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Ocean City

Boardwalk artist to help oversee performers

(Jan. 23, 2015) The city has named five members to its potentially influential task force for Boardwalk legal issues, including controversial street artist Mark Chase.

Mayor Rick Meehan made the appointments Tuesday night for Ocean City’s newest hearing body, which is tasked with making recommendations on how to deal with the ongoing legal issues surrounding use of the Boardwalk.

Chase, the plaintiff in a landmark case against the city over performers’ rights, requested last week to be included on the project in order to combat what he described as an “us versus them” environment between performers and Boardwalk businesses.

Along with Chase, the task force will consist of Greg Shockley, owner of Shenanigan’s Restaurant and current chair of the Maryland Tourism Commission; Lee Gerachis, owner of Malibu’s Surf Shop; Frank Knight, of the Boardwalk Development Committee; and Bob Rothermel, of the Ocean City Downtown Association.

“Hopefully we can help the city with some long-term solutions rather than short-term fixes,” Chase said.

The city announced in October that it was retaining Venable LLP, a Constitutional and First Amendment law firm, as a legal consultant to address the proliferation of street performers on the boards, an issue that hit a fever pitch last summer.

Essentially, Venable is reviewing the city’s past and present ordinances regarding performance or solicitation in public space, as well as the court cases surrounding them. The newly formed task force will hold public meetings, along with Venable consultants, to decide on the best course of action.

Changes could then be made to improve control over the number and activities of performers, with the aim of avoiding any freedom-of-speech lawsuits against the city, as has happened three times in the past.

Venable has agreed to a cap of $100,000 in legal fees for the work, City Manager David Recor said. Additionally, if another lawsuit were to arise, Venable would assist in the city’s defense, albeit at an additional charge.

In 2011, the city was hit with a lawsuit from Chase, who does spray-paint murals on the Boardwalk, in conjunction with the Rutherford Institute. The suite claimed that the city’s permit process for street performers impeded free expression.

If the city 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 permit scheme itself was thrown out by U.S. District Court Judge Ellen Hollander in a decision that sided mostly with Chase.

A little over a year after the Chase case, the city was hit with another suit, this one by the American Civil Liberties Union and Boardwalk violinist William Hassay, who claimed that the use of a 30-foot noise restriction by Ocean City police 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.

But the rulings did uphold the city’s right to limit performers’ placement for public accessibility, as long as reasonable alternative locations were provided. The city has both the power to keep public rights-of-way clear of obstruction, and provide right-of-access to private property.

Over this past summer, however, many Boardwalk businesses complained that this was not being done, as crowds of spectators surrounding performers were forcing foot traffic to flow away from storefronts and entrances.

The issue came to a head with the appearance of pole dancer Chelsea “OC Pole Doll” Plymale, whose throng of spectators blocked several businesses.

The Ocean City Police Department, however, expressed a reluctance to curtail the crowds in too stringent a manner, fearing further litigation. Watching or participating in a form of constitutionally protected expression is also considered protected speech.

Although not recently, the city has also had difficulty dealing with the common complaint that street performers are not subject to the same financial burdens as owners of actual Boardwalk businesses.

In 1995, the city attempted to stop the group One World One Family Now, a spiritual and environmental advocacy group, from selling T-shirts on the Boardwalk. The organization sued, and took the case to court, arguing that their operation supported protected speech.

Judge Marvin Garbis ruled against the city, stating that the ability to receive money does not negate the First Amendment protections offered.

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