OCEAN CITY – Street performers are uniting to fight the city on an ordinance restricting their performances on the Boardwalk, calling it “unconstitutional.”
The ordinance states “The Mayor and City Council finds that the existence of street performers, artists, and others may provide a public amenity that may enhance the character of Ocean City and therefore it does not seek to discourage such performers and activities to the extent that they do not interfere with the reasonable expectations of residents, tourists, and businesses to the enjoyment of peace and quiet in their homes, rental properties and businesses or pose a safety risk to the public caused by the congestion of street performers, passers-by and the boardwalk tram. This Article seeks to balance the interests of the street performers with those of the residents and businesses within the town.”
The ordinance restricts performers from 15 areas located between the south side of South 1st Street to the north side of North Division Street due to emergency access and the risk of congestion. The area from the south side of South 1st Street to the Inlet and in the area from the north side of North Division Street to the northern end of the Boardwalk street performing is limited to within the area between the extension of the street ends on the east side of the Boardwalk.
Locations will be restricted from the Friday before Memorial Day to Labor Day. City Clerk Kathy Mathias will conduct a weekly lottery at 4 p.m. each Friday for those performers who wish to perform at the locations from 6-12 p.m. from the date of lottery through the following Thursday.
The ordinance also includes a list of acts that the performer is prohibited from including performing in any area of the Boardwalk other than within the area encompassed in the extended boundaries of the street ends; use of anything other than portable tables or chairs for display purposes; setting up any display on or within 10 feet of tables, adjacent property entrance or exits, or the Boardwalk tram; obstructing or blocking pedestrian or vehicular traffic, the entrance to ramps and stairways to the beach, the entrance to comfort stations, the concrete stations, the concrete pads on the east side of the Boardwalk, public telephones, or trash receptacles; connecting to any municipal electric outlet or private electric outlet without the permission of the owner; setting a price or fee or accept same for observing or participating in a display or performance, other than being a tip the amount of which is not solicited; setting up or illuminate the area with artificial lighting or lasers; providing music unless it is an integral part of the performance; and perform such activity in an area reserved for the lottery winners if not the lottery winner for that area.
The ordinance states that “any person who shall violate any provision of this chapter…shall be deemed to have committed a municipal infraction and be subject to the penalties provided for municipal infractions.”
Boardwalk performer Mark Chase, a “spray paint artist” who traditionally sets his performance area up on North or South Division Street, would have to participate in the lottery if he wishes to remain in that location.
Chase’s set up includes portable mats, lights and music and he explained to the Mayor and City Council on Monday night that it’s done in the best interest of the town and himself.
“The locations that I choose are only if I am out of the way,” he said. “I constantly work with the tram people to keep people out of the way of the tram. I stay friendly with the police department…last year every half hour I took breaks to keep my crowd small.”
City Clerk Kathy Mathias said Chase would not be able to set up his equipment under the new law because his area is not quickly portable.
“That was one of the things with some of the locations that there was too much stuff and there was no way that if there was an emergency that they could move quickly out of the way,” she said.
Councilman Brent Ashley voted against the ordinance because he felt the ordinance is “alienating” street performers. He questioned the enforcement of the ordinance and suggested a Street Performer Advisory Board.
“I think the street performers can do a better job policing themselves better then we can do it,” he said. “I think our police officers can find something better to do.”
Ashley used Santa Monica’s street performer ambassador as an example and suggested to raise permit fees to hire a street performer enforcer or ambassador.
A few other Boardwalk performers approached the council on their concern over costumed performers posing for pictures and collecting tips. Mathias said that she has been working with City Solicitor Guy Ayres on forming a definition for street performers that would differentiate true talent from a costumed character. The council asked for that definition to be placed in the ordinance by second reading.
Councilwoman Mary Knight made the motion to accept the ordinance in first reading and Councilman Lloyd Martin seconded it. The motion passed in a vote of 5-2, with Councilman Joe Hall and Ashley in opposition.
On Tuesday, Ashley said that street performers are planning on beginning their performing season around the time of Springfest, which starts May 5 this year.
“Apparently they are planning, a group of them, to push the city’s hand,” Ashley said. “They are not going to get any permits to perform on the Boardwalk. If they don’t get it, what are you going to do, arrest them?”
There have been multiple court cases across the country dealing with restrictions on street performers. In most cases, the court has ruled in favor of the performer, naming the limitations unconstitutional.
“These people are here to stay and it would be much easier to work with them then alienate them,” Ashley said. “They aren’t going to go away and the courts have consistently ruled in their favor.”
Ashley referred to a number of other ordinances the city has placed on the Boardwalk and the beach. For example, there is an ordinance in place restricting people from biking, skateboarding or rollerblading on the Boardwalk at a certain time but it’s also not properly enforced, Ashley maintains.
Chase clarified that as of Tuesday there were a group of six performers that have pledged to not apply for permits to perform on the Boardwalk throughout the year.
Chase referenced a court case, Berger vs. the city of Seattle, and said that “any system or any law that requires a single speaker or single person to obtain a permit prior to expressing themselves or speaking in public is unconstitutional.”
He said the ordinance is unconstitutional.
“For instance if you show up on a Friday afternoon after City Hall has closed, you cannot have a permit,” Chase said. “Therefore, they forbid you from expressing yourself or speaking in public until Monday. If you actually try over the weekend, you get fined and you get shut down. That alone is the police forbidding you from using your First Amendment.”
Chase said that he and the other performers are willing to go to jail.
“To protect as Americans what we hold as basis of why we are here, for freedom, freedom of expression, freedom of speech,” he said. “It has taken millions of people to be arrested, millions of people have died just for that simple thing that we often times neglect and don’t even recognize that we have that freedom. For the council to take that away from even one person, it doesn’t matter who they are, it is unconstitutional, it is not right, it is not who we are as Americans.”
Chase added that the list of performers willing to ignore the city’s new restrictions is growing fast.
“We are going to be approaching every performer down there [on the Boardwalk],” he said. “We are going to try to convince them to stand up for their rights because no one else will and otherwise the council is going to take it away from you.”