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The Honolulu Advertiser

Posted on: Wednesday, June 27, 2001

State seeks beach survey in Maui vendor dispute

By Timothy Hurley
Advertiser Maui County Bureau

WAILUKU, Maui — In response to bitter complaints from beachfront landowners, the state is considering new rules to regulate commercial activity on Ka'anapali Beach and is working to lay the groundwork for better enforcement, a state Division of Boating and Ocean Recreation manager said yesterday.

Chuck Penque, Maui District agency manager, testified during a Maui Circuit Court hearing that regulating commercial activity on the beach is difficult because of jurisdictional issues and imprecise rules.

The Ka'anapali Beach Resort Association contends the law is clear, and is suing the state Department of Land and Natural Resources for allowing commercial activity on the beach. The association has targeted two vendors in particular, Dave Flavin of the Maui Beach Club and John Belles Jr. of Blue Water Surf, who set up tents and signs on the beach and rent kayaks, boogie boards, surfboards and other gear.

The association has requested a preliminary injunction against vendors operating on Ka'anapali Beach. The court hearing on the request was continued yesterday to July 13.

Penque testified that vendors who own state permits to operate in the Ka'anapali District, including Flavin and Belles, are allowed only in the water and not on the beach.

However, enforcement on the beach is difficult, he said, because the state doesn't know where the public beach ends and private property begins. The state has jurisdiction only over the public beach, which extends to the mean high-tide mark.

Penque said he's working to get the 5-mile-long beach surveyed to determine the certified shoreline, which should help with enforcement.

The Ka'anapali association was urged to lobby the state Board of Land and Natural Resources for rule changes, Penque said, but the group instead chose to file a lawsuit.

The suit charges that the state is not enforcing existing rules that prohibit solicitation on the beach. But state officials have said their hands are tied by a five-year-old court ruling holding that signs or banners advertising a rental service are not solicitation.

Ka'anapali beach condominium owners have testified that vendors clutter the beach with signs, umbrellas and tents each day, and then store their equipment on the beach overnight. The vendors also approach beachgoers with sales pitches, they said.

The vendors have said they are providing a service to the public and are no worse than the hotels that place cabanas on the sand.