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City awaits word regarding Hassay case against noise ordinance

(June 14, 2013) The Town of Ocean City is waiting for a decision on its latest legal challenge from a Boardwalk musician, following a hearing in federal court Monday.

Contrary to reports that the testimony would continue on June 19, city attorney Heather Stansbury said that the hearing is now complete and the judge’s decision will likely be rendered before the end of the month.

“It was an all-day event. We went until about six o’clock in the evening, and now we’re done,” Stansbury said Wednesday. “The ruling will tell us whether or not the city can continue to enforce the noise ordinance for the time being.”

The case was brought against the city by the American Civil Liberties Union on behalf of street violinist William Hassay, who has claimed that the town’s noise ordinance arbitrarily restricts his First Amendment freedom of expression as a musician.

Monday’s hearing at the U.S. District Court in Baltimore was to decide whether or not a temporary injunction would be granted against the city’s noise law. Even if the temporary motion is upheld, the complaint would still warrant a full ruling on the legality of the city ordinance.

“If the city doesn’t prevail, we still have the right to a full trial,” Stansbury said.

In the filing, Hassay claimed that the Ocean City Police Department had threatened to arrest him for violating the city ordinance specifying that all music on the Boardwalk must be audible from a distance of no more than 30 feet.

The intent of the policy, the city says, is not to limit freedom of expression from street performers, but to put a damper on the escalating volume battle that often occurs between Boardwalk storefronts that play music to attract customers, and subsequently between these stores and nearby street performers.

The OCPD has contended that Hassay was never threatened with arrest or asked to leave the Boardwalk, but only asked to lower his volume.

One of the key elements of the ACLU’s legal argument, according to Stansbury, was the testimony of an acoustic engineer who had determined that almost any sound, including jingling keys and flip-flops, was audible within 30 feet.

But those readings, Stansbury noted, were taken on weekdays in March and May, when the ambient noise of the Boardwalk is far from its peak. Even high-volume music may fall under the 30-foot limit when shielded by the June or July din.

“The ambient sound was a big issue,” Stansbury said. “If the ambient sound was ‘x’ on the days he tested, you have to figure what it would be like in June or July.”

The city also argued, Stansbury said, that the 30-foot policy was not arbitrary.

“The 30 feet is based on the average width of the storefronts, and is also incidentally the width of the Boardwalk,” she said. The ordinance is a restraint that prevents merchants from using music to advertise themselves beyond their properties.

“The ordinance is designed to level the playing field for all business and street performers alike,” said Mayor Rick Meehan. “Mr. Hassay is the only one who has said it prevents him from performing to his desired level.”

Hassay’s complaint is the second case to be brought against the city by a street performer. Mark Chase, an artist who frequently sets up on the Boardwalk to do spray paint murals, challenged the city’s ability to enforce a permitting program for street performers in a 2011 suit.

“Coincidentally, the judge who heard our case Monday was the same judge who heard the Chase matter,” Stansbury said. “So she’s familiar with the issues of the Boardwalk.”

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