City of Newport Beach Denies Former Navy Diver Permit to Teach Surfing on Public Beaches

Former Navy diver Jason Murchison wants to give paid surfing lessons on the City of Newport Beach public beaches. But it seems that City officials are on some kind of power trip to turn the beaches into their own private fiefdom and they have repeatedly denied him permission to teach surfing.

Now, with the help of the libertarian-leaning Pacific Legal Foundation,  Murchison has filed a federal lawsuit contesting the 2012 Newport Beach ordinance that anyone giving paid lessons on the beach first get permission from the City.   The lawsuit claims that the ordinance violates the First Amendment,  as well as federal and state law.

Murchison has been surfing since childhood and even decided to ditch the law degree that he obtained while in the Navy to teach surfing full time.  He told the California Globe that Newport Beach is “tyrannical” and has even hounded him about teaching surfing on beaches they don’t control, sending police officers after him.

He applied for permission to teach surfing in 2015 and 2016, as well as last year,  but was rejected every time. The only explanation provided was that the City has enough surf instructors.

Thirteen other companies were also denied permission by the City to teach surfing. Only three companies have been granted permission to give paid surfing lessons.  And they are required to give the City 20 to 30% of the fees they earn.  These kinds of arrangements are generally frowned upon in other circumstances as shakedowns and kickbacks!

In a telephone interview with the California Globe, Murchsion said that, “I followed every rule and I thought I would  be a prime candidate to get one of these permits. Then I was rebuked with no reason, I feel there has been an extreme amount of prejudice and bias service. They’ve had the same three surf schools for 15 years and desire to continue the monopoly that they have.”

He added that, “This was an attack on my freedom. They are trying to enforce something that is unconstitutional against me. My only recourse is to fight this [in court].”

Pacific Legal Foundation lawyer Caleb Trotter told the California Globe that established case law from the Supreme Court on down says that giving paid lessons qualifies as protected speech under the First Amendment.

“The ordinance violates the First Amendment because it prohibits Jason’s speech: instructing others how to surf,” Trotter explained. “The Ninth Circuit [Court of Appeals, which covers California] has held that teaching others is speech protected by the First Amendment, and the Supreme Court has held that charging a fee in exchange for instructional speech does not diminish the First Amendment’s protection of that speech.”

The lawsuit was filed early this year in the United States District Court for the Central District of California.

Besides the First Amendment claim, it says that  “the Sherman Act forbids the City from monopolizing surf instruction within the City; and California’s Coastal Act does not permit the City to restrict access to the coast without a Coastal Development Permit.”

It says the City never obtained such a permit and that restrictions on teaching violate the California Coastal Access Act requirement for easy public access to beaches.

“The California Coastal Act seeks to “maximize public recreational opportunities” and “maximum access” to the coast.  Surf and SUP lessons give members of the public the ability to access the coast through a unique and ancient form. Through offering paid surf and SUP lessons, instructors are also able to access the coast. By limiting the number of surf and SUP instructors authorized to operate in Newport Beach, the Ordinance deprives the public of options for safely learning how to surf and SUP, thus limiting access to beaches within Newport Beach.”

The lawsuit argues that  the ordinance violates the Sherman Act, which prohibits monopolies, because the City “has both monopoly and market power over surfing and SUP lessons offered in Newport Beach, California. By virtue of the Ordinance, no one is permitted to offer surfing or SUP lessons in the City unless the City has entered into a contract with the provider that gives the City a substantial portion of the proceeds. As a result, the City excludes all other competitors from the market for surfing and SUP lessons offered in the City.”

The complaint  also says the ordinance serves no legitimate purpose and is just a money-making gimmick and its application violates the Fourteenth Amendment guarantee of equal protection under the law.

“By restricting paid instructional activities on beaches within Newport Beach, but not unpaid instructional activities and paid non-instructional activities, Defendant arbitrarily and irrationally maintains and actively enforces a set of laws, practices, policies, and procedures under color of state law that deprives Plaintiff of his right to equal protection, in violation of the Fourteenth Amendment.”

“For example, the City has provided no explanation why an instructor could teach a large group surfing lesson for free—or why an individual could busk on the beach for tips—without the need for an agreement with the City, whereas Plaintiff must obtain an agreement with the City before giving a surf lesson to even a single person in exchange for a fee.”

The City filed a motion to dismiss the case last month.  It says the complaint should be dismissed because it concerns action outside California’s two year statute of limitations.

Newport Beach also argued that the law does not violate the First Amendment because it regulates “teaching activity,” not speech,  and is content neutral.

But Caleb Trotter says the motion to dismiss is now moot because he filed an amended complaint last Friday. “The only substantive addition is to clarify that we’re well within the statute of limitations” by noting that Murchison, in May 2024, applied for permission to teach surfing but was rejected.

Newport Beach’s response to the amended complaint is due by March 28. Trotter expects that they are going to file another motion to dismiss.

Michael Linden, the lawyer for Newport Beach, did not reply to a request for comment.