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Is East Lyme price gouging on nonresident beach passes?

I don't think it takes a legal genius to say that East Lyme's decision back in the spring to restrict beach access to residents this summer was a gross violation of the law, given a unanimous 2001 decision by the state Supreme Court that town beaches must be open to all.

In promoting the spring decision to flaunt the law, East Lyme First Selectman Mark Nickerson, chest beating, boasted that he was prepared to "look a judge in the eye" if someone took the town to court and explain away the town's position as a pandemic safety measure.

Of course, the American Civil Liberties Union of Connecticut, which participated in the 2001 case before the high court, has apparently been too busy waging other pressing challenges during a pandemic marked by racial unrest to take East Lyme to court.

ACLU officials told me this spring they are most concerned about nonresidents being excluded from beaches when it appears driven by racial discrimination.

For a mostly white town like East Lyme — 84% white according to census data — discriminating against nonresidents certainly has the makings of racial bias.

The pandemic precautions are no excuse for discrimination. The town is already closing beaches when they are too crowded to be safe.

It would be easy to exclude residents and nonresidents alike when there are too many people.

The principal form of the town's discrimination is the decision to sell season passes this year only to residents.

In June, the town offered a compromise of sorts, selling a limited number of day passes to nonresidents.

Not only does this plan illegally continue to treat nonresidents and residents differently, but it seems unlikely to satisfy the court's demand for equal access.

But as one nonresident shut out from East Lyme beaches this year, because of the high cost of the day passes, complained to me: It's price gouging.

The day passes, which have apparently been selling briskly despite crazy high prices, go for $40 on weekdays and $50 on weekends. A seasonal pass for residents goes for $40.

The cost of day passes at Ocean Beach Park are half that price: $18 for weekdays and $25 for weekends.

I reached out to the office of Attorney General William Tong with the reader's complaint that East Lyme is price gouging on beach passes, at a time of a public health crisis.

Sure enough, Tong, like attorney generals around the country, has been busy chasing down complaints about price gouging in the time of COVID-19.

His office said it has addressed 750 complaints and fully examined each allegation. Two active investigations, the office said, have looked at things like three-packs of Clorox wipes selling for $150 and Lysol spray for $29.99.

I know. I know. Who would take advantage of people in a public health crisis and charge an exorbitant $29 for a can of Lysol?

I guess the answer to that is the same kind of people who would charge $50 for a daily beach pass.

A spokesman for the attorney general suggested that a town overpricing beach passes would not be covered by the state's price gouging statute, which applies to a "person, firm or corporation."

So maybe East Lyme residents can feel good that town leaders have escaped the letter of the price gouging law, if not its spirit, by charging nonresidents for a day pass as much as residents pay for a season pass.

Despite the legal technicality, I think you can still call it price gouging in the time of a pandemic.

And price gouging for nonresidents would hardly meet the spirit of the law requiring that town beaches be open to all, residents and nonresidents.

And then there is the appearance of discrimination by a mostly white town, telling residents of more diverse Connecticut cities that they can't buy a season pass.

I know the ACLU is busy, but I would welcome a court review of the town's decision-making.

I'd like to see how First Selectman Nickerson's bluster would hold up if he finally gets to stare down a judge and explain the town's flouting of a unanimous decision by the Supreme Court demanding access for all, discrimination in a world changed by George Floyd.

This is the opinion of David Collins.

d.collins@theday.com

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