Judge hears Charleston’s tour guide licensing case (copy) (copy) (copy)

For more than 30 years, tour guides in Charleston have been required to pass on exam on local history, culture and municipal regulations. The city hopes to eventually reinstate its mandatory licensing program. File/Staff.

Charleston is taking the debate over its tour guide licensing program further up the legal ladder.

The city filed a notice with the Fourth Circuit Court of Appeals in Richmond, Va., on Wednesday, challenging a 2018 ruling that has blocked it from enforcing its policy for the past six months. 

In August, U.S. District Court Judge David Norton struck down the mandatory tour guide licensing program as a violation of free speech rights. On Dec. 10, Norton doubled down, denying a request from the city to reconsider. 

He wrote in his original ruling that the city's licensing requirement "imposes real burdens on those hoping to be tour guides in Charleston." 

For more than 30 years, aspiring guides have been required to pass an exam on the city's history, culture and municipal regulations.

With the help of Arlington, Va.-based free speech group Institute for Justice, three individuals who said they attempted the test and found it overly burdensome challenged the requirement in court. They filed a lawsuit against the city in early 2016, claiming that requiring guides to pass a test was a violation of their First Amendment rights. 

The test, which is based on an almost 500-page study guide, is still being administered by Charleston's Department of Tourism and Livability, but, since Norton's ruling, it's been optional. 

Attorney Carol Ervin said Wednesday that the city is "confident" its licensing policy does not violate free-speech rights and said it hopes to restore the mandatory program "as soon as possible." 

“The city continues to believe a mandatory licensing program for all tour guides is the most effective way to achieve the city’s objective of protecting tourists, residents and the tourism industry from the problems caused by unqualified or unscrupulous guides," Ervin said in a written statement. 

She also referenced a decision from the Fifth Circuit Court of Appeals that upheld a similar licensing program. The case, Kagan v. City of New Orleans, was also brought forward by an Institute for Justice chapter that challenged the Crescent City's tour guide requirements as unconstitutional. 

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In its decision, filed in June 2014, the Fifth Circuit sided with New Orleans.

"New Orleans, by requiring the licensees to know the city and not be felons or drug addicts, has effectively promoted the government interests, and without those protections for the city and its visitors, the government interest would be unserved," the court said in its decision. 

Appellants tried to take the case to the U.S. Supreme Court, but the high court denied their petition. 

Charleston's switch from mandatory to voluntary tour guide licensing, which was required after the ruling, stirred up concern within the local visitor industry and even prompted the creation of new group for certified guides, The Palmetto Guild. 

By only allowing only city-certified guides and business that exclusively hire certified guides to join, the group hopes to "uphold the city's image of quality" by promoting guides who have successfully completed the exam, said Lee Ann Bain, president of the Charleston Tour Association. 

In addition to passing the initial test, certified guides are also required to participate in continuing education events. To keep their certification, guides must attend four local historic lectures or successfully re-take the exam every three years. 

Reach Emily Williams at 843-937-5553. Follow her on Twitter @emilye_williams.

Emily Williams is a business reporter at The Post and Courier, covering tourism and employment. She is also the author of the weekly Business Headlines newsletter. Before moving to Charleston, her byline appeared in The Boston Globe.