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Henna tattoo vendors out, pole dancer in

(Aug. 15, 2014) Cut off one head, another takes its place.

Lost amongst the media circus surrounding the Boardwalk pole dancer was the fact that the city took a massive step this week toward eliminating another type of street performance – one that has done much more harm than a girl with a pole could ever do.

But for the majority of business owners, the volume of performers – regardless of their nature – is the major point of concern, and the city now appears to be at a major crossroads as to the next step.

“Everyone thought the henna tattoo guys were going to be ‘the issue’ this summer,” said Greg Shockley, owner of Shenanigan’s on Fourth Street. “And then the pole dancer showed up. The question now is what’s next.”

 

THE HENNA MENACE

The Ocean City Police Department did, in fact, confirm this week that it had completed a federally-assisted roundup of illegal henna tattoo stands on the Boardwalk.

The stands have been a major sore spot for Boardwalk businesses who also offer henna body art – but for a price, as opposed to the “street artist” stands that set up on public property and work for tips.

There has also been a long-running suspicion among merchants that the henna stands are being run by a central distributor, who is illegally recruiting foreign workers to do the art and taking a cut of their tips.

That suspicion appears to have been at least partially verified this week, as the OCPD assisted federal investigators in issuing formal warnings to stand operators who were in the country on F-1 student visas.

“Basically what it means is they can go to school in America, but they’re not allowed to work,” said OCPD Public Information Officer Lindsay O’Neal. “We did an operation Saturday night. Basically, we went out with federal investigators and gave all the visa holders warnings for running a business on the Boardwalk.”

As opposed to the more common J-1 summer visa – which allows foreign students, who are enrolled in school in their home country, to work and travel in the U.S. for a three-to-four month window – the F-1 visa is good for several years while students attend school in the states.

F-1 students are allowed to work, but only in jobs provided and approved by their university, which obviously does not include henna stands. Many, reportedly, are brought into the county for brief stints of religious education, and are then forced to ride out the rest of their visa working menial jobs.

“There’s a database where the State Department can see and track the visas,” O’Neal said. “There was an investigation into some people by our officers, and we interviewed all of these people and gave their information to the federal investigators.”

If the henna stands return, the students will receive a $1,000 fine – and more importantly stand chance to have their visas revoked.

In terms of the purported “kingpin” behind the operation, the OCPD is still working on it.

“We’ve definitely heard that rumor,” O’Neal said. “We’re still investigating it.”

 

‘I KNOW I’M PROTECTED’

Ironically, at the exact same time on Saturday night that the OCPD was rounding up F-1 students, pole dancer Chelsea Plymale was setting up for her first public performance on the Boardwalk at Second Street.

The motivation was less to titillate, and more to provide a performance that breaks the monotony of t-shirt shops and costumed Disney characters that line the Boardwalk.

“I was like, ‘hey, no one’s done this before. This will be different,’” said Plymale, 27, a nine-year veteran of exotic dancing. “I didn’t think there’d be this much negative. That’s not what I was intending.”

Even though Plymale’s performance is, in and of itself, far less onerous than the organized exploitation of student immigrants, it has garnered far more attention from the town’s traditionally conservative visitor base.

But as far as the city is concerned, there’s not much to be done.

“Admittedly, there are people who find it offensive,” said City Solicitor Guy Ayres. “But just because the find it offensive doesn’t mean it isn’t protected by the Constitution.”

In 2011, the city was hit with a lawsuit from Boardwalk spray-paint artist Mark Chase in conjunction with the Rutherford Institute, claiming that the town’s permitting process for street performers impeded free expression. If the town had no compelling reason to require permits other than for the sake of control itself, it was argued, it was a violation of the First Amendment.

Although the city may still restrict placement of performers for public safety and emergency access, the permitting scheme was thrown out by U.S. District Court Judge Ellen Hollander.

“The decision by Judge Hollander talks about what is protected speech and gives some examples of what are not,” Ayres said. Making unique arts and crafts is protected – selling microwaves, for example, is not.

A little over a year after the Chase case, the city was hit with another suit by the American Civil Liberties Union and Boardwalk violinist William Hassay, who claimed that the use of a 30-foot noise restriction by the OCPD to stop one of his performances was arbitrary and also in violation of the Constitution.

Again, Hollander found the city’s regulations to be too non-specific. In order to restrict free speech, the policy would need to be unbiased and uniformly applicable, which it was not.

“As far as we can tell at this point, there’s no violation of any of the regulations that are still on the books,” Ayres said of Plymale. “Basically, the police have given her the green light until we have reason to believe otherwise.”

Pole dancing, in and of itself, does not legally qualify as an obscenity, Ayres said.

In fact, Plymale’s act goes a long way to not be provocative. She remains as clothed as possible, although one needs a certain amount of skin contact to “stick” to the pole. Watching her performance – as this reporter has – her moves are generally more acrobatic than sexual.

“There are a lot of things I would do behind closed doors that I’m not going to do out here,” said Plymale, whose main employment is at a Washington, DC strip club.

“I know I’m protected under the Constitution,” she said. “I have a right to be here. But I’m not here to antagonize anyone.”

 

RELUCTANT TO ENGAGE

Boardwalk merchants are understandably wary of Plymale’s performance – less her personally, and more about the precedent it will set as to how far the proliferation of street performers can be taken.

Costumed cartoon characters, in particular, have flooded the Boardwalk this year, creating congestion in front of businesses and driving out other long-time performers.

“Only in the past couple weeks have we gotten the costume performers up this far,” said Bob Givarz, owner of the Alaska Stand at Ninth Street. “It’s usually just a local guy who’s a one-man band, but now they’re crowded into this street end.”

Many merchants contest that the costumed characters are actually protected speech, since the costumes are not unique.

“I have less of a problem with a guy making his own costume,” Shockley said, “where you’ve invested the time and effort to make something of your own. If you just got it off Ebay, whose expression is that? It’s certainly not the guy who’s getting the money in the tip bucket.”

Givarz is also President of the Ocean City Development Corporation, the town-sponsored non-profit that promotes downtown development. While it has no official stance on the issue, Givarz said OCDC has done case research into what other communities’ legal standards are for street performance.

“In all the instances I’ve seen, it seems literally every time it’s challenged, the law is overturned,” Givarz said. “Even to the extent that, in one of the cases, the judges inferred that even the people watching cannot be denied their right of wanting to contributed to a protected performance.”

This is the major conundrum for the city – the crowd is the problem, in more than one sense.

“There’s a common-law crime of obstructing the public way,” Ayres said. “But the question is, are the street performers themselves in violation? Quite frankly, it’s more the audience.”

The OCPD, Ayres noted, would be perfectly well within its rights to force spectators to move along once the crowd grows more than a few deep.

“There’s a reluctance to do that because they’re tourists, and we don’t’ want to interrupt their good time,” Ayres said. “The bottom line is that there are things on the books right now that, if they were enforced, would be of help.”

“But – for reasons I fully understand – they aren’t.”

“The city, rightfully so, is very gun-shy,” Givarz agreed. “They feel they’ve done their due diligence. They’ve taken this to court twice, lost, and lost a lot of money.”

Plymale said she has tried to have the least adverse impact possible.

“When I first set up, the officer said ‘this isn’t going to work, you’re obstructing the walkway,’” she said. “I ask people to move along if they’re here too long. But there’s only so much I can do. That’s really the job of the police.”

In the end, everyone involved would be surprised if the city actually had some way to stop the root of the problem – the fact that the performers get attention and tips. If someone is entertained by their work, they’ll keep coming.

“I think the consensus is that it’s here to stay,” Shockley said. “It’ll never completely disappear unless it becomes economically unfeasible – that is, if people stop giving them money.”

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