OCEAN CITY — Evoking the “character and moral balance of a historically family-oriented tourist destination,” the Town of Ocean City late last week fired back against a request for a preliminary injunction allowing women to immediately go bare-chested in the resort while the larger civil case trudges through the court system.
A little over a year ago, the Ocean City Mayor and Council passed an emergency ordinance prohibiting women from going topless in certain public areas, including the beach and Boardwalk, where men are allowed to go shirtless. The ordinance was passed in response to a request from Chelsea Eline of the Town of Ocean City, the Worcester County State’s Attorney’s Office and the Maryland Attorney General’s Office to clarify existing state laws prohibiting female toplessness in certain public areas.
Earlier this year, Eline and four other named plaintiffs filed suit in U.S. District Court against the town, challenging the ordinance that prohibits women from going topless and exposing their breasts in the same areas where men are allowed to go shirtless. In late June, the plaintiffs filed a motion for a preliminary injunction that would allow them, and ostensibly any other women who chose to do so, to go topless in Ocean City immediately while the larger civil suit makes it way through the courts.
Last Friday, the Town of Ocean City filed a motion seeking to dismiss the request for a preliminary injunction. Essentially, the town’s motion points out there is noting to be gained and no harm will come to the plaintiffs by waiting for the court to decide on the broader issue.
In order to support the request for a preliminary injunction, the plaintiffs must prevail on four long-established principles for doing so. For example, the plaintiffs must show they are likely to succeed on the merits of the larger case and must show they are likely to suffer irreparable harm in the absence of a preliminary injunction. In addition, the plaintiffs must show the injunction is in the best interest of the public and that the balance of the equities tip in their favor.
With its motion filed last Friday, the town asserts the plaintiffs fail to show any of the standards for a preliminary injunction. The plaintiffs’ case cites a handful of successful examples of the courts ruling in favor of plaintiffs in similar female topless cases, most notably the Free the Nipple v. Fort Collins, Colo. case where the court somewhat reluctantly did issue a preliminary injunction allowing women to go topless in the same areas as men are allowed to go shirtless while the court proceeded to trial.
However, the town’s motion against the granting of a preliminary injunction cites numerous other cases that went the other way in favor of jurisdictions seeking to prevent female toplessness. In its motion last week, the town of Ocean City pointed out there is no public purpose served by granting a preliminary injunction. The town also asserts doing so would run counter to the wholesome image it so carefully projects.
“They seek to disrupt the character and moral balance of a historically family-oriented tourist destination, visited and enjoyed by so many people whose expectations and sensibilities do not contemplate and likely will not tolerate nudity in such a densely-populated and wholesome tourist setting as Ocean City and its beaches,” the responding motion reads. “They seek to do so based on nothing more at this point in the proceedings as cherry-picked and self-serving published materials discussing a range of loosely-related societal topics and a single trial court decision out of Colorado that has no binding effect here.”
The town’s motion to stop the preliminary injunction goes to great lengths to explain the reasoning behind the new ordinance in the first place.
“The ordinance was adopted to advance Ocean City’s legitimate interests in promoting decency, protecting morals and prevailing moral sensibilities and protecting the order, health, safety and well-being of the populace by prohibiting public nudity,” the responding motion reads. “Advancing these interests constitutes an important governmental objective for the town of Ocean City as it does for any city or municipality, but in particular in light of Ocean City’s long-standing and highly-valued identity as a family-oriented vacation, recreation and travel destination. This identity and character of Ocean City is the bedrock of its tourism-based economy and must be preserved and protected by the Ocean City government.”
Again, one of the tenets of the plaintiffs’ motion for a preliminary injunction if the potential irreparable harm they would suffer if they choose to go topless on the beach or Boardwalk before the larger case runs its course including possible arrest or incarceration. However, the town’s motion rejects that claim.
“Plaintiffs argue that the prospect of being cited and fined under the ordinance and ‘physically arrested or incarcerated’ constitutes irreparable injury for purposes of their motion,” the responding motion reads. “They are wrong for a number of reasons. First, the plaintiffs merely face a civil citation and/or fine if they willfully and knowingly elect to act in direct violation of the ordinance. A violation of the ordinance is merely a municipal infraction under the city code, for which violators receive a written civil citation and are fined, They do not face any possibility of arrest, incarceration or any other criminal action or penalty.”
The plaintiffs’ motion for a preliminary injunction also asserts they will suffer a hardship if it is denied. Again, the town’s motion says not so fast.
“There is no hardship necessarily imposed on the plaintiffs as a result of the requested injunction being denied,” the responding motion reads. “There are no circumstances that compel or require the plaintiffs to engage in conduct that violates the ordinance during the pendency of this case. Consequently, nothing will impose or create any hardship at all on the plaintiffs vis-à-vis the ordinance and its operation unless they willfully choose to enter Ocean City during the pendency of this case and go topless there.”
Eline and the other plaintiffs are advocates for female bare-chestedness in public through the Top Freedom initiative and often go topless in public areas in Maryland including Ocean City and Assateague, for example. In 2016, she sought an opinion from the town of Ocean City and its 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 Worcester County 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. For several months, Eline and her advocates, along with the town of Ocean City and the Worcester County State’s Attorney’s Office, eagerly awaited the Attorney General’s opinion.
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 Mayor and Council passed the ordinance prohibiting the practice. The ordinance was passed as emergency legislation, making it effective immediately.
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 in January dismisses the 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.
