Getting paid to tell tourists about D.C. history will no longer involve passing a 100-question test or paying a fee. Anyone can just show up and talk without fear of arrest.
On Friday, the U.S. Court of Appeals for the D.C. Circuit threw out a 108-year-old city code requiring every “sightseeing tour guide” in the city to be licensed after correctly answering 70 out of 100 multiple-choice questions.
The decision is a victory for Tonia Edwards and Bill Main, the married couple who together operate the (illegal, until Friday) Segway tour company Segs in the City and have battled the regulations since 2010.
The $200 cost of the licensing process was too high for many of their guides, they said, often recent college graduates who work in the business for only a few months.
In her opinion, Judge Janice Rogers Brown, joined by the two other judges on the panel, ruled that the city’s licensing exam was an unconstitutionally broad solution to a problem that may not exist.
“What, pray tell, does passing the exam have to do with regulating unscrupulous tour businesses and unethical guides?” she wrote. “How does memorization of addresses and other, pettifogging data about the District’s points of interest protect tourists from being swindled or harassed by charlatans?”
Audio guides are not subject to any such regulation, she noted, nor are guides who stand at one spot rather than escorting customers from site to site. Under the current code, a sightseeing bus could regale tourists with the voice of “a drunk off the street,” so long as the drunk was prerecorded.
Her decision overturns a previous ruling in U.S. District Court. In a motion filed in that court, the D.C. Attorney General’s Office contended that the law was “a legitimate exercise of the District’s police power to protect visitors to and residents of our city.” The regulation did not violate the First Amendment because the content of tours was not at issue, they said. Judge Paul L. Friedman agreed, finding that “the licensing scheme is aimed at conduct and does not unconstitutionally burden speech.”
The appeals court suggested narrower regulations aimed at fraud in the industry or a voluntary accreditation scheme for guides who would like to be listed as city-approved.
On Friday, Main called the ruling a “victory for small business.”
“There’s no need for the city to license us to speak,” he said.
Matt Simpson, who has been a guide with Segs in the City for five years, said the market weeds out bad tours, with people taking to Web sites such as Yelp and TripAdvisor to describe their experiences.
Simpson said even people who pass the test can get things wrong. He noted a news story he came across when the suit was filed, quoting a licensed tour guide incorrectly calling the Eisenhower Executive Building the Old Executive Office Building.
“If you’re going to criticize us at least get it right,” Simpson said, pointing out that the building’s name was changed in 1999.
Karrah Dillman, another Segs in the City guide, started a few months ago. She said she learns history from the script her company provides, talking to other guides and verifying the facts. She was nervous when she started, but historic landmarks help her remember.
“You notice different things as you travel around the city and want to know more about it,” Dillman said.
The court decision conflicts with a U.S. Court of Appeals for the 5th Circuit ruling involving New Orleans, one of five other cities that license tour guides.
Robert McNamara of the Institute of Justice, a libertarian law firm that represented the guides in the District and also is involved in the New Orleans case, said he would love to see the conflict go to the U.S. Supreme Court to address what he describes as “an explosion in government overreach and litigation of what we call occupational speech, people who talk for living.”
Under the D.C. code, unlicensed tour guides were technically at risk of a $300 fine or 90 days in jail. But an administrator at the Department of Consumer and Regulatory Affairs told the District Court that no guides had been issued an infraction notice since 2005. “In fact, none of my staff can recall ever citing a tour guide or tour guide company,” he wrote.
Tim Krepp, a veteran tour guide who is an independent contractor, said he found the plaintiffs’ free speech arguments “a little silly.” Still, he said, “the legislation has been more of a nuisance than a factor in my life.”
The licensing rules were relaxed in 2010, the same year Edwards and Main filed suit. Before then, a guide had to be a citizen, could not be new to the area and had to testify that he or she was not a “drunkard.”