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WASHINGTON TOUR GUIDES ASSN. v. NATIONAL PARK SERV

October 15, 1992

WASHINGTON TOUR GUIDES ASSOCIATION, Plaintiff,
v.
NATIONAL PARK SERVICE, et al., Defendants.



The opinion of the court was delivered by: GEORGE H. REVERCOMB

MEMORANDUM OPINION

 Pending before the Court are plaintiff's motion for a preliminary injunction and defendants' motion for summary judgment. For the reasons stated herein, the Court concludes that plaintiff's motion shall be denied and defendants' motion shall be granted.

 I. Background1

 This case arises out of recent efforts by the National Park Service to enforce an Interior Department regulation that proscribes engaging in or soliciting business on national park grounds without a permit. *fn2"

 Plaintiff is a trade association consisting of six companies and two individuals (hereinafter referred to collectively as "plaintiffs") who provide tour guide services in and around principle tourist attractions in the Washington, D.C. area. Each of the plaintiffs is licensed by the District of Columbia's Washington Metropolitan Area Transportation Commission to provide tour guide services in the Washington metropolitan area. None of the plaintiffs, however, hold permits, contracts, or other written agreements from the United States to provide tour guide services on national park grounds, and all parties agree that the D.C. permits held by plaintiffs do not authorize them to engage in or solicit business in areas under the jurisdiction of the United States Park Police. *fn3" See D.C. Mun. Regs. tit. 24, § 501.5.

 Nevertheless, each of the plaintiffs has, for at least the past fifteen years, conducted and solicited business on national park grounds--namely, by soliciting tourists who congregate near or pass by the northeast section of the Ellipse. From time to time over the years, plaintiffs met with representatives from the National Park Service who informed them that "as long as the plaintiffs complied with all laws, the National Park Service would not act to interfere with the operation of the plaintiff's businesses." Brief for Plaintiff at 2.

 On or around August 12, 1992, plaintiffs received notice from the National Park Service stating in part:

 This is an official notice that effective August 14, 1992, the long-standing provisions of law and regulation prohibiting vending and the solicitation of sightseeing business on the sidewalks and roadways under administration of the National Park Service, unless the vendor or sightseeing guide possesses a permit issued by the National Park Service, will be strictly enforced.

 Complaint for Injunctive Relief, Ex.I. Shortly thereafter, officers of the National Park Police began issuing "courtesy tags" to plaintiffs, noting violations of the solicitation prohibition and encouraging voluntary compliance with applicable laws and regulations. Plaintiffs also were informed that beginning August 25, 1992, National Park Police officers would issue formal citations should plaintiffs continue to solicit business on national park grounds. Such citations carry a fifty dollar fine as penalty.

 Plaintiffs ceased operating their businesses on national park grounds on August 26, 1992, and allege thereafter to have suffered a seventy-five percent reduction in revenues. Plaintiffs filed this action on September 10, 1992 seeking a temporary restraining order and preliminary injunction. They claim that the National Park Service's prohibition of solicitation in this case violates First Amendment protection of commercial speech. Additionally, plaintiffs argue that the National Park Service's actions have deprived them of property interests without due process of law, in violation of the Fifth Amendment to the Constitution. Plaintiffs also contend that the National Park Service should be estopped from enforcing the solicitation ban because of representations made to plaintiffs at various meetings over the past several years. Finally, plaintiffs challenge the award in 1989 of an exclusive contract to provide sightseeing services on national park grounds in the National Capital Region to Tourmobile.

 II. Analysis

 A. First Amendment Claim

 Twelve years ago, the Supreme Court set forth the test for determining whether a particular regulation of commercial ...


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