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Tonia Edwards, et al v. District of Columbia

February 25, 2011

TONIA EDWARDS, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

Since 1932, the District of Columbia has required that those who conduct tours for profit in the District must obtain a license before doing so. In July 2010, the District promulgated regulations defining the tour guide profession and specifying five requirements for obtaining a tour guide license. This action presents the question whether the District's tour guide licensing scheme is in violation of the First Amendment to the United States Constitution.

Plaintiffs are owners and operators of a tour guide company in the District of Columbia. On September 16, 2010, they filed a complaint in this Court, requesting declaratory and injunctive relief from the District's tour guide licensing scheme and thereafter filed a motion for a preliminary injunction. Defendant opposed this motion and simultaneously filed a motion to dismiss. The Court heard oral argument on both motions on December 22, 2010, and took them under advisement.*fn1 Upon careful consideration of the parties' papers, the oral arguments presented by counsel, the relevant legal authorities, and the entire record in this case, the Court will deny plaintiffs' motion for a preliminary injunction and will deny without prejudice defendant's motion to dismiss.*fn2

I. BACKGROUND

A. Segs in the City

Plaintiffs Tonia Edwards and Bill Main "earn their living as tour guides." Compl.¶ 4. They own and operate "'Segs in the City,' a Segway-rental and tour business that operates in Washington, D.C., as well as in Annapolis and Baltimore." Mot. for PI at 1.*fn3 Plaintiffs' business model is the same in all three cities: they "both rent Segways to individuals for private use and provide tours to small groups of people." Id. During the summer months, the busiest time of the year for Segs in the City, "about half of the tours are conducted directly by either [Bill] Main or [Tonia] Edwards - the rest are conducted by independent contractors [p]laintiffs hire for the summer." Id. Most of plaintiffs' part-time guides "are usually college students working on their summer break." Main Decl. ¶ 9. Plaintiffs "usually hire around 15 part-time guides a summer" and consider it a "short-term job": plaintiffs "either never or almost never had any of [their part-time guides] return for a second summer." Id.

Plaintiffs describe their tours as follows:

A Segs in the City tour has two basic phases. First, the tour leader spends time training the group (which never has more than 10 people) in how to ride a Segway, including instruction in how to ride safely and how to comply with relevant safety regulations like speed limits. Then, the group puts their newfound knowledge to use, riding the Segways with their guide along one of several established tour routes. Edwards Decl. ¶¶ 14-17; Main Decl. ¶¶ 14-17. Each tour lasts between one and three hours, and Segs in the City operates up to five tours a day, seven days a week. Edwards Decl. ¶¶ 7, 18; Main Decl. ¶¶ 7, 18. As the group members ride, the tour leader communicates with them via a radio earpiece (provided by Segs in the City), occasionally pointing out or describing points of interest along the route. Edwards Decl. ¶¶ 17-19; Main Decl. ¶¶ 17-19. Mot. for PI at 2.

By statute in effect since 1932, the District of Columbia has required that those who conduct tours for profit in the District must obtain a license before doing so. See D.C. CODE § 47-2836(a). In 2010, the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") promulgated new regulations that specifically define tour guides and that specify five requirements for a tour guide license. See 57 D.C. REG. 6116 (July 16, 2010); D.C. MUN. REGS. TIT. 19, § 1200 et seq. Any individual who violates either the statute or the regulations "shall upon conviction be fined not more than $300 or imprisoned for not more than 90 days." D.C. CODE § 47-2846; see D.C. MUN. REGS. TIT. 19, § 1209.2.*fn4 The regulations further provide for the possibility of both a fine and imprisonment. D.C. MUN.REGS. TIT.19,§ 1209.2.

Plaintiffs have been leading tours in the District of Columbia for more than six years and continue to do so. See Segs in the City, http://www.segsinthecity.com/FAQ.htm (last visited Feb. 24, 2011); see PI Opp. & MTD at 15. Plaintiffs have never obtained a tour guide license, however, and they "refuse to obtain one," because they view the requirement as burdensome and in violation of their First Amendment rights. Main Decl. ¶ 21; see id. ¶¶ 22-25; Edwards Decl. ¶¶ 22-25.

B. Tour Guide Licensing in the District of Columbia

1. The District of Columbia Code

Since nearly the establishment of the District of Columbia, Congress has delegated to the District the police power to regulate businesses and occupations. See, e.g., District of Columbia v. John R. Thompson Co., 346 U.S. 100, 113 n.9 (1953). The current general business licensing scheme derives from an Act passed by Congress in 1902, making "it illegal for any person to engage in or carry on any business, trade, profession, or calling in this District for which a license tax is imposed without first obtaining a license . . . ." Richards v. Davison, 45 App. D.C. 395, 399, 1916 WL 21670, at *3 (D.C. Cir. 1916). In that Act, Congress imposed license-registration and fee requirements on various businesses and professions, including apothecaries, auctioneers, cattle dealers, proprietors of passenger vehicles for hire, real estate brokers and agents, hotels, restaurants, theaters, and owners or lessees of grounds used for horse racing, tournaments, athletic sports, baseball, football, polo, golf, and kindred games, or where feats of horsemanship are performed.

PI Opp. & MTD at 6 (internal quotations and citation omitted).

Thirty years later, in 1932, Congress specifically authorized the regulation of for-profit tour guides in the District of Columbia, providing:

No person shall, for hire, guide or escort any person through or about the District of Columbia, or any part thereof, unless he shall have first secured a license to do so. The fee for each such license shall be $10 per annum. No license shall be issued hereunder without the approval of the major and superintendent of police. The Commissioners of the District of Columbia are hereby authorized and empowered to make reasonable regulations for the examination of all applicants for such licenses and for the government and conduct of persons licensed hereunder, including the power to require said persons to wear a badge while engaged in their calling.

ACT OF JULY 1, 1932, 47 STAT. 550, 558 ¶ 38; see PI Opp. & MTD at 6.

In 1994, the Council of the District of Columbia created the Business Regulatory Reform Commission for the purpose of identifying "'statutes and regulations in the District of Columbia that are obsolete, inconsistent or duplicative, especially as they relate to building and land uses, businesses, occupations and professions.'" PI Opp & MTD at 9 (quoting COUNCIL OF

THE DISTRICT OF COLUMBIA, COMMITTEE ON CONSUMER & REGULATORY AFFAIRS, REPORT ON

BILL 12-458 at 3, Dec. 19, 1997). Defendant explains that the ultimate result of the Commission's work was a "streamlined . . . business-licensing process" that eliminated "a number of boards and commissions and outdated license categories." Id. at 10 (citing D.C. CODE § 47-2801 et seq.). The tour guide licensing statute, however, remained essentially unchanged from the 1932 statute, and is still in effect to this day, now providing:

No person shall, for hire, guide or escort any person through or about the District of Columbia, or any part thereof, unless he shall have first secured a license to do so. The fee for each such license shall be $28 per annum. No license shall be issued hereunder without the approval of the Chief of Police. The Council of the District of Columbia is authorized and empowered to make reasonable regulations for the examination of all applicants for such licenses and for the government and conduct of persons licensed hereunder, including the power to require said persons to wear a badge while engaged in their calling.

D.C. CODE § 47-2836(a). Any violation of this statute shall subject an individual, upon conviction, to a fine of not more than $300 or imprisonment for not more than 90 days. Id. § 47-2846.*fn5

2. The District of Columbia Municipal Regulations The tour guide licensing statute empowers the Council of the District of Columbia to make "reasonable regulations for the examination of all applicants for such [tour guide] licenses and for the government and conduct of persons licensed hereunder . . . ." D.C. CODE§ 47-2836(a). Until recently, the regulations promulgated pursuant to this statutory authority had required, among other things, that a guide be a citizen of the United States, be "of sound physique, with good eyesight . . . and hearing in both ears; not subject to epilepsy, vertigo, or heart trouble; free from any contagious or infectious disease; and not a drunkard or addicted to the use of habit-forming drugs."

PI Opp. & MTD at 10 (quoting D.C. POLICE REG., ART. II, SEC. 5 (1970); COMMISSIONERS' ORDER NO. 59-1043 (Jun. 17, 1959)).

In December 2008, however, the DCRA proposed to revise those regulations. See 55 D.C. REG. 12284 (Dec. 5, 2008). The DCRA released a notice of proposed rulemaking that provided the opportunity for the public at large to comment. See id. After receiving comments, the DCRA further revised these proposed regulations, see 57 D.C. REG. 4434 (May 21, 2010), and then revised the proposed regulations a final time before formally promulgating them in their official, current form on July 16, 2010. See 57 D.C. REG. 6116 (July 16, 2010).

As promulgated, these regulations first specifically define a "tour guide," as follows:

Whenever used in this chapter, the term "tour guide" or "sightseeing tour guide" shall mean any person [1] who engages in the business of guiding or directing people to any place or point of interest in the District, or [2] who, in connection with any sightseeing trip or tour, describes, explains, or lectures concerning any place or point of interest in the District to any person.

D.C. MUN. REGS. TIT. 19, ยง 1200.1. These regulations then define a "sightseeing tour company" as "a business that employs a ...


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