Kay said the non-resident fee imposed by the city was not to make a profit from its operation of one of the premiere snorkeling spots in Hawai'i, but to help defray expenses.

Kay said Hanauma Bay is essentially a joint operation between the city and the state, with the state contributing the bay and the city providing the "surroundings."

Because Hawai'i residents essentially underwrite the costs of operating the park year round, "It is appropriate to defend them from being charged an admission fee," Kay said.

California resident Carol Daly sued the city in July 2001, claiming the Hanauma admission fee violated the U.S. Constitution by unjustly discriminating against people on the basis of their state residency. Daly also charged that the city was breaking state law by charging for beach access and restricting freedom of movement along a public right-of-way.

In his oral ruling yesterday, Kay said Daly paid $3 and "engaged in free expression" at the park. He termed the admission fee "only an incidental impediment" to Daly's enjoyment of the park.

Likewise, Kay ruled the entrance fee was not a significant impediment to a portion of the state constitution's "free movement clause."

"It is a permissible fee for a specific purpose, not an unauthorized tax," Kay said.

Daly's lawyer, Jim Bickerton, criticized the ruling saying it was the first step "down a slippery slope."

"Right now, the people of Hawaii have no right of free beach access," Bickerton said.

He said charging non-residents an entrance fee at Hanauma, and potentially any number of other city or state beaches and parks as well, could hurt the tourist industry.