OCEAN CITY — Resort officials Monday passed an emergency ordinance enhancing penalties for individuals issued citations for municipal infractions who continue to fail to obey the law, but not before an 11th-hour attempt by a handful of Boardwalk street performers to halt the measure in federal court.
Last week, the Police Commission forwarded a proposed ordinance to the Mayor and Council that would make it unlawful for an individual to disobey an officer’s order to immediately cease and desist committing certain municipal infractions. Essentially, the ordinance would move certain municipal infractions to misdemeanors subject to fines and even jail time in certain cases for those warned to cease illegal activities and continue to flaunt the law.
On Monday, the Mayor and Council unanimously passed the measure as an emergency ordinance because of the time of year, but not before hearing from some street performers. While the ordinance is rooted somewhat in street performers who in the past would not adhere to the regulations on the Boardwalk in terms of where they could operate or noise levels, for example, it would apply to most municipal infractions enforced by the OCPD such as smoking in restricted areas or noise violations, for example.
However, a handful of street performers who already have a case pending in U.S. District Court seeking a reversal of the town’s new lottery system for buskers, filed a motion seeking a temporary restraining order against the proposed ordinance enhancing penalties for failure to obey a lawful order.
Last November, eight Ocean City Boardwalk street performers led by Tony Christ filed suit in U.S. District Court seeking $1 million in punitive and compensatory damages and injunctive relief from the town’s new busker ordinance implemented last summer. On Monday, the same plaintiffs filed a motion attached to the original suit seeking a temporary restraining order against the failure to obey a lawful order ordinance under consideration by the Mayor and Council later on Monday night.
While the council was considering the ordinance on Monday, Christ slammed the weighty 17-page motion on the desk of City Solicitor Guy Ayres and urged the elected officials to reconsider passing the ordinance.
“This ordinance takes municipal infractions, which are civil, and makes them a crime at the discretion of the officer,” he said.
Christ pointed out an example where a Boardwalk street performer might have to leave his assigned area and could be first warned by police, then possibly fined or even imprisoned. Under the street performer ordinance, buskers are not allowed to leave their designated areas on the Boardwalk for more than 15 minutes at a time. Christ said the ordinance enhancing penalties for failure to obey a lawful order could move that municipal infraction to a misdemeanor.
“What if you have to go to the bathroom?” said Christ. “What if there is a line, or the restroom is five blocks away? Everything the city has set up to be a municipal infraction can now be considered a crime at the officer’s discretion. I think it’s a very dangerous law.”
Christ said he and his co-plaintiffs in the federal suit against the town’s lottery registration system for buskers filed the motion seeking a temporary restraining order on Monday. He also challenged the Mayor and Council to pass the ordinance if they dared, tacitly alluding to the town’s two former losses in federal cases of street performers’ First Amendment rights.
“We filed for injunctive relief in federal court,” he said. “If you’re feeling lucky, go ahead and vote for this.”
Mayor Rick Meehan asked Ayres about the potential legalities of passing the emergency ordinance and the city solicitor said there was no problem with the ordinance as written. Ayres essentially said the Mayor and Council could take it a step further if they desired.
“We can make this real simple,” he said. “We can take away municipal infractions and make everything misdemeanors if that’s what they want.”
After considerable debate, the council unanimously passed the ordinance. Councilman Doug Cymek then asked Meehan for his consent to make it an emergency ordinance effective immediately and the Mayor concurred. Meehan characterized the ordinance as a “damned if you do, damned if you don’t” issue.
“We’re right in the middle of the summer and I think this is an issue the police department wants to address,” he said. “The next complaint would be we weren’t addressing these issues or we weren’t taking the appropriate action.”
Meehan said it essentially boiled down to the police department’s ability to enforce the municipal infractions on the books and enhance penalties for those who continue to flaunt the law.
“There are two sides to any issue and I think the more important one here is to maintain law and order and maintain the integrity of the ordinances on the books and I think this will allow the police department to do that,” he said.
Meanwhile, the motion for a temporary restraining order filed in federal court by the street performers named as plaintiffs asserts the ordinance as written has the potential to violate First Amendment rights. It is interesting the performers attached the motion to their existing federal case over the busker lottery system because, on the surface, they appear to be separate issues.
It’s also important to note a federal judge previously tossed out an attempt by the plaintiffs to attach their existing complaint to a years-older suit filed and ultimately won by another street performer, Mark Chase, who ironically serves on the Boardwalk Task Force that created the new busker registration system. Nonetheless, the motion filed by the plaintiffs on Monday seeks immediate injunctive relief from the new ordinance even before the Mayor and Council approved it on Monday night.
“Time is of the essence,” the motion for a temporary restraining order filed on Monday reads. “Legal remedies are inadequate to cure this eminent harm. The above-stated ordinance is too broad and in violation of First Amendment rights. All municipal infractions, now, at the discretion of the officer who must determine what failure to obey an order means, would be eligible for imprisonment.”
The motion asserts the ordinance under consideration on Monday that will enhance the penalties for repeat offenders is a broad-stroke approach that could violate street performers’ rights.
“The police presently have many powers to arrest citizens,” the motion reads. “This power, if allowed to be enacted, is too broadly defined such that it infringes on First Amendment rights. Moreover, it is unnecessary to link civil infractions with criminal behavior for not listening. In cases where an infraction has occurred, the police presently have a multitude of authorities to arrest and do not need this blanket ill-defined addition.”
While the motion filed in U.S. District Court on Monday seeks immediate injunctive relief from the proposed enhanced penalty ordinance, it also seeks immediate relief from the new busker lottery system.
“Respectfully, we pray the court will give us immediate temporary injunctive relief from registration including the new form of lottery registration that deprives all performers,” the motion reads.