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AGLO 1978 No. 23 - August 02, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- ANIMALS ‑- FEES ‑- OPERATION OF COUNTY ZOO AND IMPOSITION OF ADMISSION CHARGES IN CONNECTION THEREWITH

Under the provisions of RCW 36.68.090 a county may construct and operate a county zoo and impose reasonable admission charges in connection therewith.

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                                                                  August 2, 1978

Honorable Donald C. Brockett
Prosecuting Attorney
Spokane County
West 1115 Broadway Avenue
Spokane, Washington 99260                                                                                                               Cite as:  AGLO 1978 No. 23

ATTN:  Jerry Neal

       Chief Civil Deputy

Dear Sir:

            This is written in response to your recent request for our opinion on the following two questions:

            (1) "Does a County of the State of Washington have the authority to construct and operate a zoo and impose admission and other charges for the use thereof pursuant to RCW 36.68, et seq?"

            (2) "If question No. 1 is answered in the negative does a County of the State of Washington have the authority to impose public admission and other charges for the use of County zoo facilities constructed pursuant to RCW 36.89, et seq?"

            We answer your first question in the affirmative thereby rendering consideration of question (2) unnecessary.

                                                                     ANALYSIS

            As adopted pursuant to § 1, chapter 144, Laws of 1967, RCW 36.68.090 reads as follows:

             [[Orig. Op. Page 2]] "Any county, acting through its board of county commissioners, is empowered to build, construct, care for, control, supervise, improve, operate and maintainparks, playgrounds, gymnasiums, swimming pools, field houses, bathing beaches, stadiums, golf courses, automobile race tracks and drag strips, coliseums for the display of spectator sports, public campgrounds, boat ramps and launching sites, public hunting and fishing areas, arboretums, bicycle and bridle paths, and other recreational facilities, and to that end may make, promulgate and enforce such rules and regulations regarding the use thereof, and make such charges for the use thereof, as may be deemed by said board to be reasonable."  (Emphasis supplied)

            Also to be noted in connection with your question is chapter 36.89 RCW, codifying chapter 109, Laws of 1967, as amended by chapter 30, Laws of 1970, 1st Ex. Sess.  Under that law, and specifically, RCW 36.89.030:

            "Counties are authorized to establish, acquire, develop, construct and improve open space, park, recreation and community facilities, . . ."

            Then, for the purposes of this statute the term "open space, park, recreation and community facilities" is expressly defined by the third paragraph of RCW 36.89.010 to mean:

            ". . . any public facility, improvement, development, property or right or interest therein for public park, recreational, green belt, arboretum, multi-purpose community center (as defined in RCW 35.59.010), museum,zoo, aquarium, auditorium, exhibition, athletic, historic, scenic, viewpoint, aesthetic, ornamental or natural resource preservation purposes."  (Emphasis supplied)

            In the abstract, we have no doubt that a county zoo, although not among the categories of recreational facilities  [[Orig. Op. Page 3]] expressly listed in RCW 36.68.090,supra, would come within the purview of that statute by reason of the further (catch all) phrase "and other recreational facilities" appearing therein.  Although most of the facilities enumerated in that statute are suited to active, physical recreation, others are not.  Thus, for example, as a place where many kinds of trees and shrubs are grown for exhibition, an arboretum is similar to a zoo where wild animals are kept for public exhibition.  In addition, a zoo is comparable to a park in many respects.  Therefore, as we view it, a zoo would come within the scope of the statute‑-and, in turn, because of the express provision appearing at the end of RCW 36.68.090, a county operating a zoo thereunder could ". . . make such charges for the use thereof, as may be deemed by said board to be reasonable."

            The issue raised by your question, however, is whether the foregoing interpretation of RCW 36.68.090 is now precluded by reason of the express authorization, in RCW 36.89.030, supra, for the operation of a county zoo‑-but (unlike RCW 36.68.090,supra) without any accompanying express authorization for the imposition of an admission fee.  We think not, and accordingly, we respond to your first question in the affirmative.

            In essence, we base our conclusion that RCW 36.68.090, supra, is unaffected by the later enactment of chapter 36.89 RCW upon a further express provision of the latter enactment; namely, § 6, chapter 109, Laws of 1967, since codified as RCW 36.89.060, which reads as follows:

            "The powers and authority conferred upon governmental agencies under the provisions of this chapter, shall be construed as in addition and supplemental to powers or authority conferred by any other law, and nothing contained herein shall be construed as limiting any other powers or authority of such governmental agencies."  (Emphasis supplied)

            Similarly, the 1970 amendment to chapter 36.89 RCW, which added zoos to the express enumeration of recreational facilities contained therein, also contained, in § 13, chapter 30, Laws of 1970, 1st Ex.Sess. (now RCW 36.89.062) the following declaration:

             [[Orig. Op. Page 4]] "The power and authority conferred upon counties by this chapter . . . shall be in addition and supplemental to those already granted and shall not limit any other powers or authority of such counties."  (Emphasis supplied)

            Thus, the legislature expressly made all of the provisions of chapter 36.89 RCW supplemental to previously existing statutory authority and declared that the latter provisions would not limit any other powers.  From this, it follows that the two statutes now stand as independent sources of authority and do not conflict in any respect.

            It has further been suggested, nevertheless, that the adoption of the above‑noted 1970 amendment to chapter 36.89 RCW would have been useless if the authority to operate a zoo already existed by virtue of RCW 36.68.090.  As we view it, however, the 1970 legislation was not duplicative because it provided a different method for financing the recreation facilities authorized by that chapter.  See, in particular, RCW 36.89.040,et seq.  Thus, the addition to zoos to the definition contained in RCW 36.89.010,supra, was not useless because that chapter permits a method of financing both county and city projects not contemplated by the pre‑existing provisions of RCW 36.68.010-36.68.090, supra.

            Question (2):

            Having thus answered your first question in the affirmative, it is unnecessary for us to consider, in detail, your second inquiry.  We do note, however, that the absence of express authority for the imposition of fees under chapter 36.89 RCW would, in accordance with the reasoning contained in prior opinions of this office,1/ preclude a county from charging an admission fee in conjunction with any recreational facilities which it might elect to operate under that law‑-as opposed to those maintained and operated, instead, under the authority of RCW 36.68.090, supra.   [[Orig. Op. Page 5]]   We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General


RICHARD J. FINK
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, e.g., AGO 63-64 No. 19 [[to Lincoln E. Shropshire, Prosecuting Attorney of Yakima County, on April 22, 1963]]and AGO 57-58 No. 64 [[to Charles O. Carroll, Prosecuting Attorney of King County, on May 21, 1957]].

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