Street performers sue Ocean City in federal court over ordinance restricting boardwalk use

Mike Moeller sets up on Ocean City's boardwalk each summer with an umbrella and an easel to sketch portraits.

He sells his drawings and receives tips from passersby. Sometimes, he draws a small crowd, and offers impromptu art lessons to youngsters interested in his techniques.

The freelance artist, who lives in Philadelphia in the off-season, said the work allows him to rent a place at the beach resort town for the summer. But it's a lifestyle he and other boardwalk performers say is threatened by the latest guidelines imposed by Ocean City officials that they feel violate their free speech rights.

"All the joy is gone from it. It's just so frustrating," said Moeller, 38, who is one of 11 plaintiffs in a lawsuit filed against Ocean City in federal court over the guidelines adopted by the seven-member city council in 2015.

The suit, currently in the discovery phase, is scheduled to go to trial in the fall.

Attorneys for the performers, also known as buskers, say guidelines that limit when, where and how they can perform on the boardwalk violate their constitutional rights to free speech. And since motions in the case aren't scheduled to be heard until October, the performers must abide by the rules for another summer season, and deal with decreased earnings, they say.

The three-mile boardwalk, which stretches from the tip of Ocean City's peninsula, north to 27th Street, is a popular destination for an estimated 300,000 beach-goers each weekend in the summer months, offering carnival rides, food, shops and live entertainment.

"For many of these folks, it's definitely a significant part of their income," said Adam Holofcener, an attorney with the Maryland Volunteer Lawyers for the Arts, who took on the case last July.

Holofcener's clients include a puppeteer from Ocean Pines, a balloon artist from Berlin, and a magician who goes by the name "Josini" from Salisbury, among others. Many of the plaintiffs have performed on the boardwalk for decades with fans who return each summer, he said.

Attorney David Gray Wright, who also joined the case last summer, said the First Amendment of the U.S. Constitution does allow for some regulation of speech in public places. But, he said, "the court says if you are going to start restricting anything, there better be a very definite reason to do so, and you better take the most narrow means to address the problem."

The rules adopted in 2015 regulate those who want to perform in the busiest section of the boardwalk, a half-mile stretch south of the 9th Street to 1st Street.

All performers must visit City Hall every Monday morning and apply for a designated 10-foot-by-10-foot space in order to use it the following week. Applicants vie for one of 33 marked spaces under a lottery system, are assigned to new spaces each week, and can only work in those spaces until the next week. Violation of the ordinance is subject to a civil citation and fine of up to $1,000.

Buskers can use the spaces from 10 a.m. to 1 a.m. every day, from May 15 through Sept. 15. They also are required to provide their name "and nature and scope of activity," according to the city.

Wright said it's a hardship for some traveling entertainers who cannot make the trip to Ocean City a week ahead of time to register for a spot. He also said staying within the 10-by-10 space is difficult for some performers, such as a juggler.

Many performers, he said, also like to interact with crowds and walk up and down the boardwalk, but can't under the rules.

Ocean City Solicitor Guy R. Ayres III said there is a need for the city to address the crowds that gather around the performers, which at some places near the Inlet can get shoulder-to-shoulder in the evenings.

"It is not a phenomenon unique to Ocean City," Ayres said.

Among the concerns, he said, is maintaining a clear path for emergency responders.

"It used to be a couple of people. The impact was small. It wasn't necessary to have a regulatory scheme," Ayres said. "But now, there's more showing up."

There have been complaints too. He said Ocean City officials heard from restaurants whose diners complained about fumes from a spray-paint artist who was working nearby. Some merchants and property owners also have complained about musicians with a limited repertoire of songs who camped out at the same spot each day for hours.

"After a while you get tired of hearing the same old song," Ayres said.

To allay such concerns, Ayres said, the latest rules assign performers new locations each week.

"We try to make them mix it up," he said.

Ayres added that the buskers haven't offered any alternatives to the regulations.

Ocean City took several years to create the latest rules, spending $100,000 to hire a law firm to help them with the regulations, Ayres said. The city also sought input from a task force that included spray-paint artist Mark Chase, who sued the city in federal court in 2011 after it enacted a similar ordinance restricting the performers.

A year after Chase's suit was filed, Ocean City officials agreed not to enforce provisions that required licenses for performers, and barred them from selling their work along the boardwalk under a federal consent decree.

The tension between boardwalk performers and city officials goes back many years. In 1995, Jim Starck, a puppeteer who is a plaintiff in the latest lawsuit, and others sued the city over regulations that restricted "commercially motivated activity," according to the court opinion. The judge ruled in favor of the performers.

The City Council passed the latest measures in June 2015 and the current lawsuit was filed a few months later in October.

Moeller, the sketch artist, said he's supposed to attend a wedding in Ohio the weekend before the busy — and lucrative — July 4th weekend. He said he won't be able to drive overnight to make the sign-up Monday morning to get a permit to perform on the boardwalk.

"They have created this shortage, this competition [for spaces]," he said. "It's completely unfair."

He said he's not sure if he will return next summer if the rules don't change.

"I don't want to be a pain for the city. I am grateful for all of the wonderful memories," said Moeller, who first visited Ocean City during a high school trip. "I don't want to feel like I am being regulated because I am a problem."

jkanderson@baltsun.com

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