ACLU Challenge Sparks Change In OC Performer Law

OCEAN CITY – Buskers will soon be able to plug back in on the Ocean City Boardwalk, as the city plans to amend its “no amplification” rule on street performers.

After a letter was penned to Mayor Rick Meehan and Council President Joe Mitrecic on July 9 from the American Civil Liberties Union (ACLU) of Maryland questioning the constitutionality of the town’s new ordinance banning amplification, City Solicitor Guy Ayres told The Dispatch on Wednesday that the issue had been resolved and the current ordinance will be amended soon.

“I spoke with [ACLU Legal Director] Deborah Jeon this morning, and we came to an agreement that will allow amplification from street performers enforceable under the town’s current noise ordinances,” said Ayres. “In addition, she also asked that performers be given a warning before being slapped with a fine for a violation of the noise ordinance.”

The Mayor and City Council must now amend the ordinance, passed in early May and delegated the street ends as the designated areas in which buskers could legally perform and prohibited any use of amplification during their performance, whether it be a small CD player, guitar amplifier or microphone.

What followed from the May ruling was an outcry from members of the local busking community who claimed that removing their ability to use amplification would adversely affect their livelihoods and their creative rights as per the First Amendment of the Constitution.

“By not allowing me to use the CD player, it changes my act to the point that there is almost no point at all,” said violinist Bill Hassey. “It would be as if you told a karaoke bar that it could have people sing, but they couldn’t have background music.”

Hassey was reportedly one of several local street performers who contacted the ACLU and asked it to get involved with the ongoing debate.

As it seems, once the ACLU got involved, the issue moved to resolution in a surprisingly quick manner, especially when compared to the last two times the ACLU got involved in street performer issues.

In 2005, the ACLU’s involvement in a dispute between local caricature artist Adam Pate and the town was resolved in several weeks, after the ACLU reminded the town of a 1995 ruling in Markowitz vs. Mayor and City Council of Ocean City, which ruled that the town’s ordinance was unconstitutional.

The ACLU’s involvement in both of those previous disputes may have played a factor in this situation being resolved in mere days from the date of the letter.

“We were pleasantly surprised by the town’s concurrence with our requests and by how quickly they responded,” said Jeon. “We feel performers add character to the Boardwalk and take pride in entertaining the public there, and, thankfully, they now will be able to put on the best show possible for the thousands of tourists who flock to Ocean City each year.”

Jeon’s letter to Meehan and Mitrecic cited several recent court cases, including a Ninth District court ruling in Seattle which found that the northwestern city’s ordinance was unconstitutional.

“In a way, the Seattle case was similar to what we were dealing with here, so I’m confident that Guy [Ayres] will give us a recommendation on which way to go and I would assume that the council will follow that recommendation,” said Mitrecic.

Jeon’s letter was forthright in telling the town exactly what the ACLU thought of the new rule.

“The existing Ocean City noise ordinance could just as effectively serve the city’s interests without prohibiting the outright use of amplification and electronic sound systems,” said the letter. “The burden imposed on street performers by this prohibition is a direct infringement on their First Amendment rights.” 

Ayres said that once the council votes to amend the ordinance, buskers will be regulated by the city’s noise ordinance rules, similar to how buskers are regulated in Boston, Mass, after that city lost a federal court case against street performers in 2004.

Ayres said that the city has several ordinances that apply to noise, one of which being the “50-foot-rule” which states that noise is not supposed to be audible any further than 50 feet from the point of its origin.

Ayres said there is also language in the noise ordinance that bans “loud or unruly noise” and monitors decibel levels as the evening progresses.

Jeon said that the ACLU didn’t argue the town’s placement of the performers to the street ends, nor did she argue the permitting requirements, which in comparison, was a major issue in the Seattle case that she attributed in her letter.

“We didn’t receive complaints about either of those topics, so the street ends must be working if there is an absence of complaints,” she said.

In addition, Jeon said her request for a warning prior to a citation for violation of the ordinance was in regards to “basic due process.”

“It’s my understanding that before the new ordinance was passed, that warnings were issued as standard practice on a first offense,” she said.

Mitrecic said that the issue could find its way back onto the council’s agenda as early as Monday night.

Leave a Reply

Your email address will not be published. Required fields are marked *

*

HTML tags are not allowed.