As a precursor to this topic, we refer the reader to our Circumstances Under Which The “Paid by Choice” Factor Applicable to Nearly All Fees Can Be Disregarded discussion. Which discusses those limited instances where the voluntariness of payment pillar can be disregarded when determining whether a monetary exaction is a legitimate “fee.”

Insofar as the District’s RFF in particular is concerned, because the District‘s operates its public recreation facilities as “for profit” commercial business enterprises, and the financial shortfall incurred in that operation is subsidized by the RFF, this represents a “Proprietary Function” and thus some aspect of contract or payment by consent is necessary. That’s because

“Adoption of a charge for the privilege of (the availability of recreation)…at…publicly owned (facilities) generally is governed by the same rules and regulations that apply to a private landowner(. Meaning) there must be some aspect of contract or consent.”¹

Thus when it comes to determining whether the “paid by choice” factor applied to any fee the District adopts, and in particular the RFF, can be disregarded, the benefits furnished in consideration must be evaluated. And where we’re talking about benefits other than public health and sanitation, as we are here, the element of choice pillar recognized in Emerson College v. City of Boston, at 391 Mass. 415, 424-425, 462 N.E.2d 1098, 1105 (1984) remains and must be applied.

And now you know!

1. See Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 431, 845 P.2d 57 (1993).