OCEAN CITY – Despite some seemingly reasonable pleas for exceptions to the rule, the City Council was not ready to allow any of the Boardwalk buskers to be anything but “unplugged.”
Though there was no agenda item addressing the ongoing street performer situation, the subject came up once again on Monday, as several street performers spoke to the council in hopes of receiving an exception from the no amplification rule.
According to some, the rule outlawing any sort of amplification of instruments or voices has been in effect for years, but it was never actually written into the ordinance until the most recent change last month to the law, which saw street performers permitted at the street ends of the Boardwalk only.
The busking community, praised by members of the council for their eloquent and articulate arguments on the matter, believes taking away battery-powered amplification of certain instruments or sounds renders their act ineffective.
“I play the violin on the Boardwalk over music coming from a small CD player that serves as background music and in some cases, plays an integral part of my act,” said Bill Hassey. “By not allowing me to use the CD player, it changes my act to the point that there is almost no point it all. It would be as if you told a karaoke bar that it could have people sing, but they couldn’t have background music.”
Hassey cited amplification does not necessarily mean “extremely loud” and said that in his case, the rule, which is intended to create a level playing field for all performers, is not “content neutral, it’s a content killer.”
Yet, the most alarming point in the conversation came when Robert Peasley, a recreational Boardwalk performer, who is also confined to a wheelchair, politely asked council for an exception to the rule.
“I play songs on the guitar from the 60s and 70s, and I really enjoy doing it, and I think people enjoy listening to me play,” said Peasley, “but I don’t have the lung capacity to sing for long periods of time without the help from a small microphone that I use.”
When Councilman Doug Cymek made the motion to exclude Peasley from the no-amplification rule based on his disability, the council sat quiet and visibly uncomfortable until the motion died for a lack of a second.
“I felt horrible for that gentleman, and if anyone deserved an exception it was him,” said Council President Joe Mitrecic, who is unable to second a motion. “If it would have got a second, I would have definitely voted for it.”
Mayor Rick Meehan said that although he feels that the council will revisit and could eventually grant Peasley an exception, the council was probably a bit worried about setting a precedent.
“Doug’s motion showed compassion, and I think there will be some more thought about the matter, but the problem with making a new rule, is that everyone comes up with some sort of a reason for an exception, and it’s difficult to know where to draw the line,” Meehan said.
Councilwoman Margaret Pillas also cited that she was hesitant to vote for the motion as she was worried where the line would be drawn.
“You could never compete with the ambient noises on the Boardwalk with any amount of amplification, but these rules, just like the ones for outdoor displays guidelines for Boardwalk merchants create a level playing field for everyone, and this is a fair way to allow everyone to do the best they can with what they have, without amplification,” she said.
There have been several lawsuits in the past concerning buskers and their fight for the rights, including Casey v. City of Newport (2002) which ruled that amplifiers are often used to create new musical “messages” that can’t be conveyed without amplification (which is essentially what Hassey argued to council), and that in the world of modern music, where some instruments can’t be played without battery power or simple amplification, the word “amplified is not synonymous with made louder.”
Boston, Mass. was sued by a group of buskers in federal court in 2004 and lost, allowing the musicians to perform without a permit and to accept money for product sales. The buskers were regulated by the noise ordinance in the city after the ruling.
Mitrecic said that in many cases, the amplification used by street performers is not nearly as loud as some of the music booming from Boardwalk stores.
“Look, I could take my son’s CD player and sit on a bench on the Boardwalk and make more noise than some of the performers and their little boomboxes,” said Mitrecic, “but we are treading a fine line with exceptions, and I think council was a bit afraid to open that can of worms.”
In Boston, street performers are supposed to be inaudible after 100 feet from the site of their performance, and barring Ocean City police officers carrying decibel meters to measure an official noise violation, the council may have to get a bit creative if they are to make any exceptions to the rule without setting a precedent.
“I don’t think it was heartless,” said Pillas. “We are just trying to be fair and not start something that gets completely out of hand.”