OCEAN CITY — A planned hearing set for Friday on Ocean City’s topless issue was postponed this week to allow the plaintiffs to obtain an expert to help determine if an ordinance passed by the town last year actually reflects the public’s “sensibilities” on the issue.
Last January, a civil suit was filed in U.S. District Court challenging an emergency ordinance passed by the Mayor and Council in June 2017 prohibiting females from going topless in the same areas as men are allowed to go shirtless, including the beach and Boardwalk, for example. In June, the plaintiffs in the case, including local resident Chelsea Eline and four others, 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 certain areas of the resort while the larger case runs its course.
A hearing on the preliminary injunction was set for Friday in U.S. District Court, during which the parties in the case would be allowed to present evidence against or in support of the town’s notion allowing female toplessness in certain areas of the resort offended the “sensibilities” of the general public.
“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 in opposition to the preliminary injunction filed this summer reads.
On Wednesday, however, the plaintiffs’ attorney Devon Jacob filed a motion to postpone the hearing set for Friday to allow for an expert witness to prepare testimony challenging the town’s notion female toplessness in the resort would offend the public’s sensibilities.
“In its memorandum and order, the court, among other things, invited the parties to ‘present evidence on the question of whether public sensibilities are accurately reflected in the Ocean City ordinance,” the motion to postpone Friday’s hearing on the preliminary injunction reads. “Plaintiffs’ counsel certifies that once the court announced the scope of the hearing, he acted diligently to locate an appropriate expert who is qualified to speak to the specific issue that the court identified.”
That expert witness is Dr. Debra Herbenick, professor and director of the Center for Sexual Health Promotion at Indian University-Bloomington. Herbenick is also a noted sex educator and sex advice columnist. However, because of prior commitments and because she needs time to prepare her expert opinion and testimony on the “sensibilities” issue, Herbenick is not available for Friday’s scheduled hearing on the preliminary injunction, the hearing has been moved to December.
Jacob mentioned in his motion to reschedule Friday’s hearing on the preliminary injunction, the defendant, in this case, the town of Ocean City, did not object as long as it was afforded the opportunity to obtain its own expert on the issue.
“In light of Dr. Herbenick’s unavailability for the presently-scheduled hearing date, and based on the plaintiffs’ plan to obtain a report from her, plaintiffs’ counsel conferred with the defendant’s counsel as to rescheduling the September 21 hearing,” the motion reads. “Subject to the defendant having an opportunity to obtain and designate its own expert for the rescheduled hearing, the defendant and its counsel do no oppose the plaintiffs’ request for postponement.”
Jacob acknowledged in the motion the late postponement request just two days before the scheduled hearing will likely cause inconveniences for all parties, but because of the sensitivity of the issue, it was in the best interest of the court and the public to allow time for the expert witness.
“The plaintiffs apologize to the court for any inconvenience caused to the court,” the motion reads. “The plaintiffs believe, however, that the benefit to the court and the public outweigh any prejudice to the court because of the court grants the plaintiffs’ motion, the court will have the benefit of expert opinions to inform the court’s decision in this important matter.”
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.
