Greater Greater Washington

Are tour guide licenses unconstitutional?

Washington, DC is one of a handful of cities that requires tour guide licenses. As a guide in DC, I'm required to fill out some forms, pay some fees, and sit down for a written test.


Photo by joelogon on Flickr.

Thanks to some recent reforms within the District's Department of Consumer Regulatory Affairs (DCRA), this a relatively painless process. I did it in DC and New York, and am none the worse for wear.

But this process is under attack. Today, the Institute for Justice, a libertarian think tank, is suing DC on behalf of two Segs in the City tour guides, alleging that the process is unconstitutional.

The crux of their argument:

"The government cannot be in the business of deciding who may speak and who may not," said Robert McNamara, a staff attorney with the Institute for Justice, a national public interest law firm with a history of defending free speech and the rights of entrepreneurs.  "The Constitution protects your right to communicate for a living, whether you are a journalist, a musician or a tour guide."

This is similar to a lawsuit filed in Philadelphia by the Institute of Justice. In that case, it was to stop a proposal to start up a licensing regime, here it's to get rid of a longstanding one.

Now, I'm as fierce an advocate of our First Amendment rights as the next guy, but I'm having a hard time seeing how my Constitutional rights are being stepped on. Certainly, I had to take and pass a written test, but once that level of knowledge is demonstrated, I'm under no compunction to say anything. If I want to tell you that Robert E. Lee is in the back of Lincoln's head, or that Dan Brown was right about an eternal flame in the Capitol, or heaven forbid, Tomb Guards are doomed to life of sobriety, no government bureaucrat can stop me. I might not get hired again, but that's no business of the state's.

Which is not to say I'm disappointed in this lawsuit. Sure, the Constitutional underpinnings are shaky, but why have a test in the first place? It was poorly written (although DCRA is in process of updating it), and poorly represents the body of knowledge commonly used in a DC tour. Taking a written test simply shows you can memorize a certain amount of knowledge.

I know many people, while not being licensed guides, could step out on the street today and talk intelligently about this city. Conversely, I sadly know quite a number of fully licensed guides who fall for any ridiculous chain mail passed around. The license, in my opinion, is no great indicator of DC knowledge.

Nor is the license program enforced. I've never had someone ask to see it, nor have I even heard of someone doing so. Generally, a certain number of tours are around the monuments whose guides are unlicensed. Now, I will say most tour operators will ask to see your license before hiring you, but if there is zero enforcement, why bother getting one?

So, it looks like the beginnings of a fun debate. Let's get a bag of popcorn and watch the games ensue!

Among his many non-paying gigs, Tim Krepp is a a tour guide, conducting tours mainly in DC and New York. He also runs his own blog, DC Like a Local, which attempts to make some sense of the DC trip for our wayward visitors, and as a Capitol Hill resident contributes regularly to The Hill is Home. All of these are mere distractions to his main job as a stay at home dad. 

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I paid thousands and thousands of dollars for a college degree that was "required" for most jobs de-facto. The processes and fees you pay to get a tour guiding license either looks like a rip-off or a great deal, depending on your perspective.

by Rob on Sep 17, 2010 12:35 pm • linkreport

Well, I have one of those too. I don't know any guide that doesn't but I'm sure there are some out there.

by TimK on Sep 17, 2010 12:38 pm • linkreport

Interesting. Seems like an easy way around this is banning people who have not completed the test from calling themselves tour guides. Sort of like the Realtor vs. real estate debate a while back.

by Joshua Davis on Sep 17, 2010 12:56 pm • linkreport

My opinion is that you should be able to be a guide without a license, as I do agree that nothing should stop someone from spouting whatever rhetoric they want... such as how Capitol South was where the Confederates were encamped, and to battle each army had to get on Metro and ride to the enemy's station.

However, I also believe that a license should carry a certain amount of weight such that a tourist would be looking for guide services offering licensed professionals. So perhaps it'd be more a "certificate" in that sense?

Then again, if unlicensed are able to pull off just as much quality such that tourist sentiment doesn't lean toward those with a license; then it admittedly becomes a moot point as licenses would become less valuable and potentially not worth the investment/hassle.

...Though to offer another viewpoint since I love to be devil's advocate: will the IfJ sue to allow wannabe lawyers to take on such a role because the courtroom should be open to the public; not the privledged few orators who pass the Bar? Or perhaps that requiring professional engineer licensing infringes on the rights of children to construct with Legos and Erector Sets? Or that we should have the right to let anyone tinker with our bodies as we wish; not just the elite doctor class?

by Bossi on Sep 17, 2010 1:03 pm • linkreport

If they want to require a license to rent equipment like bikes or Segways, drive buses around, or provide food, I'm all for it. But I agree that requiring a license to sit in a bus and do nothing but talk is unconstitutional.

by Alan on Sep 17, 2010 1:45 pm • linkreport

Per Bossi's last point -- the test might be useless bunk, but the first amendment guarantees freedom of speech, not the freedom to operate a commercial business premised on providing informed speech.

by darren on Sep 17, 2010 1:45 pm • linkreport

I'm struggling to see why this matters. I am sure it would not hard to be something that is essentially a tour guide without being licensed or technically violating the law, however it is framed.

I doubt the law protects anyone, nor does it seem to be unduly burdensome. It is pretty much just another silly tax in DC, but as such, it's far from unique.

by Jamie on Sep 17, 2010 1:54 pm • linkreport

@Jamie, it may matter if government subsidies, in the name of stimulating tourism to any given area, are involved. I don't know if that is the case for tour operators, but the trail for why things matters usually leads to money. Plus, licensing fees, re-certification fees. Fees. A bunch of fees.

by Lou on Sep 17, 2010 1:59 pm • linkreport

The plaintiff is a bunch of gadfly liberatarians (i.e., stoners with trust funds). The pick on the "face validity" of the test items. Not every item on a well-constructed educational or psychological test is relevant or obvious. the idea is to set the bar high enough in a non-obvious way to keep idiots from being licensed. Exams for medicine, law, police sergeant, etc. use the same logic.

by Rich on Sep 17, 2010 2:11 pm • linkreport

Is this really a good use of the court system? I can imagine that the justice system has much bigger fish to fry than this.

by andrew on Sep 17, 2010 2:24 pm • linkreport

@andrew, that's a very good point. I've emailed the Institute of Justice to find out if they attempted to work through the DC Council or DCRA before filing the lawsuit.

For those that may not know, the license regulations were recently updated and a public comment period was announced. I would love to know if any of the plaintiffs chose to avail themselves of that.

by TimK on Sep 17, 2010 2:36 pm • linkreport

Perhaps a solution would be for a group, such as Cultural Tourism DC, to offer a voluntary certification program. It would serve as a way for tour guides to market themselves as knowledgeable and therefore would therefore stand out from the crowd of tour guides who services are available. Yes, it does require learning a body of knowledge; but I would expect that of anyone entering a particular profession. However it also gets the government out of regulating a profession that it has little capability of doing so.

by Eric Scharf on Sep 17, 2010 2:42 pm • linkreport

I just checked the DCRA Notice of Final Rulemaking regarding the new regs, and only one comment was received. From that comment, the following change was made:

"section 1201.2 was edited to clarify that licensed sightseeing tour guides shall not engage in business with an unlicensed company, unless that company is required by law to be licensed in the District; section 1205.2 was edited to clarify that a licensee is not responsible for taking a customer to another point of interest on the tour if the customer either fails to meet the licensee at the predetermined time and location or if the customer makes alternative travel arrangements with the licensee; and section 1205.4 was edited to clarify that unless a customer specifically requests additional services from the licensee, the licensee cannot charge additional costs to the customer.

Just an inference, but I'm guessing that it was NOT the Institute of Justice that choose to avail themselves of the comment period provided by DCRA. I do find it interesting that they would rather sue, than attempt to change to regulations first.

by TimK on Sep 17, 2010 3:27 pm • linkreport

This is gadfly litigation at its worst.

Segway's pay rates are lousy. They cannot get licensed guides to work for them at what they are willing to pay. So they hire people without licenses. They get a couple of their employees to fall in line with filing a really silly lawsuit on alleged invasion of free speech rights. Huh? The government is making tour guides give a specific schpiel? Of course not--although Segway may make its employees give its schpiel.

This is simply libertarians opposed to all regulations.

The tour guide test is hardly new in DC--nor is it that difficult. It has been around for years; there are plenty of licensed guides who appear to have no difficulty passing the test. Recently the whole process has been made easier. Segway should either license its employees (who will then leave to make more money elsewhere once they get their licenses) or decide not to operate in DC if it does not want to obey the law and pay reasonable rates of pay to hire licensed people.

The lawsuit will make a lot of noise but will go nowhere. I wonder if the Koch brothers (the money behind many libertarian causes including the Tea Party) are funding the Institute of Justice. I guess the IJ's idea of "justice" is to allow all businesses operate without any regulation.

Maybe doctors, lawyers, nurses, social workers and psychologists won't need licenses anymore if the Libertarians rule the day. It's a very foolish lawsuit. DC will spend a lot of taxpayer money defending against it, but, of course, the Libertarians do not care if taxpayer money is spent that way.

By the way, NYC has a tour guide test too. I guess we can rely upon IJ to get around to suing them over that one. Does Segway operate in NYC? There's your plaintiff.

by Schmeil on Sep 17, 2010 3:54 pm • linkreport

Suing the government isn't too far removed from suing yourself... which kind of reminds me of the childhood game (assuming your the bigger child) where you grab the other person's hand, smack them in their face with it, and repeat "Stop hitting yourself! Stop hitting yourself!"

by Bossi on Sep 17, 2010 4:05 pm • linkreport

Suing the government isn't too far removed from suing yourself... which kind of reminds me of the childhood game (assuming your the bigger child) where you grab the other person's hand, smack them in their face with it, and repeat "Stop hitting yourself! Stop hitting yourself!"
So does that mean that when a cop is kicking me in the nuts, it's only happening because I'm a masochist?

by DM on Sep 17, 2010 4:33 pm • linkreport

Masochist - "Hurt me."
Sadist - "No."

by Bossi on Sep 17, 2010 4:38 pm • linkreport

Voluntary certification is useless. The tourism industry has absolutely no interest in actually guaranteeing the quality of a guide. People will come to DC, and people will pay for a guide as long as a guide know more than the cover of any tourist book.

Secondly, I second (haha) that demanding a license is not an infringement on free speech. Cab drivers need a license. Doctors need a license. Lawyers need a license. Accountants need one. Etc. Guides can be asked to have one. Sure, why not. The question is whether there is actually a real goal (safety, reliability, quality, expertise), or whether it's just a money grab. I worry it's the latter.

by Jasper on Sep 17, 2010 9:09 pm • linkreport

What is the point of this license? Is it to protect the public from "bad" guides? Why? Protecting people from bad structural engineers or bad doctors or bad taxi drivers makes sense, because those people can kill you, but what will a bad tour guide do? Misinform?

I hate to say it, but this is one of those times when I agree with the Cato Institute. The purpose here is to design a cartel, and in so doing to raise wages for those inside the cartel.

People do not need to be protected from bad tour guides!

If you want a certificate to acknowledge you as a tour guide with a certain amount of knowledge for marketing purposes, go to the private market, but this really isn't the place for the government to get involved. If we must license tour guides, who wouldn't we need to license?

by David C on Sep 18, 2010 12:36 am • linkreport

I say keep the license requirement for the sake of professional tourist guides who struggle to make a living, as well as for the benefit of the consumer.

Although a tourist guide license does not guarantee quality, it certainly increases the odds.

It is interesting to observe the conflict between tour operators and their associations on the one hand, and tourist guides on the other. Unfortunately it seems like businesses are more concerned with saving a buck or two in the short term - rather than ensuring quality.

Poorly paid jobs with no entry requirements tend to have high staff turnover. In a service orientated industry, such as tourism, consumers must get more value from a seasoned guide than someone who is new on the job.

Professional tourist guides sell a product which is a well presented dissemination of facts and anecdotes which is correct, enlightening and entertaining. For most tourist guides it takes years to achieve ultimate professional competency.

Do away with the license and reduce the quality of tourist guides, or, keep the license and maintain a minimum standard of quality to the benefit of the consumer, the employer and the tourist guide.

by Stefan Helgi Valsson on Sep 18, 2010 4:24 am • linkreport

@David C,

I think much of what you say has a grain of truth. As far as I can tell, the earliest DC regulations came about due to people complaining "guides" were pestering them at the White House, etc.

However, among guides, the rational for keeping them has become "without licenses, tour companies will flood the market with cheap guides". Or exactly as you describe.

I find this somewhat alarmist, but even if true, the debate about regulation in this case should be about consumer protection, not job security for guides, in my opinion.

One final point, the Institute of Justice is basing their suit on Constitutional protections, and not the above. I'd find their argument more persuasive if they had taken the time to avail themselves of the political process when the regulations were overhauled, and not decide to sue the city after the review period closed.

by TimK on Sep 18, 2010 8:10 am • linkreport

So you think that:
A. The test was easy
B. It doesn't actually affect the quality of tour guides
C. It's not even enforced

How is this not a case where the regulations shouldn't even exist? Forget the free speech argument (which i think is valid), what's the point of even having the regulations? Government action should be about public safety, health, and well-being. This includes infrastructure projects that are outside the scope of the private market. So what public good is being served by requiring an exam and license? We are paying some DCRA employee to administer a program with no apparent need. What's the worst that happens if it wasn't there? Somebody gets bad historical information? As if that's never happened before.

I think we should reduce as many barriers to entry into commerce as possible when there is no safety or health issue involved. Ditch the requirements all together. The market can decide if a business is worth supporting or not.

by Bradley S. on Sep 18, 2010 11:12 am • linkreport

Whatever the merits of the particular suit, I think that the attacks on the Institute for Justice are out of line. They have done some very good work helping small fry, mom-an-pop's or people just starting a business, against local cartels and bureaucracies. Licenses serve a legitimate goal, but they are also used solely create barriers to new entrants. Zoning laws, etc, can also be used to unjust ends. Recently, the IJ started assisting poor black families in Montgomery Alabama who were having their houses demolishes under the guise of "blight" to avoid the eminent domain laws: not only do the home owners not get anything, but the city charges the owners for the demolition. http://www.slate.com/id/2267743/

by SJE on Sep 18, 2010 9:42 pm • linkreport

The safety and comfort of tourists is a key element here.

If anyone can claim to be a tour guide, that includes any felon or flimflam artist determined to separate the tourists from their belongings.

It would also allow self-proclaimed tourguides to pester our tourists the way I've been pestered in any number of third world countries.

I'm fine with regulations and testing, so long as they are sensibly administered and there aren't any shakedowns of applicants.

by Mike S. on Sep 19, 2010 12:23 pm • linkreport

Mike, because there is no follow up testing or enforcement, once you get a license there is nothing to stop you from being a felon or flimflam artist....which sort of makes my point: I am unaware of any benefit other than some figleaf. The current system is almost entirely policed by the free market because most operators have a strong interest in their reputation, while the city's interest ends after you pass the test and pay the fees.

by SJE on Sep 19, 2010 1:37 pm • linkreport

I concur with SJE. If there is a concern with harassment, then laws on harassment are the answer which should be linked to a standard business license. If someone is cited for harassment, then they could have their business license pulled. This is a completely separate issue from the quality of the service or product being provided.

Ditch the test and permit altogether and standardize the business licensing procedure so that you don't have to worry about the other businesses providing the same service using captured agencies to make it harder for the new business owner.

by Bradley S. on Sep 19, 2010 1:48 pm • linkreport

Matt Yglesias said it better than I: how does you knowledge that the Zoo is not actually a Smithsonian "institution" make you better able to give a tour of U-Street, on which you have lived your entire life? I'm also concerned about the slippery slope: WHO needs to be licensed? If you say to the taxi driver "hey, is that the FBI building" can he answer you, and can he tell you about it? When does he become a "tour guide"?

by SJE on Sep 19, 2010 8:41 pm • linkreport

Seems to me that the farther you get from doctor and the closer to tour guide, the more licensing becomes just one more way for a government entity to raise funds for itself.

by ksu499 on Sep 19, 2010 9:37 pm • linkreport

To anyone complaining about the District imposing this requirement, you should look to our lack of home rule for the source of your problem. If we could tax income that is earned here by non-residents, there would be no need for such fees.

by Kevinm on Sep 20, 2010 9:06 am • linkreport

@ Kevinm: Taxing income for non-residents is a can of snakes you do not want to open. If DC would ever start doing so, so will MD and VA. The US has many many cities that cross state borders. DC, Wilmington, DE, Philly, NYC, Boston, Cincinnati, Chicago, etc etc.

by Jasper on Sep 20, 2010 10:58 am • linkreport

Um. Jasper. Maryland does tax income of non-residents. See http://forms.marylandtaxes.com/current_forms/505.pdf, for example. Am I missing something?

by Miriam on Sep 20, 2010 11:03 am • linkreport

Miriam: http://business.marylandtaxes.com/filinginfo/withholding/nrincometaxrate.asp

"Residents of the District of Columbia, Pennsylvania and Virginia who did not maintain a place of abode in Maryland for more than six months (183 days or more), are exempt from withholding of Maryland tax on Maryland wages and salary by the authority of a reciprocity agreement between Maryland and these jurisdictions."

by Jamie on Sep 20, 2010 11:06 am • linkreport

@Jasper -

Chicago crosses state lines? :)

by Bossi on Sep 20, 2010 11:53 am • linkreport

The home-rule/tax issue is a red herring. If DC wants more money (which it does) it would be better for DC just to raise the business licensing fee than add additional licensing requirements.

by SJE on Sep 20, 2010 8:50 pm • linkreport

@SJE That's exactly what happened here. No new licensing requirements have been added. Many were dropped. Fees were increased. That's about it.

by TimK on Sep 20, 2010 8:54 pm • linkreport

Tim:
You can have the same number of regulations but increase the regulatory burden by requiring more people to comply. Think how much more $$ could be added by requiring all taxicab drivers to get the tour guide license. Why not also Metro bus drivers?

by SJE on Sep 20, 2010 10:28 pm • linkreport

Now that is exactly the can of snakes I intended to crack open! Let DC do what other cities have the right to do(even if they don't currently do it), and most assuredly fees and such will drop to more reasonable levels. FreeDC!!!

by Kevinm on Sep 21, 2010 6:23 am • linkreport

@SJE Taxi drivers and Metro bus drivers are hired to get people from one place to another safely and reliably (well, in theory at least). While I've learned quite a bit from chatting with cabbies, I'd have no leg to stand on if I complained about their lack of DC knowledge to the Taxi Commission. No one, outside the Institute of Justice, thinks that Taxi and bus drivers are subject to tour guide licensing requirements.

The Institute of Justice has done a great job getting everyone talking about dragnets of DC cops ticketing folks who inadvertently point out sights. The truth is, is that these regulations are only applicable, and have historically only been applicable, to people who charge money for guiding services specifically. They don't apply to someone who happens to talk about something.

A cabbie who points out a sight is no more a tour guide than I am a police officer because I help people through a security line.

by TimK on Sep 21, 2010 7:19 am • linkreport

Tim: the reasoning of the Segs in the City people, if I understand correctly, is that their primary motivation is tooling around on Segways. The tour guide bit is secondary. Thus, it is like a taxi driver. I must admit that was my experience a few years ago when I took a tour.

The second argument is that the government must a compelling reason to limit speech, and any limits must be narrowly tailored. Given that the DC government could get better tour guides through other means, and is not enforced, the licensing system looks only like a revenue stream. Or from the POV of the plaintiffs, like a tax on speech. This actually seems a pretty strong argument, IMO.

by SJE on Sep 22, 2010 11:14 pm • linkreport

Quite apart from whether or not the Segway people should need a tour guide license, those people should be required to get a special license to operate the Segways within the city. Those are dangerous vehicles, which most often seem to be driven on the sidewalks. The Segways are quiet, fast, and they sneak right up on unsuspecting pedestrians. If the operators(yes- they are operating a piece of machinery) don't have good common sense, this is a recipe for disaster. Since we all know common sense is not all that common, a permit should be required before John and Jane Tourist or anyone else is let loose on the streets on one of these vehicles, and that is just for personal use. When you add on the distraction of describing points of interest to a following herd of drivers, it seems to me that is more like driving while talking on the phone and we don't need any more of that. Now, if they want to ride to a place, park, get off and then talk history, then I couldn't care less whether or not they have a tour guide license. If they do not and they give false or misleading information, the market will soon correct that on it's own, and there will be very few customers for such guides, and they won't be able to charge top dollar, while the guides that are licensed and that know their stuff will rise to the top of the chart.

by Kevinm on Sep 23, 2010 6:39 am • linkreport

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