OCEAN CITY — Fresh off a victory in a federal lawsuit against the resort last fall, street performers will be back in force along the Boardwalk this season and the city is already taking a “if you can’t beat them, join them” stance.
Last Thursday, Ocean City Police Chief Bernadette DiPino and members of her staff, along with City Solicitor Guy Ayres, hosted a meeting with concerned citizens and Boardwalk area business owners in an effort to clarify the regulations governing street performers after a rather tumultuous 2011 summer season with the buskers.
Last June, the City Council unanimously passed an emergency ordinance requiring all street performers to register each day at City Hall and to pay a nominal fee for the registration. The emergency ordinance also solidified language in the code prohibiting street performers and artists from openly selling their wares on the Boardwalk and included specific language about where they could and could not be.
One week later, spray paint artist Mark Chase, who became the de facto spokesman for the Boardwalk street vendors, filed suit in U.S. District Court claiming the town’s actions against him specifically, and street performers in general, were in violation of his First Amendment rights.
In September, U.S. District Court Judge Ellen Holllander issued a preliminary injunction ruling in favor of Chase and street performers in general on certain key elements of the suit, while siding with the town on others, including a prohibition against street performers setting up shop on the Boardwalk at North Division Street, citing public safety issues with most important access point to the Boardwalk and beach for emergency services.
In February, the parties reached a consent decree that essentially formalized the elements of the preliminary injunction handed down last September. I
Last Thursday, Ayres briefed downtown business leaders on the outcome of the case and its implications on the upcoming season. In a nutshell, the street performers will not be required to register and they will be able to sell or take donations for their wares as long as their creations pass the test as “expressive materials.”
“It’s something the shop owners up there are going to have to live with,” said Ayres. “The police are going to use discretion about what can be sold and what can’t. Obviously, they can’t sell pizza and sodas.”
OCPD Lieutenant Mark Pacini, who has been patrolling the Boardwalk for years, has been right in the middle of busker issue.
“The toughest challenge is figuring out the gray area of what is expressive material and what isn’t,” he said last week. “Basically, Chase’s art and performance constitutes fully protected expression and his sale of his own paintings is also fully entitled.”
Ayres said the elimination of the registration requirement complicated the issue somewhat because the town no longer has a forum for explaining the rules up front.
“One of the bad parts about them not being required to register is they won’t know they are allowed to do or not do,” said Ayres. “That was the good thing about registration. They knew the rules and we knew the rules.”
Many of the business owners in attendance last week voiced concern about buskers being able to freely sell their wares right outside of their own establishments, for which most pay for expensive leases, business licenses and other fees and taxes.
“We know the business owners are up in arms about this,” DiPino said. “We’re hearing you tell us ‘why do I have to pay rent and why do I have to pay all of these fees when they don’t.’ We’re as frustrated with this whole process as you are. It’s gotten more and more challenging.”
However, in light of the recent court ruling affording First Amendment protections to street performers and vendors, Ocean City has to strike a balance between looking out for the business community and the citizens, and preserving the rights of free expression.
“We are bound by the ruling of the judge, and if we violate, it could cost the city more,” she said. “We’re going to do everything we can to protect the city, the citizens and the business owners, but we’re going to protect the rights of street performers also.”
DiPino said Chase specifically would be handled with kid gloves because he has shown a penchant for suing the town for real or perceived rights violations. During the discussion last Thursday, the chief learned her office had just received a letter from Chase’s attorney about the new sections in the town’s ordinance about noise violations.
“Our officers are going to be very careful with Mark Chase,” she said. “He’s very intimidating. When there’s a lawsuit, it hits in your pocket. As we speak, I just got a message from his attorney telling us to cease and desist about the noise ordinance.”
DiPino said with the judge’s ruling on the First Amendment rights to freedom of expression with regards to Ocean City’s street performers, the Boardwalk business community should consider embracing their presence rather than fighting it.
“The bottom line is, there are going to be street performers on the Boardwalk,” she said. “It might be time to get creative on how to take advantage of their presence. Maybe you need to partner with them.”
One of the major concerns voiced last week regarded the large crowds that often form around the street vendors and performers on the Boardwalk. The ordinance is very specific about where the street performers can set up shop and the court’s ruling did uphold the town’s prohibition on any buskers setting up at North Division Street.
DiPino said the OCPD is going to work with the street performers on where they can and cannot set up and will rely on the buskers to follow the rules. The chief also pointed out long lines at regular businesses during the summer often block traffic on the Boardwalk.
“We going to try to work with street performers and get them to not impede traffic on the Boardwalk,” she said. “Honestly, it could be tough sell because with many of the businesses so successful, their lines are also impeding the Boardwalk.”
The OCPD is going to strictly enforce the obvious infractions and attempt to gain a better understanding of the gray areas. Finding that balance will likely leave many unsatisfied on both sides of the issue, but it’s a challenge the town faces given the results of the federal lawsuit.
“We’re going to ask street performers to police themselves somewhat,” she said. “We have to balance a lot of things here. Our job is to try not to get everybody mad, but no matter what we do, we’re going to make somebody mad. We’re going to let them know what the rules are and ask them to police themselves and regulate their crowds.”