Saturday, October 24, 2015

Tour Guide Testing/Licensing: Record and City Atty Correct?

I often agree with the Institute for Justice, a quirky 55-employee conservative-libertarian DC litigation group, which opposes eminent domain and excessive government licensing requirements. (For the record: it's a Bill Clinton-hating bunch of drab, destructive dull Koch-directed Republicans who want school vouchers, but they're spot-on, absolutely right on eminent domain and excessive government licensing, and I salute them!)(How many liberals, other than yours truly, whose first boss as a 17.5 year old undergraduate was Ted Kennedy can claim credit for halting a major federal eminent domain bill -- coal slurry pipelines -- from which the world has been spared, thank God!

The IIJ has reportedly announced its ukase on St. Augustine tour guide licensing, a view thus far rejected by the Record and Historic City News, and the City Attorney and rightly so. God bless America.  IIJ did not favor me with a copy, nor did SAR or HCN.  Pity. I've contacted IIJ. Perhaps I should be a plaintiff.

On the one hand, I am appalled at some commercial tour guide misinformation and shallowness. On the other hand, I think IIJ is perhaps barking up the wrong tree: our history deserves protection from hucksters making false claims (e.g., denying slavetrading took place in the Slave Market: I have heard commercial tour operators tell those lies with my own ears, and it hurts -- it is as bad as Holocaust Denial, and needs to stop. Now.

Yes, IIJ is partly right: the D.C. Circuit U.S. Court of Appeals has ruled that the D.C, licensing requirement is a First Amendment violation, and there was no appeal. Hence, there is some merit to the Savannah tour guide's case, albeit based upon an unusually doctrinaire and pro-business panel of the D.C. Circuit, which differed from the Fifth Circuit upholding of New Orleans' ordinance.$file/13-7063-1499657.pdf

The Fifth Circuit upheld the New Orleans ordinance and the Supreme Court denied certiorari earlier this year, even though there was a split in the Circuits. Of course, the Record and City Attorney are wrong: denial of certiorari is not a precedent or endorsement of a lower court decision.  (Do they teach Federal Courts at UF and did the City Attorney take the course?)  Wikipedia explains: "the Supreme Court's denial of a petition for a writ of certiorari is sometimes misunderstood to mean that the Supreme Court approves the decision of the lower court. As the Court explained in Missouri v. Jenkins,[22] however, such a denial "imports no expression of opinion upon the merits of the case. ..." In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and that the lower court's decision is treated as mandatory authority only within the region of jurisdiction of that court. The reason for this was given in Maryland v. Baltimore Radio Show, Inc., in which the Court discussed that many rationales could underlie the denial of a writ which have nothing to do with the merits of the case."

The Fifth Circuit held in the New Orleans tour guide licensing case: "Reviewing the law facially, we see its purpose to be clear. The City wants to promote and protect visitors there as they see and enjoy all of the attractions of New Orleans; its history and sights on to its food and music. Conventions bring thousands there and often program tours of the city. To put it simply, New Orleans thrives, and depends, upon its visitors and tourists. For the benefit of those visitors the City identifies those tour guides who have licenses and are reliable, being knowledgeable about the city and trustworthy, law-abiding and free of drug addiction.Without contesting that as the only purpose or effect of the law, plaintiffs seek to abolish the license and will thereby defeat the purpose. They urge the First Amendment freedom of speech as the problem. But no fault is found by the City in what tour guides do or say. They themselves want to speak and do the same. When a city exercising its police power has a law only to serve an important governmental purpose without affecting what people say as they act consistently with that purpose, how is there any claim to be made about speech being offended?"

It is an interesting First Amendment issue -- does anyone in St. Augustine with standing object to the St. Augustine ordinance?

I have standing. I have been a licensed City of St. Augustine tour guide since 2006. Although I have never earned a nickel with the license, I have contacted and would be very interested in speaking to the Institute for Justice. It might have a client in me.  However, I reckon that there are a number of other potential cases for them here in our town and county, including suppression of mobile food vendors by the cities of St. Augustine and St. Augustine Beach, potential cases right in the middle of its wheelhouse.

One of my former clients, a retired FBI agent who lived in Williamsburg and conducted historic tours of Colonial Williamsburg, told me that the Williamsburg ordinance went too far in requiring "script," with deviations theoretically punishable. He was concerned if he spoke of Civil War history that he could be punished. He never pursued the issue. We have bigger First Amendment issues here -- City Commission's effort to silence First Amendment protected activity by artists and musicians.

Editorial: Tour guide threat all fluff and bluff in St. Augustine
Posted: October 24, 2015 - 6:39pm

We suppose this could be termed a proactive editorial. What we’re opposing hasn’t happened — yet. But it seems certain to be heading our way.

The Institute for Justice might best be called a First Amendment advocacy group. In 2014, it filed suit in Washington on behalf of city tour guides. It challenged, among other things, licensing requirements imposed by the city, but more specifically the city’s right to “test” tour guides on their knowledge their tours’ subject matter. The federal court agreed with the plaintiff. D.C. changed the way it did things.

Flushed with success, it moved southwest to New Orleans — same issue, but a different federal judicial district. The 5th District went 180 degrees around from the D.C. decision, and sided with the Crescent City, upholding its right to test and license its tour guides. There, applicants must pass an exam testing their knowledge of points of interest in the city, have no felony record in the previous five years, pass a drug test and pay a $50 fee for the license.

The court found that New Orleans had a purpose for its ordinance. Generally it said the city’s goal is to promote and protect visitors. For the benefit of those visitors “the City identifies those tour guides who ... are reliable, being knowledgeable about the city and trustworthy, law-abiding and free of drug addiction.”

The Institute for Justice skipped over that detail in a column it submitted to The Record this week.
[Where is the column?  You're blasting it without printing it?]

Again, not mentioning the New Orleans decision, it skipped ahead to it’s next target, Savannah. The column concluded that “after months of litigation, Savannah’s city council voted to repeal the city’s licensing law. It then wondered “If Savannah cannot defend tour guide licensing, how can St. Augustine?”

It seems clear that the column is a first volley in its next challenge here. Actually it seems more like a bluff.

A call to Savannah City Attorney Brooks Stillwell was enlightening. He said the only part of the lawsuit the city acquiesced to was the testing of the tour guides. And he said it had little to do with the lawsuit. It did bring up the issue, and commissioners decided their ordinance was antiquated and that they didn’t want to administer the test anyway. The city decided to let the private tour companies test their employees as they see fit — or not. It simply isn’t a municipal duty. Savannah is litigating the remainder of the challenge.  [That was actually the heart of the D.C. decision.]

St. Augustine City Attorney Isabelle Lopez had heard rumors and did some checking. She discovered (sic) another detail the Institute for Justice left out.  [Wrote about this days ago: easy "discovery."]

The group took the New Orleans case to the Supreme Court which refused to hear it on its merits.

That supersedes (sic) Savannah’s and our own 11th federal district —which will soon, it seems, be hearing Savannah’s defense of the suit. It does not tie the district court to any ruling, but certainly gives it reason to rule in favor of Savannah (thus St. Augustine) since the High Court has already put it to bed, so to speak.  [Nope, nope, nope: denial of certiorari is not a ruling on  the merits!]

The Institute for Justice seems to want to scare (sic) tourist towns out of opposition, by fudging the facts. Ms. Lopez is in possession (sic) of those facts. If the group comes calling here, and if the city commissions sends her in that direction, she seems (sic) ready to litigate her facts against the group’s — if it has the legal stomach for what we see as a losing (sic) battle.

We do think Savannah has the right idea in allowing tour companies to test their own employees. And why have a city ordinance that we don’t — and really can’t — enforce? While we’re at it, license the tour companies, not the employees. They have a direct interest in telling our story correctly and protecting their clients from employee foibles.

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