(Feb. 6, 2015) If you’ve ever wanted to speak your piece about what’s on the Boardwalk, this is your formal invitation to do it.
The city’s newly-formed task force for Boardwalk regulatory issues will be holding two public hearings on Monday, Feb. 9 at 6 p.m. and Wednesday, Feb. 18 at 1 p.m. to receive open comments on how to address competing public interests on the boards.
An organizational meeting for the task force was to be held last night.
“We’ll get a feel for each others’ ideas and have some preliminary debate about the issue,” task force chair Greg Shockley said. “Then we’ll have the two hearings, and then there’ll be at least one meeting after that where we nail down some recommendations.”
Besides Shockley, owner of Shenanigan’s Restaurant and current chair of the Maryland Tourism Commission, the task force will include Lee Gerachis, owner of Malibu’s Surf Shop; Frank Knight, of the Boardwalk Development Committee; Bob Rothermel, of the Ocean City Downtown Association; and Mark Chase, a long-time street performer.
The city council voted last month to create the task force on the recommendation of legal advisors from Venable LLP, whom the city has hired to consult on how best to deal with proliferation of street performers on the boards.
Notably, Chase was the plaintiff in one of the landmark lawsuits against the city over regulation of Boardwalk performers.
“I’m glad he’s on [the task force],” Shockley said. “I think it’s important to have that input. The buskers have a vested interest in seeing this be equitable to everybody and to cut out some of the grey areas.”
The goal of the process, according to the city’s public notice, is to “ensure equal access, public safety, and the maintenance of a family-friendly atmosphere, while not offending the First Amendment and taking into account the needs and experiences of the various constituencies, including street performers, that have a stake in the Boardwalk.”
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.
Venable has agreed to a cap of $100,000 in legal fees for the work, according to City Manager David Recor. Additionally, if another lawsuit were to arise, Venable would assist in the city’s defense, albeit at an additional charge.