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Task force gets to work following final hearing

(Feb. 20, 2015) Ocean City’s Boardwalk Task Force held its second and final public input session on Wednesday, hearing many of the same complaints and issues as were raised during last week’s hearing.

But this week, task force members were more focused on the end game of what the city can actually codify, and enforce, when it comes to the “Thunderdome” -like proliferation of competing street performers on the Boardwalk.

“It’s become almost ‘capitalism run amok’ out there … but that’s capitalism, not free speech,” said task force member Bob Rothermel. “For me, it’s when freedom of speech becomes a commercial enterprise.”

What is desired by both Boardwalk businesses and performers, it would seem, would be a situation where only the performers who have a unique, desirable type of art would be well spaced on the boards in a manner that attracts visitors, but doesn’t obstruct the flow of customers into Boardwalk stores.

“If we’re talking a perfect world, it would be where the hardest working and most talented street performers can find the spots they want, and they don’t block entry or access for anyone else,” said street artist Mike Moeller.

But at the same time, everyone at Wednesday’s session was also aware that creating such a perfect scenario by city ordinance, making it practically enforceable by the Ocean City Police Department, and still keeping the city out of another First Amendment lawsuit, was easier said than done.

One of the common refrains from Boardwalk businesses is that they would prefer to see a lottery system, whereby street performers sign up for designated spots along the boards, and are rotated between locations. This is unlikely to be successful because a lottery would require some type of registration, which would itself be a permitting program.

“I just don’t understand how a lottery or a forced rotation is any different than a permit system, which the courts have already ruled out,” Moeller said.

In 2011, street spray-paint artist Mark Chase, who, somewhat controversially, is one of the five members of the current task force, won a lawsuit against the city challenging that system.

In the suit, Chase contended that the city’s permit process for street performers impeded his rights to free speech and was creating an unnecessary barrier for entry for no reason.

U.S. District Court Judge Ellen Hollander agreed, ruling that the city’s permit system did not serve a specific public purpose that would justify free speech limitations, nor did it provide specific alternative avenues for that speech. One could not require a permit just for the sake of having one.

However, the task force touched on two important points this week regarding that ruling. Firstly, the city had never actually passed an ordinance making its controls over street performers legally binding.

“It had no ordinance behind it,” said Lt. Mark Pacini, the Ocean City Police Department’s shift commander for the Boardwalk and downtown areas. “We had no legal ability to enforce the regulations that City Hall gave out.”

In other words, the rules which were printed on street performer’s identification permits prior to Chase’s suit, including requirements to remain mobile, not use amplified music, and maintain a buffer zone around stores, were not backed up with legislation that identified the needs and parameters that would create such regulations.

This is critical to Hollander’s point – without legislating to a specific public need, the city wasn’t really even enforcing a permit system. All it was doing was handing performers a plastic card printed with their picture and a list of tacit threats.

Secondly, Hollander had ruled that the city was correct in banning performers from North Division Street, which is the primary access for fire engines to the Boardwalk.

This would indicate that some kind of permit system could be viable, if there was a necessity to public safety, a refrain often heard from businesses concerned mainly about the volume of henna tattoo stands and cartoon character costumes.

“I’ve never seen freedom like street performers have in Ocean City,” said Yadigar Karsli, who owns Love’s Lemonade and the adjoining henna tattoo parlor. Karsli has also run similar operations on the West Coast.

“In California, they don’t let you touch people’s skin or hair because of the safety issue,” Karsli said. “In Santa Monica, the city has been sued because of henna tattoos causing skin reactions.”

The other safety issue comes with masked performers, echoing the incident several years ago in which a man dressed as a cartoon character was arrested for groping children who posed for photos with him.

Although Pacini stressed that there have been no incidents since, the notion would provide a pretext for some type of registration requirement.

Going so far as to institute a lottery system, however, was seen as unenforceable and too much of an administrative headache for the OCPD.

“Is the city really going to go to the trouble to assign each person a spot that they’re going to go to that night, and make sure they’re there?” asked street artist Jessica Guthrie. “I feel like it’s our job as street performers to not be the city’s problem. If you want to do it [perform], you should be able to go out there and do it.”

“Part of the advantage of an open system is that you’re limited as a performer to what you can schlep out there,” Moeller agreed. “If you know where you’re guaranteed to set up on any given day, you can bring a ton of stuff and set up your own business. You’re not actually alleviating the burden with a lottery system, you’re creating a different kind of burden that’s potentially more difficult to deal with.”

The task force seemed to concur that such an approach was untenable. Rather, a number of more minor requirements were endorsed that, together, could cut down on the confusion.

Most every member of the five-person supported a minimum distance between performers, as well as a statute that would require performers to be able to pick up and move.

“That’s in a lot of ordinances around the country, that they have to be able to clear their area within three minutes and move everything themselves,” said task force member Frank Knight.

A ban on unattended performer equipment was also favored to cut down on performers staking out lucrative locations but not actually performing. A ban on gas generators was also widely heard, as well as a time past which performances would not be allowed.

“The evening hours are obviously more lucrative than the daylight hours, but are we protecting opportunities for freedom of speech, or for commerce?” Rothermel asked.

Task force chair Greg Shockley will prepare the group’s final findings, which will be reviewed at a meeting on March 25.

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