Judge Dismisses Lawsuit after Tourism Bureau Promises Not to Charge B&B Owner

First Amendment issue still in question

Thursday, October 12, 2017

Derk Wilcox
Senior Attorney
(989) 698-1920

MIDLAND — A circuit court judge has dismissed the case of business owner David Gersenson, whose First Amendment rights were violated by the Sleeping Bear Dunes Visitors Bureau. Rather than try the case, the Bureau decided on its own to not charge a room assessment on Gersenson’s vacation rentals, effectively ending the suit.

Gersenson owns two hospitality businesses: the Lakeshore Inn and the Sylvan Inn Bed and Breakfast. Both are located in Glen Arbor, where the Sleeping Bear Dunes Visitors Bureau levies a 2 percent assessment on all rented rooms and uses the proceeds to advertise the area to tourists. Gersenson contacted the Mackinac Center Legal Foundation to sue the Bureau after it announced it would be raising the tax from 2 percent to 5 percent earlier this year.

“It’s a violation of my free speech rights,” Gersenson explained. “I’ve been a successful business owner for decades, and I’m better at managing and advertising for my business than the government is. I shouldn’t be forced to pay for this activity.”

On Sept. 25, 2017, a judge dismissed Gersenson’s case against the Sleeping Bear Dunes Visitors Bureau after the Bureau, in court, promised the judge that it would not assess Gersenson in the future or seek past-due amounts.

“The Visitors Bureau ended the matter before a judge could rule on its constitutionality,” said Derk Wilcox, senior attorney at the Mackinac Center Legal Foundation. “But compelling someone to subsidize speech they don’t want to fund violates the First Amendment. It is like forcing someone to hire an advertising firm they don’t want.”

This is the second time the Mackinac Center has sued on behalf of a small business owner whose free speech rights were violated by a local tourism bureau. In 2016, it sued the Indian River Tourist Bureau over the assessment it levied on George Galbraith’s business, The Landings on Indian River. Like Gersenson, Galbraith had been a successful business owner for many years, and said the 5 percent assessment on his rooms went to advertising that did nothing for his business. Due to personal reasons, Galbraith had to sell his property and retire, and the Mackinac Center dismissed the suit.

“We are disappointed that for the second time we didn’t get to have a court's determination on whether this statute violates the Constitution,” said Wilcox, “But I think we will get to that stage soon. We’ve already heard from other hotel, inn and cottage rental owners who don’t want to be forced into paying for advertising that they don’t want at a cost that is passed on to their customers. And I’m sure there are many more out there, and some who might ask us to be a plaintiff in a similar lawsuit. These tourism bureaus can’t just let everyone out — although if they do, and joining becomes completely voluntary, that is what the free speech and freedom of association provisions in our Constitution are all about.”

Learn more at http://www.mackinac.org/Gersenson-SBDVB.

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