Ocean City Backs Off 30-Foot Noise Rule Enforcement After ACLU Threat

OCEAN CITY — After a threat of legal action over enforcement of the 30-foot noise rule for Boardwalk street performers, a rule struck down by a federal court three years ago, the Town of Ocean City has apparently acquiesced to a demand filed by the American Civil Liberties Union (ACLU) earlier this week to halt the practice.

The incident arose in late July when Boardwalk street performer Ion Ionescu was first issued a verbal warning and later a written citation for violating the 30-foot noise rule for buskers on the Boardwalk. However, the ACLU intervened, pointing out a U.S. District Court judge in 2013 permanently enjoined Ocean City police from enforcing the 30-foot rule, which the high court deemed as a violation of First Amendment rights.

Since that court decision in 2013 in favor of long-time Boardwalk performer William Hassay, the town’s street performer ordinance has been rewritten, erased and written again, but somehow the 30-foot rule prohibited by a federal judge has remained in effect in Ocean City. In a letter from ACLU of Maryland Legal Director Deborah Jeon to the town in early August, Ocean City police continue to evoke the 30-foot rule for performers even after a federal judge struck it down three years ago.

“We write on behalf of violinists William Hassay and Ion Ionescu, as well as other Ocean City Boardwalk performers, about the contemptuous enforcement and threats of enforcement of the 30-foot noise ordinance that was permanently enjoined by the U.S. District Court on Dec. 13, 2014,” the letter reads. “We urge you, in the strongest terms, to act immediately to purge this contempt, so that we do not need to seek remedial orders and penalties from the Court.”

After receiving the letter, the town has apparently acquiesced and taken action to stop the enforcement of the 30-foot rule, but it is uncertain just what action was taken.

“The ACLU of Maryland took action and wrote to Ocean City officials in early August after learning that performers were once again being wrongfully targeted by police on the Boardwalk,” she said. “In 2013, the ACLU filed a lawsuit challenging an unconstitutional noise ordinance on behalf of William Hassay, Jr., an accomplished violinist who has played for families on the Boardwalk for nearly two decades. This year, the ACLU spoke out on behalf of another violinist, Ion Ionescu, who was harassed by police and threatened with arrest for violating the same unconstitutional noise ordinance, which has not yet been removed from the city’s code.”

Jeon said on Thursday the town has taken action to halt the enforcement of the 30-foot rule. She said Ocean City has agreed to instruct officers not to enforce the rule and also to remove language regarding the rule from the code. Interestingly, there is no mention of the 30-foot rule in the town’s section of the code regarding street performers. Instead, the 30-foot rule is described in an entirely different section of the code entitled “unreasonably loud noise.”

“Thankfully, the city quickly responded and will be issuing a directive to police officers about not enforcing the 30-foot rule against the performers on the Boardwalk and has promised to remove the noise ordinance language from the city’s website,” she said. “Hopefully, free speech will finally be honored on Ocean City’s Boardwalk.”

On July 29, Ionescu was reportedly told to turn down his music in response to a complaint filed by a nearby merchant. According to the ACLU letter, the officer told Ionescu he did not want to issue a citation, but once a complaint was filed by a merchant, he had to take some legal action, which is why the officer issued a verbal reprimand. The next day on July 30, Ionescu was allegedly issued a written citation for the same alleged violation of the 30-foot rule on the Boardwalk at 1st Street.

“This is completely unacceptable,” the ACLU letter reads. “Not only does this police conduct violate the performers’ First Amendment rights, but it directly contravenes an explicit federal court injunction. We thus intend to reopen the Hassay litigation and seek a contempt finding as well as other remedial orders and penalties unless the city takes immediate action to purge its contempt.”

Among the actions suggested by the ACLU is the letter were immediately rescinding the citation issued to Ionescu and any other similar citations issued to performers alleging violations of the 30-foot rule; issue a binding and enforceable directive, either as a formal policy, training bulletin or other appropriate means, to each member of the police department forbidding any further enforcement or threats of enforcement of the 30-foot rule; remove information about the 30-foot rule from the city’s website, or clarify that is has no applicability to the Boardwalk and may not be enforced performers on the Boardwalk, and formally repeal the enjoined portions of the ordinance at the earliest available opportunity.