‘Nominal Damages’ Awarded To Buskers After Victory

OCEAN CITY — While a group of Boardwalk street performers prevailed earlier this year in their suit against Ocean City, they aren’t exactly getting rich because of the victory.

In 2015, a group of nine Boardwalk street performers filed suit in U.S. District Court asserting the town’s busker regulations, including the pre-registration process and site limitations, violated their First Amendment rights. In May, a federal judge essentially agreed and struck down many of the provisions of the town’s ordinance regarding street performers, opining the ordinance as written and enforced did indeed violate the plaintiffs’ rights.

However, what was still to be resolved was the amount of damages most of the plaintiffs were entitled. As a result, the case moved into the damages phase for the nine plaintiffs. One plaintiff was no longer represented by legal counsel in the class action suit. Last week, a motion for judgment was filed and while the named plaintiffs are getting paid for the damages incurred during the enforcement of the busker ordinance, most wouldn’t be able to buy a cup of coffee with their windfall.

In September 2015, one of the named plaintiffs, Tony Christ, was issued a citation for $200 for singing the national anthem and another song on the Boardwalk at Wicomico Street in violation of the town’s street performer ordinance. In the motion regarding damages issued last week, Christ was awarded $200 in damages representing the amount of the citation he paid.

“In its May 9, 2018 decision and order, the court struck down as unconstitutional the registration requirement and space limitation, which was the basis for the citation and fine,” the court’s order reads. “The $200 fine was without lawful basis and deprived him of his constitutional rights. Mr. Christ is entitled to recover the $200.”

In terms of the other named plaintiffs, each will be awarded damages in an amount around one dollar, making the award of damages merely symbolic.

“The plaintiffs hereby claim nominal damages for all represented plaintiffs other than Mr. Christ,” the court order reads. “Nominal damages are the appropriate means of vindicating rights whose deprivation has not caused actual, provable injury. The amount of nominal damages is within the discretion of the court, but is typically one dollar.”

The case was first filed in 2015 by eight Boardwalk street performers and challenged many of the provisions on the town’s latest attempt to regulate busking along the famed promenade. The eight street performer plaintiffs were successful in arguing the town’s street performer ordinance violated their First Amendment rights to free speech. As a result, most of the provisions in the town’s ordinance have been struck down.

The town was successful in defending some of the regulations in its street performer ordinance, including a prohibition of any performances set up on key access points for emergency vehicles at North Division Street and Dorchester Street; a ban on any Boardwalk performances after 1 a.m.; and a ban on any signage or advertising above six feet over the Boardwalk.

According to the judge’s opinion issued in May, Ocean City may not enforce the remaining regulations that the plaintiffs challenged, which, as enacted, require all performers wishing to perform between and including South 1st Street and 9th Street t register or a designated area beginning one week ahead of time. It also states Ocean City may not require performers to only occupy designated areas within that same stretch from South 1st Street to 9th Street.

The opinion also prohibits the town from enforcing the section of the ordinance that forbids street-performing activity before 10 a.m.

In simplest terms, the court’s ruling essentially pulls most of the teeth from the town’s street performer ordinance including the pre-registration requirement, the limitations on spaces utilized by buskers other than North Division Street and Dorchester Street where vehicle access points for emergency vehicles are located and the ban on any performances before 10 a.m.

The town won on a few points, including the section of the ordinance that keeps important access points open for emergency vehicles. The town also won on the provision that prohibits street performing after 1 a.m. and another provision that prohibits street performing, signage, advertising and the like more than six feet above the Boardwalk.

Throughout the years, Ocean City has attempted to regulate street performers in the interest of keeping pedestrian traffic flowing on the Boardwalk, and in the interest of public safety and some protections for Boardwalk businesses that pay for business licenses, pay rents and mortgages and are otherwise regulated. However, each time the town’s various street performer ordinances have been challenged in court, now four times, the buskers have prevailed on constitutional issues.

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.