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

A federal judge ruled that Charleston's process for licensing tour guides is unconstitutional and violates free speech rights. File

Opposing attorneys in the case against the city of Charleston's tour guide licensing law argued in federal court Thursday, but the judge didn't decide whether he'll rule or send the case to trial.

The Institute for Justice, a right-leaning nonprofit based in Arlington, Va., is representing three Charleston tour guides who claim the city's process for licensing tour operators violates their free speech because it requires them to pass exams about Charleston's history before they can charge money for tours.

The institute's attorneys asked U.S. District Judge David Norton to make a summary judgment about whether the law is unconstitutional. Norton did not make a decision Thursday and could instead send the case to trial.

Attorney Carol Ervin of Young Clement Rivers law firm argued on behalf of the city that the licensing law makes it more likely tour guides will be knowledgeable about the city and its architecture, and that out-of-town visitors will "get what they pay for."

"Negative tour guide experiences can damage the city's reputation," she said.

The city has defended its licensing by noting that anyone can give a tour of the city — if they don't charge for it.

Arif Panju, an attorney for the institute, pointed to several other similar tourist destinations that do not require tour guides to pass exams and carry licenses, such as Boston, Savannah and Aspen. 

He argued the city had not proven that those cities' approach would not work in Charleston. 

"Other cities do other things that are far less burdensome to become a tour guide," he said. "It's incumbent on the city to explain why less burdensome alternatives are somehow ineffective."

He said the process for licensing tour guides had been clearly motivated by the city's desire to control the content of tour guides' speech, which he said is unconstitutional. 

The judge did not give a timeline for reaching a decision.

In April 2016, the city asked that the lawsuit be dismissed, and the institute asked Norton to suspend the city's licensing regulations until the case is decided. The judge ruled three months later to decline the city's motion to dismiss but also to allow the licensing law to be enforced while the case proceeds.

Charleston's licensing process has been in place for several decades. Anyone caught giving a tour-for-hire without a license can be fined up to $500 or be sentenced to up to 30 days in jail.

Kim Billups, owner of Charleston Belle Tours, and tour guides Mike Warfield and Michael Nolan sued the city after failing the licensing exam. Since then, the city has amended the ordinance to eliminate the oral exam and has lowered the pass-fail score required for a license. 

The Institute for Justice has represented tour guides in similar cases in New Orleans, Savannah, Philadelphia and Washington, D.C. New Orleans' licensing law was the only one upheld in court. 

Stephen Herchak, the president of the Charleston Tour Association, said tourism professionals who are members of the group support the city's ordinance.

"We believe that there is a compelling reason for the city to protect the Charleston brand," he said. "This is our city, and when people are misrepresenting it, then that’s to everyone’s detriment."

Reach Abigail Darlington at 843-937-5906 and follow her on Twitter @A_Big_Gail.

Abigail Darlington is a local government reporter focusing primarily on the City of Charleston. She previously covered local arts & entertainment, technology, innovation, tourism and retail for the Post and Courier.