(May 1, 2015) The greatest problem with governance by committee is that so many ideas, which seem great in the heat of discussion, turn out to be legally dubious at best and, at worst, downright unconstitutional.
Ocean City’s long-sought ambition to exercise greater control over the “Wild West” of Boardwalk street performers was tempered a bit this week, as the City Council reviewed the recommendations passed on to it by the city’s Boardwalk Task Force
The task force is a citizen committee that has met over the past several months to review the legal and logistical issues surrounding the proliferation of buskers on the boards. The city hired constitutional law firm Venable, aLLP of Baltimore to advise and review the process, following a tumultuous summer last season dealing with street performers.
The council’s review this week also included a draft ordinance, written by City Solicitor Guy Ayres, that included most – but not all – of the task force’s ideas.
“I’ve included a memorandum from me as to why some of the task force’s recommendations should not be implemented,” Ayres said.
Simply put, some of the ideas, Ayres found, were on shaky legal ground, particularly given the widely accepted judicial standard that restrictions on free speech require a demonstrable public necessity and must be narrowly tailored to meet that need while still providing ample alternative means of free expression.
Specifically, Ayres was skeptical of the task force’s recommendation for a strict insurance requirement for such performers, which would require them to sign a “hold harmless” waiver with the city, and provide proof of at least $1 million in liability coverage.
“There is a case that basically held that requirement as an impermissible restraint on freedom of expression,” Ayres said. “In order to do anything like that, you would have to demonstrate that people have been injured or property has been damaged so that there’s a legitimate purpose for the insurance. To my knowledge, we’ve never had any injury to a person because of a street performer.”
Ayres was also reluctant to codify the task force’s idea to prevent street performers from using space at any street end at which the street is elevated to Boardwalk level. While it was contended that these streets could be used as emergency access points, and should thus be kept clear, only two such streets – North Division and Dorchester – are routinely used for that purpose.
“There was no testimony that the performers actually posed such a problem, other than at those two streets,” Ayres said.
But just as relevant was the fact that Ayres found no issue with the task force’s recommendation to create a rotating lottery system of designated performance spaces.
Under the current proposal, any person who wishes to engage in performance art, or wishes to vend so-called “expressive materials” on the Boardwalk from Ninth Street south, must register his or her act at City Hall. Spaces will be given out, via lottery, twice per week: a weekday assignment, good from Monday to Thursday, and a weekend assignment for Friday through Sunday.
Performers who are purely recreational and do not accept any money will be exempt from the system, as will anyone who is distributing flyers, pamphlets, or other written material free-of-charge.
North of Ninth Street, anyone may engage in performance or expressive material vending, without registration.
The obvious question is why the city is looking to return to a registration system, after a 2011 lawsuit from Boardwalk spray-paint artist Mark Chase, in conjunction with the Rutherford Institute, struck down city’s previous permit system for street performers on First Amendment grounds.
However, the critical element of Judge Ellen Hollander’s ruling against the city was that the permit system served no demonstrable need, and was forcing people to get a permit just for the sake of having one. Further, the performance rules that the city issued with the permits had never been codified in any ordinance that spelled out their public purpose, and were thus arbitrary restrictions on free speech.
Many street performers are still concerned that the new registration system would also be used as a disincentive for free expression.
“Right now, I would have to cancel 10 gigs to be able to come here twice a week and register,” said guitarist Alex Young, who plays professionally in North Carolina, but also plays for tips in Ocean City between scheduled shows.
Young noted that he started his career as a teenager playing on the boards while on a family vacation.
“What would happen to kids like me, who want to go out and play guitar and ask, ‘Where can I sign up,’ and are told ‘You have to come back Thursday,’” Young asked.
The response, naturally, was that they could go north of Ninth Street, where there was not a demonstrable congestion issue.
“Not all street performers have to be in this rotation system,” Ayres said. “It’s street performers who want to work in the specific area between South First Street and Ninth Street.”
Not only was the proposed policy appropriately tailored to deal with known traffic issues, Ayres noted, it was also designed to account for the public need – heard often in the task force’s hearings – to prevent performers from staking out the most lucrative spots all summer long.
“I’m sure the street performers would prefer to know they have ‘their’ location that they all go to, and they honor it and work it out amongst themselves,” Ayres said. “But that ignores those who live there and listen to the same thing night after night. You have to realize that some of these musicians have a very limited repertoire.”
Further to this point, the current ordinance proposal would prevent any performance materials from being affixed to any public property, be more than four feet in height, or be left unattended for more than 15 minutes. Fuel-burning generators would also be prohibited.
The current proposed legislation would also ban performances that involve touching the public, such as skin or hair art. This element is clearly aimed at henna tattoo stands, which dot the Boardwalk every summer and have been said to cause allergic reactions from the dye used by unregulated artists.
Performers have said this blanket ban also goes too far and is legally arbitrary.
“Even if I had insurance, would this completely get rid of me?” asked Jessica Brown, who does childrens’ face-painting.
Several other items brought up by the task force also seem to be up in the air. Use of the stage area at Caroline Street was proposed to be forbidden, but Ayres said that the space “would provide street performers with an alternative forum, which the law requires.”
The stage, however, is also rented out for paid events and is considered a city-run venue.
“Since there isn’t a recommendation for insurance, my concern is damage to the stage and the idea of the city endorsing certain performers over others,” said Council Secretary Mary Knight.
Debate also continued over whether to allow performers to rope off areas, which the task force recommended against.
“What gives me pause is having the rope and props or equipment being set up first thing in the morning to save a spot for an evening performance,” said Councilman Dennis Dare. “But the proposition for a lottery assignment would solve that issue. You could have the rope during the performance but you don’t need to block the Boardwalk during the day to save a spot.”
Ayres noted that he found “no constitutional issue one way or the other” with having ropes.
On the issue of crowd control, Ayres also recommended against any provision that would require registered vendors to control their crowds, which can block business entrances and signage.
“The street performers have no legal authority to tell a pedestrian to do anything,” Ayres said. “Only the police have that authority… that’s a question [for the council] as to ‘is the common law misdemeanor of obstructing a public way [worth enforcing].’”
The major issue, yet to be worked out, is exactly who would be managing the registration system, how they would do it, and what exactly the map of designated performance areas below Ninth Street would look like.
This would not necessarily need to be specified in law, but could be left to the discretion of city staff, mainly the Ocean City Police Department. The task force had specified some loose guidelines, with performance areas located only at street ends, with no more than three areas per street, and no more than three spaces on the entire Boardwalk of more than 100 square feet.
City Engineer Terry McGean presented a mock-up surveying map of what a potential layout could look like.
“Preliminarily, Venable came to me with, ‘Terry, can you go out there are see if it’s do-able at all.’ Based on this, it’s feasible [to create designated performance spaces],” McGean said.
Whatever new standards, if any, the city ends up implementing will have to be done quickly in order to be in place for the coming summer.
The council is tentatively scheduled for a closed-door meeting on Monday with Venable to discuss the potential ramifications of the ordinance – and Venable’s contract, which stipulates that the firm will assist in defending the city if any new street performer legislation lands the city back in court for First Amendment violations.
Any ordinance passed must go through two readings and public comment periods during council sessions before it becomes law.