(Jan. 16, 2015) City Hall is poised to take a hard turn toward burying the hatchet on Boardwalk street performer issues – or at least toward keeping its enemies as close as its friends.
The City Council this week passed a resolution authorizing the creation of a “task force on Boardwalk regulation” as part of an ongoing legal review of Boardwalk policies by the law firm, Venable LLP.
In an interesting turn of events, street artist Mark Chase – the plaintiff in one of the landmark lawsuits against the city over the matter – asked to be included on the force.
“I would like to donate my time to be part of this task force,” Chase told the council this week. “I have a lot of valuable information to provide. I’ve been up on the boards all day, every day, for six seasons.”
The city announced in October that it was retaining Venable, a noted 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 tasked with reviewing the city’s past and present ordinances regarding performance or solicitation in public space, as well as the court cases surrounding them.
Changes could then be made to improve control over the number and activities of performers, possibly without generating any freedom-of-speech lawsuits against the city, as has happened thrice in the past. If such a case did arise, Venable would assist in the city’s defense.
Recently, City Solicitor Guy Ayres and Venable consultants “conducted interviews over three days with approximately 30 individuals who are either property owners, store owners, or street performers,” Ayres said this week.
“It’s our recommendation that a task force be formed conduct public hearings,” Ayres told the council. “These interviews were done in the conference room in my office and were not open to the public, but these [upcoming task force sessions] would be advertised public hearings where whoever wants to speak can speak, and then the task force would put together it’s recommendation, if any, for any ordinances we have that affect street performers on the Boardwalk.”
Ayres requested that the task force consist of five to seven members, including at least one street performer.
“From the street performers we interviewed, we thought they had some good ideas,” Ayres said.
Mayor Rick Meehan will make the appointments and present them for the council’s confirmation at an upcoming meeting.
Following Tuesday’s council session, Chase confirmed he was one of the 30 interviewees, having met with Ayres and Venable’s staff for an hour and a half to discuss ways to improve the situation for all parties.
“We’ve had this environment of ‘street performers versus store owners,’ which is not how it should be,” Chase said. “I hope we can find ways to make things more cohesive for both.”
Chase also praised efforts made by federal officials, in conjunction with local law enforcement, to round up foreign visa students operating illegally on the boards.
“A lot of the problems we had this year were with store owners who set up their own henna tattoo stands,” Chase said. “They would have foreign workers set up the stands to in order to block other street artists. The foreign kids aren’t dumb – they would quit the store so they didn’t have to give the owner a cut of their tips, and just keep doing it themselves. It made the overcrowding so much worse.”
Indeed, the Ocean City Police Department confirmed in August that, with the assistance of federal immigration officials, it had completed a sweep of street performers who were operating illegally under F-1 visas.
Such visas are for foreign students attending college in the states, and do not allow the students to work jobs other than those provided by their university.
In 2011, the city was hit with a lawsuit from Chase, who does spray-paint murals on the, in conjunction with the Rutherford Institute. The suite claimed that the city’s permitting 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 permitting 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 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.
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 OCPD, 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.
