In Newport Beach, surfing instructor Jason Murchison is being treated like “this Jesse-James-style criminal,” as he puts it. The city has been in a legal dispute with Jason — a 41-year-old former Navy diver turned business owner — for a decade. He has seen code enforcement officers watching him from a boat. He has received citations in the mail. Now, the city says Jason owes $19,000 in fines and fees. Why? Because Newport Beach bans all paid “instructional activity” from parks and beaches unless the instructor has written permission from the city. Since that ordinance went into effect in 2012, at least 13 surfing instructors, including Jason, have tried to get the city’s permission to teach surfing. Only three companies succeeded — and according to public records, they each kick back 20-30% of their lesson fees to the city. When Jason tried to get permission — twice, in 2015 and 2016 — Newport Beach told him it didn’t need any more surfing instructors. It’s an odd but familiar refrain: Whenever the government sets itself up as a bouncer at the door of economic activity — allowing some (favored) businesses in, turning others away — it uses this amorphous concept of need as an excuse. In some states, businesses in certain industries (mainly healthcare and transportation) are forced to get a “certificate of need” from regulators before they can operate — as if bureaucrats in government offices were the final arbiters over what any community or customer needs. “It seems almost like this mythical bunch of people making these decisions behind closed doors,” Jason says. His year-round lessons are popular with customers — so popular he had to hire additional instructors to meet demand. The business teaches kids as young as four, plus adults, including veterans from Wounded Warriors. Most are beginners trying something new. “You’ll get kids from all over the country,” Jason says. Some “have literally never seen an ocean, and they’re terrified.” He’ll start them in a beginner area, away from the waves that can rise to ten feet. “And seeing them go from terrified to excited — it’s fun,” he says. When he started teaching these lessons years ago, he thought they’d be temporary. He’d just left the Navy and was attending part-time law school in the evenings, leaving his days open for working. He’s been surfing since he was five or six years old. Teaching people how to surf made sense to Jason: It was a way to make a living doing what he loved. Cities should encourage this kind of self-directed entrepreneurship: It’s how businesses bloom out of nothing to meet demand. You try something. You see if it sticks. You move out toward bigger waves, learning to trust your own skill as you do something new. But in Newport Beach, that’ll cost you $19,000. “It’s bizarre,” Jason says. In California, “they’d rather turn you into a homeless veteran than have you be a veteran-owned business.” In January, Jason filed a lawsuit against Newport Beach for violating his constitutional rights. He’s represented pro bono by our law firm, Pacific Legal Foundation, which defends individual freedom in courts across the country. “This is a constitutional issue,” Jason says. “And I know it’s kind of goofy because it’s in the surf world, but this is America. And if we don’t fight for our rights, they’re taken away slowly over time. Just one more thing that’s taken away.” If Jason were teaching lessons for free, the city would have no problem: Free surfing lessons are allowed in Newport Beach. Jason could gather an entire college fraternity on the beach for a group lesson, and it would be protected as free speech. But because he’s earning a living from his lessons, the city wants him to stop.
His legal dispute with the city has caused Jason and his fiancée “a lot of sleepless nights, a lot of tears, a lot of fear,” he says. (His law degree, at least, has come in handy.) Besides the three surfing companies who’ve struck deals with Newport Beach, it’s unclear who wins from shutting out Jason’s lessons. Certainly not Jason’s customers, who rave about the lessons in online reviews. One Newport Beach local mother reports that Jason taught her two children “with extensive disabilities” how to surf — “a challenge I thought would be impossible.”
That’s what Jason’s lawsuit is about: the freedom to earn a living doing what you love, providing a service that — despite what Newport Beach told Jason — fills a genuine need in the community. It’s also about the freedom to try: to find an opportunity and take it, like choosing waves in the pursuit of happiness. Caleb Trotter is a senior attorney at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberty against government overreach and abuse.