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Friday, April 18, 2014

Are Cape May Beach Tags Freely Transferable? Let's Read the Law and Find Out!


Exit Zero - the free bi-weekly newspaper in Cape May - published one of my articles earlier this year about this history of beach tags in Cape May.  I expressed the opinion in the article that at this time, based on a state environmental regulation, beach tags are freely transferable at the discretion of the tag holder and the City of Cape May cannot penalize you for sharing - or transferring - a seasonal, weekly, or 3-day beach tag that was properly obtained originally from the City.  I understand the City may disagree with my opinion.  For what it's worth, here is the New Jersey Department of Environmental Protection regulation that in my opinion applies (scroll down to subsection (y)(5):

(y) A fee for use of bathing and recreational facilities and safeguards, such as lifeguards, toilets, 
showers, and parking, at publicly or privately owned beach or waterfront areas, may be charged in accordance with (y)1 through 6 below. However, no fees shall be charged solely for access to or use of tidal waterways and their shores. The fee schedule and documentation of compliance with this paragraph shall be submitted to the Department by the permittee and its successors in title and interest upon request. 

1. Fees shall be no greater than that which is required to operate and maintain the facility, taking 
into consideration basic support amenities provided, such as lifeguards, restroom/shower facilities 
and trash pickup. This requirement applies to facilities and services directly associated with using the tidal waterways and their shores and does not apply to additional amenities such as cabanas, pools, or restaurants; 

2. Fees shall not discriminate between residents and non-residents or on any other basis, except as allowed by this rule or other law; 

3. Fees shall not be charged for children under the age of 12 years; 

4. Badges or passes must be available for sale at times and places that are reasonably convenient 
for the public. Badges and passes shall be offered for sale in person at the beach or waterfront area during the hours that the beach is staffed. In addition, if the entity that owns or operates the beach or waterfront area offers private memberships, public badges or passes must be offered for sale to the public in the same manner, times and places as private memberships; 

5. Weekly, monthly or seasonal badges or passes shall be transferable at the discretion of the badge or pass holder; and 

6. Public access to and use of tidal waterways and their shores may not be conditioned upon 
providing identification or signing or otherwise agreeing to any waiver or similar disclaimer of rights. 

You can find this regulation online at this link:
 N.J. Admin. Code tit. 7, 7:7E-8.11(y)(5). - you will have to scroll down to page 220 of this link to find the proper subsection (the one I bolded above).

The City of Cape May apparently relies upon its relevant local ordinance, which reads:

§ 158-8.    Regulations for beach tags.

The following rules and regulations are hereby established, and it shall be unlawful to violate any of the rules and regulations or those subsequently adopted resolutions, during the bathing season or at other times if specifically provided for:
A.    No privilege, right, badge, permit or other evidence to use the beaches of the City, issued to or to be issued upon payment of any of the fees provided for by this article, shall be sold, leased or otherwise transferred to any person or entity by any one other than the City or its duly authorized representatives. However, daily beach tags as provided for in § 158-3E may be transferred from person to person, provided no special or separate charge is made for such transfer or use. Specifically, the City or its duly authorized representatives shall be the sole and exclusive vendor and/or lessor of the privileges, rights, badges or permits, as it is hereby deemed unlawful for any person or entity to purchase or lease the badges from any one other than the City or its duly authorized representatives.


Now, as you can see, the City ordinance appears to conflict with the State of New Jersey regulation.  

I would invite you to review your civics education and try and answer this question: Does a local ordinance trump a state regulation that was implemented pursuant to a state statute passed by the state legislature?
In a card game between the city council and the state legislature, who are you putting your money on?

Please do not hesitate to share your opinion below in the comments, or in an email if you prefer.

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