OCEAN CITY – After years of near constant friction between the town and Boardwalk street performers, it appears to be relatively calm thus far this season between the town, the buskers and their private-sector neighbors.
At different times in the past, the Boardwalk buskers and Ocean City have been at odds with city officials attempting to regulate the where, when and how for the street performers in the interest of keeping pedestrian traffic flowing. Other issues have included public safety and some protections for brick-and-mortar businesses who are regulated and pay high rents and mortgages.
There have been issues in recent years with some of the performers interfering with regular Boardwalk business, from loud music to spray paint fumes wafting into restaurants and numerous others. For their part, the buskers have had issues of their own, from First Amendment violations to freedom of speech and expression issues, to the town dictating where they can set up and for how long. At one point, a town ordinance included a lottery system of sorts, which had buskers camping out in front of City Hall early in the morning waiting to sign up for one of the coveted street-ends.
At least four times, street performers have challenged the town’s street performer ordinances in federal court and each time, the buskers have largely prevailed. This summer, however, there has been a détente of sorts on the Boardwalk. There are still performers at nearly every street end where they are allowed on most nights, but there have been few reported issues thus far.
City Clerk Diana Chavis, who manages and regulates the street performer operation, said this week it has been relatively quiet this summer. She said after all of the legal battles over the years, and the chronic conflicts, more outreach has led to a better understanding of the rules for all parties. The new approach has eliminated or, at least, reduced the past issues between the town and the buskers.
“I receive numerous inquiries prior to and throughout the summer for guidance about performing and vending on the Boardwalk,” she said. “These calls help curtail activity that is not permitted and there have been no complaints thus far.”
Chavis said she could recall only one issue regarding street performers on the Boardwalk this far this year.
“The Ocean City Police Department removed a performer juggling knives,” she said. “Other than that, it’s been a fairly sensible season on the boards.”
While it appears common sense is prevailing on the Boardwalk thus far this summer, that was certainly not always the case. In the most recent federal lawsuit first filed in 2015, eight Boardwalk street performers challenged many of the provisions in the town’s most-recently attempt to regulate busking along the famous promenade. The plaintiffs were successful in arguing the town’s street performer ordinance violated their First Amendment right to free speech and expression. As a result, most of the provisions in the town’s busking ordinance were struck down.
According to the judge’s opinion in that case, the town could no longer enforce a provision that required all buskers to perform between 9th Street to South 1st Street and to register a week for a spot at one of the street ends. It also prohibited the town from enforcing a section of the code required performers to only occupy designated areas within that same stretch along the Boardwalk.
In simplest terms, the court’s ruling essentially pulled 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 did win on a few points in the federal case, including the section of the ordinance that keeps important access points open for emergency vehicles such as police, fire, EMS and the Beach Patrol, for example. The town also one 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.
While losses in federal court cases have watered down the town’s busker ordinance somewhat, there are still stringent regulations in place. The federal judge’s opinion in the 2015 case clearly defines what qualifies as expressive material, although the definition is fairly open-ended.
“Expressive material is defined as an item or items that have been created, written, or composed by the person who sells, rents, or changes them for a donation,” the judge’s definition reads. “Expressive materials are inherently communicative and have only nominal utility apart from their communicative value.”
In response, the town drafted its own definition of performing in keeping with the judge’s opinion. According to the town’s definition, performing means to engage in playing a musical instrument, singing, dancing, acting, pantomiming, puppeteering, juggling, presenting or enacting a play, a work of art, a physical or mental feat or creating visual art, which pretty much leaves it wide open.
Again, the town succeed on some of the salient points in the federal lawsuit, although it was generally considered a victory for the buskers. For example, street performers are not allowed to set up at important access points to the Boardwalk for emergency vehicles, including North Division Street and Dorchester Street, for example.
No performer or vendor is allowed to block or obstruct pedestrian or vehicular traffic, a provision often difficult to enforce during the height of the season. No performer or vendor occupying a location is allowed to leave items unattended for a period of longer than 15 minutes. In addition, buskers are not allowed to set up within 10 feet of an adjacent property’s entrance or exit. There are also existing regulations prohibiting the use of nudity, pornography or obscenity in any display or performance. Finally, no performer or vendor may use fire or any other hazardous materials on the Boardwalk, including knives, swords or other sharply-bladed instruments potentially dangerous to the public.