OCEAN CITY — Ocean City officials sought this week to dismiss the civil suit filed against them challenging an ordinance prohibiting women from going topless in the same public areas where men are allowed to go shirtless.
Last June, the Ocean City Mayor and Council passed the emergency ordinance prohibiting women from going topless in certain public areas including the beach and Boardwalk, for example. The ordinance was passed in response to a request from local resident Chelsea Eline to the town of Ocean City, the Worcester County State’s Attorney’s Office and the Maryland Attorney General’s Office for clarification of the existing state laws prohibiting female toplessness in public areas.
Eline, then known as Chelsea Covington, is an advocate for female bare-chestedness in public through the Top Freedom initiative and often goes topless in public areas in Maryland including Ocean City and Assateague, for example. In 2016, she sought an opinion from the town’s police department on the legality of the practice. The town and the Ocean City Police Department (OCPD) then sought the opinion of the Worcester County State’s Attorney’s Office.
In turn, the State’s Attorney’s Office, uncertain of the interpretation of Maryland’s indecency statutes, sought the opinion of the state’s Attorney General on the issue. Last June, with the Attorney General’s Office still pending, and amid a backlash from concerned residents and visitors over the potential for Ocean City to allow women to go topless on its beaches and Boardwalk, the council passed an ordinance prohibiting the practice. The ordinance was passed as emergency legislation, making it effective immediately.
Shortly after the town passed its topless ordinance, Eline and other named plaintiffs retained the services of noted civil rights attorney Devon Jacob to prepare a challenge. In January, the formal complaint was filed in U.S. District Court. The civil suit lists Eline along with four other women as plaintiffs and challenges the constitutionality of the town’s topless ordinance passed last June.
The suit names as defendants the Town of Ocean City, Mayor Rich Meehan, OCPD Chief Ross Buzzuro and Emergency Services Director Joe Theobald, presumably because his department oversees the Ocean City Beach Patrol.
On Wednesday, the named defendants, through their attorneys, filed a motion to dismiss the federal civil suit along with a memorandum in support of the motion. The memorandum in support outlines some of the background behind the town’s ordinance passed last June.
‘The ordinance makes it unlawful for a person to be on the beach, Boardwalk, public parks, parking lots, streets, alleys and other public places with the person’s specified anatomical areas nude or in a state of nudity,” the memorandum supporting the motion to dismiss reads. “The female breast below a point immediately above the top of the areola is included within the ordinance as a specified anatomical area.”
The motion to dismiss the suit filed on Wednesday attempts to explain the reasoning behind the town’s ordinance.
“Accordingly, the ordinance, among other things, makes it unlawful for women to be topless, more specifically with their breasts fully exposed, in the enumerated public places in Ocean City,” the memorandum reads. “The lawsuit, in its entirety, is a facial challenge to the constitutionality, both federal and state, of the ordinance, and more particularly, the section of the ordinance prohibiting the female breast from being exposed in specified public places in Ocean City.”
The motion to dismiss the case filed on Wednesday asserts the mere passage of the ordinance does not imply the named defendants, including Meehan, Buzzuro and Theobald, have violated Eline, or anyone else’s, federal and state constitutional rights.
“Although the complaint alleges that the individual defendants are policymakers in Ocean City and will determine whether or not the Ocean City will enforce the subject ordinance, it does not allege actual enforcement of the ordinance by any individual defendant or anyone else against any of the plaintiffs in any respect,” the memorandum in support reads. “More generally, the complaint is devoid of any alleged wrongdoing by any of the individual defendants. Based on the foregoing, no cognizable claim of any kind has been stated within the complaint and must therefore be dismissed.”
The motion to dismiss the civil suit over the topless issue evokes the doctrines of immunity for governmental bodies and their representatives.
“Here again, there are no wrongful acts or omissions alleged in the complaint to have been committed by any of the individual defendants, and in any event, they are not alleged to have acted with any malice,” the memorandum reads. “It is plain from any fair reading of the complaint that the alleged involvement of the individual defendants, who are all public officials of Ocean City, is within the scope of their official duties and relates to discretionary rather than ministerial matters. Certainly, the complaint does not make allegations as to the individual defendants that would place the purported claims against them outside the scope of immunity.”
The complaint filed in January includes a detailed history of the bare-chested issue beginning with the early efforts to allow men to go shirtless in public areas which dates back to the 1930s. It also cites significant case law from efforts to afford females the same rights from jurisdictions all over the country.
“This lawsuit is about confirming the legal right of women to be bare-chested in public in the same places that men are permitted to be bare-chested, for purposes other than breastfeeding,” the complaint reads. “This lawsuit seeks a declaration from the federal court that the town of Ocean City’s emergency ordinance violates the Equal Protection Clause of the 14th Amendment to the federal Constitution because the gender classification does not further an important government interest, but rather codifies longstanding and sexist ideology in which women are viewed as inherently sexual objects without the agency to decide when they are sexual and when they are not.”
From the beginning, Ocean City officials have claimed a desire to be respectful of the rights of all residents and visitors to the resort and the passage of the emergency ordinance last June merely protects the town’s image as a family resort. However, the complaint filed on Tuesday dismisses any perceived loss in tourism numbers and the associated economic gains for the town as a reason for which to violate individual protections under the 14th Amendment. The town’s ordinance passed last June, an ordinance now challenged in U.S. District Court, carefully spells out the town’s position on the issue.
“There is no constitutional right for an individual to appear in public nude or in a state of nudity,” the ordinance reads. “It does not implicate either the First Amendment to the United States Constitution, the right to privacy, or a protected liberty interest. It lacks any communicated value that might call for First Amendment protection, nor does it implicate the right or privacy or the right to be alone. One does not have right to impose one’s lifestyle on others who have an equal right to be left alone.”
The ordinance states protecting the public’s collective interest supersedes individual interests in this case.
“Protecting the public sensibilities is an important governmental interest based on the indisputable difference between the sexes,” the ordinance reads. “Further, a prohibition against females baring their breasts in public, although not offensive to everyone, is still seen by society as unpalatable.”
After the town’s ordinance was passed last June, Mayor Rick Meehan said Ocean City remains sensitive to individual rights, but the collective rights of the countless visitors to the resort outweighed those individual rights on this specific issue.
“Ocean City has never been a topless beach,” he said. “Unfortunately, due to the recent inquiries made to the State’s Attorney’s Office, media reports and inaccurate information that has been circulated, we have received hundreds of calls and emails from residents and visitors expressing their concern over this issue. Each year, thousands of families visit our beach to relax in an atmosphere free of this type of activity. We respect their rights.”