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Ocean City loses Boardwalk noise case; 30-foot limit thrown out

(July 12, 2013) The Town of Ocean City has been issued with an injunction prohibiting the enforcement of its Boardwalk noise ordinance, as U.S. District Court Judge Ellen Hollander has sided with plaintiff and street musician William Hassay in his First Amendment case against the city.

The decision was handed down late last week in response to a June 10 hearing, which pitted the resort against lawyers from the American Civil Liberties Union, which took on Hassay’s case pro-bono.

“I do not question the legitimacy of defendants’ interest in restricting excessive noise on the Boardwalk,” Hollander wrote in her published decision. “But, the means employed by Ocean City to achieve its goals reach far broader 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.”

The case represents the second significant setback for the town’s attempts to control Boardwalk street artists, following on the heels of a 2011 suit in which 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.

Incidentally, Hollander had decided the Chase matter as well. Further, Chase was used as a witness on Hassay’s behalf by the ACLU in the current matter, along with another street performer, Alex Young.

“As the testimony of Hassay, Young, and Chase reflected, a musician is unable to express himself through his music if playing at the required volume,” Hollander wrote. “According to plaintiff, the ordinance is not narrowly tailored because, in effect, it imposes a total ban on musicians engaged in a form of protected expression.”

Not only does the city’s policy leave no alternative outlets for expression, Hollander noted, but it also likely fails to be content-neutral, as it places a 30-foot restriction on music despite expert testimony  that most sounds – including the human voice – can be heard at a far greater distance on the Boardwalk, according to the ACLU’s acoustic engineer, Gary Ehrlich.

The case centers around an incident in the summer of 2012 in which Hassay claims that an officer of 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 not be audible from a distance of more than 30 feet.

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

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 30-foot limit is based on the average width of Boardwalk storefronts, and the average width of the Boardwalk itself, with the city’s reasoning being that merchants should not be allowed to use music to advertise outside of their own properties.

The city will still likely be able to enforce restrictions on music emanating from businesses via the zoning code, City Solicitor Guy Ayres said this week, even though the 30-foot restriction has been temporarily thrown out.

The case could, however, be taken to trial for a final decision if the city so chooses.

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