Judges: Robert A. Butterworth Attorney General
Filed Date: 10/2/1987
Status: Precedential
Modified Date: 7/5/2016
Mr. Tom Gardner Executive Director Department of Natural Resources Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Dear Mr. Gardner:
You have asked my opinion on the following questions:
(1) Would it be legally permissible for the Department of Natural Resources to implement a differential fee system whereby nonresidents of Florida are charged more for access and use of the state park system than residents?
(2) If so, what justification must the department provide and what legal restrictions would apply?
It is my opinion that the Department of Natural Resources, under the authority granted pursuant to s.
As the answer to your first question necessarily includes comment on the second question, the two questions will be answered together.
The Division of Recreation and Parks of the Department of Natural Resources may charge reasonable fees, rentals or charges for the use of facilities in state parks.1 Collected fees, rentals and charges are deposited in the State Treasury to the credit of the "State Park Trust Fund." The fund is used by the division for, among other things, the administration, improvement and maintenance of state parks.2 There is presently no provision for differential fees for residents and nonresidents.3
This office in AGO 76-124 previously stated that a municipality seeking to impose higher fees on nonresidents using municipal recreational facilities would have to show that the differential would have to reflect, and be substantially related to, all economic factors. Additionally, a definite financial burden on the municipality in park maintenance costs clearly justifying a higher fee for nonresidents would have to be shown.
Unlike AGO 76-124, in which a municipality wished to impose higher fees upon all nonresidents of the municipality (including citizens of the state), your question concerns the imposition of higher fees for access and use of the state park system on nonresidents of the state. As stated in 64 C.J.S. Municipal Corporations, s. 1818b., "[o]rdinarily land held by a municipality for park purposes is held for the benefit of the people of the state at large and not only for the benefit of local inhabitants. . . ." (e.s.)
This office recognized such a concept in considering whether a municipality could exclude nonresidents from municipal parks. In AGO 74-279 this office stated that public parks are held not for the sole use of the people of a particular community but for the use of the general public which the Legislature represents. As such, they are of more than local interest and become a concern of the state.4
Clearly, any classification based upon residency would have to comply with the mandates established by the Equal Protection Clause and the Privileges and Immunities Clause of the
In those situations where no fundamental right or suspect classification is involved, the rational basis test is applicable in determining whether state action violates the United States Constitution.6 This test requires only that state action bear some reasonable relationship to a legitimate state purpose.7 In determining if state action is constitutional under this standard, the question that must be resolved is whether the governing body could rationally have believed and decided that the particular classification chosen would promote a legitimate state purpose.8
Classifications based upon residency involve no suspect class nor fundamental right.9 Case law makes it clear that a state, under certain conditions, may prefer its own residents over the residents of other states or condition the enjoyment of nonresidents in recreational activities created or supported by the state.
For example, in Vlandis v. Kline,10 the U.S. Supreme Court recognized that a state has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its bona fide residents to attend such institutions on a preferential tuition basis.11 The courts have held that classifying students as residents or nonresidents for tuition purposes does not affect a fundamental right.12 Instead the courts have found that such classifications are reasonably related to a legitimate state interest, that of cost equalization between those who have contributed to the state's revenues through taxes and those who have not.13
Fee differentials for residents and nonresidents have been upheld in other areas. In Baldwin v. Fish Game Commission of Montana,14 the U.S. Supreme Court upheld a higher hunting license fee imposed upon nonresidents by the State of Montana.15 The Court stated that, where the opportunity to enjoy a recreational activity is created or supported by a state, where there is no nexus between the activity and any fundamental right, and where by its very nature the activity can be enjoyed by only a portion of those who would enjoy it, a state may prefer its residents over the residents of other states or condition the enjoyment of the nonresident upon such terms as it sees fit.16
Lands held in the name of the Board of Trustees of the Internal Improvement Trust Funds are held in trust for the use and benefit of the people of the state.17 I am not aware of any judicial determination which holds that this responsibility extends to the nonresidents of the state. It is also the policy of this state to conserve and protect the natural resources and scenic beauty of the state.18
Accordingly, the Department of Natural Resources may implement a state park fee system, distinguishing between residents and nonresidents of the state, provided it determines that a valid state purpose exists and the implementation of such a fee system reasonably relates to carrying out that purpose.
Sincerely,
Robert A. Butterworth Attorney General
Section 7, Art. II, State Const., provides that "[i]t shall be the policy of the state to conserve and protect its natural resources and scenic beauty." Section 11, Art. X of the Constitution provides in part that "title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people."
Waste Aid Systems, Inc. v. Citrus County, Florida , 613 F. Supp. 102 ( 1985 )
Markham v. Fogg , 458 So. 2d 1122 ( 1984 )
In Re Estate of Greenberg , 1980 Fla. LEXIS 4410 ( 1980 )
Richard Hayes v. The Board of Regents of Kentucky State ... , 495 F.2d 1326 ( 1974 )
Vildibill v. Johnson , 11 Fla. L. Weekly 275 ( 1986 )
Baldwin v. Fish and Game Comm'n of Mont. , 98 S. Ct. 1852 ( 1978 )