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Should I Surf Today?

Cold, Lazy, Tired, Scared

The surf is big today, scary big.  Surfline.com says it is 6-8 feet at Tourmaline Cove, with some sets double overhead.  At P.B. Point (AKA False Point) the projections are for over 10 feet, with some sets…..just too big.  I have no intention of surfing at the Point.  I am a realist.  A six foot wave is plenty big enough for me.  When you think about how big a six foot wave might be, remember to start by lying down on the floor on your stomach and looking up.   Six feet is way, way up there.

While I sit here at my desk trying to psych myself up I check on the water temperature.  Oh my, it is 56 degrees.  This adds a whole new level of complexity to the decision as to whether to brave the cold surf, or simply to sit back on my nice warm couch and binge-watch some new Netflix series.   There is a brand new $550 Patagonia wetsuit hanging in my closet that should alleviate the concern about the cold water….but it doesn’t.  Booties are okay, but gloves are kind of wimpy to wear when surfing in southern California.  In the last few years I have worn a surfing cap a few times and as I get older it is starting to seem okay to wear one.  

Surfing, even in big waves, is easy.  Getting out to the big waves, now that is the real challenge.   During normal surfing conditions the waves break twice, the inside break and the outside break.  In gigantic surf a third break appears on the way, way outside.  To get out to the big surf an arduous task lies ahead.  If it was “only” just a matter of paddling straight out it that would be enough of an effort.  Surfing in big waves is a lot of work.  Hard, heavy breathing, air gasping work. 

So I decide to stay home.  Then the phone rings and it is Jason, my surf buddy.  He tells me we are going out for a surf session right now.  This is the primary reason for having surf buddies, which is to shame us into getting into the water.

So I suit up and head out.  With booties I don’t even feel the cold water until it is halfway up my chest, and even then it is not so bad.  And the paddle out is not nearly as tough as I feared.   I am barely breathing hard when I find myself on the outside.  This isn’t so bad.

Then I take that first long drop on a big wave, make the bottom turn, and start gliding along the wave.  I don’t feel the cold, I am not tired, I don’t feel lazy, and right now I have No Fear.  Surfing is fun!



Re-visiting Kite Surfing at Tourmaline Surfing Park

Both Parts, before S.D.Reader Editing

On August 28th a female surfer, after finishing a surf session at Tourmaline Surfing Park made the mistake of going back into the water for a quick swim.  Not only is this not legal in a designated “board surfing zone”, it is not safe because a swimmer can easily get hit by a surf board.  However this time it wasn’t a surf board, but a kite surfer going at half speed (according to the kite surfer).  When it hit the swimmer, it knocked out most of her teeth and filleted her face, as a witness observed (and according to the San Diego Fire-Rescue Department’s Serious Injury Report).  This incident and others have brought back the question, are kite surfers legally allowed to kite surf at Tourmaline Surfing Park?  And if not, should they be?  Is there a gray area in the Law?  Is kite surfing the same thing as sailboarding? And if they should be allowed at Tourmaline, should there be new rules for them, and for sailboarding, too?

Some of these questions were discussed in a previous San Diego Reader article titled “Kite Surfers Blow Right by the Law” (August 29, 2012, http://www.sandiegoreader.com/news/2012/aug/29/citylights2-kitesurfers/).  In that article my research showed that they are allowed in that area as long as they do not exceed 5 miles per hour and stay 1,000 feet away from shore, based on the mean high-tide line.  Of course, that is not what is happening today.  On a busy day you can count 20 or more kite surfers sailing right with the surfers.  Sometimes they spray water on the surfers as they go by, and some even jump directly over the surfers while going against the wave.  Obviously they are being propelled by the wind and not the wave.  This is important because the definition of a surfboard is a non-inflatable device that is carried along or propelled by the action of the waves.  If the kite surfer is jumping a wave going seaward, it is not being carried along or propelled by the wave, and hence is not considered a valid surfboard that is allowed in a board surfing area.

Sometimes an exception to a law actually clarifies what was the original intent of the lawmakers.  In the San Diego Municipal Code there is an exception to Section 63.20.15, which limits “vessel” speeds to 5 miles per hour and the 1,000 feet from the mean high tide line in a board surfing zone.  It is Section 63.20.15.c which states “Surfboards with sails attached, commonly known as sailboards, may exceed 5 miles per hour while using areas designated for surfing, pursuant to the relevant sections of the San Diego Municipal Code.   It appears that back in 1994 sailboarders asked for and received an exception to the law preventing them from sailboarding at Tourmaline Surfing Park.  However, this exception does not apply to kite surfers (in my opinion) because the sail is attached to the kite surfer, and not the surfboard, as required by the exception.

Kite surfing has been around for many years but only really became extremely popular in the last 10 years.  This is because the cost of the equipment is much less, and the equipment itself is much lighter and easier to use.  With today’s equipment it only takes a relatively strong wind, when previously the wind had to be very strong wind to be able to kite surf.  A very strong wind also usually keeps most of the surfers out of the water.  However with the new equipment for kite surfing and the increasing number of them at Tourmaline Surfing Park, the number of incidents between kite surfers and regular surfers is increasing. 

Another reason for the increase in the number of surfer/kite surfer incidents is that the summer itself has changed.  There normally is not much surf during the summer months.  The wind would still come up in the afternoon and the kite surfers would have the place to themselves.  But this summer was extraordinary for surfing.  There were good waves just about every day.  And some swells were very large, and brought out a lot of surfers, and in the afternoon you have a large number of surfers, and a large number of kite surfers.

After the accident on August 28th there has been some criticism of the lifeguards for not completely stopping kite surfing at Tourmaline.   While technically kite surfing might not be allowed in a board surfing area (which is my opinion), here in San Diego we do want to encourage new water sports.  Kite surfing has become a big industry and brings in a lot of money.  Pacific Beach happens to be one of the greatest places for kite surfing in San Diego County.  It is an easy in and out of the water for beginners and the wind comes up regularly in the afternoons. 

I met with the two top lifeguards for the City of San Diego, Chief Rick Wurtz and Captain Nick Lerma to discuss kite surfing at Tourmaline.  They both had recently watched the kite surfers on a windy afternoon, and both agreed that some of the kite surfers were much too close to regular surfers.  However, they disagreed with my conclusion that kite surfing was illegal at Tourmaline.  Chief Wurtz carefully walked me through the Municipal Code, reviewing exactly what the Code says is the definition of a surfboard, and the other relevant sections of the Code.  He felt that the definition of a kite surfer in the Code meets the existing general description of a surfboard.  At this time he believes that, unless the City Attorney’s Office says otherwise, kite surfers are allowed at Tourmaline.  There is some gray area in the Law.  However, he does acknowledge that there is a problem, although the problem between surfers and kite surfers is only for a minimal number of days of the year.  The Mayor’s office, the City Attorney’s Office, and the local District 2 Office (currently Councilmember Ed Harris) are currently reviewing the situation, and the lifeguards are waiting for some direction from the City.

While the lifeguards are stuck in the middle, waiting for the City to give them more specific directions, they do rely on the §63.20.28 Endangering Aquatic Activities section of the Municipal Code that reads:

No person shall use any surfboard, paddleboard, bellyboard, skim board, ski, canoe, boat or vessel of any type, or any similar device in a negligent manner so as to endanger the life, limb or property of another person.

This allows them to give citations for obvious dangerous kite surfing activities, or any other dangerous behavior on the water.  Some of the behaviors of a few of the kite surfers do act in an obviously negligent manner.

I contacted the City Attorney’s Office and asked “Is kite surfing legal at Tourmaline Surfing Park?”

While waiting for a response from the San Diego City Attorney’s Office I decided to ask my brother Portor Goltz, who was a lawyer in the San Mateo County Counsel’s for 38 years (retired) for his opinion.    Here is his legal opinion: 

“Russ,

Ok, I've read your analysis and the law you quote from, as well as your previous article.  A couple of thoughts:

I do question your conclusion that a kite-surfer sail is not "attached" to the board.  One could argue that since the sail is attached to the surfer, and the surfer is attached to the board, then ipso facto, and according the rule of the writ of nudum pudum, the sail IS attached to the board.  If A=B and B=C, then of course A=C!  If I were being paid, I'd argue the side of whoever was paying me. (Russell:  Did I mention my brother is a good lawyer?)

That means that I can accept your analysis.  But if I were the judge, I'd say that when the ordinance was written, it didn't envision kite-surfing because it wasn't yet invented.  What's the real difference between kite-surfing and windsurfing?  They both use sails, so it must be only the speed difference, in terms of safety.  To allow windsurfers to exceed 5 mph and not allow kite-surfers to do the same doesn't make sense from a practical matter.  If I were the judge, I'd want to know which device allows the user more control over the speed and direction.  If both are similar in those respects, then I would likely hold that kite-surfers are so similar to windsurfers that they should be treated the same, or in other words, kite-surfers are a type of windsurfer.

I hope that helps.
Port”

It appears that my brother shares the opinion of Chief Wurtz that there is some gray area in how they read the law.

The City Attorney’s Office has since responded to the question: Is Kite Surfing Legal at Tourmaline Surfing Park?  Here is their reply:

Hi Russell,

 Modern kite surfing is an aquatic activity that post-dates many City and State regulations. As such, kite surfing is not specifically defined in current law. Our office is working with City staff to determine which regulations would apply to this activity and possible legislative options. All questions related to the enforcement of present laws should be addressed by the San Diego Fire-Rescue Department Lifeguards.

 Thanks for your inquiry.

 Mike Giorgino

Chief Deputy City Attorney for Communications

Office of the City Attorney

 
Based upon the two legal opinions, I have to change my personal opinion. I now agree that because kite surfing was not ever envisioned when Tourmaline Surfing Park was designated a board surfing zone, the law does not specifically exclude them.  And because there is some discussion of whether sailboarding is very similar to kite surfing (which has an exception to the law) there is some gray area in the law.

We should also consider the kite surfing side of the issue.  Unfortunately, there is not an official local kite surfing association here in San Diego.  Part of that is because the kite surfers come from all around the county.  Most of the surfers at Tourmaline are people who live in the general area.  Talking to some kite surfers, they say that the best kite surfing is at Silver Strand State Beach (in Coronado) and at Tourmaline Surfing Park.   One of the local surfers suggested that because they do not know any of the surfers they might not be as courteous as they might be if they did know everyone by name.

I have asked several kite surfers what they would think might be realistic rules that could be put in place to keep the two competing groups separate.  They could give me no good answers. They do not know what they want.

The kite surfers know there are a few bad apples in their group.  Probably ninety percent of them are very courteous to surfers, and stay far away from them.   But it is the ten percent that get all of the visibility.  The “good” kite surfers try to police the “bad” kite surfers.  However, as one of the bad kite surfers said, after running directly through the surfers’ line up several times, “if it was illegal, why don’t they give me a ticket?”  (I do not have a name for that quote, it was second hand. RAG)

Most of the regular surfers at Tourmaline would rather not have kite surfers at Tourmaline at any time.   Josh Hall, president of the Pacific Beach Surf Club says “it is obviously inherently dangerous.  Tourmaline is a beginner’s beach.  It is a family beach for teaching kids how to surf.  The kite surfers are making it a dangerous place to learn to surf.”

Regardless of what people think is the actual legality of kite surfing in a board surfing zone, kite surfing is here to stay.  Because Tourmaline Surfing Park happens to be a perfect place for kite surfing, I believe they should have the right to be there.  I agree with my brother’s opinion that there is not that much difference between sailboarding and kite surfing, as they are both dangerous for surfers.  It is time for us to begin thinking about what kind of rules can (and should) be put in place, to reduce the risk of serious injury at Tourmaline.  However, saying we need rules and coming up with mutually accepted rules for both sides will be very difficult.

In 2008 Silver Strand State Beach instituted a specific 133 yard wide launch and landing zones, after several complaints from the surfers.  There are specific areas prohibiting kite surfing completely.  However, this was not done through the actual City of San Diego, but between the Coronado Cays Home Owners Association and kite surfers.  The idea of some new kite surfing rules at Tourmaline without actually changing the law is possible. 

IDEAS:

  • Completely Ban Kite Surfing at Tourmaline by assuming current law does so
  • Define a new type of ZONE for wind powered craft
  • Set up a permit system to limit the number of kite surfers at any one time
  • Set a 200 foot separation distance from kite surfers to any surfer.  The distance has to be at least as long as the cords plus a safety factor
  • Begin giving a lot of citations using  §63.20.28 Endangering Aquatic Activities
  • Have the City change the law to allow them to be there, but with a separation distance.  This would also be done for sailboarders, too.  They will lose their unlimited exception. 
  • Only allow launch and land at specific zones, and kite surfers must stay outside of the surf line if any surfers are within 200 feet

Part Two of the Kite Surfing Controversy at Tourmaline Surfing Park

If you ask a kite surfer if they consider themselves except from the 5 mile per hour per Section 63.20.15.c, they say they yes they are, because kite surfing is so similar to sailboarding.  If you ask a sailboarder if kite surfing is like sailboarding, they vehemently disagree.  They say there is nothing similar.  Kite surfing (they say) is way more dangerous because of the cables, and because when they go down the board can get away.  When a sailboarder goes down, the board stays right there with them.   And kite surfing requires much less wind, and they go much faster. 

Kite surfers also point out they are except because they are not a vessel, because if they were a vessel, they would be required to have a CF sticker from the Coast Guard.  Since they are not a vessel according to the code (because kite surfers do not require a CF sticker) they are not limited to the 5 mile/1000 feet from the beach requirement.   In fact, this argument does have some validity.  The U.S. Coast Guard has made the determination (In 2007) that “when beyond the narrow limits of a swimming, surfing, or bathing area, the device known as a “kiteboard” is a vessel under 46 U.S.C. 2101.”

Therefore, if the kite boarder is inside a surfing area, then it is NOT considered a vessel by the Coast Guard!  That means they can go faster than 5 miles an hour.  That takes us right back to the beginning, if sailboards and kite boards are not vessels, why would sailboards need the special exception they have?

 I still believe that the fact that they are both primarily wind propelled and not wave propelled is why they both cannot be considered as a surf board, and allowed in a board surfing zone.  That is why sailboarders required the exception.

When discussing the difference between a sailboarding and kite surfing down at Tourmaline, one of the sailboarders mentioned that the exception for sailboarding specifically says “with sails attached to the board”.  That was enough for him to believe there is a significant difference between the two sports.

On the other side, my brother the lawyer (who recently retired after 38 as county counsel for San Mateo County) believes that the exception law is not black and white (as I do).  He believes you could convince a judge that because the kite surfer sails are attached to the surfer and the surfer is attached to the board, then XXXXXXX you could say that the sails are attached to the board.

According to Tarrant Seautelle from the Council District 2 office (in which Tourmaline Surfing Park resides), Council Member Ed Harris has been watching the kite surfing situation.  “Our office has also been in communication with the Lifeguard Service and the Lifeguard Chief is taking this issue on. The lifeguards in North Pacific Beach have been instructed to be more active regarding contacting kite surfers, both on the beach and in the water. The Chief is also putting together a plan for how to handle this moving forward, part of which will be a meeting between all stakeholders.” 

The Tourmaline Tailgaters Surfing Association has an unofficial viewpoint.  They feel that it is okay for the kite surfers to be there, but they must stay outside of the surf break.   There would need to be a designated zone for kite surfers, and for sail boarders, too.  “It is like fire and ice”, says one of the Tailgaters.  It is an obvious safety issue because of the difference in speeds.”

The final quote goes to Greg Miller, who is the designated spokesperson for the Pacific Beach Surf Club.  At the last meeting, there was a show of hands concerning kite surfing at Tourmaline.  “This issue is kind of controversial, and is being discussed all the time.  The official position of the Pacific Beach Surf Club is, they don’t belong here.”

This issue is not going to go away on its own.  Over the next few months there will be a lot of meetings and discussions between all of the stakeholders.  It will be interesting to see what will be the final decision that comes from the City of San Diego concerning kite surfing at Tourmaline Surfing Park.




://www.sandiegoreader.com/staff/russell-goltz/ 

The Law:

Short length answer: Kite Surfers are welcome at Tourmaline Surfing Park, as long as they do not exceed 5 miles per hour.

Middle length answer: A surfing board is any non-inflatable device, and is allowed in a designated board surfing zone, and a wind surfing board, with sails attached, has a specific exclusion to the 5 mile per hour speed limit rule for vessels.  Since a kite surfer has the sails attached to the surfer and not the board, they do not have the speed limit exclusion.

 

Okay, now the full length answer:  Put link on reader.com

The first thing I checked was the “common knowledge” that Tourmaline is a designated surfing area by the San Diego City Council.  In fact, the City Council Resolution No. 183396 only changes the name from Tourmaline Canyon Park to Tourmaline Surfing Park.  The resolution says nothing about it being designated anything.  It appears to be just a name change.   

The next step was to ask a lifeguard about the rules at Tourmaline.   I checked with a lifeguard at the Pacific Beach lifeguard station. He explained to me that the rules are set by the San Diego Municipal Code, and suggested I review Chapter Six (Public Works and Property), Article Three (Public Parks, Playgrounds, Beaches, Tidelands and Other Properties).

Fortunately, all of this information is readily available on the Internet (except the old City Council Resolutions, which were provided by the Council District 2 office, thank you!).  http://docs.sandiego.gov/municode/MuniCodeChapter06/Ch06Art03Division00.pdf

Since this is The Law, everything is subject to interpretation. 

The first relevant section concerns Activity Zones:

Section 63.20.2.b designates 6 different Activity Zones for the beach, one of which is known as a Board Surfing Zone. 

Here is the resolution making Tourmaline Surfing Park a designated Board Surfing Zone:

 
3.  BOARD SURFING ZONE:

 

The City Council retains the right to designate how an area is zoned.  The lifeguards can make temporary adjustments to these zones, but not permanent ones.

Now we get to the important part, which is the definition of the different types of activities that take place in an activity zone.  We are concerned with two of these. 

  • A “Surfboard” is defined as “any non-inflatable device upon which or with the use or aid of which a person can ride waves or be carried along or propelled by the action of the waves”.

 

  • “Board Surfing” shall mean any activity which involved riding waves with the use or aid of a surfboard, or being carried along or being propelled by the action of the waves with the use or aid of a surfboard.  To “Board Surf” shall mean to do or engage in board surfing.

 

It appears to me the definition of a surfboard is virtually anything that is a non-inflatable device.  I interpret this as meaning a boogie board is a non-inflatable device, so is allowed in Board Surfing Zone.    This is in conflict with the common rules.  Currently, Lifeguards do not allow boogie boards at Tourmaline Surfing Park.  Apparently, they are wrong!

Also, this definition would also have to include wind and kite boards as surfboards, so they are also allowed to be in a Board Surfing Zone.  (A kayak also fits this definition.

Section 63.20.2.e helps out our understanding a small bit.  “Only board surfing is allowed in a Board Surfing Zone, and it is unlawful for any person to engage in bathing or swimming activities, except as may be incidental to board surfing”.

 

This clearly excludes swimming and “bathing” in a Board Surfing Zone.

Now we move onto another subject that discusses windsurfing specifically.  That is about vessel speeding.   Again, we must first try and interpret what is the definition of a vessel.  It is the United States Coast Guard that sets the definition for a vessel.  They use the 1873 U.S. Congress Rules of Construction Act definition, which is:

Congress defines a “vessel” as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water”.

The USGS has slightly amended that definition to be more definitively inclusive:

U.S. COAST GUARD NAVIGATION CENTER

RULE 3
GENERAL DEFINITIONS

(a)     The word "vessel" includes every description of watercraft, including non-displacement craft, WIG craft [Intl], and seaplanes, used or capable of being used as a means of transportation on water.

Basically, this means just about anything that floats can be considered a vessel, if it is being used or is capable of being used for transportation on water.  While I would like to exclude a surfboard from this definition, I myself use a surfboard for transportation to paddle out to the kelp for some surfboard fishing.

So I continue reading my Municipal Code, when I reach Section 63.20.15 on Vessel Speeds.  

 
The speed limit near shore for a vessel is 5 miles per hour.    As we previously learned, a kite or wind surfboard can be considered a vessel, so may not exceed 5 miles an hour in a Board Surfing Zone.

Now we get to the really interesting part of our Municipal Code.  Section 63.20.15.c specifies an exception:

 

“Surfboards with sails attached, commonly known as sailboards, may exceed five (5) miles per hour when using areas designated for surfing, pursuant to the relevant sections of the SDMC.”

If the sails are attached to the surfboard, such as with wind surfing, then they are given an exception from the 5 mile an hour rule.  However, with kite surfing, the sails are attached to the surfer, not the surfboard.  Kite surfing does not have an exception to the 5 mile an hour rule!  This also is relevant for kayaks and outriggers.

The conclusion I reach is that kite surfers are welcome at Tourmaline Surfing Park, a City Council designated Board Surfing Area.  No type of board surfer has right of way over any other type of board surfer. However, only wind (not kite) surfers are allowed speeds exceeding 5 miles an hour!


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