decision probably won't be the final verdict on the proposal.

Tollway officials said they would immediately appeal to the U.S. secretary of commerce to overrule the commission's vote. The California Attorney General's Office also has two lawsuits pending against the Irvine-based Transportation Corridor Agencies, the state-established joint powers authority overseeing the tollway project.

First-time violators could be charged with an infraction that carries a maximum fine of $250. Repeat violators could face a misdemeanor charge that carries a maximum fine of $1,000 and up to six months in jail.

Police Chief William Lansdowne said officers initially will focus on educating the public rather than issuing citations right away. He called the first 30 days a warning period.

"After the 30 days and the signs are up, and everyone is used to it and understands, then we will start citations," Lansdowne said.

Encinitas beaches now are home to 14 surf camps, including some operating without a business license or insurance, the report said.

The city does not regulate the qualifications or training of camp staff members. By contrast, Del Mar requires that the city approve surf camps and that they operate within designated areas, fingerprint staff members, keep a daily log of enrolled students and pay the city a daily $6-per-student fee.

"One of the concerns of the commission, and it's a reasonable concern, is that if there's no regulation, there's going to be operators with different philosophies," City Councilman Jerome Stocks said.

"Some of them are going to have a whole lot of qualified instructors and a low student-teacher ratio. Others may not have that same approach. If there are novices in the ocean with varying abilities, and unregulated student-teacher ratios, this could be an issue."

Ban supporters were thrilled last night, and opponents were considering their next move.

"We're looking forward to a year without alcohol to show that the city will be benefited from alcohol-free beaches," said Scott Chipman, a member of the group Safebeaches.org.

Jacob Pyle, spokesman for the group Ban the Ban 3, said opponents will evaluate their options this morning. To keep their petitions alive, the group would have to find $70,000 by Friday afternoon to pay for a signature-by-signature count.

Pyle wasn't ruling that out last night.

"We've had substantial financial commitments for the campaign portion of this, and we've been holding off on cashing those commitments pending the outcome of this," Pyle said.

He also talked about riding out the one-year test and trying again with new council members, as four seats are up for election this summer.

"People are not happy," Pyle said. "The coming City Council elections in June could be all about beach alcohol, so it might be a lot bigger than one small referendum."