Marina Ordinance Progress Report 2

Developments from the March 8 2000 Waterfront Commission meeting, and from other communications.

April 24 2000


We continue to make slow progress on the Marina Ordinance revision. The bait shop issue will probably have to be resolved at the Council level, but everything else should be worked out in another meeting or two.

On 6.20.018: The jetski prohibition passed unanimously. Operation of jetskis is banned within 1500 feet of the Berkeley shoreline and the Berkeley Fishing Pier, and the speed limit in the access corridor from the launching ramp to the open Bay is 15 MPH. This is a change from the proposed 1200 feet in order to be less ambiguous about operation in the North Sailing Basin, which is just over 2400 feet wide at the north end. The restriction from the pier was added, and the speed limit in the access corridor was increased from 5 MPH to 15 MPH in order to allow a safer speed in rough conditions.

A better definition of jetski or PWC is still needed.

On 6.20.020: "Licensed marine surveyor," a meaningless term in this context, is replaced by "professional marine surveyor." The sea trial is now defined as a trip 3,000 ft west of the marina (end of the fishing pier) and back. "Seaworthy" was also changed to read "seaworthy for navigation on San Francisco Bay." With these changes, this provision of the ordinance proposal passed unanimously.

A better description of what constitutes a "professional marine surveyor" for the purpose of the seaworthiness determination should probably be added to an expanded "definitions" section of the ordinance. There should be some language about the surveyor being in the business of surveying vessels of the type in question, and deriving a substantial portion of their income from such activities.

On 6.20.330: The most contentious issue remains the status of the bait shop as the exclusive agent for booking customers on fishing boats. In this position, the bait shop has considerable discretionary power when assigning customers to various boats. This arrangement also encourages uniform pricing across the entire fleet.

Marina staff seems to be interested in continuing the bait shop's monopoly. If all booking go through the bait shop, it is easier for the marina to keep track of the total number of passengers on each boat for the purpose of charging the $1/person port fee. Staff also continues to argue that the monopoly is necessary to insure the survival of the bait shop.

Meanwhile, the bait shop operator openly describes his policy as one of "favoritism" to boats that are established in the Berkeley fleet. None of the fish boat operators, when polled at an informal meeting, seemed to think that expanding the Berkeley fleet was a particularly good idea. So in that respect they support the shop's policy that essentially freezes out new boats. Only two of approximately eight boats operating from Berkeley expressed an interest in doing bookings on their own.

So, we have the marina staff interested in keeping their job easy, we have the fish boat operators interested in restricting the growth of the local fleet and the arrival of new competition, and we have the bait shop interested in protecting its booking and equipment rental monopolies. No-one here is acting in the interest of the customer, who would be much better served by an expanding fleet that is allowed to compete on price and services. The market is regional, and an attractive environment for new boats would very likely allow growth of the fleet to happen. Ultimately it would serve the interests of the bait shop operators too.

Staff continues to state that the "exclusivity" provision of the bait shop's license agreement with the City prohibit the boat operators from taking bookings for their own boats. Staff further represents that a question was sent to the City Attorney's office to clarify this point, and that the answer supported staff's position. However, after repeated requests to see both the question and the answer in writing, no documents have been made available except the license agreement itself.

The word "exclusive" only appears in the document in one place, under the "Assignment and Sublicensing Prohibited" heading: "This license is personal and exclusive to Licensee." This is probably standard boilerplate; there is no wording in the document which by any stretch of legal imagination can support staff's interpretation. The City Attorney's office probably agreed that the "exclusivity" of the agreement means that there can only be one bait shop offering those particular services in the Berkeley Marina, and that it can be operated only by the named licensee. The boat operators are still free to take reservations and rent equipment on their own if they prefer - just as other restaurants in the Marina are free to sell the food items also sold by the bait shop under their "exclusive" lease.

No action was taken on this issue. It will probably be decided at the Council level.

Marina Ordinance Agenda Items still pending:

6:20:010: Move more definitions to the "Definitions" section of 
          the ordinance.

6.20.160: Policy statement for floating lift docks.

6.20.160: Definition of vessel length - "overall" v. "extreme."

6.20.018  Better definition of "jetski" or "PWC." 

6.20.020: Definitions of "professional marine surveyor" and 
          "seaworthy for navigation on San Francisco Bay."

6.20.230: Appeals procedure, filing time limits, means of obtaining
          objective arbitration and objective survey. 

6.20.330: Bait shop exclusivity for bookings and gear rental. 
6.20.330: Definitions of "private" and "public" docks.