Is Mayor Landrieu “Ducking” City Council?

Nov 6, 2013 by

RTD Mascot

[11/07/13: This post has been updated in light of new information.]

From the grumblings and comments circulating recently, it seems that Mayor Mitch Landrieu has decided that the New Orleans City Council doesn’t have the right to independently regulate duck boats and that he will override the persistent objections from citizens of the French Quarter — and throughout the city — to allow duck boat tours to operate in New Orleans. A City Councilmember’s senior staff member reportedly has stated that the Mayor may issue a Mayoralty permit to facilitate the issuance of CPNC licenses to operate the amphibious vehicle tours.

[Update 11/07/13: It has been clarified that the current city code does not regulate amphibious vehicles and that these vehicles would fall under the tour bus provisions that have no limitations imposed regarding the issuance of CPNC licenses. Instead of a Mayoralty permit being issued, the Dept. of Permits’ Taxi Cab Bureau would issue CPNC licenses. The statement attributed to “a Councilmember’s senior staff member” has been formally denied and there has been no formal statement from the Mayor’s office with regard to duck boat tours.]

In response to this potential outcome, the French Quarter Management District’s Board of Commissioners reportedly voted at its meeting on 11/04/13 to reverse its earlier (and staunch) opposition by permitting these amphibious vehicles to travel within a particularly traffic-congested portion of the French Quarter. This organization has also agreed to work on an alternate version of the ordinance at the request of Councilmember Kristin Gisleson Palmer’s office that would allow such tours to operate with certain restrictions imposed.

The original proposed ordinance presented to the New Orleans Transportation Committee on 8/27/13, drafted by Councilmember Gisleson Palmer’s office, included the following stipulations:

  • Sec. 162-944 defines noisemakers to include devices sold or distributed free of charge which produce, among other things, “sounds imitative of animals.”
  • Sec. 162-945 prohibits amphibious vehicles from operating within the geographical boundaries of New Orleans City Council District “A” and New Orleans City Council District “C.”
  • Sec. 162-946 prohibits the use of noisemakers and amplified sound other than sounds produced for the legal operation of the vehicle (“shall not be plainly audible from the public right-of-way or private property while operating any tour bus or sightseeing bus including vehicles capable of amphibious transportation in the City of New Orleans…”). This not only addresses the amplification typically used in conjunction with duck boat tours, but also party buses and the double-decker buses that recently joined the flow (and, in places, congestion) of traffic in New Orleans.

The proposed draft revised ordinance as discussed at the French Quarter Management District’s Board of Commissioners meeting on 11/04/13 would instead establish the following:

  • Sec. 162-1. Definitions. Would add a legal description of “Amphibious vehicles” and “Noisemakers” (both yet-to-be-defined in this draft version). It also adds a legal description of “novelty vehicles” that includes “but is not limited to DUKW or ‘duck’ or other amphibious vehicles…” I can’t help but wonder what other types of “novelty vehicles” this definition would be stretched to include (for example, will the City Council also review the possible addition of “pedal pubs” to our city’s traffic flow, as at least one company seems to believe that they already operate in New Orleans?).
  • Sec. 162-944 would prohibit noisemakers (the only commonality shared between the two versions), but would allow amplified sound as follows: “Amplified sound, other than sounds produced for legal operation of the vehicle, shall not be plainly audible one foot from the tour bus or sightseeing bus, including a novelty vehicle, while operating within the boundaries of the City of New Orleans.” (How, exactly, is amplified sound emanating from an open-air vehicle not going to be audible just one foot away from said vehicle? This is absurd and likely unenforceable.)
  • Sec. 162-945 would permit decorations on novelty vehicles operating within the boundaries of the City of New Orleans not to exceed a maximum length of twenty-five (25) feet on either side or the top of the vehicle or a maximum height of four (4) feet on any side or end of the vehicle. This would effectively make any duck tour vehicle a garish, self-promoting billboard from all angles. While the Transportation Committee did discuss the possibility of restrictions involving the appearance of such vehicles, those concerns were not included in the original ordinance proposed on 8/27/13; however, this draft alternative version seems to expressly sanction what would amount to visual pollution.
  • Sec. 162-946 would permit a maximum number of seven (7) novelty vehicles authorized by permit or license to operate within the City of New Orleans during any single year and of those only a maximum of three (3) amphibious vehicles would be permitted. Unlike the pedi-cab ordinance, however, one company could be permitted to have all three of the amphibious vehicle CPNC licenses — how is this not the very definition of endorsing the existence of a monopoly?
  • Sec. 162-947 restricts the operation of novelty vehicles within the Vieux Carré, but allows an exception to this prohibition ONLY for amphibious vehicles owned and operated by “the owner of a tract of real property which fronts on the Mississippi River levee in the Vieux Carré” that may operate on North Peters St., St. Louis Street, and Decatur Street (see the document for the precise limitations). This exception, as currently written, could  unfortunately potentially be interpreted as restricting the operation of such vehicles to the local company that is applying for the amphibious vehicle CPNC licenses.

In terms of anti-trust considerations (or, more to the point, monopolistic practices), it is quite possible that the proposed restriction and its one noted exception may be unconstitutional. This would not be the first time that the French Quarter Management District has been associated with potentially Constitutionally-challenged measure: consider the proposed outdoor loudspeaker ordinance drafted by its members and the recently revised (unconstitutional parts stricken) Aggressive Solicitation ordinance drafted in part (if not in its entirety) by its current Chairperson. Note, too, that Councilmember Gisleson Palmer has also been involved with these efforts by proposing the revamping of the city’s existing Noise Ordinance and by introducing the Aggressive Solicitation ordinance for its consideration to the New Orleans City Council.

(However, it should also be noted that Councilmember Gisleson Palmer stepped up as recently as one year ago to ensure that two equally controversial and/or Constitutionally-challenged ordinances regarding the Jackson Square pedestrian mall were withdrawn during November 2012, a sensible action applauded by many.)

When Key West, Florida attempted to limit duck boat tours to one local operator, that city was sued by a second operator with an argument centering on the Commerce Clause of the U.S. Constitution and settled with an $8 million payout to the challenging operator that sued.

The Key West lawsuit hinged on one point: “They singled out one favorite local company [Historic Tours of America] and excluded everyone else…”. How is creating an exception to the restrictions provided within this draft ordinance allowing only “the owner of a tract of real property which fronts on the Mississippi River levee in the Vieux Carré” any different? Is there more than one company that meets that very specific description? In the event of a lawsuit, Gray Line Tours/the New Orleans Steamboat Co. won’t be held liable — the City of New Orleans will be the chump who’s left holding the bag.

Can New Orleans afford to squander that kind of change if the most recent version of the ordinance is approved and successfully challenged, given that our city is already obligated to pay the tab for six different consent decrees? (And even if New Orleans didn’t have multiple consent decrees to pay for, it’s simply ridiculous for the city to repeatedly expose itself to lawsuits resulting from unconstitutional laws.)

If these proposed revisions are adopted, and a would-be competitor successfully challenges the seemingly unconstitutional provisions and wins, BOOM! The entire city — including its treasured historic areas — could be overrun by the notably invasive duck boat species.

As transcribed from the City Council Transportation Committee meeting held on August 27, 2013 (the last time this matter was publicly discussed):

Councilmember Guidry: “Can you address the case in Key West, Florida that gives us the grave concern that if one duck boat company is allowed in, then it would be an anti-trust violation to not allow a second or a third?”

Scott Whittaker (an attorney speaking on behalf of Gray Line Tours): “If nothing can be worked out, the ban can be imposed later… it’s no different than the pedicabs. I mean, y’all were talking about the CPNCs for pedicabs — taxi cabs, pedicabs, tour buses, limousines — they’re all based on certificates of public need and necessity. And it’s within the purview of the government to determine public need and necessity.”

Councilmember Palmer: “So y’all would advocate then for this market to be opened up to as many duck tours as possible?”

Scott Whittaker: “No, no, no — we recognize that the CPNCs would be limited. For example, just like the pedicabs, you’re talking is it 45 — the number — or is some other number of CPNCs –”

Councilmember Palmer: “We would have to still bring in another — potentially other — companies in; [other companies] would potentially have the opportunity to come in and get other CPNCs as well.”

Scott Whittaker: “I don’t know that that’s the case. If you’ve got only three, for example, CPNCs that are allowed, then…”

Councilmember Guidry: “But the difference is then — that happened in Key West with trying to just allow one [tour operator] was the monopoly issue. If you have a legal argument one way or the other on that I would love to see it.”

Scott Whittaker: “I would be happy to present that legal argument to you. Granting monopolies is within the purview of the government.” [Yes, on rare occasion, but not without the most strident legal consideration.]

Councilmember Palmer then concluded the discussion of this agenda item with the following remarks:

“This has been a long and, I guess, convoluted process… Quite frankly, we have been in many different conversations with the administration and amongst my fellow Councilmembers regarding this issue because it is a new vehicle and because we were approaching this with an abundance of caution in terms of what has happened in the past. […] Within this ordinance is reflective of what I believe the community and the city need, quite frankly, in terms of the quackers and in terms of of protecting the French Quarter. We have had so much pressure and we have not had enough enforcement on so many different issues. We have a higher responsibility to protect that place and we have not done a very good job.

“Decatur [Street] and this area is under an extreme amount of pressure… and this is one of the reasons why I’m really trying to figure out a way and why I’ve been researching this and why I’m going to other cities to figure out how they do it in a way that protects what our great assets are, but will also allow for new business such as yours to operate. […] I really think we need to have a comprehensive plan over the entire French Quarter — and this does not help you [Gray Line Tours]. But, you know, we have the Union Passenger Terminal, we have Basin Street, we have abilities to have hubs in other areas that are not in the heart of a historic district and one of the most treasured of this country and I think we have to pursue that in a sustainable way.

“One of the things these District Councilmembers are supposed to do is protect our turf and to listen to the people that live in the turf. So that’s what we have to do and I think I’m not just looking at the French Quarter, but I’m also looking at the precedent [it sets], and I’m also looking at North Rampart, I’m looking at St. Claude, I’m looking at Tremé, I’m looking at the Marigny, I’m looking at the Bywater. All of these neighborhoods need to be protected in a good way. So that’s where we are. I move that we table it because I’d like to have more conversations — if that’s what y’all are requesting, that’s fine. I would like to, though, publicly state that what is in this ordinance is my intent in terms of what I think can happen in a sustainable way” [emphasis added].

The original proposed ordinance, presented and publicly discussed in that August 2013 meeting, was then tabled by unanimous vote. Now, two months later, there’s a new draft ordinance that is an absolute about-face in regard to all of the sentiments noted above.

Councilmembers Kristin Gisleson Palmer and Susan A. Guidry, I’m curious — what are your thoughts about this proposed draft revised ordinance? (I have twice requested clarification from Councilmember Gisleson Palmer and/or her office regarding her relationship to and opinion of this subsequent version, but have yet to receive a response.)

[Update 11/07/13: A response has since been received from Councilmember Gisleson Palmer’s office and additional information is pending. It has been clarified that the draft revised ordinance presented for discussion at the French Quarter Management District’s Board of Commissioner’s meeting on 11/04/13 included in this post was not provided Councilmember Gisleson Palmer’s office prior to the occurrence of that meeting.]

I asked attorney Owen Courrèges about the monopolistic practices issue and he noted in reply, “If this can be described as having no other rational purpose than protecting privileged operators, then it is certainly subject to a lawsuit alleging unconstitutional protectionism. If it’s already happened before, the argument is all the stronger. The food truck debate involves a similar dynamic.” (If it floats like a Key West duck boat and quacks like a Key West duck boat…)

I now ask three questions:

Given her statements about listening to and protecting the constituents who live “in the turf,” why has Councilmember Gisleson Palmer pulled a 180-degree turnaround with regard to her previously unequivocal, emphatic, and publicly-stated position?

Given their recent reversal of position on this matter, is not reasonable to ask whose interests the French Quarter Management District is serving: those of its member organizations (who had previously voted to oppose such tours traveling in any manner within the French Quarter) or those of the Mayor’s office?

And again: why do the powers-that-be of New Orleans — most particularly, our Mayor — feel the need to change what is frequently referred to as “the most unique city in America” by imitating attractions found in other cities?

The addition of duck boat tours will only dilute our city’s inimitable brand while rubber (ducky)-stamping the risk of another — potentially costly and wholly avoidable — legal challenge.

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