OCEAN CITY — The Town of Ocean City is seeking the dismissal of a federal civil suit levied in April on behalf of a street performer alleging the town’s 30-foot noise ordinance on the Boardwalk is unconstitutional.< ?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office">
On April 10, the American Civil Liberties Union (ACLU) filed suit in federal court on behalf of violinist William Hassay, Jr. challenging the town’s noise ordinance, specifically recent changes to it, is an attempt to silence musicians. In the suit filed against the Mayor and Council and acting-Police Chief Michael Colbert, the ACLU alleges the enforcement of the town’s 30-foot noise ordinance on the Boardwalk infringes on Hassay’s, and other performers’ fundamental right under the First Amendment to engage freedom of speech and expression in a public forum.
Last year, the Mayor and Council approved an ordinance setting the acceptable limit on noise in any form on the Boardwalk to 30 feet. Essentially, the ordinance was directed at several Boardwalk merchants who habitually play loud music from speakers on their stores, but caught up in the fray were the numerous Boardwalk street performers and musicians whose music often extends beyond the set 30-foot limit.
The ACLU filed suit in federal court challenging what it asserts is an unconstitutional noise ordinance that has been silencing musicians. With the summer season rapidly approaching, the suit seeks a preliminary injunction to suspend the enforcement of the noise ordinance while the case is under review.
According to the civil suit, on two separate occasions last June, Hassay was threatened by Ocean City police officers with citations for violations of the noise ordinance while playing his violin music on the Boardwalk. As a result of the alleged coercion, Hassay stopped playing for the remainder of the season causing great financial loss and perhaps more importantly, a violation of his basic First Amendment rights to freedom of expression in a public forum.
However, the town of Ocean City this week filed a motion to dismiss the suit, asserting Hassay was merely approached by an OCPD officer after complaints from retailers in the area where he was performing and asked to turn down the volume of his music to conform to the 30-foot rule. The town’s motion to dismiss asserts the officer never issued a citation or threatened Hassay with arrest, but rather intended to educate the Boardwalk performer on the recent changes in the town’s ordinance.
“What Hassay does not allege in his complaint, however, is a substantive injury or objective harm caused by the noise ordinance or its enforcement,” the town’s answer reads. “Hassay’s complaint merely alleges that as a result of the noise ordinance, he had a conversation with several Ocean City Police officers which resulted in his feeling that he was deterred, or ‘chilled,’ from exercising his First Amendment rights. However, the record before the court in the matter is clear that, as it relates to Hassay, no enforcement of the noise ordinance ever occurred.”
While Hassay’s complaint alleges he was coerced to the point he was left with little choice but to stop performing, the town’s answer to the suit filed this week alleges Hassay’s complaint does not detail any real harm he suffered because of the informal discussion with police over the volume of his music and the complaints from neighboring businesses.
“Absent from Hassay’s complaint is what adverse action, if any, was taken by the Ocean City Police Department, Colbert or the town as a result of the subject occurrences,” the town’s answer to the complaint reads. “Hassay’s complaint is entirely unclear as to what negative or adverse effect his conversations with the Ocean City Police officers had on his ability to play his music, conduct his performances or generate a profit on the Boardwalk. Indeed, the complaint is devoid of any assertion of specific harm incurred by Hassay as none is pled with particularity and factual support.”
The complaint does not allege Hassay was ever told to leave or stop playing, but merely asked to turn down his volume.
“Hassay’s only allegation of injury appears to be that the town’s maintenance of the noise ordinance ‘chills’ or deters Hassay’s, and others similarly situated, rights to free speech,” the answer reads. “Nowhere in the complaint does Hassay contend that he or any other Boardwalk performer was actually cited, arrested, asked to leave the Boardwalk, compelled to leave the Boardwalk or told to stop playing his music.”
Attached to the town’s answer to the suit is the police report prepared by Sgt. Art Grady about the incident. According to the police report, Grady responded to the area after receiving a complaint from nearby retailers, but waited patiently until Hassay was finished playing and was taking a break before approaching him about the complaint.
At no time was Hassay asked to stop playing his music. He was also told he was allowed to have an amplification system, but had to manage his overall level not to exceed the allowable limits. According to the police report, Hassay was told he was certainly allowed to continue to perform but must stay within the allowable and legal limits and levels.
According to the police report, Grady made sure to explain to Hassay he was not being asked to leave or to stop performing and when Hassay asked if he could go and play somewhere else, he was told that was certainly allowable. No enforcement action was taken and there was no arrest or citation issued.
“Sergeant Grady states that the encounter was an educational meeting more than anything else,” the town’s answer reads. “Hassay was handed a flyer with information relating to the guidelines and rules for Boardwalk performers. In response to being notified of the noise complaint, Hassay became immediately defensive and argumentative.”
According to the complaint, Hassay has been performing on the Boardwalk since 1995 and earns in a range of $250 to $300 in tips each night, generating as much as $25,000 each summer season. In the town’s answer to the suit filed this week, Hassay voluntarily shut down his performances and left Ocean City despite never being issued a citation or threatened with arrest.
“Following this encounter, Hassay voluntarily packed his effects and left Ocean City,” the town’s answer reads. “He never came back to perform on the Boardwalk despite never being issued a citation or other adverse action by the town, never being told to leave and never being told to stop playing his music or performing. In fact, Hassay was invited to continue to play his music and perform, or to move elsewhere and continue to play if he so chose. Hassay, at his volition, chose to discontinue his performance and leave Ocean City. This decision was based upon nothing more than a conversation which he perceived to be a deterrent to his exercise of his rights to free speech and expression.”