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New street performer regs get final passage

(June 19, 2015) It’s official — the city’s sweeping new street performer regulations will begin July 27.

The comprehensive new ordinance, roughly nine months in the making, passed its final reading before the city council on Monday night.

The key provision of the new legislation is a requirement that all buskers wishing to perform on the Boardwalk from Ninth Street south must register at City Hall for a designated location. From the inlet to Ninth Street, 33 spaces have been tentatively identified that will limit, it is hoped, the blockage of stores and pedestrian progress while still allowing interested performers ample opportunities.

The spaces range in size from 25 to 100 square feet, and will be rotated twice per week, requiring performers to come to city hall to register.

The idea, the city says, is to cut down on congestion on the Boardwalk’s most crowded stretch. The city believes the regulation meets previous court mandates, which have ruled against the city previously, for limiting freedom of speech, since anyone not taking part in the rotation system will still have an opportunity to express themselves as long as they do it north of Ninth Street.

Despite multiple questions from street performers themselves, there was a strong outpouring of support from Boardwalk businesses in favor of the basic idea of compromise.

“It’s created an environment that I hope all of us can live with,” said Bruce Krasner, owner of several T-shirt and gift shops on the Boardwalk. “I think it will work out in the end. In the beginning, I was a staunch opponent of having any buskers at all, but given time I think we can work together.”

In order to cut down on the increasing number of performers encroaching on public ways and habitually blocking access to brick-and-mortar businesses, the city would have performers come to City Hall twice a week to sign up for a spot, under a system to be managed by the city clerk.

Signups would begin at 9 a.m. on a given Monday for spaces to be used the following Monday through Thursday. Likewise, signups for the following Friday through Sunday would begin at 9 a.m. the preceding Friday.

“No one is trying to discourage free speech at all, under any circumstance,” said Vicki Barrett, longtime head of the Boardwalk Development Association. “But I think the merchants have as much right to continue making their living. Over the past few years they have struggled, and the reports, at least to me, are that they are losing thousands of dollars. The contribution the buskers make is huge, but I think it needs to be regulated to the point where the merchants aren’t suffering.”

Some administrative details will likely need to be fine-tuned, such as exactly how the signup process will work.

“If you have 20 people waiting at the clerk’s office … what’s going to be the process if you get everyone there at the same time — how are the spots going to be distributed?” asked caricaturist Mike Moeller.

“We expect it’ll be based on a line, and the clerk will go through the line and it’ll be first come, first serve to pick spots,” said Council President Lloyd Martin.

The ordinance stipulates that no performer can be placed in the same spot for two rotations in a row. One of the major intents of the ordinance is to provide a mix of performers, addressing recent problems in which performers would stake out lucrative spots for the entire summer. Further, under the new policy, no performance materials may be left unattended for more than 15 minutes.

The new legislation also enacts a number of use restrictions not only over the designated spaces from Ninth Street south, but also from Tenth Street north, where performers are allowed to operate on any of the open areas at street-ends without going through the city clerk.

Some of those elements have been tweaked after performers said they were too restrictive, including the restriction on the size of props used increased to five feet in height.

“It seems like those concerns were addressed to a certain degree, so thank you,” said Moeller, who was concerned about the height of his easel. “I still think this is too restrictive, but I appreciate that it was considered.”

The sign-up requirement will also only be in effect between May 1 and Sept. 30 of any given year.

“The idea of the ordinance is that it’s too congested in the south end below Ninth Street, but it isn’t in the off-season,” said Councilman Dennis Dare. “To go through the whole process in the off-season seems unnecessary.”

The new policy was formulated after several months of hearings by a city task force, appointed to address the street performer issue, and advised by constitutional law firm Venable, LLC.

Venable was hired to advise the city in the wake of several lawsuits which threw out the previous licensing system for street performers on First Amendment grounds. In a 2011 ruling, U.S. District Court Judge Ellen Hollander found that Ocean City’s licensing policy did not serve any codified public need, other than for the city to hold leverage over street performers.

The plaintiff in that case, spray-paint artist Mark Chase, was appointed as a member of the recent city task force on the matter, although he objected to many of the committee’s findings.

The regulations also exempt any group distributing expressive materials, but not vending them, such as political groups distributing fliers or buttons. All other performers, whether seeking compensation or not, must comply.

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