State officials are seeking a $1,000 fine and $580 in administrative costs from Maui Kayaks Inc. for allegedly conducting unauthorized commercial activity at a state beach reserve at Olowalu.
The proposed fine will come before the state Board of Land and Natural Resources on Friday in Honolulu.
When contacted for comment Wednesday, Maui Kayaks owner Paul Noble said he did not believe his business was operating illegally on state lands. Instead, the complaint against his business stemmed from a new state interpretation of how his business has been operating, he said.
"They've allowed us to operate there for 12 years," he said.
Now, state officials are interpreting the rules differently than he interprets them, Noble said, adding that he looked forward to discussing the matter with the officials during Friday's meeting to seek a solution.
"We're trying to comply," he said.
Under Hawaii state law, it is illegal to conduct commercial activities on "unencumbered public lands." These include public beaches makai of the shoreline's high water mark. Those conducting activities first need to get a permit, usually granted for beach weddings, baby christenings, the scattering of ashes or hula classes.
A staff report to the land board says that a sign at the Olowalu Beach Reserve clearly says, "no commercial activities."
Nevertheless, the report says, Maui Kayaks employee James Adkins was seen at 7:35 a.m. Aug. 29 conducting business on the shore at Olowalu Beach.
State land agent Larry Pacheco reported seeing several kayaks lined up along the upper portion of the shoreline on state land with a group of people standing around the kayaks. He said he approached the group and saw a man providing instruction to the people who were holding paddles and wearing life jackets. The instructor covered paddling techniques and provided a short safety briefing, he said.
"After the instructions were completed, the instructor/guide then pulled each kayak into the water and assisted the clients with launching off the beach," Pacheco said.
He said he talked with Adkins, informed him that lessons and briefings were not allowed on state lands, and Adkins told him he was unaware of the rules and had never been briefed on them by the business owner.
Pacheco gave Adkins a verbal warning. The next day, Pacheco said he contacted Noble, who told him that he was not aware that his instructor had not been briefed on the rules about operating on state land.
Noble "indicated that they have to provide a safety briefing to prevent any injuries while out in the water and that he was sure the state would not want to be held responsible," Pacheco said. "I then informed Mr. Noble that this location is not a permitted site for commercial operations to take place and therefore the state is not liable for any part of his business operation."
A review of state files found four other complaints and three cease-and-desist notices issued to Noble and Maui Kayaks.
Those include Aug. 12, 2008, and Aug. 11, 2011, complaints for commercial activity at Olowalu, with warnings issued in both cases; and March 22, 2008, and May 1, 2008, complaints for activity at Makena, also with warnings given. The cease-and-desist notices were issued March 24, 2008; April 7, 2008; and Aug. 26, 2011.
The staff report to the land board says that given Maui Kayak's "history of violations," a fine is "reasonable."
"It is our intent that a fine will serve as a deterrent to future unauthorized activity," the report says.
It notes that the state has been working with Maui County's Department of Parks and Recreation to provide information to vendors who are required to attend training classes before obtaining a commercial ocean recreational activity permit from the county for vendors to operate at designated county park facilities.
State officials report that county permit holders have been moving their businesses out of designated park areas and onto unauthorized state areas.
The staff report noted that Noble had attended and completed the county ocean recreation training classes, which included a presentation about unauthorized activities on the shoreline and state lands.
"The Maui District Land Office has to date received numerous complaints from the public regarding the overcrowding of shoreline areas due to vendors laying out kayaks or surfboards along the beach while awaiting the arrival of clients or during lessons and safety briefings," the staff report says. "The public has for generations utilized specific areas for family outings and recreational activities and are now being forced out of these locations because of the impacts from unauthorized commercial operators."
Earlier this year, the land board waived a $1,000 fine that had been levied against Maui Ocean Activities for conducting unauthorized business at Wailea Beach - on the condition that the operator agree to stop doing activities such as stand-up paddling, kayaking and snorkeling on state lands. Any future infractions would be considered a second violation, warranting a higher fine of $1,000 for each day the unlawful activities occur.
Maui Ocean Activities still needed to pay a $450 administrative fee.
Owner Dan Cardoso said he had operated his business in front of the Grand Wailea for seven years and didn't know his employees were not allowed to dock the kayaks on the beach to give guests instruction, even for 20 minutes.
"Now we do know, and we're willing to fix it," Cardoso told The Maui News.
* Brian Perry can be reached at firstname.lastname@example.org.