(Nov. 22, 2013) The city has settled its case with Boardwalk violinist William Hassay, agreeing to a $137,000 payout and stopping the issue from going to a full trial.
“I appeared at a settlement conference last Wednesday with the Mayor in federal court,” city attorney Heather Stansbury said this week. “After consideration of how, in all probability, the result would not change…the town made the decision to settle.”
Hassay, with the assistance of the American Civil Liberties Union, sued the city in federal court this past spring alleging violation of his First Amendment rights.
The case centers around an incident in the summer of 2012 in which Hassay claims that the Ocean City Police Department had threatened to arrest him for violating a city noise ordinance, which specifies that all music on the Boardwalk must be audible from a distance of no more than 30 feet.
U.S. District Court Judge Ellen Hollander ruled against the town in July, forcing a temporary injunction against enforcement of the ordinance.
As part of the decision, a timetable was set for the city to settle any damages with Hassay, and to potentially push the case forward to trial for a final, permanent decision on the legality of the ordinance.
“Probably every witness that would’ve appeared at an actual trial appeared at the hearing, and it was an extremely long process that Judge Hollander obviously put a lot of work into already,” Stansbury said.
“We’ve agreed that the temporary injunction simply become a permanent injunction.”
The intent of the ordinance, 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. However, Hollander ruled that the enactment was too broad to be within the scope of the city’s rights.
“I do not question the legitimacy of defendants’ interest in restricting excessive noise on the Boardwalk,” she wrote in her published decision. “But, the means employed by Ocean City to achieve its goals reach far boarder than necessary.
“The 30-Foot Audibility Restriction, which categorically prohibits music played at the level of ‘most normal human activity’…is not narrowly tailored to prevent excessive noise.”
Under the strictures of the case, Hassay was entitled to both damage compensation and a recoup of his attorney fees.
“The ACLU was entitled to their fees, which were quite high,” Stansbury said. “The longer the case went on, the more they would’ve gotten.”
As it stands, only $21,000 of the $137,000 payout went to Hassay directly. He had requested $25,000 in damages, the same amount of money he stated during the hearing that he made each summer on the Boardwalk through performance tips.