A feud between two tour operators on the Portland waterfront has prompted the City Council to consider new rules for the entire industry.

The territorial dispute culminated in the summer when a longtime Old Port tour operator took a competitor to court and complained of harassment. That prompted city officials to consider adopting a new set of rules for licensing, safety and dispersal of tour operators.

Keith Nuki, owner of Portland Fire Truck Co., has clashed with other tour operators and the city over the years. 2012 Press Herald file photo by Gabe Souza

Currently, neither the city nor the state requires tour operators to get special licenses as several other U.S. communities do, including New York City and Portland, Oregon. However, vehicles have to pass basic safety requirements of the Maine Department of Transportation and the Coast Guard.

During a meeting last week, the council was receptive to adding licensing and safety requirements for tour operators, but asked its Economic Development Committee to take another look at possibly prohibiting so-called transient tour operators from setting up near established tour businesses. The committee will revisit the issue Tuesday.

The idea of having the dispersal requirement is raising First Amendment concerns in a city that has a history of overstepping the free speech line. At least one city attorney is warning that such a rule could unduly hinder “commercial speech.”

“Those challenging the ordinance may argue that it was enacted for the purposes of protecting certain companies from economic competition,” city attorney Adam Lee said in a Nov. 10 memo to the council. “Courts have held that such purposes are not legitimate government interests.”

The proposed rules seek to address concerns on Commercial Street, which can take on a carnival-like atmosphere during the summer. When cruise ships come in to port, the sidewalks can become congested because of the combination of heavy foot traffic and vendors who set up tables and carts to peddle art and food to the tourists.

“Long Wharf is a hot spot. It all kind of comes together right there,” said Twain Braden, an attorney representing Portland Discovery Land & Sea Tours, which operates trolley and sea tours from a building at 180 Commercial St. “It’s a real problem safety-wise and congestion-wise.”

HEATED COMPETITION IN THE STREETS

Few disagree that the city should begin requiring tour operators to pay a $300 licensing fee, plus an additional $30 per operator and vehicle. Similar rules already exist for horse-drawn carriages and bicycle cabs. There also is support for conducting background checks on operators and allowing tour vehicles to be inspected by police officers.

The sticking point is whether transient tour guides, who operate their businesses on city streets and sidewalks, should be prohibited from operating within 65 feet of those who have fixed storefronts.

Lee said in a memo to councilors that such a dispersal requirement could face a constitutional challenge, even though similar rules exist to prevent food trucks and food carts from getting too close to restaurants. He didn’t respond to an email Monday afternoon asking about the difference between the two requirements.

The proposal comes amid an ongoing feud between Portland Discovery Land & Sea Tours, which has complained of aggressive solicitation in the past, and the Portland Fire Engine Co., a transient tour company that is unaffiliated with the city’s fire department.

Before he found an old fire truck in Scarborough and launched his own tour business nearly five years ago, Keith Nuki, the owner of Portland Fire Engine Co., used to earn money taking pictures of people going on Portland Discovery Land & Sea Tours.

In July 2014, the city ordered Nuki to stop selling tickets for his vintage fire truck tours in front of the Portland Discovery storefront, which also is used by Odyssey Whale Watch and Lucky Catch tours. The city later took court action, and in November of that year Nuki agreed not to sell tour tickets within 10 feet of his photo kiosk.

The next summer, three employees of Portland Discovery obtained a restraining order against Nuki, who was allegedly videotaping, taunting and threatening employees. Although the restraining order was granted, Nuki was allowed to continue to operate his business.

Nuki, who was accused of selling tickets out of a street art kiosk where he also sold padlocks for the “Locks of Love” display on the waterfront, said the rules really seek to drive out the competition along Commercial Street, which is one of the few areas wide enough to handle tour buses during the busy summer months.

“I don’t think a barrier is constitutional and I don’t think it should be put in place,” Nuki said. “Plus it creates a monopoly.”

Mark Stevens is co-owner of the Maine Beer Tours, a New Gloucester-based business that sells tickets online but picks up passengers at 180 Commercial St. before taking them on a 2½- to 3½-hour tour of the city’s well-know breweries. He is generally supportive of the rules, but is concerned about being prohibited from picking up and dropping off passengers at that location.

“It’s a little frustrating it could go to this extent,” Stevens said. “We specifically chose 180 Commercial St. because that’s set up for tour buses. That’s an easy, open location where others are also doing it. So that was a logical spot for us to go.”

WARY OF CONSTITUTIONAL ISSUES

This is not the first time waterfront tour companies have been at odds with each other. In 2003, several operators, including Portland Discovery, expressed concern about the aggressive solicitation by employees of the Old Port Mariner Fleet, which has since gone out of business.

Bill Frappier III, general manager of Portland Discovery, cited increased competition when addressing the council Wednesday, saying tour businesses with a fixed storefront are at a disadvantage because they have to pay rent and property taxes and are subject to the city’s new minimum wage law. The company operates six trolleys and two passenger boats and employs about 30 people during the busy summer months, he said.

“There is a significant amount of competition for the tourism dollar in Portland,” Frappier said.

The city already has had two high-profile ordinances – a protest-free buffer zone at Planned Parenthood on Congress Street and an anti-loitering law targeting panhandlers – struck down by the courts over First Amendment concerns. Councilors also backed down amid public criticism from artists about a proposal to create a registry for street artists and a buffer zone around existing retailers.

City Councilor David Brenerman, who leads the council’s Economic Development Committee, said such dispersal requirements have been challenged elsewhere in the U.S. However, he and fellow committee members are open to any constitutionally sound ideas to help ease concerns on Commercial Street.

“Rather than expand another industry to a similar type of regulation, I think the corporation counsel’s office is hesitant to do that now,” Brenerman said.

Braden, the attorney representing Portland Discovery Land & Sea Tours, said he was concerned that, without the additional protections in place, the ordinance may increase congestion on Commercial Street, because it would allow anyone with a license to openly solicit business on a public street, which is currently prohibited.

If the city balks at a dispersal requirement, it could either restrict solicitation to private property, designate certain areas for transient operators to sell tickets and pick up passengers, or require all tour operators to have a fixed storefront, Braden said in a Jan. 19 memo to committee members.

“You don’t have to be a constitutional scholar to know it’s a madhouse down on Commercial Street,” he said.

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