Independence National Historical Park (INHP or the Park)
Philadelphia, Pennsylvania
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [1]
With these words our nation launched a great experiment in freedom and democracy within a representative form of government where the rule of law and not the proclivities of individuals would govern civil society. These principles enshrined in one of our nation’s founding documents have endured for over 200 years and serve as a beacon to the world. However, in the City where these principles were forged, a gross violation of their spirit is occurring by the NPS.
OverviewIn an April 3, 2008 editorial entitled “Mall Madness,” The Philadelphia Daily News said that,
“For nine years, the [Independence] visitor center and [National] Park Service have failed to come up with an agreement to run the center that might make the rules governing tour companies more consistent and less arbitrary... This is a shameful state of affairs."[2]Issue – Requesting a Breakthrough (Not a Bailout) for a Small Business
It should not take four years and a team of lawyers for a small business to try to compete on a level playing field free from unconstitutional, unfair, random and arbitrary practices by the National Park Service. However, that is exactly the case for Jonathan and Leslie Bari, husband and wife entrepreneurs, who invested in and developed their own American dream with The Constitutional Walking Tour of Philadelphia (The Constitutional). The Constitutional annually employs 30 people in providing guided walking tours of America’s Birthplace at INHP which features many historic sites including the Liberty Bell, Independence Hall and the National Constitution Center.
Even though The Constitutional is consistent with INHP’s enabling legislation,[3] is complementary to the Park’s mission and visitor experience objectives, is appropriate for public use and enjoyment of the Park, is an environmentally friendly “green” tour, does not cause unacceptable impacts on the Park,[4] and benefits the Independence Visitor Center (Visitor Center) and in turn the NPS financially from ticket sales for The Constitutional, NPS has exhibited an ongoing pattern and practice of malfeasance and discrimination against The Constitutional and violations of its owners’ various Constitutional rights.
In this unprecedented economic crisis, the bottom line is that The Constitutional is being regulated and taxed out of business by the National Park Service. While many companies in diverse industries are seeking a Federal bailout, The Constitutional is simply seeking a Federal breakthrough to overcome NPS’s non-compliance with Federal laws and NPS’s intransigence that have been enabled to date without any meaningful oversight.
NPS’s Willful Non-Compliance with Gateway Visitor Center Authorization Act
In 1999, Congress passed and President Clinton signed into law the Gateway Visitor Center Authorization Act (Visitor Center Act) (P.L. 106-131). The Visitor Center Act authorized the Secretary of the Interior to enter into a detailed operating agreement with the non-profit Gateway [Independence] Visitor Center Corporation (established under the Act) to construct and operate a regional Visitor Center on Independence Mall in Philadelphia.[5] The Act also authorized the Secretary, acting through the NPS, to undertake activities related to the management of INHP in cooperation with the IVCC to, among other things, provide appropriate visitor information and interpretive facilities and programs, operation of the Visitor Center, including charging fees, conducting events, and selling merchandise, tickets and food at the center. However, under no circumstances can the NPS take actions that “would derogate the preservation and protection of the values and resources of Independence National Historical Park.” While the Visitor Center was completed in 2001, the NPS has heretofore not executed an operating agreement with the IVCC, instead opting to reissue on a semi-annual basis temporary Special Use Permits to allow the Visitor Center to operate.[6]
The failure of INHP and IVCC to execute this formal and transparent operating agreement has been detrimental to The Constitutional since that operating agreement would presumably set some formal ground rules for the equitable treatment and rights of vendors, including non-profit and for-profit entities that operate visitor and tour related services, at the Visitor Center. As a result, many vendors are at the mercy of the wide discretionary authority of the management of INHP and IVCC. The lack of any transparent and fair “rules of the road” for vendors is not only causing some vendors, including The Constitutional, to contemplate shutting their doors or laying off its staff, but more importantly is violating the very values and spirit of the Park and the principle of non-discriminatory treatment enshrined in the Constitution.
About The Constitutional Walking TourThe Constitutional Walking Tour of Philadelphia is modeled after The Freedom Trail in Boston which is located in Boston National Historical Park, and which is administered by the NPS. The Constitutional is modeled after The Freedom Trail for several reasons including the commonalities between the comparable constituent groups (i.e., NPS, the historic sites) and the complementary nature of the historical significance of the Revolutionary Era on both walking tours. The Constitutional is dedicated to increasing the understanding of, appreciation for and promotion of Philadelphia’s historically significant sites in the INHP area. Specifically, The Constitutional aims to increase the number of historic sites visited per visitor in the INHP area in an environmentally sustainable and environmentally friendly way and to increase the total length of time that each visitor spends in the INHP ecosystem.
Unfair Treatment by the NPS and Visitor Center
Notwithstanding the beneficial educational and environmental attributes of The Constitutional, not to mention an additional source of revenue for the Visitor Center and INHP earned through a 20.0% (twenty percent) commission on ticket sales, The Constitutional is being disparately treated relative to its competitors (both non-motorized and motorized, including out-of-state motorized tour operators), by the NPS at the Visitor Center. Specifically, NPS has, for all intents and purposes, turned the IVCC into a Federally subsidized bus depot for the two dominant motorized tour operators in Philadelphia (Ride the Ducks[7] and Philadelphia Trolley Works) which on any given day in peak season (April-October) have dozens of large, carbon emitting, amphibious vehicles, trolleys and double decker buses parked around the IVCC and encircling INHP’s historic sites.[8] The actions of INHP and IVCC against The Constitutional are seemingly irrational, but on information and belief, INHP and IVCC actions are fueled by various inter-related reasons including their personal dislike for The Constitutional’s management and their personal preference for various third party tour operators and protection thereof.
The Constitutional would like to have parity with other competitive non-motorized and motorized vendors regarding access and visibility to visitors and potential customers (the lifeblood of any small business), both inside and outside of the Visitor Center. Over the last four years, the NPS and IVCC have refused to deal with The Constitutional in good faith and have rebuffed, ignored or denied The Constitutional’s repeated requests to have similar access to space within and outside of the Visitor Center to solicit customers. For example, the NPS and IVCC have denied The Constitutional’s 15 separate requests for written authorization to utilize portable signage to stage (meet), operate and market its walking tours outside the Visitor Center, even though motorized tour operators are authorized to use such signage for these purposes. Moreover, in spite of The Constitutional’s initial success as being the top selling tour at the Visitor Center sales desk in Summer 2005, NPS and IVCC attempted to evict The Constitutional without cause or notice from doing any business inside or outside of the Visitor Center in 2006 and then again in 2007. The Constitutional spent considerable resources to resolve these unwarranted evictions, but the NPS and IVCC retaliated again in attempts to greater marginalize The Constitutional while negatively positioning The Constitutional against its competitors. To that end, The Constitutional’s historical sales from the Visitor Center declined approximately 77.0% from the 2005 summer tourist season to the 2008 summer tourist season, despite an overall growth in visitor traffic experienced in the Visitor Center, as reported by the NPS, and growth in The Constitutional’s other sales channels for its tour business.
What is particularly appalling is that such disparate treatment, as reported by The Philadelphia Daily News, is occurring in the “shadow of Independence Hall where our nation’s forefathers championed the concepts of fairness and equality.”
Additionally, INHP and IVCC have used their power to infringe on The Constitutional’s rights with regard to freedom of speech. In addition to censoring The Constitutional from being able to distribute one of its brochures called The Independent in Summer 2007, the parties have also tried to silence The Constitutional from advocating for its rights from government officials in response to the repeated arbitrary, unfair and capricious actions of INHP and IVCC.
The Congress has approved millions of taxpayer dollars since the founding of the Visitor Center for its operational budget. More dollars are expected to flow in 2009 to help facilitate the renovation of Benjamin Franklin’s home, which is part of the Park, and the renovation will be administered by the IVCC. Congress should not appropriate and/or disburse any additional funding for INHP, including for operations of the Visitor Center and/or other related projects, until the NPS equitably resolves its issues with The Constitutional by having INHP comply with the principles of fundamental fairness and transparency, as envisioned by the Visitor Center Act.
Resolution Sought
Given the unprecedented actions of the NPS and IVCC management, The Constitutional has been struggling to survive, and this economic crisis has compounded the problem. Time is of the essence with the upcoming tourist season that commences in April 2009 to save or create at least 30 jobs, and to that end, The Constitutional seeks to immediately secure non-discriminatory visibility and accessibility for the marketing, sales and staging of The Constitutional’s guided historical tour business at INHP. Specifically, this resolution can be attained immediately by INHP if they so choose by: 1) issuing The Constitutional a Commercial Use Authorization (CUA) along the lines of what INHP has issued to its competitors for accessibility and visibility outside of the Visitor Center,[9] and 2) executing a license agreement for a dedicated ticket sales booth inside of the Visitor Center similar to Ride the Ducks[10] and Philadelphia Trolley Works[11] without requiring The Constitutional to sign a “gag order” confidentiality agreement just for the privilege of continuing discussions on a ticket booth license.[12]
“No nation was ever ruined by trade.”
-- Benjamin Franklin
---------------
Exhibits:
For Additional Information (including documents referenced herein) & Commentary:
The failure of INHP and IVCC to execute this formal and transparent operating agreement has been detrimental to The Constitutional since that operating agreement would presumably set some formal ground rules for the equitable treatment and rights of vendors, including non-profit and for-profit entities that operate visitor and tour related services, at the Visitor Center. As a result, many vendors are at the mercy of the wide discretionary authority of the management of INHP and IVCC. The lack of any transparent and fair “rules of the road” for vendors is not only causing some vendors, including The Constitutional, to contemplate shutting their doors or laying off its staff, but more importantly is violating the very values and spirit of the Park and the principle of non-discriminatory treatment enshrined in the Constitution.
About The Constitutional Walking TourThe Constitutional Walking Tour of Philadelphia is modeled after The Freedom Trail in Boston which is located in Boston National Historical Park, and which is administered by the NPS. The Constitutional is modeled after The Freedom Trail for several reasons including the commonalities between the comparable constituent groups (i.e., NPS, the historic sites) and the complementary nature of the historical significance of the Revolutionary Era on both walking tours. The Constitutional is dedicated to increasing the understanding of, appreciation for and promotion of Philadelphia’s historically significant sites in the INHP area. Specifically, The Constitutional aims to increase the number of historic sites visited per visitor in the INHP area in an environmentally sustainable and environmentally friendly way and to increase the total length of time that each visitor spends in the INHP ecosystem.
Unfair Treatment by the NPS and Visitor Center
Notwithstanding the beneficial educational and environmental attributes of The Constitutional, not to mention an additional source of revenue for the Visitor Center and INHP earned through a 20.0% (twenty percent) commission on ticket sales, The Constitutional is being disparately treated relative to its competitors (both non-motorized and motorized, including out-of-state motorized tour operators), by the NPS at the Visitor Center. Specifically, NPS has, for all intents and purposes, turned the IVCC into a Federally subsidized bus depot for the two dominant motorized tour operators in Philadelphia (Ride the Ducks[7] and Philadelphia Trolley Works) which on any given day in peak season (April-October) have dozens of large, carbon emitting, amphibious vehicles, trolleys and double decker buses parked around the IVCC and encircling INHP’s historic sites.[8] The actions of INHP and IVCC against The Constitutional are seemingly irrational, but on information and belief, INHP and IVCC actions are fueled by various inter-related reasons including their personal dislike for The Constitutional’s management and their personal preference for various third party tour operators and protection thereof.
The Constitutional would like to have parity with other competitive non-motorized and motorized vendors regarding access and visibility to visitors and potential customers (the lifeblood of any small business), both inside and outside of the Visitor Center. Over the last four years, the NPS and IVCC have refused to deal with The Constitutional in good faith and have rebuffed, ignored or denied The Constitutional’s repeated requests to have similar access to space within and outside of the Visitor Center to solicit customers. For example, the NPS and IVCC have denied The Constitutional’s 15 separate requests for written authorization to utilize portable signage to stage (meet), operate and market its walking tours outside the Visitor Center, even though motorized tour operators are authorized to use such signage for these purposes. Moreover, in spite of The Constitutional’s initial success as being the top selling tour at the Visitor Center sales desk in Summer 2005, NPS and IVCC attempted to evict The Constitutional without cause or notice from doing any business inside or outside of the Visitor Center in 2006 and then again in 2007. The Constitutional spent considerable resources to resolve these unwarranted evictions, but the NPS and IVCC retaliated again in attempts to greater marginalize The Constitutional while negatively positioning The Constitutional against its competitors. To that end, The Constitutional’s historical sales from the Visitor Center declined approximately 77.0% from the 2005 summer tourist season to the 2008 summer tourist season, despite an overall growth in visitor traffic experienced in the Visitor Center, as reported by the NPS, and growth in The Constitutional’s other sales channels for its tour business.
What is particularly appalling is that such disparate treatment, as reported by The Philadelphia Daily News, is occurring in the “shadow of Independence Hall where our nation’s forefathers championed the concepts of fairness and equality.”
Additionally, INHP and IVCC have used their power to infringe on The Constitutional’s rights with regard to freedom of speech. In addition to censoring The Constitutional from being able to distribute one of its brochures called The Independent in Summer 2007, the parties have also tried to silence The Constitutional from advocating for its rights from government officials in response to the repeated arbitrary, unfair and capricious actions of INHP and IVCC.
The Congress has approved millions of taxpayer dollars since the founding of the Visitor Center for its operational budget. More dollars are expected to flow in 2009 to help facilitate the renovation of Benjamin Franklin’s home, which is part of the Park, and the renovation will be administered by the IVCC. Congress should not appropriate and/or disburse any additional funding for INHP, including for operations of the Visitor Center and/or other related projects, until the NPS equitably resolves its issues with The Constitutional by having INHP comply with the principles of fundamental fairness and transparency, as envisioned by the Visitor Center Act.
Resolution Sought
Given the unprecedented actions of the NPS and IVCC management, The Constitutional has been struggling to survive, and this economic crisis has compounded the problem. Time is of the essence with the upcoming tourist season that commences in April 2009 to save or create at least 30 jobs, and to that end, The Constitutional seeks to immediately secure non-discriminatory visibility and accessibility for the marketing, sales and staging of The Constitutional’s guided historical tour business at INHP. Specifically, this resolution can be attained immediately by INHP if they so choose by: 1) issuing The Constitutional a Commercial Use Authorization (CUA) along the lines of what INHP has issued to its competitors for accessibility and visibility outside of the Visitor Center,[9] and 2) executing a license agreement for a dedicated ticket sales booth inside of the Visitor Center similar to Ride the Ducks[10] and Philadelphia Trolley Works[11] without requiring The Constitutional to sign a “gag order” confidentiality agreement just for the privilege of continuing discussions on a ticket booth license.[12]
“No nation was ever ruined by trade.”
-- Benjamin Franklin
---------------
Exhibits:
For Additional Information (including documents referenced herein) & Commentary:
[1] Preamble to the United States Constitution
[2] http://www.theconstitutional.com/news/inhp/mall.madness.pdf
[2] http://www.theconstitutional.com/news/inhp/mall.madness.pdf
[3] “Independence National Historical Park Act of 1948” - U.S. Code, Title 16, Chapter 1, Subchapter LI. http://www4.law.cornell.edu/uscode/16/ch1schLI.html
[4] Management Policies 2006, National Park Service, Section 10, page 144 - Commercial Visitor Services, ISBN 0-16-076874-8, http://www.nps.gov/policy/MP2006.pdf
[5] The Independence Visitor Center was built on land owned by the Federal government and administered by the National Park Service. The NPS has contracted with a private entity, Independence Visitor Center Corporation, to operate the facility, and the NPS has supported the Visitor Center with Federal appropriations of $6.4 million since 2001 that has primarily been disbursed with annual appropriations of $850,000.00. The Visitor Center is approximately 50,000 square feet in size, and is marketed as the “largest facility of its kind in the world.” The Visitor Center was designed and intended to serve as a tourism hub and the primary point of orientation and visitor services for the Park and surrounding environs. The Visitor Center is the only official on-site ticketing location for visitors to pick up tickets to Independence Hall. The Visitor Center promotes the notion that that visitors need to “Start at the Center” in order to experience the “best way to see Philly.” For details, see http://www.theconstitutional.com/news/inhp/INHP-Payments-to-IVCC.pdf
[6] In lieu of a long term detailed operating agreement, the NPS issued a bare-bones temporary Special Use Permit to the IVCC in November 2001 and then has extended it 20 separate times “to allow additional time to finalize a formal [management] Agreement.” What is also even more curious about the repeated renewals of the Special Use Permit is that according to all of the audited financial statements of the IVCC since at least 2003, the NPS and IVCC have “substantially established a management agreement” that “calls for the NPS to make an annual payment of $850,000.00 to IVCC in exchange for the services provided by the IVCC more fully described in the agreement.” While more than $6.4 million has been spent by the Federal government to fund the IVCC’s operations since 2001, the NPS and IVCC have not executed a management agreement, and the operating agreement, which is supposedly done, is confidential and not available for public inspection.
[7] NBC10 Philadelphia Alyssa D’egidio said, “One of Philly’s most notorious tourist attractions, known for annoying locals with its incessant quacking and duck-call equipped tourists…” March 2, 2008. http://www.nbcphiladelphia.com/around_town/the_scene/Annoy-The-Quacking-Hell-out-of-Us-Guide-The-Ducks.html The Society Hill Civic Association had to create an Anti-Quacking Committee” to address Ride the Ducks “quacking and polluting (with gas fumes) our historic residential neighborhood.” http://societyhillcivic.org/newsletter/2007/0707.pdf
[5] The Independence Visitor Center was built on land owned by the Federal government and administered by the National Park Service. The NPS has contracted with a private entity, Independence Visitor Center Corporation, to operate the facility, and the NPS has supported the Visitor Center with Federal appropriations of $6.4 million since 2001 that has primarily been disbursed with annual appropriations of $850,000.00. The Visitor Center is approximately 50,000 square feet in size, and is marketed as the “largest facility of its kind in the world.” The Visitor Center was designed and intended to serve as a tourism hub and the primary point of orientation and visitor services for the Park and surrounding environs. The Visitor Center is the only official on-site ticketing location for visitors to pick up tickets to Independence Hall. The Visitor Center promotes the notion that that visitors need to “Start at the Center” in order to experience the “best way to see Philly.” For details, see http://www.theconstitutional.com/news/inhp/INHP-Payments-to-IVCC.pdf
[6] In lieu of a long term detailed operating agreement, the NPS issued a bare-bones temporary Special Use Permit to the IVCC in November 2001 and then has extended it 20 separate times “to allow additional time to finalize a formal [management] Agreement.” What is also even more curious about the repeated renewals of the Special Use Permit is that according to all of the audited financial statements of the IVCC since at least 2003, the NPS and IVCC have “substantially established a management agreement” that “calls for the NPS to make an annual payment of $850,000.00 to IVCC in exchange for the services provided by the IVCC more fully described in the agreement.” While more than $6.4 million has been spent by the Federal government to fund the IVCC’s operations since 2001, the NPS and IVCC have not executed a management agreement, and the operating agreement, which is supposedly done, is confidential and not available for public inspection.
[7] NBC10 Philadelphia Alyssa D’egidio said, “One of Philly’s most notorious tourist attractions, known for annoying locals with its incessant quacking and duck-call equipped tourists…” March 2, 2008. http://www.nbcphiladelphia.com/around_town/the_scene/Annoy-The-Quacking-Hell-out-of-Us-Guide-The-Ducks.html The Society Hill Civic Association had to create an Anti-Quacking Committee” to address Ride the Ducks “quacking and polluting (with gas fumes) our historic residential neighborhood.” http://societyhillcivic.org/newsletter/2007/0707.pdf
[8]The motorized tour operators use various vehicles for their tours including World War II era DUKW (duck boat) amphibious vehicles, authentic London double decker buses and Victorian trolleys. These motorized vehicles provide tours on thematic vehicles having no contextual relevance to the historical interpretation of Independence National Historical Park (in the 1700s-1800s).
[9] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), Penn Ducks (Ride the Ducks doing business as), 76 Carriage Company, Inc. (doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as), Lights of Liberty Inc. (walking tour), Historic Philadelphia, Inc. (including its walking tours), etc.
[10] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), and Penn Ducks (Ride the Ducks doing business as).
[11] 76 Carriage Company, Inc. doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as).
[12] On information and belief, The Constitutional was the only vendor to be given this type of broad sweeping confidentiality agreement requirement during ticket booth negotiations; the confidentiality terms of which would survive even if no license agreement was ever executed. What is most troubling is that IVCC’s counsel, Mark DePillis at Ballard Spahr, acknowledged that IVCC does not have trade secrets per se, but nevertheless insisted on a confidentiality agreement as a required condition of negotiations. Further IVCC's counsel stated to The Constitutional's counsel that the IVCC did not appreciate hearing from government officials including Senator Arlen Specter (R - PA), and this was reiterated in writing when IVCC's counsel stated, “We remain prepared to do so [to continue negotiating an agreement], but only if we can be assured of a level playing field, free from outside influence and interference, and free from the threat of public finger-pointing if we are unable to conclude a transaction.”
[9] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), Penn Ducks (Ride the Ducks doing business as), 76 Carriage Company, Inc. (doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as), Lights of Liberty Inc. (walking tour), Historic Philadelphia, Inc. (including its walking tours), etc.
[10] Ride the Ducks, Philly Ducks (Ride the Ducks doing business as), River Ducks (Ride the Ducks doing business as), and Penn Ducks (Ride the Ducks doing business as).
[11] 76 Carriage Company, Inc. doing business as Philadelphia Trolley Works), Philadelphia Trolley Works (including its Franklin Footsteps walking tour), Big Bus Tours (Philadelphia Trolley Works doing business as).
[12] On information and belief, The Constitutional was the only vendor to be given this type of broad sweeping confidentiality agreement requirement during ticket booth negotiations; the confidentiality terms of which would survive even if no license agreement was ever executed. What is most troubling is that IVCC’s counsel, Mark DePillis at Ballard Spahr, acknowledged that IVCC does not have trade secrets per se, but nevertheless insisted on a confidentiality agreement as a required condition of negotiations. Further IVCC's counsel stated to The Constitutional's counsel that the IVCC did not appreciate hearing from government officials including Senator Arlen Specter (R - PA), and this was reiterated in writing when IVCC's counsel stated, “We remain prepared to do so [to continue negotiating an agreement], but only if we can be assured of a level playing field, free from outside influence and interference, and free from the threat of public finger-pointing if we are unable to conclude a transaction.”
