Zepheros wrote:Richard, many kiters would like to stand up for their rights, they simply do not understand their rights and more importantly do not know how to handle the inevitable bureaucracy that they will encounter.
Now, it's time to put your pontificating to real -practical use. What exactly would you recommend a kiter do in similar circumstances? Please be specific and practical. Please don't drone on about requesting a hearing or somehow appealing the warning in writing after finding the applicable code and it's interpretation in the CFR and USC? You and I both know that is a challenge even for trained counsel and to be frank completely useless a kite boarder.
What exactly should a kite boarder do when faced with a warning, or when requested by a park ranger not to kite in a specific area, when there is likely no prohibitive reg? This is a common problem.
My guess is you have no real PRACTICAL answer, and therein lies the real problem sir.
I await your response patiently.
To answer your specific question, I would DO whatever they told me to do, since to not do so is a separate violation. But I'd make sure to get his name and/or ID# and the NAME, TITLE, and CONTACT info for his supervisor. I'd then send the super a CERTIFIED letter letter requesting details of EXACTLY WHAT reg was supposedly violated or about to be violated. Assuming that I thought the reg was bogus and wanted to fight it or I was desparate to kite there, I'd go back and if caught, accept a ticket as below. If I got a warning, I'd save it but ignore it, and go back and if caught, accept a ticket as below.
As far as solving the underlying problem:
Unfortunately, there are only 3 possible approaches. One is to apply political pressure through organizing locals - probably mostly business related. However, I personally have little interest or knowledge in this regard and don't discuss it herein.
Another is to fight the regs and/or tickets in court (which is NOT necessarily beyond the ability of average kiters).
The other is to INSIST that they produce ALL their reasons and objections to kiting in WRITING and then nullify their concerns by either providing reasonable solutions and/or showing that the concern(s) are misplaced. I believe a combination is probably the way to go and I'd suggest that attempting to get their concerns in WRITING first. However, since I have little faith in bureaucrats desire to actually do any more WORK than absolutely necessary, I imagine that obtaining their cooperation out of the goodness of their hearts is unlikely.
In which case, I would try to make enforcement as much of a problem as possible by at LEAST fighting tickets in court.
Since I do not want to be accused of providing legal advice, the below is NOT advice, it is only what I would try to do based upon the very limited information I've gleaned from this thread.
Unless I intended to specifically try to have the reg thrown out, my primary goal would be to simply be able to get the ticket dismissed. If it became necessary to attack the reg itself (probably by appealing a loss in an administrative hearing or lower court), it becomes much more complicated and beyond the abilities of kiters without a legal background or broad support from other kiters and/or the industry.
However, even only fighting the ticket through initial hearings is worthwhile - even if defeated because it uses up THEIR resources and creates opportunity to create publicity and MIGHT lead to beneficial alliances with OTHER groups such as dog owners, ATVers, fishermen and others who also see their access being reduced for no good reason. Of course, it is also within the realm of remote possibility that a kiter could actually prevail and not only have the ticket dismissed but get the reg thrown out.
At every stage it is important that the kiter try to create the impression that no matter what happens he will NEVER give up. Bureaucrats don't like WORK. If they believe that fighting kiters is more WORK than appeasing them, they will OBVIOUSLY be more conciliatory.
The foregoing being the case, I would:
Not argue with or try to antagonize the Ranger.
Not admit in ANY WAY that I did ANYTHING wrong.
Not LIE about ANYTHING. It is a separate and more serious offense to LIE to a Fed. For example, if asked for ID, I would politely say that I did not believe it was necessary to have ID to kite and that I did not believe that I was required to produce it. If asked if I HAD ID, I would politely say that I decline to answer questions which are not required by law to be answered (this can open a can of worms but so far as I know, the only info you must disclose is your NAME). If asked if I drove there I might say the same thing or I might say that "I decline to answer on the basis that my answer might tend to incriminate me". (For all I know, driving and/or parking violated some reg/law).
Stress that my answers were based upon the advice I received from an attorney (once upon a time).
Try to have a witness present.
Not correct mistakes on the ticket (such as wrong time, an obviously bogus description such as on the subject ticket, etc). The idea is that in court I'd want to show that the Ranger didn't have a clue what he was doing.
Make sure that the Ranger clearly identified himself with his # and/or name and I'd USE his name and ask if I was pronouncing it properly so that he was aware that I was paying attention to it.
Ask where I could look up the violation (after it was written down) and unchangeable.
NOT state that I intended to fight the ticket.
Ask if he was recording - audio and/or video our conversation.
After receiving the ticket, NOTHING on earth will make me say "thank you" or act happy about it.
Although many years ago, after I got a ticket for sleeping in a car, I got the ordinance thrown out that made it illegal to sleep in a vehicle (or almost anywhere else because it was so badly written) my only recent experiences with citations in CA involve 5 moving violations ALL of which were DISMISSED and 1 J walking ticket, the fine for which I got reduced by 2/3. Of the 5 moving violations, the cops only showed up twice - once the cop asked for it to be dismissed (he was an amazingly honest CHP newbie) and I actually won the other (declared not guilty) by convincing the judge that I COULDN'T have done what the cop alleged.
The main point is that 3 times the cops DIDN'T show up. They usually don't show up here about 30% of the time. I believe I DOUBLED the no-show rate by requesting "Discovery" from them prior to the hearing. Since the kiting citation is also a criminal matter, without looking up the applicable Federal Rules of Civil Procedure (FRCP), I assume that some type of "discovery" is also allowed. Discovery is the process of requesting that the Cop/RAnger provide copies of all evidence that he has regarding your citation and includes things like photos, diagrams, recordings, etc. Theoretically, (assuming the Fed situation is similar to CA) if they ignore a reasonably proper discovery request, the judge should not allow the evidence to be used. However, I believe the MAIN benefit is that it tells the Cop/Ranger that the case is going to involve a LOT more WORK than usual and especially if its a weak case, a LOT more opportunity for him to lose. Although, the odds of him losing are still minuscule, I suspect that it looks REAL bad and they get laughed at by their colleagues if they lose, ESPECIALLY against a pro se (no attorney) defendant. The bottom line is that he is likely to be more motivated than usual to NOT show up - in which case the defendant wins.
If the defendant wins, the department has lost a comparatively large amount of resources in terms of time and effort without gaining its expected extortion fee. I'm pretty sure that that's about the MOST damage that the average kiter can expect to accomplish but you can be SURE that if even a few kiters prevailed, they'd notice that their little extortion machine wasn't working like it should.
There is also the possibility that they MIGHT care somewhat about the obvious ill will that their comparatively unproductive kiter tickets cause.
If they ran into someone with the wherewithal (or backing) to actually attack an obviously bogus regulation, their exposure goes WAY up in that it becomes REAL WORK to meet with attorneys, department heads etc. and there's also the possibility that a legal battle will lead to OTHER flaws being exposed etc. which will further keep them from their normal activities of doing very little.
I'll bet that it would occur to them that the greater the number of kiters who fight their tickets means the greater the likelihood that their bogus regs WILL get challenged. At some point, someone will hopefully get motivated enough to realize that it's better to placate the kiters.
Of course this can be helped along by kiters who take the time to actually come up with reasonable solutions (even if it involves compromises) to any rational objections which show some reasonable concern for kiter related problems (like keeping wannabe pros from electrifying their kites).
It might not be necessary to actually do any fighting at all. It might just be enough to show how bogus the reg is and come up with reasonable solutions to any reasonable concerns.
However, the bottom line is that there's no reason for them to pay the slightest attention to kiters if all they have to do is say "NO KITING" and go back to doing almost nothing.
Malibu Kitesurfing - since 2002
(310) - 430 - KITE (5483)