OCEAN CITY – It has been relatively quiet this summer when it comes to street performers on the Boardwalk until this week when the City Council granted permission for two artists to return to the boards following several confrontations with business owners.
Tricia Oertel and Leah Gostomski, professional licensed hair dressers, came before the Mayor and City Council on Monday to request permission to return to the Boardwalk to express their art.
This season, Oertel and Gostomski, who create, design and install feather hair extensions for donations, have received complaints from Boardwalk business owners and at times have left due to being harassed by business owners or asked to leave by the police due to complaints from merchants.
“Tonight we are here to demonstrate and explain to you our form of artistic expression and artistic material which will clear the misconception about our art so that we can return to the Boardwalk,” Oertel said.
She explained that the hair feathers are 100 percent genuine rooster feathers that they pluck from the hide and are painted and designed according to customer preference. Using hair glue, the feathers are artistically layered and skillfully designed into the hair.
“They are all handmade and is a form of skillful art being performed,” she said. “We do not resell these items, we do not purchase them … we actually make them.”
Oertel furthered that businesses purchase the feather hair extensions from a wholesaler and to their knowledge the only retailers on the Boardwalk that provide a similar service is located at the Inlet and on 12th Street. She said they do not position themselves near those locations.
“The T-shirt shop owners that have approached us to not have these items to sell, and legally extensions are supposed to be sold to cosmetologists,” she said.
Last June, the council unanimously passed an emergency ordinance requiring all street performers to register each day at City Hall and to pay a nominal fee for the registration. The emergency 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 vendors, 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 September, U.S. District Court Judge Ellen Holllander issued a preliminary injunction ruling in favor of Chase and street performers in general on certain key elements of the suit, while siding with the town on others, including a prohibition against street performers setting up shop on the Boardwalk at North Division Street, citing public safety issues with most important access point to the Boardwalk and beach for emergency services.
In February, the parties reached a consent decree that essentially formalized the elements of the preliminary injunction handed down last September.
At that time City Solicitor Guy Ayres briefed downtown business leaders on the outcome of the case and its implications on the upcoming season. In a nutshell, the street performers will not be required to register and they will be able to sell or take donations for their wares as long as their creations pass the test as “expressive materials.”
In light of the court ruling affording First Amendment protections to street performers and vendors, Ocean City knew it had to strike a balance between looking out for the business community and the citizens and preserving the rights of free expression.
“I don’t see this expression any different than somebody up there painting somebody’s face or a henna tattoo,” Councilwoman Margaret Pillas said.
Pillas understood Boardwalk business owners’ frustrations were a result of them paying overheard, such as rent, taxes and business license fees, however the town could not exclude the pair from conducting their artwork on the Boardwalk as other buskers do.
Councilman Doug Cymek asked for the council to invite Police Lt. Mark Pacini, who has patrolled the Boardwalk for many years and worked with street performers, to come before the council next week during a work session to discuss the matter further.
“I could see the ripple effect … if it fits the definition then I think we should allow these people because it is just not right that they can’t do it and other people are doing it,” Cymek said.
Councilman Joe Hall suggested allowing them back on the Boardwalk immediately.
“We cannot deny their freedom of expression unless we know that it is not a freedom of expression,” he said. “As long as the Boardwalk is a public way, it is designated in that way, this is what you’re going to have and people are going to capitalize on that opportunity.”
Council Secretary Lloyd Martin recognized the fine line the council was walking in protecting Boardwalk business owners while acknowledging buskers right to the first amendment.
“We are getting later into the season as we go along and I understand that you are trying to make a living out of this … while you are expressing the First Amendment,” he debated. “It is a tough call, for us up here especially.”
Mayor Rick Meehan supported Oertel and Gostomski’s request saying they fit the definition better than other performers currently operating on the Boardwalk. Meehan recommended having come to the council at the conclusion of the summer to present a wrap-up on street performers and review the policy at that time.
The council was in consensus and allowed Oertel and Gosomisk to return to the Boardwalk.