OCEAN CITY – A draft ordinance regulating Boardwalk performers heads to first reading on Monday evening and if all goes to plan the law will go into effect by the end of July.
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 performers’ 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, and after two public hearings, the Task Force submitted a formal recommendation to the Mayor and City Council about a month ago.
Prior to drafting those recommendations into ordinance form, the Mayor and City Council met with the town’s legal counsel specializing in First Amendment rights, Venable, LLP, to discuss any legal ramifications, as well as toured the Boardwalk establishing designated spaces for street performers from the South 1st to 9th streets.
As recommended by the Boardwalk Task Force, Venable and City Solicitor Guy Ayres, the draft ordinance repeals and reenacts Chapter 62, entitled Peddlers and Solicitors, and defines the terms Boardwalk, Designated Space, Director, Expressive Material, Generator, Merchant, Perform, Performing, Performance, Performer, Street End, the Town, Vend or Vending and Vendor.
Designated space or spaces has been defined as “areas on the Boardwalk demarcated by the Town and located on the Street Ends between an including South 1st St. and 9th St., except the street ends at North Division St. and Dorchester St. These Designated Spaces are to be marked as determined by the Director.”
Performer is defined as “a person … seeking or accepting voluntary contributions through any means … attempting to draw attention, convene an audience 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 rules and regulations pertaining to Performers.”
Performance is defined as “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. The terms shall not include the application of substances to other persons, including, but not limited to, paints, dyes, and inks, nor shall the terms include provision of personal services that involve the touching of another, such as nail painting or hair weaving, braiding, cutting, or styling.”
A vendor is defined as “a person who Vends, but does not do so from a traditional brick and mortar establishment or property and thus is not a merchant…Vendor includes the employers, employees, and agents of Vendors.”
Vending is defined as “to sell, offer for sale, expose or display for sale, solicit offers to purchase, barter or receive compensation for Expressive Material in any area on the Boardwalk from a table or pushcart, even if characterized as a donation.”
Expressive material is defined as, newspapers, periodicals, books, pamphlets or similar written material. Expressive materials also means cassette tapes, compact discs, digital video disks, paintings on paper or fabric, photographs, sculpture and prints, but only if they have been created or composed by a Performer or Vendor. Expressive Material shall not include the application of substances to other persons, including but not limited to, paints, dyes and inks.”
The draft ordinance also declares the reason for enacting legislation “to address the Boardwalk’s size, location and limitations during peak tourist season, resulting in competing interests for space and unregulated performances on the Boardwalk; establishes rules and regulations governing performers and vendors; establishes a prohibition to perform and vend on the Street Ends at North Division St. and Dorchester St.; establishes the need for designated performance/vending areas from South 1st St. to 9th St. or, at any one of the Street Ends between, and including, 10th St. and 27th St.; establishes the prohibition to the use of, and/or obstructing access to, Town property for performing or vending; and establishes a fine for violations.”
Each designated space from the Inlet to 9th Street will be a maximum of 10 feet by 10 feet and a minimum of 5 feet by 5 feet, and a three-foot clear area around each fire hydrant is maintained, as well as a safe separation from the Boardwalk tram lane.”
As far as the allocation of designated spaces, the ordinance states, “The Director shall designate spaces on the Boardwalk between and including South 1st St. and 9th St. … will be available on a first-come, first-serve allocation and selection system for two periods of use; the first period shall be Monday through Thursday and the second period shall be Friday through Sunday … the Designated Spaces will be available for selection twice a week, on Mondays and Fridays one week in advance…”
A list of rules and regulations governing performers and vendors on the entire Boardwalk is also included in the draft ordinance, such as a performer or vendor may mark the boundary of a space with a rope laid on the surface of the Boardwalk; no performer or vendor can have any item exceeding four feet above ground, allow any street end of designated space to be enclosed, or affix props or equipment to the Boardwalk surface; no performer or vendor occupying a location at a street end or designated space can leave items unattended for a period longer than 15 consecutive minutes; a performer or vendor having selected a designated space or on street ends between 10th St. and 27th St. will have use of that area from 10 a.m. to 12 a.m. during the week, and from 10 a.m. to 1 a.m. on weekends; and no performer or vendor can use nudity or obscenity in any display on the Boardwalk.
A regulation discussed by the council was the use of generators on the Boardwalk. It states, “A Performer or Vendor shall be permitted to use Generators in any place on the Boardwalk where Performing or Vending is authorized, but they shall not be permitted to fuel or refuel Generators on the Boardwalk or store, or otherwise possess, fuel on the Boardwalk not contained in the generator.”
“I thought we had discussed no fuel generators, and that all generators should be battery powered or solar powered. That is what they use in most jurisdictions, not gasoline. I do not like the idea of gasoline being on our pristine beach, on our Boardwalk or on our street ends,” Council Secretary Mary Knight said.
Councilman Dennis Dare pointed out the concern over gas generators being used on the Boardwalk may eventually resolve itself.
“Given the density of the Boardwalk, and restricting the largest site to 10 feet by 10 feet, for them to be able to have a generator and the clearance around it needed, it may shrink the performing area to an unaccepted level and they may convert to a battery,” Dare said. “If not, I don’t look of this as something that we can’t change to improve. It may need to be fine-tuned at a later date.”
Knight made a motion to forward the draft ordinance to first reading on Monday evening. The council voted unanimously to approve.
According to Ayres, the ordinance would go into effect July 27 if approved next week.