Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tait v. City of Philadelphia

August 5, 2009

MICHAEL TAIT, JOSHUA SILVER, AND ANN BOULAIS, PLAINTIFFS,
v.
CITY OF PHILADELPHIA DEFENDANT.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

Section 9-214 of the Philadelphia Code regulates the work of tour guides in the historical section of Center City Philadelphia. Section 9-214 requires tour guides to acquire certificates before leading tours in that part of the City; to do so, they must pass a written examination. Phila., Pa., Code § 9-214(3)(a), (3)(b)(.3), (4). The law was set to become effective on October 13, 2008.

On July 2, 2008, plaintiffs filed a First Amendment challenge to the parts of section 9-214 which make it mandatory, requesting declaratory judgment and injunctive relief. By Orders dated October 6, 2008 and March 3, 2009, the Court, with the agreement of the parties, stayed enforcement of section 9-214 until resolution of the instant litigation.

During the pendency of the litigation, Philadelphia, and indeed the entire United States, has faced significant economic decline and scarcity of resources. This state of affairs is ongoing. As a result, defendant does not have the financial capability to enforce section 9-214. At a hearing on April 24, 2009, City Representative Melanie Johnson testified that primarily due to a lack of resources, defendant is not prepared to enforce section 9-214 at this time. Her office has neither the staff nor the budget to develop or administer the written examination or the licensing procedure.

In light of Johnson's testimony, the question of whether the instant action is ripe for adjudication is squarely before the Court. Applying the three-factor test of Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990), the Court concludes that defendant's present inability to enforce section 9-214 vitiates ripeness. Accordingly, the Court dismisses plaintiffs' Complaint and the action in its entirety for lack of subject matter jurisdiction. All pending motions are dismissed as moot.

II. BACKGROUND

On April 3, 2008, the City Council of Philadelphia passed Bill No. 080024-A ("the Ordinance"), which amended Chapter 9-200 of the Philadelphia Code, entitled "Commercial Activities on the Streets." Phila., Pa., Bill No. 080024-A (Apr. 16, 2008), codified at Phila., Pa., Code § 9-214 (2008), available at http://webapps.phila.gov/council/attachments/5141.pdf. The Mayor signed the Ordinance on April 16, 2008, and it was codified at Philadelphia Code section 9-214. Id. The Ordinance "provid[es] for the certification of tour guides in certain areas of the city, establish[es] requirements for such certification, and provid[es] for penalties for violations...." Id. It was to become effective 180 days after enactment, on October 13, 2008. Id.

On July 2, 2008, plaintiffs filed a Complaint in this Court, challenging the mandatory licensing scheme of Philadelphia Code section 9-214 as violating their First and Fourteenth Amendment rights. In particular, plaintiffs seek a declaratory judgment that "facially and as applied to Plaintiffs, section 9-214 of the Philadelphia Code violates the First and Fourteenth Amendments to the United States Constitution." (Compl. 9.) They further seek a preliminary and permanent injunction prohibiting defendant and its agents from enforcing the provisions of section 9-214 that make the licensing scheme mandatory and allow for punishment of unlicensed tour guides-subsections 9-214(3), 9-214(12), and 9-214(13).*fn1 (Id.)

On September 15, 2008, plaintiffs filed a Motion for Preliminary and Permanent Injunctive Relief requesting that defendant and its agents be enjoined from enforcing the mandatory provisions of section 9-214. The central issue raised by plaintiffs' Motion is whether the work of tour guides can be considered a profession and regulated as such or whether such regulation violates plaintiffs' First Amendment rights. In addition, plaintiffs raise a number of subsidiary challenges to specific provisions of section 9-214.*fn2 The Court scheduled a hearing on plaintiffs' Motion for October 6, 2008.

On October 3, 2008, the Court held a telephone conference with the parties, through counsel. During the telephone conference, counsel for defendant agreed to a stay of the effective date of the Ordinance for the lesser of six months or until resolution of the pending litigation. Such a stay Order was signed by the Court on October 6, 2008. In light of the stay, on October 6, 2008, the Court held a chambers conference with the parties, through counsel, rather than a hearing on plaintiffs' Motion. On March 3, 2009, shortly before the expiration of the stay, parties submitted an agreed-upon Order to the Court extending the stay until resolution of the pending litigation. The Court signed the stay Order on March 3, 2009, enjoining defendant from enforcing section 9-214 until the Court enters final judgment in the matter.

On April 24, 2009, the Court held a hearing on plaintiffs' Motion for Preliminary and Permanent Injunctive Relief.*fn3 At the hearing, plaintiffs Ann Boulais and Michael Tait testified. Boulais is Administrative Director for American Trolley Tours; Tait is a tour guide who works with a number of tour companies including, inter alia, the Constitutional Walking Tour and American Trolley Tours. (Hr'g Tr. 12, 17, Apr. 24, 2009.) Both plaintiffs testified about the importance of historical accuracy on tours but contended that the Ordinance nevertheless violates their free speech rights. (Id. at 14--18, 30.) Tait was asked on direct examination "what do you expect will happen if you're unsuccessful in this lawsuit?" (Id. at 17.) In response, Tait stated, "I believe that a lot of tour guides will have to leave because of the financial difficulties. However, I don't believe that the quality of tours will improve." (Id. at 18.) In response to further questioning, Tait clarified that section 9-214 imposes financial burdens on tour guides, including insurance policy premiums, an application fee of $25, and an examination fee. (Id. at 19--21, 28.) The Ordinance also requires continuing education, which could pose an additional financial burden. (Id. at 21, 24--28.) According to Tait, enforcing section 9-214 would not improve the quality of tours because "there is nothing set up to make sure that a tour guide, once they take the test, is still giving the correct information...." (Id. at 22--23.)

Defendant called as witnesses Ron Avery, a tour guide and reporter, and Melanie Johnson, the City Representative. (Id. at 39--40, 49; Supplemental Joint Stipulations of Fact Relating to Witness Testimony ("Supp. Joint Stips.") ¶¶ 5--6, Apr. 20, 2009.) Avery wrote letters to City Council members and testified before City Council, expressing his opinion that Philadelphia tour guides are poorly trained and make historical mistakes when giving tours; he urged City Council to pass a tour guide licensing law. (Hr'g Tr. 41--44; Supp. Joint Stips. ¶ 8.) His testimony at the hearing of April 24, 2009 was essentially the same. (Hr'g Tr. 41--44.)

Johnson testified that as City Representative, she and her office would be in charge of overseeing the implementation of section 9-214 if the Court lifted the stay of enforcement. (Id. at 50.) Nevertheless, she stated that her office was not ready to oversee the application and certification process at this time, primarily due to a lack of resources. (Id. at 50--51.) She stated that "[i]f the stay is lifted tomorrow, we couldn't do it [enforce section 9-214]." (Id. at 51.) Nevertheless, Johnson testified that eventual enforcement of section 9-214 is "absolutely" important to the City of Philadelphia. (Id.) On cross examination, she reiterated that she was affirmatively not disavowing any intention of enforcing section 9-214 at some point in time. (Id. at 54.)

Following the presentation of witnesses, the Court conducted oral argument on the issues raised by the pending motion. In particular, the Court asked the parties whether, in light of Johnson's testimony, the action was ripe for adjudication. Counsel presented their positions orally in Court-plaintiffs argued that the dispute is indeed ripe as the existence of section 9-214 has a chilling effect on free speech rights; defendant argued that there is not sufficient adversity between the parties at the present time.*fn4

The parties also submitted supplemental memoranda of law on the issue of ripeness. As an exhibit to its supplemental memorandum, defendant attached an affidavit by Johnson, which confirms her hearing testimony. In the affidavit, Johnson avers that "[a]s of [May 6, 2009], the City is not prepared to administer the application and examination process due to budget constraints." (Johnson Aff. ¶ 4, May 6, 2009.) Johnson further averred that "[t]he City's current budget deficit is $179.5 million." (Id. ¶ 6.) Moreover, according to Johnson, the 2009 budget for the Office of the City Representative was reduced by ten percent to $5,362,513; for fiscal year 2010, it will be further reduced by seventy-nine percent to $1,137,491. (Id. ¶¶ 9--10.)

In light of Johnson's testimony, oral argument by the parties in open Court on April 24, 2009, the supplemental memoranda of the parties, and Johnson's affidavit, the issue of whether the instant action is ripe for adjudication is before the Court and must be resolved before any decision on the merits of plaintiffs' constitutional challenge.

III. LEGAL STANDARD-RIPENESS

Article III, section 2 of the United States Constitution "limits federal jurisdiction to actual 'cases' and 'controversies.'" Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 410 (3d Cir. 1992). This limitation "stands as a direct prohibition on the issuance of advisory opinions." Id. (citation omitted). "The existence of a case or controversy is a prerequisite to all federal actions, including those for declaratory or injunctive relief." Presbytery of N.J. of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994) (citations omitted); accord Armstrong, 961 F.2d at 410.

The doctrine of ripeness, which "determines when a proper party may bring an action," has evolved from the case or controversy requirement. Armstrong, 961 F.2d at 411. Courts have noted some disagreement "as to whether the ripeness doctrine is grounded in the case or controversy requirement or is better characterized as a prudential limitation on federal jurisdiction.... But regardless whether the ripeness doctrine has a prudential component, it seems clear that it is at least partially grounded in the case or controversy requirement." Id. at 411 n.12 (internal citations omitted).

The "basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements...." Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). The ripeness doctrine also incorporates the principle of constitutional avoidance as delineated in the seminal case of Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346--47 (1936) (Brandeis, J., concurring). It allows courts to avoid "ruling on federal constitutional matters in advance of the necessity of deciding them, to postpone judicial review where it would be premature." Armstrong, 961 F.2d at 413 (citations omitted). "Courts ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.