OCEAN CITY — Who is best suited to gauge public sensibilities could become the key in the ongoing civil suit challenging Ocean City’s topless ordinance after the plaintiffs in the case last week filed a motion to exclude the town’s elected officials from testifying as witnesses.
Two weeks ago, Ocean City officials filed a motion for summary judgment in the civil suit filed against the resort in 2018 challenging an ordinance that prohibits women from going topless in the same public areas where men are allowed to go shirtless. On the same day, the plaintiffs in the case filed a motion to exclude Mayor Rick Meehan and Council Secretary Mary Knight from testifying as expert witnesses.
From the beginning, Ocean City officials have contended the notion of allowing female toplessness offends the sensibilities of most residents and visitors to the family-oriented resort. In a hearing on the plaintiffs’ request for a preliminary injunction last December, resort officials presented evidence of hundreds of emails, letters and phone calls bearing out that sentiment. Ocean City has contended the Mayor and Council, as leaders and residents of the resort, have an innate understanding of the public’s sensibilities on the topless issue.
However, the plaintiffs seek to exclude Meehan and Knight from testifying, asserting the elected officials lack the qualifications to accurately gauge public opinion on the toplessness.
“Neither Mayor Richard Meehan nor Councilmember Mary Knight are qualified to render expert opinions regarding the public’s sensibilities,” the motion reads.
The plaintiffs’ motion attempts to differentiate who is best suited to gauge the public’s sentiments on the female topless issue. Is it Meehan, who was first elected to the council in 1985 and served for 16 years as council president and as mayor since 2006? Is it Knight, who has served on the council since 2006 and often mans the Boardwalk information booth and interacts with thousands of visitors during the summer? Or is the plaintiffs’ expert witness Dr. Debra Herbenick, professor and director of the Center for Sexual Health Promotion at Indiana University-Bloomington, more qualified to testify on the public’s changing perspectives on female toplessness in public?
In 2016, Eline sought an opinion from the town of Ocean City and its police department on the legality of female toplessness. 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. In June 2017, with the Attorney General’s Office still pending, the Mayor and Council passed an emergency ordinance prohibiting the practice. About seven months later, a formal complaint was filed in U.S. District Court.
Last December, Meehan, Knight and Greater Ocean City Chamber of Commerce Executive Director CEO Melanie Pursel testified during a hearing on a requested preliminary injunction asserting female toplessness in public areas such as the beach and Boardwalk went against the public’s sensibilities.
The plaintiff’s lone witness at that hearing was Herbenick, who testified at length about the changing public sensibilities regarding female bare-chestedness in public. Last December 20, U.S. District Court Judge James Bredar ruled against the preliminary injunction that would have, if approved, allowed women to go topless where men can while the larger case runs its course.
With the motion filed last week, the plaintiffs allege Meehan and Knight should be excluded from testifying as expert witnesses because they lack the training and expertise to qualify.
“Mayor Richard Meehan admits that he does not have specialized training related to measuring the public’s sensibilities,” the motion reads. “The mayor admits that his only qualifications to opine on the public’s sensibilities is that he was elected, has lived in Ocean City and listens to what people bring to his attention. Councilmember Mary Knight admits that she does not hold a degree that would qualify her to opine on the public’s sensibilities.”
The motion continues, “… approximately 150 of the 8,007,800 residents and visitors complained by email or telephone about the prospects of females being permitted to be bare-chested in public. Emails that may have been sent to a councilmember only that were against the ordinance were not preserved by Ocean City. Ocean City claims that an estimated 300 to 500 people complained in person to members of the council, but cannot estimate how many. Ocean City cannot establish that the people who complained were a representative sample of the 8,007,800 people who live in or visit Ocean City.”