(Aug. 22, 2014) Following a business complaint, the city may be looking to relocate – but not eliminate – any number of Boardwalk street performers, including the now-infamous pole dancer.
City Council requested this week that the Ocean City Police Department look into if, and how, the city is still able to enforce one of the few legal controls it still has left over street performers – the right to prevent the obstruction of public ways, and to guarantee reasonable access to private property.
Attorney Joe Moore asked the council for action on behalf of his clients, who own the Mug and Mallet restaurant in the Plim Plaza, immediately to the south of the Second Street location where the Pole Doll – the nom-de-guerre of dancer Chelsea Plymale – typically sets up.
“I can tell you that the entertainer at Second Street certainly draws an inordinate amount of people,” Moore said. “The ramps leading up to the Boardwalk on Second Street have been impassable while she is there.”
The entrance to the Mug and Mallet is located directly off the access ramp leading from the sidewalk on the south side of Second Street up to the western edge of the boards.
Not only are patrons unable to easily access the entrance due to spectators lingering on the ramps, Moore said, but Boardwalk foot traffic has a tendency to veer east in order to go around the crowd of onlookers.
This means that traffic is being directed away from the Mug and Mallet’s store frontage, reducing the number of casual customers.
“The problem, as I’ve seen it, is that people go out around the crowd and they don’t come back in,” agreed Councilman Joe Mitrecic. “It takes blocks for them to flow back.”
Moore also contended that his client suffered $500 in lost food during a recent performance. Many patrons got up and left after finding that onlookers were gathering right up against the dividers in the seating area.
“Our request would be for the council…to move this entertainer to the east side of the Boardwalk,” Moore said. “I would suggest to you that police gauging of the crowd could keep that area clear, if this person was on the east side of the wooden portion of the walkway.”
Below Fourth Street, the Boardwalk features a concrete tram lane to the east of the wooden portion. But many major street performers whose footprint is larger than Plymale’s – including spray paint artist Mark Chase – are set up on the border between the concrete and wooden portions.
Councilwoman Margaret Pillas asked if the city should review moving all street performers to the east side of the boards.
“Other streets have the same problem. We have to secure the ramps,” Pillas said. “I can see three or four other businesses coming here and asking the same thing.”
City Solicitor Guy Ayres said that was what the city had done previously, and was unsure why so many performers were now back on the west side.
“I think what we need to do is check into why we did what we did before,” Ayres said.
“We need to enforce [performers] not blocking public right-of-way,” said Councilman Dennis Dare. “What does it matter if they’re on the east side or the west?”
“I would think it would be on a case-by-case basis,” Moore said.
He noted that the city is obligated to consider three legally-guaranteed rights – the First Amendment right of the street performers to perform, the public right to freely traverse public rights-of-way, and the right of property owners to reasonable public access of their facility.
Pillas noted that the OCPD has been reluctant before to forcibly move crowds.
“If they do it and the crowd doesn’t’ want to move, what do they do?” she asked.
The city has struggled to manage Boardwalk performers after losing two pivotal court cases over the past three years. The first, brought against the town by Chase and the Rutherford Institute, struck down the town’s permit requirement for street artists.
The second, brought by violinist William Hassay and the American Civil Liberties Union, struck down the town’s use of a 30-foot ambient noise limit for performers.
“It’s unfortunate that someone has taken the rights granted by the First Amendment further than anyone here expected or anyone here supports,” Mayor Rick Meehan remarked in a brief prepared statement Monday night.
“We plan to aggressively continue to address this issue and all the problems associated with it.”
Critically, the rulings – both presided over in U.S. District Court by Judge Ellen Hollander – upheld the town’s right to limit street performers’ placement for public and emergency accessibility.
This included an important ban on performances at the landmark Boardwalk arch on North Division Street, where the city has access ramps for emergency vehicles to get onto the boards.
“If we hadn’t won that, there’d be 500 people up there by now,” Pillas said “I don’t see that as a loss, I see it as a win.”