Marina Ordinance Revisions
that affect the Bait Shop

Proposal by Paul Kamen, June 7 2000

Section 6.20.330, which deals with fishing charter vessels and the Bait Shop, is the one major section left to resolve before sending the full Marina Ordinance revision on to the City Council.

I am proposing an alternative to the Marina Staff's wording. This proposal accomplishes several goals: It protects the viability of the bait shop by allowing a rational and equitable method of subsidy; it protects the fish boat operators by allowing them the option of operating independently; and it protects the City by enabling a simple method of checking passenger statistics for the purpose of fee collection.

Most importantly, it protects the fish boat customers by allowing fair competition in price and services, and by keeping the door open to new boats that might want to join the Berkeley fleet. The City's proposal, on the other hand, leaves the Bait Shop in a position to fix prices, discriminate against new boats, and does not hold them accountable to the boat operators.

There is no language in the license agreement between the City and the Bait Shop that prevents the fish boat operators from handling their own bookings. I suspect It is much more likely that wording that forces the boats to use a designated third party - a party to which they presently have no contractual obligation - would not withstand a legal challenge.

Proposed text for new Marina Ordinance

This is my proposed alternate wording for 6.20.330 D.

It allows fish boat operators to voluntarily enter a binding agreement with the booking agent designated by the Marina, or to operate independently.

D1. Operators of fishing charter vessels may arrange to book their passengers through an agent designated by the Marina Manager. Such an arrangement may include a booking fee to that agent not to exceed 5% of the total consideration for all passengers. Fishing charter vessel operators are also free to work independently.

D2. Operators of charter fishing vessels using the booking agent designated by the Marina Manager shall purchase bait and rent fishing equipment only from that agent, unless such bait or fishing equipment is not available in a timely manner from said agent. Exceptions to this provision may be negotiated individually between the designated booking agent and the fishing charter vessel operator.

This provision makes the Marina's fee collection less subject to abuse with respect to independent operators:

E2. Operators of charter fishing boats working independently of the designated booking agent shall report the number of passengers on board before departure for each charter trip. Such report may be dropped through the mail slot of the marina office.

E3. The Marina Manager or staff may board fishing charter vessels on return to the marina for the purpose of spot-checking the number of passengers reported.

And, to address the argument that the Bait Shop can't survive without the captive market:

E4. The City Council may designate part or all of per-passenger fee collected from all fishing charter vessels to be directed to the designated booking agent as an operating subsidy.

Marina Staff continues to express a desire to see some money flow from the independent operators to the bait shop, without redirecting any of the per-person passenger loading fee away from the Marina. Their argument is that the Bait Shop continues to provide indirect benefits (other than booking services) to the independents, and therefore some financial support is justified.

There are several problems with this line of reasoning:

1) These indirect benefits are enjoyed by all charter fishing vessels, not just the independents. The 5% fee for handling charter bookings is intended to cover the cost of this specific services. If other services are enjoyed by the fleet, and If the Bait Shop needs subsidy to survive, then it might make sense to direct a portion of the per-passenger fee to the bait shop. But this support should come from all the charter fishing boats, because they all benefit from these indirect services. There is no reason to single out the independents. There is no justification for "punishing" a boat that chooses to operate independently by charging them additional fees that the boats operating through the Bait Shop don't have to pay. The option to operate independently without penalty is the only natural control on the bait shop's performance.

2) Furthermore, it's not clear who is really benefiting who the most. While the Bait Shop provides indirect benefits to the independent boats, the boats also bring business to the Bait Shop. There is no clear necessity for one to subsidize the other. Successful boats bring more business to the shop.

3) If the marina has other expenses related to the operation of the charter fishing boats that will not be covered by the passenger loading fee (after sending some or all of it to the bait shop, if a subsidy is necessary), then the passenger loading fee should be raised to cover these costs.

Our priority should be to allow the fleet to grow, a scenario in which everyone benefits.

But is growth really possible?

Staff suggests that fish stocks are dwindling, and that growth is unlikely. While this may be a long-term trend, it seems to be at odds with recent fishing reports. Check out (the Bait Shop's own web page) and for a second and third opinion. Lots of customers seem to be catching their limit.

Even a reduced market is regional, and Berkeley still competes with other harbors for fish boat activity. Customers need the services of a bait shop and other amenities that make Berkeley a desirable point of departure. The boat operators need a business climate that is rational, fair, and economical. All parties will benefit if the business climate encourages growth of the fleet.

The City's proposed text for new Marina Ordinance

This is the revision to this section of the Marina Ordinance as proposed by Marina Staff, first made public in December 1999 and apparntly still unchanged from the initial version. Included here for reference.

6.20.330 Charter Vessels

A. Charter vessels may use or operate from public docks in the Berkeley Marina only as set forth in this section and pursuant to a charter permit.

B. Upon application therefore, the Marina Supervisor or Marina Manager may issue a charter permit. Charter permits shall require compliance with all applicable provisions of federal, state and City laws, ordinances and regulations, current commercial general liability insurance naming the City as additional insured in an amount not less than one million dollars (which amount shall be subject to adjustment by the Risk Manager) and payment of all fees and taxes required by City ordinances.

C1. Use of slips for charter vessels shall be in accordance with assignments made by Marina Supervisor or Marina Manager, who may establish procedures for orderly reservation, assignment and allocation of slips.

C2. Operators of charter vessels shall pay a slip use and passenger loading fee established by resolution of the City Council.

D. Operators of fishing charter vessels shall book their passengers through an agent designated by the Marina Manager and shall pay a booking fee to that agent not to exceed 5% of the total consideration for all passengers. Additionally, operators of charter fishing vessels shall purchase bait and rent fishing equipment only from an agent designated by the Marina Manager, unless such bait or fishing equipment is not available in timely manner from said agent.

E. Charter vessels which use or operate from private docks in the Berkeley Marina shall pay a marina use fee established by resolution of the City Council. The purpose of said fee is to compensate the City for services and benefits provided to such vessels through maintenance and improvement of the Berkeley Marina and associated public facilities.

F. Upon three violations of this section within any 12- month period, the operator of a charter vessel shall be prohibited from operating any charter vessel in or from the Berkeley Marina for one year.

1. For purposes of this section, conviction of an infraction shall be conclusive evidence of violation.

2. In addition, for purposes of this section, conviction of an infraction shall be conclusive evidence of violation.

G. As used in this section, the following terms shall have the following meanings.

1. "Charter vessel" means any vessel used to carry passengers for consideration, direct or indirect.

2. "Fishing charter vessel" means a charter vessel which carries passengers for the purpose of fishing.

3. "Fishing equipment" means any gear required or used in order to fish.