OCEAN CITY — With a civil suit filed by a group of Boardwalk street performers against the Town of Ocean City over alleged First Amendment rights violations plodding through the court system, the parties this week sent a letter to the presiding judge seeking resolution with a new summer season approaching.
In November 2015, eight Ocean City Boardwalk street performers filed suit in U.S. District Court seeking $1 million in punitive and compensatory damages and injunctive relief from the town’s revised ordinance regulating buskers. On two occasions, the plaintiffs’ suit was rejected by the court, largely over procedural issues, but a third amended complaint filed in September 2016 was deemed to have merit and the town’s motion to dismiss the case was essentially denied.
However, there has been little movement in the case in the months since. With the calendar flipping over to March this week and another summer season quickly approaching, the plaintiffs, now numbering 11 street performers, and the defendant, the Town of Ocean City, sent a joint letter to presiding U.S. District Court Judge Richard Bennett seeking to expedite the case and have some resolution one way or the other. The letter calls the suit, “a declaratory action alleging Ocean City’s Boardwalk street performer regulations run afoul of the First Amendment.”
“Those regulations are seasonal,” the letter reads. “They shall next resume effect on May 15, 2018. The parties write to you today to bring the court’s attention to that fact.”
The letter sent to the court on Monday points out the importance of some resolution before the town’s ordinance kicks in again in May.
“The parties are desirous of resolution or guidance in advance of the coming season,” the letter reads. The plaintiffs asked for permanent injunctive relief from the regulations, in addition to a declaration on the regulations. The defendant seeks declaratory relief in its favor. The court’s resolution, in any event, shall substantially impact the Town of Ocean City, its Boardwalk and the individuals who come to Ocean City each season to perform on the Boardwalk.”
The town’s current ordinance adopted in 2016 eliminated the contentious signup that had performers waiting in front of City Hall often overnight to sign up for a designated space and replaced it with a more palatable lottery system. There had been a détente of sorts between the town and the street performers after the new system was deemed better by the performers by many accounts. For example, the ordinance was amended again to move the start date for the lottery system back from May 1 to May 15. However, despite the easing of relations between the buskers and the town, the suit originally filed in 2015 has continued, albeit on a slow pace rife with procedural problems.
On at least three occasions, the town has filed motions to dismiss the case. However, the court last April denied the town’s third motion to dismiss and essentially said the buskers’ claims enumerated in the amended complaint had merit.
The court’s opinion laid out several instances where the town’s ordinance could be construed to suggest a violation of First Amendment rights to free speech.
“The plaintiffs provide numerous examples in the third amended complaint of just how the new ordinances have restricted the performance of their various artistic endeavors,” the opinion reads. “They have further alleged that these restrictions are substantially broader than necessary to achieve Ocean City’s interest. While Ocean City may be able to refute those allegations, at this stage in the proceedings, the court must accept them as true and draw all inferences in the plaintiffs’ favor.”
