Tour Guide Licenses Unconstitutional? Maybe!
Thursday, September 16, 2010 at 1:39PM 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. 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 interestingly enough, this process is under attack. Today, the Institute for Justice, a Libertarian think-tank is suing the city in Federal Court on behalf of two Segs in the City tour guides, alleging that the process in unconstitutional. They even have a snazzy video:
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 note being licensed guides, could step out on the street today and talk intelligently about this city while conversely, I know, sadly, 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 enforcment, 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!
DCRA, Segway tours 
Reader Comments (21)
Tim, I have to part company with you on this one. There is value in a licensing test. I do agree that the DC test can be improved, but it is better than nothing.
I do think licensing tests are useful in providing a floor on knowledge, but, of course, good people are better than the floor on knowledge because they keep learning after passing the tests. These tests are not huge hurdles and can easily be passed if you study and walk the sites. Some people take classes with experienced tour guides (as you and I did), but some do it by themselves. In my opinion, if you cannot pass the test in DC, you have no business guiding. No one, by the way, is preventing anyone from taking the test.
The grounds alleged by the Libertarians for attacking the tour guide test in DC are specious, as the government in no way tells you what to say when you are with groups on tour; some tour companies, by the way, with specific tours do give you a script that you have to stick to; Libertarians should not work for those companies if they feel they have a right to spout, say, a Libertarian agenda on a tour. Libertarians are gadflies and file these nuisance suits because they are opposed to any sort of government regulation. Their chances of winning are about the same as if they attacked the bar exam for the same reasons--and the rationale would be just as foolish. By the way, passing the bar exam (and I am a retired lawyer) is no guarantee of quality legal work either. All professional licensure tests are the same: They provide a floor on knowledge and a hurdle that some can never jump.
Of course, by filing these silly suits the Libertarians cost the government entities money defending them. Perhaps they think that that very fact will undermine the licensing requirements because the government will not want to defend the suits; if I were DC, I would react to these suits by immediately giving tickets to everyone working for Segway without licenses. The lawsuit really has no chance of success on freedom of speech grounds. That rationale is laughable. I put aside the fact that the plaintiffs in the lawsuit have questionable "standing" (meaning I don't think they have a right to sue because they cannot demonstrate how they have been damaged).
Insofar as the supposed plaintiffs (unlicensed employees working for the Segway Tours in DC, by the way), that is a joke too. The real people who would benefit by not having lack of licensing would be the tour companies and certainly not guides. Tour companies with slight profit margins would hire students at minimum wages--and so much for experienced guides. In any market in the US that does not have a licensing requirement, wages for tour guides are much lower than in markets where there is a licensing test.
If the Seqway guides want a license, the test is given every week.
I think they'll be able to demonstrate standing, but the case will be tossed on its merits (or lack thereof).
I'm with you on the legal side, but I think there's more merit to what we do. If a tour company wants to hire college students to do the grunt work, more power to them. I honestly think I give good value for the job I do.
Hiring cheap guides is penny wise and pound foolish. I certainly won't take a pay cut if they ditch the license requirement, and I don't imagine a whole lot of companies would try that. I wish them luck finding staffing in the spring if they tried.
Again tour guides who pass the licensing tests in markets that have them are paid more than in markets where there is no test.
And, when I went to law school, I was always taught that courts do not reach the merits issues in cases when they do not have to. Just saying that your free speech rights are affected does not give you standing to sue in this case. Standing involves being able to show how you were hurt. The plaintiffs are contending that their free speech rights are affected because, by having a test, the government is mandating a specific dialogue when they are on tour. They cannot demonstrate that and therefore have no standing to sue.
Were I a judge, I would take the easy way out of this silly lawsuit and just get rid of it on standing.
But, perhaps you know something I don't know.
Here is another perspective: in the event that the suit is successful, a licensing exam could continue even without the enforcement of an exclusive right to conduct tours. The license
would then be a marketing tool and those who passed the exam could say they were better
qualified to lead tours. This would be even more true if continuing ed requirements were added
to the renewal process (a thought currently floating here btw).
These ideas are not mine, but contributed by an attorney who happens to be one of my pax on a tour I am leading today in Oregon.
I don't know about you, but I would continue in this line of work with or without a license.
Greetings from the Northwest, Joe
I couldn't agree more with your final sentiment, Joe!
A voluntary licensing regime is an intriguing idea. It removes the hassle from those who don't wish to participate (like the Segway folks) but does ensure some minimum standard is met.
Voluntary licensing would mean that companies such as Segway would get away with paying below market rates legally. Tourists would not understand the difference in adds that included the word "licensed".
Voluntary licensing would mean the end of tour guiding as we know it and the depressing of wages for the same in the Washington, DC, area as nonlicensed people took over the field. Those of you doing tour director work (generally for much lower pay but with tips) would continue in the buisness. The tour guiding business in DC would end up being taken over by college students working for minimum wages.
If the the crux of the argument is that the test could be a better test, I agree. Rather than working to eviscerate DC tour guides' means of livelihood here, I would think the both of you would want to work for a better test.
Both of you are wrong if the point of guiding is to earn a living as opposed to being a hobby.
Almost by definition, there is no such thing as "below market rate" in a case like this Lauren. The market sets the rate.
And I think you sell ourselves short. We add a great deal of value to our visitors experience. We should have some confidence in our abilities.
And the current rate would face downward pressure--even more than it does today--if numbers of legal tour guides were not limited by the need to pass a test.
EXPERIENCED tour guides in Boston, where there is no test, are paid $15-20 per hour. Why do you think it would be different in DC without a test?
It would. And I do think that guides who think otherwise have an inflated idea of their own value. The fact of the matter is that we have all been contacted by tour companies who ask us what our rate is rather than tell us what they are paying. When they do that, they are shopping around for the cheapest guide and do not care if that guide is the best one available. They are concerned with their bottom line. If anyone could hang out a shingle and say "I'm a tour guide", there would be a huge increase in the number of tour guides and the wages would go down. It's about supply and demand. To many tour companies having a license is way secondary to the bottom line.
In my mind the question is less whether there is a licensing program and more whether there is a punishment for guiding without a license (whether or not they enforce it). I find some of matthew Yglesias's examples convincing. http://yglesias.thinkprogress.org/2010/09/license-to-tour/
<I>You mean if I want to try to give a walking tour of the U Street era, talk about its heritage as the “Black Broadway,” it’s decline in the 70s and 80s, and it’s rebirth over the past 20 years I need to pass a test about presidents?</I>
I see real benefits to someone running a licensing program and I could definitely see the guiding companies wanting to hire only licensed people and prominently display that all their guides are licensed, but if a expert in a specialty risks fines or other punishment for being a paid guide without knowing unrelated D.C. facts, I question the benefit of such a system. There are ways around this problems without completely ending licensing.
@Dan, you'd need a license if you wish to charge for it, but I think you've (and Matthew Yglesias) pinpointed where the real danger in a licensing program is.
For the big operators, the folks that churn school groups in an out, this is a minor problem. In fact, some companies even liked the old regulation system, that required licensee's to get a police background check. This saves them the trouble of doing it (background checks are required for anyone that works with kids).
But the license program really hinders people trying to do neighborhood tours. I'm starting up a Capitol Hill walking tour company, and it's really a pain to have to get licensed guides. Many folks would be happy (and quite qualified) to give a tour or two, but not if they have to undergo the hassle and cost of getting a license.
Of course, all of this is a moot point as the licensing program is entirely unenforced in a practical sense.
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.
Congressional interns are often drafted to escort visiting constituents on tours of the Capitol building. Every staffer has overheard them deliver howlers of misinformation. Minimum standards of knowledge are useful.
The affront to the Constitution is in the licensing requirement. If you don't pass the test...you cannot "speak" as part of a tour. This clearly flies in the face of the First Amendment. Federal Courts will probably find a way to worm their way around it, they always do when the Constitution says something they don't like, but that doesn't mean they're right.
Well, if you don't pass the bar exam, you can't "speak" as a lawyer in court either. I suppose using your silly logic, the bar exam is also unconstitutional. Maybe anyone should hang out a shingle and call himself a lawyer.
Believe me, if you cannot pass DC's exam, you should not be holding yourself out as a tour guide. The "issue" here is that Segway wants the freedom to hire anyone without a license and pay them rock bottom rates. Experienced and licensed tour guides will not accept work for what Segway pays.
This silly suit is all about Segway's bottom line. They are even too cheap to help their employees pass the test. Moreover, do you see the prices for their tours? They want the freedom to make plenty of money on the backs of employees paid minimal wages. Nice if you you can get away with it. The free speech rationale is just silly.
ToursByLocals contracts with hundreds of guides worldwide and for us the two licensed guides we have in Washington have been a great pleasure to work with - 5 star reviews and extremely professional.
From our experience, licensed guides are most useful where they are interpreting the culture and history of an area. However, if your tour is for shopping, nightlife or food, a passionate local is probably a better bet.
Please supply us with the statistics on which you make the generalization that licensed guides do not have adequate knowledge of food, shopping and/or nightlife? Hunches are not statistics.
For example, how many licensed guides have you personally hired to do food, shopping or nightlife tours? How many unlicensed people have you hired to do the same? We need to know the specific basis for your opinions--and they cannot be based on what you think without statistics.
PS Plenty of the local licensed guides know where good shopping, food and nightlife are and do tours focussed on those themes. Many of us design a specific tour and simply do research when we book such a tour. We design the tour to fit the customer(s).
Of course, if you admitted you hired "passionate locals", well, you wouldn't be complying with the law, would you?
Paul, while I agree with you that “passionate locals” can possibly do a better job than “professional tourist guides” when shopping, checking out nightlife and experiencing food – it is very important to make the distinction between the two.
The World Federation of Tourist Guide Associations (WFTGA) and Federation of European Guide Associations (FEG) and the European Standards Commission (CEN) agree on this definition for tourist guides.
“Tourist guide – a person who guides visitors in the language of their choice and interprets the cultural and natural heritage of an area which person normally possesses an area-specific qualification usually issued and/or recognized by the appropriate authority.”
This definition is recognized by all 27 European countries (member states) of CEN.
A passionate local, and anyone else for that matter, who does not fulfill the requirements of this definition is not “tourist guide” but rather a friend, escort, tour manager, tour leader etc. However, all effectively “guide” – which I admit is confusing.
Tours are guided by professional tourist guides or not. In a similar fashion children can be taught by a teacher or not – a teacher’s assistant for example. While both teach - only those who have the appropriate education are supposed to call themselves teacher.
In my opinion, when the term “tour” is used in tourism it includes a professional tourist guide – if it doesn’t - then it is not a tour. For example, a school field trip can be escorted by a teacher.
This said Paul, I know you are much more aware of the problems of the terminology in our industry than most. I look forward to meeting you at the WFGA meeting in Tallinn Estonia early next year.
The Segway lawsuit in DC is not about freedom of speech but rather about one company trying to gain access to a greater pool of workforce with the aim of reducing its labor cost. This I find very sad because it is the tourist guide who can make, or brake, people’s experience while on tour.
Labor costs are minimal in the greater scheme of things when compared to capital invested and advertising.
I am still waiting for Paul to supply us with his statistics to support his sweeping generalizations. I am especially interested to see if he has any experience in the DC market. My suspicion is that he does not, but I await his reply.
Let's get to the real bottom line - money. Companies would pay unlicensed guides less than the current rates but not cut their prices to clients. Thus, they pocket the difference. Is the public really served this way?
I recently passed the D.C. licensing exam. The new version. It was as much local history as anything. Pretty diverse, but anyone putting in the time to study can pass it. One person above said police background reports aren't required. That's wrong. I was fingerprinted for the first time in my 50 years and underwent a police background check as part of the licensing agreement. And for all the horror stories I heard about the licensing department, everything went off without one problem.
Rick,
Congrats on getting your license! I'm glad to hear the licensing program is improving. DCRA recently renewed their procedures; you're the first person I've heard from whose been through them.
All of which makes this lawsuit so ironic. DCRA has not instituted new regs, they've streamlined 100 year old regs. A lot of the press makes it sound as if this is a new program.
I'm also glad to hear that they are keeping the fingerprinting/background checks. That makes it far easier as a guide. Instead of having to get a check for each company I work for, I just give them a copy of my license (which I have to do anyway). Saves a lot of hassle for me.
Lauren,
I didn't mean to suggest that a licensed guide could not do shopping or night life tours. Provided it was something they were passion about I'm sure they would be great at it. The same skills that make for a great guide would be transferable to any sort of tour.
All the guides we have in Washington, DC are licensed and they've never had anyone ask for a shopping or nightlife tour. As far as stats go, so far this year ToursByLocals guides have sold 95 tours (with some bookings turned down due to lack of guides on our site).