Street Performer Files Civil Suit Against Resort

OCEAN CITY — Exactly one week to the day from when he was allegedly bounced from the Boardwalk by an emergency order banning him from setting up shop at North Division Street, an Ocean City street performer filed suit in U.S. District Court, claiming the action violated his First Amendment rights to free speech and expression in a public forum.

Last Tuesday, the Ocean City Mayor and Council unanimously passed an emergency ordinance 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.

This Tuesday, artist Mark Chase, who has been at the center of the street performer ordinance debate through much of the spring and early summer, 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.

According to the complaint, Chase filed the suit “in order to defend and secure the plaintiff’s fundamental right under the First Amendment to the U.S. Constitution to engage in expression within a traditional public forum.”

Earlier this spring, Ocean City officials adopted changes to the town code regarding street performers requiring them to obtain a permit each day for a fee for the right to set up shop at the various street ends at the Boardwalk. The permits could be obtained for the same day at City Hall. The changes were met with some opposition from the street performers in general, and specifically from Chase, who emerged as the de facto spokesperson for the buskers.

Chase is a visual artist whose medium is gloss-based enamel spray paint and who operates under the trade name Stellar Paints. He is also a street performer because he creates his paintings in the open air in the presence of the public. Because spray paints are quick drying, he is required to work quickly and his audience is able to watch his work develop from start to finish. Most are completed in 15 minutes and each is a unique piece of art.

Since last June, Chase has typically set up shop at the plaza area where North Division Street meets the Boardwalk. Last week, Ocean City officials passed an emergency ordinance banning the set-up of street performers at North Division Street.

The intent of the ordinance is to keep the area, which includes a wide ramp and a major access point for emergency services to the Boardwalk and beach, clear of street performers and the crowds they attract in the interest of public safety. Chase, however, contends the street-specific emergency ordinance was passed in retaliation against him for speaking out about the other ordinance changes.

“The plaintiff has been an outspoken critic of the restrictions placed on street performers by Ocean City,” the complaint reads. “He has appeared before the Ocean City Council on several occasions and asserted that the restrictions imposed on street performers and other persons engaged in constitutionally protected expression on the Ocean City Boardwalk are unconstitutional.”

Chase filed the complaint on Tuesday through his attorney John Garza, a participating attorney for the Rutherford Institute, an organization dedicated to the defense of civil liberties and human rights. The organization was founded with the goal to defend people who were persecuted or oppressed without charging them for the services and the group has an impressive resume of past and pending civil liberties cases at almost every level including the U.S. Supreme Court.

The complaint filed on Tuesday makes no bones about the town’s alleged retaliation against Chase.

“The plaintiff has been deprived of his rights under the First Amendment because he has been targeted for enforcement of restrictions on activity upon the Ocean City Boardwalk and has otherwise been harassed by Ocean City officials in retaliation for his exercise of his right of free speech in speaking out against these restrictions and petitioning Ocean City to ease restrictions on street performers,” it reads.

The complaint goes on to detail an alleged pattern of harassment and retaliation by the town against Chase beginning back in May when he set up shop for the first time of the season. On that day, Chase was allegedly ordered by police to take down a sign listing his prices for his artwork in violation of a section of the code prohibiting the unauthorized sale of goods and wares on the Boardwalk.

On June 21, the day the city passed the emergency order regarding North Division Street, Chase set up at the end of Wicomico Street near Ripley’s Believe it or Not, an area he was told the night before by Ocean City Councilman Doug Cymek is permissible, and was approached by an OCPD officer ordering him to shut down, according to the complaint. When asked why, the officer told him a nearby pizza parlor had complained about the odor of his paints, even though he had not yet used the spray paint. The officer also told Chase a tram driver complained he was posing a safety threat, even though the tram did not come close to where Chase was setting up. According to the complaint, those claims established early on Chase was going to be targeted no matter where he set up.

“After shutting down on June 21, the plaintiff spoke to another Ocean City Police officer while walking along the Boardwalk,” the complaint reads. “This officer told the plaintiff that they would continue to shut him down no matter where he located if even a single complaint were received about the plaintiff.”

The suit filed Tuesday is seeking a declaratory judgment from the court finding and concluding the Ocean City code changes are unconstitutional in that they require street performers to obtain a permit for a fee before engaging in speech and expression in public forums and forbid Chase and others from selling works of art or expressive material to the public.

Ocean City Solicitor Guy Ayres said yesterday he had only received the suit on Wednesday and had not had an opportunity to thoroughly review it.

“I just got it yesterday and I haven’t had a chance to absorb it,” he said. “My understanding is it involved a confrontation he had with an officer on the Boardwalk, but it would be premature to comment on it without having read it thoroughly.”

The suit is also seeking both a preliminary and permanent injunction prohibiting Ocean City from enforcing the code changes. Chase is also asking the court to enter a judgment that he has been deprived of his rights under the U.S. and Maryland Constitutions and award him compensatory and punitive damages in an amount to be determined at trial.