Putting the cart before the horse

Originally published in New York Daily News

If Mayor de Blasio prevails in his campaign to destroy New York City’s horse-drawn carriage industry, he’d better get his lawyers ready.

Although cities have wide latitude to regulate businesses, they need a very good reason to ban them. Horse-drawn carriages already are heavily regulated. Given the industry’s excellent safety record for both horses and patrons, it would be difficult for de Blasio to justify a ban.

Both state and federal courts across the country have struck down government efforts to prohibit specific businesses. In Santos vs. City of Houston, for instance, a federal district court struck down a law in 1994 that prohibited “jitney” vans from operating in the city while allowing other forms of public transit such as buses and taxicabs. The city posed all sorts of reasons “to distinguish jitneys from other types of small body vehicles to justify the ordinance,” but a “lack of . . . evidence and plain common sense defy the city’s logic. The classification is simply not logical.”

Likewise, in 1989, a federal district court in Washington, D.C. upended an ordinance forbidding shoeshine stands on public streets. The city argued that the stands would congest the sidewalks. “Even if the court presumed that the regulation’s hypothetical goal was ‘rational,'” the court observed, “the District’s method for achieving this goal irrationally and arbitrarily singles” out shoeshine stands by prohibiting them rather than merely regulating them.

More recently, the U.S. Court of Appeals for the Fifth Circuit last year struck down a Louisiana statute that prohibited a group of monks from selling wooden caskets directly to members of the public. Ten years earlier, the Sixth Circuit, in Cincinnati, reached the same result, invalidating Tennessee’s ban on casket sales. Both courts rejected the states’ asserted public health and safety rationales by which they attempted to limit casket sales to licensed funeral homes.

You might say: Wait. New York – where, over 12 years in office, a mayor just tried to regulate if not ban substances from cigarettes to trans fats to sugary soda to salt – must be more apt to allow government to intervene in private markets, even to the point of banning industries.

Not so. As a general rule, state constitutions often are construed to provide even more protection to freedom of enterprise, especially when state or local governments prohibit certain businesses altogether.

And New York in particular has a rich judicial tradition of protecting economic liberty dating back for nearly a century. New York courts have recognized broad local authority to regulate economic activities, but repeatedly have emphasized that “[W]hen regulation becomes destruction, it ceases to be regulation.”

When Albany, for instance, imposed crushing regulations on ice cream vendors (some of which were horse-drawn), New York’s highest court in 1957 struck them down. “Itinerant vending has been upheld here as an established occupation,” the court ruled, “not to be legislated or regulated out of existence.”

Only last year, a Supreme Court judge ruled that former Bloomberg’s attempted cap on sugary soda size was “arbitrary and capricious” and therefore unconstitutional. Should de Blasio succeed in banning horse-drawn carriages, his law is likely to suffer the same fate as his predecessor’s.

All of those court decisions recognize that a person’s livelihood should not lightly be destroyed. Prohibition is the most drastic tool in government’s regulatory arsenal. To justify wielding it, there must be strong evidence that regulation short of outright prohibition cannot satisfy the government’s legitimate objectives.

That is an exceedingly difficult burden for New York City to shoulder in the case of horse-drawn carriages. The industry has existed for 150 years. It is already subject to extensive regulation.

The horses receive twice-annual veterinary examinations, they generally work only six hours per day, they do not operate in extreme weather conditions, and they get five weeks off each year – better working conditions, overall, than most humans. The regulations work: Out of millions of rides over the past three decades, there have been only four equine fatalities and no human fatalities, even in the midst of Central Park traffic.

A spokesperson for People for the Ethical Treatment of Animals says that the “only humane solution is a permanent ban.” It certainly isn’t humane for the working people of New York, hundreds of whom would lose their jobs. De Blasio’s proposal to replace the carriages with electric-powered classic cars offers cold comfort to the carriage drivers, because that is not how they earn a living.

And all New Yorkers will suffer when one of their prime tourist attractions – a source of fun, revenue, and romance for over 150 years – falls needlessly by the wayside.

If the ban’s proponents truly value humanity, they will heed the wishes of the overwhelming majority of New Yorkers who do not want horse-drawn carriages banned. If not, they need to be prepared for the legal arsenal that awaits.

Bolick is vice president for litigation at the Goldwater Institute, a conservative public policy and legal advocacy organization.