OCEAN CITY — Days after Ocean City filed a motion in federal court seeking to prevent a preliminary injunction allowing women to immediately go topless in the resort, the plaintiffs this week fired back with a motion in response that calls into question the town’s “family-friendly” reputation.
On July 27, the Town of Ocean City filed a motion to stop a federal judge from issuing a preliminary injunction that would allow women to go topless on the resort in the same public areas where men are allowed to go bare-chested. The issue will ultimately be decided in U.S. District Court after the named plaintiffs filed suit against the town early last year challenging the constitutionality of an emergency ordinance passed in early June 2017 preventing the practice.
Ocean City’s opposition to allowing female toplessness in the same areas as men are allowed to go without shirts is rooted in the “character and moral balance of a historically family-oriented tourist destination.
“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 town’s motion to stop the preliminary injunction filed in late July reads.
However, in a motion in response to the town’s opposition to the preliminary injunction, the plaintiffs’ attorney attempts to spell out multiple ways in which Ocean City does not live up to its “family-friendly” claims including rates of alcohol consumption, an alleged willingness to accept underage drinking and even some of the names of liquor-serving establishments, among others.
The plaintiffs’ motion filed last week goes to great lengths to prove the plaintiffs will likely succeed on the merits of the case, citing numerous prior cases.
“The question that this court will ultimately be asked to answer, and more importantly, must consider in the context of this preliminary injunction is the following: is precluding females from only displaying their breast below a point immediately above the areola substantially related to protecting the public sensibilities?” the responding motion reads. “As definitively established below, the answer is no, which means the plaintiffs will likely prevail on the merits.”
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 local resident Chelsea Eline from 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 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 such as the beach and Boardwalk, for example. 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.
The most recent motion explains the plaintiff began to go openly bare-chested in Ocean City back in 2014 on the beach around families with children. According to the document, the families with children neither complained nor vacated the area. Eline has also posted photos of her visits on social media which have been viewed millions of times and few complaints have been generated.
For example, Ocean City’s motion to deny the preliminary injunction reports the town has received 100 complaints about the potential for female toplessness in the roughly one-and-a-half years since the issue first came to the surface.
The plaintiff’s motion asserts even if the court were to err in favor of the town and increase the complaint rate from approximately 100 complaints in one-and-a-half to two years, to 100 complaints in a single year, the defendant’s evidence defeats its argument entirely. The plaintiffs’ motion points out Ocean City boasts eight million visitors a year, making the 100 reported complaints a drop in the bucket.
“This is hardly evidence of a public problem that required legislation to remedy, let alone emergency legislation,” the motion reads. “To the contrary, according to the defendant’s own evidence and information published by the defendant, 7,999,9000 out of 8,000,000 tourists simply did not care about the issue.”
The plaintiffs’ motion filed last week systematically attacks Ocean City’s contention is a family-friendly resort although some arguments are better than others. For example, the motion points out Worcester County, largely driven by Ocean City, consumes the most beer in Maryland by county, leads in distilled spirits consumed and is second in wine consumed.
“Notably, the consumption rates in surrounding counties are significantly lower,” the motion reads. “The only reasonable inference that can be drawn from the evidence is that people are traveling to Ocean City to consume alcohol and to party, not because it is family-friendly.”
However, it is important to note the studies from which the plaintiff’s made those assumptions are flawed in that they use percentages based on the per-capita consumption and do not take into account the roughly eight million visitors to the town each year. Similar per-capita statistics have been used in the past with crime rates in an attempt to paint Ocean City in a negative light in terms of relative safety.
The plaintiffs’ motion filed last week also points to the names of several businesses in the resort that offer adult beverages in an attempt to further its point the town’s family-friendly claims are disingenuous.
“This fact is further evidenced by the non-family-friendly business names that await the party crowd including the Brass Balls Saloon, the Bearded Clam, BJ’s on the Water, Hooters and the Big Pecker Bar and Grill,” the motion reads.
The plaintiff’s motion also refers in great length to Senior Week, the annual right of passage in June when recent graduates flock to Ocean City for a vacation often filled with underage drinking and its associated problems to disparage the resort’s family-friendly claims. It also points to a town press release this past June announcing 100 underage drinking citations had been issued during a single incident.
“Here is the point,” the motion reads. “Despite a well-documented, widespread underage alcohol abuse problem existing in Ocean City that is an actual threat to the health and safety of children and families, the defendant took no emergency legislative action to preserve and protect the identity and character of Ocean City as a family-oriented vacation, recreation and travel destination. Specifically, there were no emergency council meetings, no task forces formed, and no emergency legislation issued.”
The plaintiffs’ motion points to the town’s own comprehensive plan as a means to show female bare-chestedness has not had an adverse effect on tourism.
“The defendant essentially complains the emergency ordinance is necessary to protect its tourism industry, claiming the bare-chested females are a threat to the industry,” the motion reads. “Again, the defendant’s claim is false and disproven by publicly available information in the comprehensive plan, which provides visitation has bee stable at approximately eight million per year for the last 10 years. Thus, despite the fact that Ms. Covington [Eline] has been visiting Ocean City bare-chested since 2014, the evidence definitively establishes that there has been no decrease in tourism.”
The plaintiffs’ motion filed last week goes into great deal on prior case law on the female topless issue including gender inequity. Finally, the plaintiffs’ motion points out the town’s attempt to stop the preliminary injunction refers to Eline and the other plaintiffs as “activists,” a moniker the motion says the plaintiffs wear with honor, although it borders on hyperbole.
“The plaintiffs and their counsel will wear the label as a badge of honor,” the motion reads. “Activists push back when white supremacists decide to call themselves nationalists, enter government and begin to legislate. Similarly, activists push back when government officials seek to codify benevolent sexism under the guise of trying to protect and maintain a family-friendly community. If it wasn’t for activists, black people would still be forced to ride in the back of the bus, gay people would still not be permitted to marry and men would still not be permitted to be bare-chested in public.”
