Performers Eye Showdown With City Hall

OCEAN CITY – Boardwalk performers are planning a protest this weekend by setting up their acts on N. Division Street, a site previously banned by the Mayor and Council.

A couple weeks ago, Ocean City officials, including Councilmen Brent Ashley and Doug Cymek as well as police representatives, met with a group of Boardwalk performers to compromise on an ordinance in the midst of being passed to regulate street performers on the Boardwalk.

Ashley said the meeting addressed two major issues — the elimination of performers from N. Division Street due to the street’s public safety access and whether performers have the right to sell their art.

Spray paint artist Mark Chase has led the argument that the city has no right to remove performers from N. Division Street or forbid them from being vendors because it is against his right to exercise the First Amendment.

The day before the meeting took place the city received a letter from the Rutherford Institute, which is “dedicated to the defense of civil liberties and human rights,” according to its website, in regards to Chase’s argument.

In the letter addressed to Police Chief Bernadette DiPino, the Rutherford Institute wrote, “The restrictions placed upon Mr. Chase by City police last Saturday violate his right to freedom of speech and expression guaranteed by the First Amendment to the U.S Constitution and must not be enforced further.”

The restrictions the institute referred to occurred on Saturday, May 7 at which time Chase set up a sign setting his prices for his artwork. He was approached by city police officers who told him he must remove the sign because city law forbids the sale of goods or wares upon the Boardwalk. The officers also forbid Chase from telling people the price in which he would sell his paintings.

According to the Rutherford Institute, in the case Stephen White v. City of Sparks, Nev. the United States Court of Appeals for the Ninth District struck down city regulations forbidding an artist from selling paintings created on a public sidewalk, ruling that “an artist’s sale of his original paintings is entitled to First Amendment protection.” The court also ruled that a city ordinance requiring the artist to obtain pre-approval before selling art was unconstitutional.

In reference to Ocean City restricting Boardwalk buskers from performing on N. Division Street, the institute quoted court case Bery v. City of New York, a city “may enforce narrowly designed restrictions as to where [artists] may exhibit their works in order to keep the sidewalks free of congestion and to ensure free and safe public passage on the streets, but it cannot bar an entire category of expression to accomplish this accepted objective when more narrowly drawn regulation’s will suffice.”

Ashley said that the letter has been turned over to city Solicitor Guy Ayres.

“I have told Mr. Chase all long that we don’t want to get lawyers involved,” Ashley said. “We just want to sit down and talk with you and work with you as much as we can.”

On Wednesday, Chase said that his lawyer will be taking his case to court.

“It is going to end up going to litigation. They don’t want to talk to me, listen to me, or return any of my phone calls so I could help them,” Chase said.

According to the City Clerk’s office, Ocean City has no law written that forbids the selling of art on the Boardwalk, but an ordinance was drafted last month forbidding performers on the Boardwalk at N. Division Street.

“If you set up shop on the Boardwalk, is that really fair to the other merchants?” Ashley said. “I am all for performers being able to do their acts and put out their jugs for a donation, that’s fine, but when you get into the commerce part of it, I do have a problem with that.”

Ashley said that the town is willing to work with the performers to find a common ground, saying, “basically the main purpose here is to promote and enhance the Ocean City experience so were not looking to butt heads if we don’t have to.”

Ashley said he and Cymek rode the Boardwalk a couple of weeks ago spotting alternative spots to perform in replacement of N. Division Street. They have suggested possibly shifting benches at street ends to make more room for performers.

“We are trying to work with them to create as many spots as possible,” Ashley said. “We can regulate where they can be. We want to see them have as many spots as possible.”

Chase plans on protesting this weekend as he has been for the last four weekends. He added that he will set up his performance on N. Division Street as well as provide his art for sale.

Chase said that if he is forbidden from selling his art or told to move from N. Division Street he will refuse.

“I am standing my ground basically,” Chase said. “To have them arrest me is the only way they will get rid of me.”

The Dispatch reminded Chase that the ordinance forbidding street performers from N. Division Street is in action and he responded, “Yeah, that’s fine. It is still unconstitutional because they call us safety hazards, but there is plenty of proof to say otherwise.”

Chase said that there will be a group of other performers joining him this weekend performing on N. Division Street.

“It’s not just about the performers rights, it’s about every American’s rights, even the council’s,” Chase said. “They’re trying to regulate their own expressions and we’re trying to stop them.”

Ashley said that when it comes to public safety the performers will lose.

“If it becomes ordinance form and if they fight it, there is going to be problems. If it is in ordinance form, the police are going to enforce it. Public safety trumps anything,” he said.