By Tricia Bishop, The Baltimore Sun
9:20 PM EDT, September 12, 2011
Spray-paint artist Mark Chase typically spends his summers in Ocean City along the boardwalk where he creates sci-fi landscapes in a matter of minutes, spraying and smudging to pulsating music as crowds gather.
He earns his living as a showman, taking tips for his work. But his most important performance this year may be in Baltimore's federal court, where he's waging a constitutional battle that could change the face of the boardwalk.
Chase filed a lawsuit in June alleging that restrictions on street performers and artists along the three-mile stretch violate their civil rights. Ocean City ordinances require permits for outdoor entertainers, prohibit them from selling wares, and force them to perform in certain locations. Chase claims the rules amount to prior restraints on freedom of expression and has asked a judge to strike them down.
"To restrict [us] is basically to restrict the American dream," Chase said last month while chain smoking outside the city's U.S. district courthouse.
Chase has won a temporary victory already. Late last week U.S. District Judge Ellen L. Hollander issued a preliminary injunction in his case, preventing Ocean City from enforcing the permit requirement and the sales ban, so long as any goods sold are considered "expressive material."
Hollander's order will remain in place as long as the litigation continues, and it could become permanent — an outcome with implications for other artists and even vacationers, many of whom consider the entertainers part of the attraction.
"It's like a euphoric moment for us right now," Chase said in an interview. He claims his case is being watched by officials in other boardwalk towns on both coasts. The case could "open up doors all across the United States," he said.
His lawsuit is not the first of its kind. In 1995, a federal judge ruled in favor of a puppeteer named Jim Starck and others, who sued over similar constitutional issues after the city banned most "peddling" activity on the boardwalk.
Town officials were trying to shut down performers then, Chase claims, and they're trying it again, now.
"They're trying to squeeze us completely off the boardwalk," Chase said.
Ocean City officials point out, however, that no one but Chase is complaining.
"He's an [expletive]," Ocean City's attorney, Guy R. Ayres III, said after a recent hearing, having told the judge that the town "can't risk public property and lives so that he can make more money on the boardwalk."
The 29-year-old painter and father of three is an admitted agitator. He has loudly protested Ocean City's laws and sold his paintings for $40 a pop, despite the ban. He also refused to get a performance permit or even collect sales tax on his artwork — a likely violation of state law, according to a spokeswoman for the comptroller of Maryland.
"Mr. Chase's position is that he's exempt," said his lawyer, John R. Garza, who was hired to represent Chase by the Rutherford Institute, a civil rights advocacy group based in Virginia. "He may be wrong."
Chase says he discovered spray paint artistry a decade or so ago on vacation in Cancun and taught himself how to do it in his Glen Burnie backyard.
An 11-minute video on his website, stellarpaintings.com, shows him using paper cutouts and cans to produce various shapes, such as three moons he created in the painting shown online. He likes to include sets of three, he said, to represent the Holy Trinity.
When he paints on the beach, he cordons off an area around him as he works and sits in the center. His paintings — which frequently feature mountains and waterfalls — typically take less than 15 minutes to make.
Chase initially started selling his work on the craft and fair circuit, he said in court, then set up shop in Ocean City a couple of years ago at a summertime rental space on the "Jolly Roger Pier." But he couldn't make a go of it there, and relocated closer to the boardwalk — also known as Atlantic Avenue — at a concrete pad by the intersection with North Division Street.
Ocean City sees 4 million summer visitors a year, and most traipse along the boardwalk, which is closed to cars. Many come through North Division Street, which offers easy beach access.
Chase, who lives at a hotel along the beach during the summer season, said he worked 12 hours a day there, pulling in a $1,000 at a time. The money eclipses the salary he makes during the rest of the year, driving a school bus in Anne Arundel County.
"I'm one of the hippest things on the boardwalk, as some of the newspapers has said," he claimed in court.
But a new Ocean City rule implemented this June banned street performers from that North Division Street area, so public safety officials could use it for staging in the event of disaster.
Fire Chief Christopher Larmore said in court last month that he asked for the change and agreed to give performers access to all street ends in the 28 blocks north of Division Street in exchange for that one spot. He says it's wider than other streets and has both an entrance and exit.
But Chase doesn't want to move and says he shouldn't have to. He has since relocated a block over to Caroline Street and claims his daily sales are down about $750 a day because of it.
He complained to the local press, and the Rutherford Institute read the accounts and tracked him down. The group agreed to help him file the suit, which claims that restrictions on his art performances are unconstitutional.
So far, the judge agrees with him on two points — the permit requirement and the sales ban — though she declined to strike down the location rule sought by public safety officials, which she found to be a "reasonable time, place, and manner restriction."
The city began requiring the permits as a way to know who might be interacting with children, Ocean City Mayor Richard W. Meehan said in court. Last year, 550 people signed up for the performance art permits, many of them costumed performers who greet kids and pose for pictures. The town wanted to know who was under the outfit, in case issues were reported.
Meehan also said that the limits on sales are there to keep merchants from selling goods on the boardwalk and competing with brick-and-mortar stores, though he acknowledged that an artist whose performance produces a product is not necessarily a merchant.
"I think he is operating a business, but he falls under the category of street performer, and will be treated as such," Meehan said after the hearing.
Under the town's rules, Chase and other performers were only allowed to accept tips, and they couldn't suggest prices for their performances or products. Judge Hollander's temporary order has suspended those rules for now.
"I'm thrilled," Chase said of the development. "So many people can now show up on weekends and do their things without being thrown off the boardwalk."
He shrugged off the idea of competition. Said Chase: "Every artist should be showcased. There's plenty of people in the world to appreciate it."
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