State wants to drop permit rules for employees of Waikiki ocean activity companies

The state Department of Land and Natural Resources is looking to repeal rules that require surf instructors, outrigger canoe captains and other individuals who operate in Waikiki waters to obtain a state permit certifying they have the necessary skills and training, citing liability concerns and lack of “resources or expertise to continue conducting the testing and approval process.”

In seeking to repeal sections of Hawaii Administrative Rules Chapter 13-251, which governs commercial activities on state ocean waters, navigable streams and beaches, the head of DLNR’s Division of Boating and Ocean Recreation said eliminating “Waikiki operator permits,” commonly known as blue cards, would allow commercial companies “to set their own employee qualification standards and keep the State, which is not a subject matter expert on surfing or canoe operation techniques, out of the process,” according to a submittal to the Board of Land and Natural Resources, which is expected to take up the request later this month.

DOBOR Administrator Edward Underwood also said in the submittal that the state Department of the Attorney General has advised that the state could be subject to liability claims should customers get injured while participating in activities under the watch of private-company employees holding state-issued blue cards.

DLNR officials declined to comment on the matter before it comes before the Land Board or to respond to concerns about unregulated operators if the rules are repealed, except to say “we do not anticipate any changes from what is occurring today.”

According to the department, approximately 185 Waikiki operator permits are currently issued, with an additional 105 applicants on a waiting list.

Under current rules, blue cards are issued to individuals engaged in commercial purposes in the ocean off Waikiki when the state “is fully satisfied as to the applicant’s competency and fitness to receive the permit.”

Criteria for senior surfing instructors and outrigger canoe captains, for example, include a minimum of three years’ experience in the activity, a current Red Cross advanced lifesaving certificate, knowledge of basic first aid and medical clearance that the applicant is “physically qualified to perform the duties the position requires.”

Blue cards are separate from the commercial use permits DLNR issues to surf schools and other activity businesses that operate in Waikiki waters, and possessing a blue card alone does not entitle individuals to operate independently on their own.

At a previous Land Board meeting, Underwood said that if blue cards are eliminated, the state plans to mandate employee qualification standards as a condition of granting commercial use permits.

“We do not want to be the agency permitting individuals; we already permit companies,” Underwood said at the May 8, 2020, meeting. “We put conditions in their permits, and we don’t feel we have the expertise” to screen each individual seeking a blue card.

He told board members it was “more efficient and practical” to issue commercial use permits and then hold employers responsible for ensuring training and safety standards are met.

“We don’t feel we, the state, should be involved in this,” Underwood said at the time.

“That’s a bad idea,” said Karen Schmidt, a surf instructor for Star Beachboys, a longtime, family-owned business that also offers outrigger canoe rides in the surf at Waikiki. “The place will be a mess. Already we got people who don’t have blue cards out there who think all you gotta do is push people in the water.

“You gotta go through a lot of stuff to get a blue card. It won’t be safe,” Schmidt, 72, told the Honolulu Star-Advertiser Thursday.

The 20-year surf instructor was somewhat reassured to hear the state plans to include training standards as a condition of commercial use permits but still worries about rogue operators.

Former professional surfer Hans Hedemann, who runs his namesake surf school out of the Queen Kapiolani Hotel, said Thursday that he favors dropping the blue card requirement “and letting everybody manage their business safely.”

He said established companies like his own “can run far better and far safer by not being constrained by having to deal with blue cards that may come with a lot of problems and issues.”

“All my instructors are lifeguard- and CPR-certified, and all my people who either work in or out of the water, they’ve all got it,” said Hedemann, who started his surf school in 1993. “I could have a professional surfer, 10 years on the world tour, who is the best surfer, the strongest in conditions, he could be riding 20-foot waves and knows the currents and everything, and he doesn’t have a little blue card.

“How they dictate whether you have a blue card is you have to go and stand up on three waves. To me it’s not as valid as the owner of a business really trying to maximize the best quality and the best safety for the individuals.”

He also noted that it’s in a business owner’s best interest for liability reasons to make sure employees are well-trained.

However, Hedemann said he could see a need for permits for surf instructors and canoe captains who operate in a particular “bubble” of Waikiki waters just off the Duke Kahanamoku statue.

“It’s just too busy there and you want it to be safe,” he said.

Land Board members at the May 2020 meeting voted to defer the matter and directed DOBOR to work with stakeholders to determine the best way to proceed. Officials at the time said DOBOR had reached out to surf school operators and others and had published a legal notice requesting public comment on the proposed repeal but received none.

At that same meeting, board members raised concerns about the potential conflict of interest when businesses are left to ensure proper employee training. They also expressed support for a third-party certification system for surf instructors and others, similar to the training offered by Windward Community College to thrillcraft operators engaged in tow-in surfing.

DLNR said Thursday that such a system for Waikiki operators had yet to be established.

In the submittal for Friday’s Land Board meeting, which was canceled and rescheduled for later in the month, Underwood said DOBOR has been working with Waikiki operators to develop regulations for various commercial ocean activities, and that repealing HAR Chapter 13-251, Subchapters 1, 2, 3, and 7 “would provide the best solution while replacement regulations are developed to address the issues surrounding Waikiki Operator Permits.”

The repeal, if approved, would take effect 10 days after filing with the Office of the Lieutenant Governor.