Tighter Rules Proposed For OC Street Performers; Rotating Schedule Eyed For Congested Areas

Tighter Rules Proposed For OC Street Performers; Rotating Schedule Eyed For Congested Areas

OCEAN CITY – With the Boardwalk Task Force’s recommendations regarding street performers in hand, the Mayor and City Council will next meet with the town’s First Amendment counsel to discuss how strict the changes can be without breaking the law.

The Town of Ocean City has been struggling with the proliferation of street performers on the Boardwalk for several years. Issues have grown as the number of performers increase every year and the acts diversify from spray paint fumes to costumed characters to a pole dancer. However, court rulings in recent years protecting street performer’s First Amendment rights have prevented the town from strictly regulating the acts on the Boardwalk.

In the beginning of the year, the Boardwalk Task Force was created to specifically look into these concerns. Membership consisted of Chair Greg Shockley, owner of Shenanigan’s on the Boardwalk and Ocean City Development Corporation board member; Frank Knight, representing the Boardwalk Development Committee; Lee Gerachis, owner of Malibu’s Surf Shop on the Boardwalk; Bob Rothermel, representing the Downtown Association; and street performer Mark Chase.

After two public hearings, the Task Force’s recommendations were submitted to the Mayor and City Council this week. The council heard City Solicitor Guy Ayres’s response to those recommendations. Ayres explained his comments were in reference to the legality of the recommendations and advised the council meet with the town’s legal counsel specializing in First Amendment rights, Venable, prior to passing a draft ordinance.

The recommendation started off recommending the town adopt definitions to differentiate “expressive material,” “performer” and “vendor.”

During a hearing, Ocean City Police Department Lt. Mark Pacini, who has patrolled the Boardwalk since 1989, explained the recent court rulings eliminated the town’s requirement for performers to obtain a permit from City Hall to perform on the Boardwalk. The courts have also granted performers permission to sell their expressive material on the Boardwalk.

Pacini furthered determining whether a performer’s ware is expressive material or retail has become cumbersome due to the town’s ordinance not being specific with a definition of each. All performer requests to sell their wares are filtered through City Hall, and then to the police department for ultimately Pacini to work with the City Solicitor’s Office to make a final decision on if the wares are expressive material or retail.

The recommended definitions are as follows:

“Expressive material means newspapers, periodicals, books, pamphlets or other similar written material; it also includes cassette tapes, compact discs, digital video disks, paintings on paper or fabric, photographs, sculpture and prints that have been created or composed by the vendor. The sale of these items will be permitted on the Boardwalk at locations permitted under the terms of this ordinance. The sale of any other item will not be permitted on the Boardwalk. Expressive material shall not include the application of substances to others’ skin, including but not limited to paints, dyes and inks.”

Also, “Performers will be permitted to perform on the Boardwalk at locations permitted under the terms of this ordinance. The terms perform, performing and performance … mean to engage in playing a musical instrument, singing, dancing,   acting,  pantomiming,   puppeteering,  juggling, engaging in magic, presenting or enacting a play, work of art, physical or mental feat or creating visual art. Indicia  of  a  ‘performance’  or  ‘performer’ are  seeking  and/or  accepting voluntary  contributions  through  any means,  including passing  around  a hat  or leaving open an instrument case or other receptacle, soliciting, and/or accepting, directly or indirectly, donations after a performance, attempting to draw attention, convene an audience and/or engage onlookers as spectators or participants in a ‘performance.’ Individuals, who dress in a costume, pose for photographs and solicit or accept gratuities will be deemed performers and are subject to the rules and regulations pertaining to performers.”

During the hearings, the Task Force heard from many Boardwalk business owners who voiced concerns over their business fronts being blocked by street performer crowds, as well as the repetition of performers as they set up at the same location each night. Many recommended a rotating schedule or lottery system that would designate performers to specific locations.

The Task Force recommended implementing a rotating schedule for the most congested area of the Boardwalk between S. 1st and 9th streets where designating spaces will be identified at street ends. Street ends north of 9th Street will not have designated spaces and will be available on a first-come, first-serve basis.

Between S. 1st and 9th streets, less than three 100 square feet of marked spaces will be provided. Those spaces will be made available for selection twice a week, Monday and Friday, at Town Hall on a first-come, first-serve basis. All selections will occur at least one week in advance. To ensure a rotating system, performers cannot elect to be in the same space in one week.

Upon registering for a space, a description of the nature and scope of the activity will have to be provided for the town official responsible in assigning the space to determine that person will be engaging in a permitted expressive activity.

As well as, those registering should provide proof of insurance for an amount determined by the Mayor and City Council, as well as have the insurance contain a “hold harmless clause” with respect to the town.

“Neither the Supreme Court nor the Fourth Circuit Court of Appeals has discussed the constitutionality of an insurance requirement in the context of First Amendment protected expressive activity such as street performing or vending. Other circuits, however, have addressed such a requirement with regards to another type of protected First Amendment activity, namely the right to assemble,” Ayres stated in his report to the council. “In the case of Ocean City, there is no evidence to support the need for insurance and the requirement may be unconstitutional.”

The Task Force recommended that people selecting and using a space should not be permitted to rope off or demarcate the spaces in any way.

“Task Force member Mark Chase proposed an amendment that would have allowed roping off of the space by the person to whom it is assigned. That amendment was defeated. This issue does not present Constitutional concerns and, therefore, is up to the City Council to decide,” Ayres stated.

The recommendation also includes a performer cannot leave equipment or props unattended for more than 15 minutes, and those who have selected spaces can only use that space between 10 a.m. and 12 a.m. during the week, and between 10 a.m. and 1 a.m. on the weekends. However, sound or music cannot be amplified after 11 p.m. every day.

Performers are prohibited from physically affixing props to the Boardwalk surface and that performers cannot use higher than four feet.

“Those limitations are necessary to prevent aesthetic blight, are similar to restrictions that merchants must observe and have been upheld by courts as reasonable time, place and manner restrictions in other jurisdictions,” Ayres said.

The Task Force had also heard testimony from the Fire Marshal’s Office citing concerns over the use of generators on the Boardwalk for reasons of both noise and safety. The Task Force recommended generators be banned.

“The Draft Ordinance will not ban the use of generators completely, however. … the Draft Ordinance will state expressly that it does not intend to prohibit the use of solar panels or batteries to generate electricity,” Ayres stated.

Testimony heard by Ocean City Beach Patrol Lt. Ward Kovacs, who has worked with the OCBP for 33 years, explained a main emergency access point to the beach and boardwalk besides N. Division Street, which is currently off limits to street performers, is Dorchester Street where beach patrol’s headquarters is located and becomes blocked by street performer crowds.

The Task Force recommended closing Dorchester Street to street performers and vendors due to Kovacs’ testimony but also took it further by recommending the town prohibit all expressive activity at each “at-grade” intersection along the Boardwalk, which would include nine out of the 18 remaining street ends available outside of the locations between S. 1st to 9th streets.

“The Task Force’s recommendation that additional street ends be available to the emergency response units does not appear to take into account the state highway proscription, which arguably nullifies any intended additional benefit to the Beach Patrol emergency vehicles,” Ayres stated.

The Task Force also recommended the town prohibit performers from using the Caroline Street Comfort Station and Stage, which is referred to as the “amphitheater.” Ayres disagreed with that.

“… as long as the town clearly informs visitors that it is not affiliated with the performers, the town should encourage and promote use of the Caroline Street Amphitheater by street performers,” Ayres said.

Ayres concluded the Draft Ordinance will solve many of the existing problems on the Boardwalk only if it is enforced.

“Police will enforce the ordinance only if the City Council explicitly directs them to do so, empowers them to apply the new law equitably to brick and mortar merchants as well as to street performers, and grants them authority to issue citations or otherwise penalize anyone who fails to follow police directives,” he stated.

The council was in consensus to meet with Venable before voting on the draft ordinance in first and second reading. However, prior to that meeting, council members aired their own opinions on a few of the recommendations.

Council Secretary Mary Knight was concerned over permitting three locations at every street end between S. 1st and 9th streets as each street is different. She wanted to add if the town official responsible for assigning performer locations is unsure he or she should defer to Ayres. She also felt that closing nine out of the 18 street ends north of 9th Street is too restrictive and that the recommendation of not allowing amplifying sound after 11 p.m. wasn’t restrictive enough.

“I have extreme concern over allowing the use of Caroline Street Stage, since there is not a recommendation for insurance my concern is they use the stage the city will look like they endorse certain performers over others, so I would like to see the amphitheater not be available to street performers,” Knight said.

However, Knight is in favor of the rotating assignment of spaces that could become an automated system once performers start to register, and their locations can easily be posted on the town’s website or at City Hall.

“I like the idea of the rope as it helps delineate the crowd but what gives me a pause is having the rope or props set up first thing in the morning to help save a spot all day for an evening performance. The proposal for an assignment would solve that issue,” Councilman Dennis Dare said. “When we sit down to talk about this, I would like to see a layout of what spaces will look like. One hundred square feet can be 10 feet by 10 feet or one foot by 100 feet and that makes a big difference.”

City Engineer Terry McGean had drafted potential street performer locations at street ends between S. 1st and 9th streets. Preliminary locations include three 10 foot by 10 foot spaces on S. 1st Street, one location near the Pier Building, four locations on Somerset Street and no locations on N. Division and Dorchester streets.

“Once past N. Division the Boardwalk changes because there is no bump outs onto the street ends,” McGean said. “Fourth Street is difficult because that is where the tram makes the turn from the concrete pad onto the wooden boardwalk, and it is a congested area.”

Councilman Lloyd Martin opined, “I agree we need to meet with Venable to present questions in making sure we are doing this right.”

The Council asked Ayres to set a meeting up with Venable on Monday prior to their legislative session.