United States District Court, D. Maryland
WILLIAM F. HASSAY, JR., Plaintiff,
MAYOR & CITY COUNCIL OF OCEAN CITY, MD, et al., Defendants
[Copyrighted Material Omitted]
For Mr. William F. Hassay, Jr., Plaintiff: James Winston Burke, PRO HAC VICE, Kathleen Adele Orr, Matthew G. Jeweler, Orrick Herrington and Sutcliffe LLP, Washington, DC; Deborah A Jeon, American Civil Liberties Union of Maryland Foundation, Baltimore, MD.
For Mayor and City Council of Ocean City, Maryland, Michael Colbert, in his official capacity only, as Acting Police Chief of Ocean City, Maryland, Defendants: Guy R Ayres, III, LEAD ATTORNEY, Heather Stansbury, Kevin Preston Gregory, Ayres Jenkins Gordy and Almand PA, Ocean City, MD.
Ellen Lipton Hollander, United States District Judge.
During every summer from 1995 until June 2012, plaintiff William F. Hassay, Jr., an accomplished violinist, performed as a " street artist" on the beachfront boardwalk in Ocean City, Maryland. On June 22, 2012, Hassay was warned by an Ocean City police officer that the volume of his music violated an Ocean City noise ordinance enacted in February 2012, which prohibited, inter alia, the audibility of musical instruments and amplified sound at a distance of greater than thirty feet. See Ocean City's " Code of Ordinances" (" City Code" ), Part II, Ch. 30, Art. V, Div. 2 § 30-272(2)(b) (the " 30-Foot Audibility Restriction" ). Faced with the threat of arrest, three months' imprisonment, and a $500 fine, Hassay never returned to the boardwalk to perform.
On April 10, 2013, Hassay filed suit (ECF 1) against the Mayor and City Council of Ocean City, Maryland and Michael Colbert, in his official capacity as Acting Police Chief of the Ocean City Police Department (" OCPD" ),  claiming that the 30-Foot Audibility Restriction violated plaintiff's rights under the First Amendment. Pursuant to Fed.R.Civ.P. 65, plaintiff also filed a motion for a preliminary injunction (ECF 2), along with a supporting memorandum of law (ECF 2-1) (collectively, the " Motion" ), seeking to enjoin the enforcement of the 30-Foot Audibility Restriction on the boardwalk during the pendency of the case. Defendants opposed the Motion (" Opposition" or " Opp.," ECF 20), and plaintiff replied (" Reply," ECF 22).
The Court held a hearing on the Motion on June 10, 2013, at which the parties presented evidence and argument. In addition to his own testimony, plaintiff presented the testimony of Gary Ehrlich, an expert in acoustics; Mark Chase, a spray paint artist who performs on the boardwalk; and Alex Young, a singer/guitarist who performs on the boardwalk. Defendants presented the testimony of Mayor Richard W. Meehan, who has served as the Mayor of Ocean City since 2006; James Grady, Acting Lieutenant of the OCPD; Vickers Cooper Barrett, the owner of a bed and breakfast located adjacent to the boardwalk; and Milton Dean, a keyboard player who performs on the boardwalk.
For the reasons that follow, I will grant the Motion.
I. Factual Background
A. Ocean City and its Boardwalk
Ocean City, one of Maryland's major summer destinations, is a beachfront community
located on Maryland's Eastern Shore. Situated on a long, narrow spit of land, the City runs north-south along the Atlantic Ocean. It extends for several miles along the coast ( i.e. north-south), but is only a few city blocks wide ( i.e. east-west), even at its widest point.
The easternmost platted street in Ocean City is Atlantic Avenue, which is also known as the boardwalk. The boardwalk is a wooden pedestrian walkway that is sandwiched between the ocean beach and the paved streets of Ocean City. It is approximately three miles long, running from South Second Street in the south to about 22nd Street in the north. A popular tourist attraction, the boardwalk features the beach and ocean on its eastern side, and is lined with shops, eating establishments, and tourist attractions on its western side. Hotels, apartments, and condominiums also lie along the western side of the boardwalk. Mayor Meehan testified that it is approximately thirty feet wide at most points.
In addition to a wide variety of stores and food vendors, the boardwalk is also known for its " street performers." According to Mayor Meehan, the boardwalk's street performers are also " part of the ambience." An Ocean City public advisory states that street performers " materialize daily to put on shows, create balloon sculptures, draw caricatures, or just strum a guitar." Plaintiff's Exh. 1 ; see also OCPD Public Advisory Regarding Street Performers and the New Noise Ordinance, available at http://oceancitymd.gov/Police/media/ocpd-public-advisory-regarding-street-performers-and-the-new-noise-ordinance/ (last visited June 19, 2013).
B. Ocean City's Noise Ordinance
Ocean City regulates noise through a variety of ordinances, codified in the City Code at Part II, Chapter 30, Article V, titled " Noise" (collectively, the " Noise Ordinance" ). Division 2 of the Noise Ordinance is titled " Unreasonably Loud Noise."  It contains three sections: 30-271, 30-272, and 30-273. A violation of the provision is a misdemeanor offense, " punishable by a fine of not more than $500.00, and/or . . . imprison[ment] for a term not to exceed three months." City Code, Part II, Ch. 1 § 1-8 (" Violations and penalties" ).
Section 30-271 is titled " Prohibited." It provides, id. :
It shall be unlawful for any person to make, continue or cause to be made or continued any unreasonably loud noise or any noise which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of others within the corporate limits of Ocean City.
Section 30-272 is titled " Prohibited noises enumerated." It " declare[s]" that certain acts constitute " unreasonably loud noises." Id. These noises are divided into four categories, two of which are pertinent here: " Use of radios, phonographs and musical instruments," addressed in § 30-272(2); and " Yelling, shouting, hooting,
whistling and singing," addressed in § 30-272(3). 
The 30-Foot Audibility Restriction challenged by Hassay is codified at § 30-272(2)b, under the category of " radios, phonographs and musical instruments." Passed by the Ocean City Council on February 6, 2012, it is the most recent addition to Division 2's prohibition of " unreasonably loud noise." It states:
The following acts, among others, are hereby declared to be unreasonably loud noises in violation of this division:
* * *
(2) Use of radios, phonographs, and musical instruments.
* * *
b. The using of, operating of or permitting to be played, used or operated any radio receiving set, musical instrument, phonograph, sound amplification system or other machine or device for the producing or reproducing of sound on or directed toward a public beach, the boardwalk, streets or other public ways at any time in such a manner as to be plainly audible at a distance of 30 feet from the source of such sound which is deemed to be unreasonably loud so as to disturb the peace, quiet and comfort of other persons or at a louder volume than is necessary for the convenient hearing of the individual carrying the instrument, machine or device or those individuals immediately adjacent thereto and who are voluntary listeners thereto.
Section 30-272(2) provides two additional audibility restrictions under " radios, phonographs and musical instruments." With respect to sound produced from a " room, vehicle or chamber," § 30-272(2)a prohibits:
The using of, operating of or permitting to be played, used or operated any radio receiving set, musical instrument, phonograph or other machine or device for the producing or reproducing of sound in such a manner as to disturb the peace, quiet and comfort of the neighboring inhabitants or at any time with louder volume than is necessary for convenient hearing for the person or persons who are in the room, vehicle or chamber in which such machine or device is operated and who are voluntary listeners thereto.
Additionally, § 30-272(2)c provides an audibility restriction for sound generated by " a machine or device," emanating from a " building, structure or vehicle" between midnight and 7:00 a.m. It prohibits:
The using of, operating of or permitting to be played, used or operated any radio receiving set, musical instrument, phonograph or other machine or device for the producing or reproducing of sound between the hours of 12:00 midnight and 7:00 a.m. in such a manner as to be plainly audible at a distance of 50 feet from the building, structure or vehicle in which it is located.
As noted, § 30-272(3) is titled " [y]elling, shouting, hooting, whistling or singing." Section 30-272(3)a prohibits:
Yelling, shouting, hooting, whistling or singing on the public streets or public areas or from private property at any time or place so as to annoy or disturb
the quiet, comfort or repose of persons in any dwelling, hotel or other type of residence or any persons in the vicinity, between the hours of 7:00 a.m. and 12:00 midnight, after having been warned to quiet or cease such noisemaking.
Section 30-272(3)b prohibits:
Yelling, shouting, hooting, whistling or singing on public streets or public areas or from private property in such a manner as to be plainly audible at a distance of 50 feet from the public street, public area, building, structure or vehicle from which the noise emanates, between the hours of 12:00 midnight and 7:00 a.m.
Section 30-273, titled " Responsibility of owner of premises," was not addressed by the parties. It provides:
It shall be unlawful for any person to knowingly permit the making, creation or maintenance of unreasonably loud noises upon any premises owned or possessed by him or under his control.
C. William F. Hassay, Jr.
Hassay is sixty-one years old and has been playing the violin for fifty-three years, including fourteen years as a First Violinist with the Alabama Symphony Orchestra. He has also performed with many regional symphony orchestras. Hassay began performing on the Ocean City boardwalk in the summer of 1995. His performances feature a variety of musical genres, from classical to rock, and combine acoustic violin with prerecorded music played through a small amplifier. Hassay's goal is to create a " dialogue" by blending the two sounds.
Hassay performs because he loves to " put music out and communicate emotions to people." To that end, when he is in Ocean City he plays exclusively on the boardwalk, because " that's where the people are." Hassay explained that there is a " loop between a performer and the audience, and that energy is why I do it." In addition, Hassay obtains income from his performances, by way of gratuities from the audience. During the summer, he typically plays five or six days per week, from about 3 p.m. until midnight. He testified that he has earned as much as approximately $25,000 in a season. Income from the boardwalk supplements his income from his job as a substitute teacher during the school year.
Although many people have expressed their appreciation to Hassay for his music, he admitted that some shops on the boardwalk have complained about the noise. But, whenever he received a complaint he changed locations or stopped altogether. He also noted that Ocean City ordinances strictly limit street performances to certain areas, i.e., where the paved city streets intersect with the boardwalk, called " street ends." See City Code, Part II, Ch. 62, Art. I § 62-5(b)(1). And, performers are also prohibited from blocking stores, traffic, pedestrians, and the trams. See id. § 62-5(b)(3); see also Plaintiff's Exh. 1 (explaining that " Street Performers cannot set up in an area that hampers visitors' ability to enter and exit stores, block pedestrian or vehicle traffic," and " Street Performers can only perform within the extended boundaries east of the street ends and cannot drift north or south of the street end area" ).
Prior to June 2012, Hassay had never been cited by Ocean City police for excessive noise. On June 18, 2012, however, an OCPD police officer approached Hassay and told him that the volume of his music violated the 30-Foot Audibility Restriction. Hassay responded that he was exercising his First Amendment rights, and showed the officer a 2009 letter from the American Civil Liberties Union (" ACLU" ), which had been sent to Ocean City as part of the
ACLU's successful challenge to a now-invalid permit requirement for amplified sound on the boardwalk.  According to Hassay, the officer advised him that the law had changed. A second officer who arrived on the scene handed Hassay a pamphlet outlining the 30-Foot Audibility Restriction. See Plaintiff's Exh. 1. The officer said that he would show the ACLU letter to his supervisors, and that it was " OK" for Hassay to continue playing on that occasion.
Hassay continued performing without incident until the evening of June 22, 2012, when he was confronted by Lt. Grady  and informed that the volume of his music violated the 30-Foot Audibility Restriction. Because Lt. Grady claimed that the music was " way too loud," Hassay stopped playing. Hassay claimed Lt. Grady told him that he had " used up" all of his warnings, and the next time someone complained about Hassay's music, Hassay would be cited. Hassay asked where he could play without getting cited, but Lt. Grady responded that he could not say.
As discussed, infra, Lt. Grady also testified about the incident. He stated that he heard Hassay from 100 feet away on the boardwalk, and 150 feet to the west of the boardwalk. He added that he responded to a noise complaint about plaintiff made by an individual at a nearby shop on the boardwalk.
Since that date in June 2012, Hassay has not returned to play his violin at the boardwalk, for fear of arrest or citation. Hassay testified that he would be unable to communicate any emotion with his music if he ...