OCEAN CITY — After a rather tumultuous 2011 summer season with street performers on the Boardwalk, all has been relatively calm thus far this season with a new set of rules and a new “if you can’t beat them, join them” attitude.
Fresh off a victory in a federal lawsuit challenging First Amendment rights filed against the resort last fall, street performers have been back in force on the Boardwalk this summer. However, with perhaps one notable exception, the prevailing attitude between the buskers, the police and the business community, at least on the surface, has been less adversarial and more amiable.
“We haven’t arrested anybody,” said Ocean City Police Department (OCPD) Lieutenant Mark Pacini, who has taken the lead on street performer issues for the department. “Going back to last September when Judge Ellen Hollander made her decision on the preliminary injunction, I think we’ve only handed out one citation and that was for a noise complaint.”
Last June, the Ocean City Council passed an emergency ordinance requiring all street performers to register each day for a nominal fee. The ordinance also solidified language in the code prohibiting street performers and artists from openly selling their wares on the Boardwalk and included specific language about where they could and could not be.
One week later, spray paint artist Mark Chase, who became the de facto spokesman for the Boardwalk street performers, 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 First Amendment rights.
In February, the parties reached a consent decree that essentially formalized the elements of the preliminary injunction handed down last September. In short, the consent decree allows street performers and vendors under certain definitions to sell their creations on the Boardwalk and also eliminates the registration requirement. What was left in place, however, is the prohibition of street performers setting up displays and performances at North Division Street, citing public safety issues with the most important access point to the Boardwalk and beach for emergency services.
“There really are just two major changes, one being they aren’t required to have a permit anymore, which presents some challenges,” said Pacini. “The other deals with the sale of protected expressive material. Some of the ‘artists’ are allowed to sell items they have created, written or composed.”
The court ruling could have created a volatile situation, but conflicts have been few and far between. Buoyed by their apparent victory, the street performers could have pushed the limits of their First Amendment rights, but most are falling in line with the rule changes. Many of the business owners on the Boardwalk have complained for a variety of reasons, not the least of which is the ability of non-registered, non-licensed street vendors peddling their wares just a few feet in some cases from the stores for which they pay expensive leases, license fees and taxes. Caught in the middle have been the OCPD officers trying to keep the peace.
“It’s a sticky issue,” he said. “The First Amendment rights are challenged by the performers, and we’re getting challenged by some of the business owners. Not everybody is happy with the ruling, but that’s what we have to live with.”
One of the biggest issues has been the elimination of the registration requirement, which has complicated the situation because to town no longer has a forum for explaining the rules up front.
“The non-permit change has been a challenge for us,” said Pacini. “Because they aren’t required to get a permit, many of them think they can set up and perform anywhere they want.”
Pacini said another major issue has been clearly defining what falls under expressive material protected by the First Amendment. Many items such as clothing, jewelry, stuffed animals, food and beverages, for example, are not expressive and not protected. Anything that can be considered art is certainly expressive and can be sold by street performers and vendors. In the middle is a vast gray area, but the OCPD pretty much has a handle on it, according to Pacini.
“It became a real challenge,” he said. “We were able to come up with a document that lists where they can set up and where they can’t, along with what they are allowed to sell and what they aren’t. It’s a pretty comprehensive list and we can say ‘here you go, these are the rules.’ All of them have been pretty cooperative. We haven’t had to cite anybody. People that have previously performed outside the rules are falling into compliance.”
Pacini said the officers on the Boardwalk have been successful in walking the thin line protecting the rights of the performers and handling business complaints.
“We’ve only had an issue with one guy and it was a noise issue,” he said. “We’re not just out there banging on them. We’re waiting for complaints and then we’re acting on those complaints.”