OCEAN CITY — The third time could be the charm for a group of Boardwalk street performers who filed a civil suit against Ocean City after a U.S. District Court judge last week issued an opinion the buskers’ claims of First Amendment rights violations have merits.
In November 2015, eight Ocean City Boardwalk street performers filed suit in U.S. District Court seeking $1 million in punitive and compensatory damages and injunctive relief from the town’s revised ordinance regulating buskers. On two occasions, the plaintiffs’ suit was rejected by the court, largely over procedural issues, but the third amended complaint filed last September, while still rife with procedural issues, does have merit and will continue, U.S. District Court Judge William Nickerson ruled last week, essentially denying the town’s motion to dismiss the case.
“It is clear that the plaintiffs’ action arises under the First Amendment of the United States Constitution, which can be enforced against municipalities through the 14th Amendment’s due process clause,” the opinion reads.
The town’s current revised ordinance adopted in 2016 eliminated the contentious signup that had performers waiting in front of City Hall often overnight to sign up for a designated space and replaced it with a more palatable lottery system, which was in place all last summer.
There has been a détente of sorts between the town and the street performers after the new system put in place last year was deemed better by the performers by many accounts. The ordinance was amended again last month to move the start date for the lottery system back from May 1 to May 15. However, despite the easing of relations between the buskers and the town, the suit originally filed in 2015 has continued, albeit on a slow pace rife with procedural problems.
The street performers attempted to attach the first complaint to a prior case involving an individual street performer who was successful in getting an injunction that prevented enforcement of certain provisions in the town’s ordinance, but that complaint was sent back to the drawing board.
In the second amended complaint, the group, which had grown to 11 plaintiffs who were representing themselves in the case, was denied because of certain procedural issues.
Last year, the town of Ocean City filed a motion to dismiss the case for a variety of reasons, not the least of which the original summonses were not served using court protocol. However, the judge denied the motions to dismiss as moot and allowed the street performers named in the suit as plaintiffs to go back and properly serve the summonses.
The third amended complaint corrected many of the procedural issues, including the service of process. Satisfied with the corrections, and perhaps more importantly, the street performer’s claims, Nickerson denied the town’s motion to dismiss the case and essentially said there claims as asserted appeared to be valid. Of course, the plaintiffs’ will now have to successfully argue their case, but at least they will have the opportunity after the judge’s ruling last week.
“In moving to dismiss, Ocean City argues that the plaintiffs’ allegations supporting their claims are little more than legal conclusions,” the opinion reads. “Significantly, in support of this portion of its motion, Ocean City cites no case law in any way related to free speech and expressions claims. Upon review of the allegations in the third amended complaint and the relevant case law, the court concludes that the plaintiff’s allegations are more than sufficient to state claims for relief.”
The judge’s opinion lays out several instances where the town’s ordinance could be construed to suggest a violation of First Amendment rights to free speech. For example, balloon artist Bill Campion for 21 years was able to walk up and down the Boardwalk making his animal figures and handing them to children. Under the new ordinance, “he is restricted to one spot where many fans of his work, both parents and children, often cannot find him,” the opinion reads.
According to the opinion, plaintiff Bob Peasley, a singer and guitar player, suffers from partial paralysis and uses a wheelchair and “his physical restrictions make it difficult for him to be physically present for the weekly lottery,” the judge’s opinion reads. Plaintiff Joseph Smith is a magician and ventriloquist and his performances often draw larger crowds and require a larger space than permitted under the new provisions in the ordinance. Plaintiff Mark Chase is a visual artist whose medium is quick-drying enamel spray paint, which is prohibited under the new ordinances.
“The plaintiffs provide numerous examples in the third amended complaint of just how the new ordinances have restricted the performance of their various artistic endeavors,” the opinion reads. “They have further alleged that these restrictions are substantially broader than necessary to achieve Ocean City’s interest. While Ocean City may be able to refute those allegations, at this stage in the proceedings, the court must accept them as true and draw all inferences in the plaintiffs’ favor.”
