Ocean City Seeks Dismissal Of Street Performer Suit

OCEAN CITY — The town of Ocean City this week filed an answer to the civil suit filed late last month by a street vendor claiming an emergency ordinance banning him from setting up shop at North Division Street violated his First Amendment rights to free speech and expression, seeking a dismissal of the case, or in the short term, a stay against a preliminary injunction.

In June, the Ocean City Mayor and Council unanimously passed an emergency order banning street performers from practicing or exercising their art at the end of North Division Street and the Boardwalk, citing public safety concerns about the possible impact at one of the major access points to the Boardwalk and beach for emergency services.

One week later, artist Mark Chase filed suit in U.S. District Court, claiming the town’s actions against him specifically, and street performers in general, were in violation of his rights under the First Amendment of the U.S. Constitution and the Maryland Constitution Declaration of Rights.

Chase is seeking both a preliminary and permanent injunction prohibiting the town from enforcing the code changes. He is also seeking any compensatory and punitive damages deemed appropriate by the court. This week, Ocean City filed a formal answer to Chase’s complaint, seeking a dismissal of the case, and short of that, a stay against a preliminary injunction that would suspend the ordinance while it makes its way through the court system.

From the beginning of the debate, Ocean City officials have asserted the intent of the emergency ordinance regarding the acceptable locations for street performers and artists was rooted in public safety, and not an attempt to impede freedom of speech or expression. The town’s response to the civil suit attempts to make that clear from the get-go.

“Due to the heavy increase in population, high pedestrian traffic and other activity on the town’s streets and Boardwalk, Ocean City has enacted several ordinances to ensure public safety as its primary goal and to otherwise enhance the family atmosphere of the town,” the response reads.

The response filed this week also asserts the town’s right to enact ordinances regulating the locations for street performers and its right to require a license of vendors.

“As a municipal corporation within the state of Maryland, Ocean City is permitted to require a license of any transient vendor attempting to conduct business within city limits,” the response reads. “The town is further entitled to order law enforcement to seize goods and order an immediate stop sale of a transient vendor who is operating without a license.”

Chase alleges in his complaint he had been continually targeted by the town because he has been the most outspoken opponent of the ordinance. In its response to the suit, the town continued to assert the ordinance was adopted in the interest of public safety and was not rooted in any retaliation against the street performer.

“The plaintiff and other solicitors are required to abide by the reasonable safety measures enacted by the Mayor and Council, which permit such solicitation so long as ingress and egress to public walks and emergency exit ramps are not restricted,” the response reads.

In other words, North Division Street was made off limits for street performers because of its importance as an access point for emergency vehicles to the beach and Boardwalk.

“The North Division Street ramp, which was added to the restricted area for peddlers, solicitors and street performers, is the most likely, most efficient and most easily accessible way for public safety vehicles to access the Boardwalk from the street,” the response reads. “The ability for public safety vehicles to access the Boardwalk from the street via the North Division Street ramps is effectively hindered by the presence of a large crowd gathering in that area.”

In addition, the town’s response filed this week asserts the intent of the ordinance is not to curtail the performers’ First Amendment rights to free speech and expression. Public safety alone is the intent of the ordinance, according to the response.

“The plaintiff is unlikely to succeed on the merits of his claim because the ordinance which the plaintiff challenges does not infringe on the plaintiff’s constitutional right to free expression,” the response reads. “The ordinance is content-neutral in that is does not discriminate against the plaintiff based on the content of his speech or the message he wishes to convey. Rather, it is a reasonable and lawful restriction on the time, place and manner of the plaintiff’s conduct pursuant to state police power.”

The town asserts the “time and place,” and not the content of the message, is at the heart of the ordinance.

“Ocean City’s ordinance properly and constitutionally regulates the place in which peddlers, solicitors and street performers may operate, regardless of the content of their expression, in order to alleviate congestion, provide pedestrian and emergency vehicle access to the Boardwalk, streets and ramps, and to enhance the beauty, peace and economy of the town.”

One comment on “Ocean City Seeks Dismissal Of Street Performer Suit

  1. My only question to this is if the city will allow no street performers to setup at North Division Street, then why do they allow the free concerts to perform there over the summer on a stage at North Division Street? If someone were to have a heart attack on the other side of the stage, police apparatus would not be able to gain the access it needed with the stage sitting there. So what is the difference between a crowd that stands on the side out of the way watching someone perform between the radio Disney and a street performer? Nothing and with this said the town is obviously showing favoritism!

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