United States District Court, D. Maryland
ANTHONY C. CHRIST et al.
MAYOR OF OCEAN CITY et al.
WILLIAM M. NICKERSON SENIOR UNITED STATES DISTRICT JUDGE.
in this action are individuals who have been, and wish to
continue to be, street performers on the Boardwalk of Ocean
City, Maryland. Proceeding pro se, Plaintiffs filed
this action on October 29, 2015, alleging that an ordinance
passed by the City Council of Ocean City violated their
rights to free speech and expression under the Constitution
of the United States and the Maryland Declaration of Rights.
That ordinance, Ordinance 2015-11, amended Chapter 62 of the
Code of the Town of Ocean City.
originally attempted to bring their claims in a different
case that had been filed in this Court which challenged the
provisions of Chapter 62 before its amendment by Ordinance
2015-11, Chase v. Town of Ocean City, Case No.
ELH-11-1771. In Chase, Judge Ellen Hollander issued
a preliminary injunction which prevented the enforcement of
certain provisions of Chapter 62. Because only one of
Plaintiffs was a party in Chase, Judge Hollander did
not permit them to file their claims in that action.
commencing this action, pro se Plaintiffs had some
initial difficulty naming the proper individuals and entities
as defendants and then effecting proper service of process.
They filed an Amended Complaint, ECF No. 6, shortly after
filing the original Complaint and on January 19, 2016, filed
a “Motion for Temporary Injunction.” ECF No. 17.
Defendants filed motions to dismiss and opposed the Motion
for Temporary Injunction. On March 21, 2016, the Court issued
a Memorandum and Order which quashed service of process and
directed the Clerk to reissue summonses and directed
Plaintiffs to attempt to effect proper service. The Court
denied the motions to dismiss as moot, but without prejudice
to renew those motions once service was properly made. While
not reaching the merits of the motions to dismiss, the Court
did opine that “it is clear that Plaintiffs' action
arises under the First Amendment of the United States
Constitution, which can be enforced against municipalities
through the Fourteenth Amendment's Due Process
Clause.” ECF No. 30 at 4. The Court also opined that
certain other claims that Plaintiffs appeared to be asserting
would not be viable. Id. at 8. In addition, in that
Memorandum and Order, the Court denied Plaintiffs' Motion
for Temporary Injunction, without prejudice to renew it if
service is properly made.
April 7, 2016, Plaintiffs, still proceeding pro se,
filed a Second Amended Complaint. ECF No. 33. This complaint
included allegations related to an additional ordinance
amending Chapter 62 of the Code, Ordinance 2016-6. On June
20, 2016, Plaintiffs filed a “Motion for Ex-Parte
Injunction.” ECF No. 35. On June 22, 2016, counsel
entered his appearance in behalf of Plaintiffs and withdrew
the Motion for Ex-Parte Injunction. Shortly thereafter,
Defendants filed a motion to dismiss the Second Amended
Complaint. Counsel for Plaintiffs then filed a motion for
leave to file a Third Amended Complaint which named the Town
of Ocean City, Maryland (Ocean City) as the only Defendant
and limited Plaintiffs' claims to claims under the First
Amendment of the United States Constitution and Article 40 of
the Maryland Declaration of Rights. This motion was consented
to by Ocean City and was granted by the Court.
Ocean City was properly served, it filed a motion to dismiss
the Third Amended Complaint on October 12, 2016. ECF No. 57.
After several requests from Plaintiffs for lengthy extensions
of time to respond to that motion, which were granted by the
Court, Plaintiffs filed their opposition to that motion on
January 27, 2017. Ocean City did not file a reply memorandum
and the time for doing so has expired.
moving to dismiss, Ocean City argues that Plaintiffs'
allegations supporting their claims are “little more
than legal conclusions.” Significantly, in support of
this portion of its motion, Ocean City cites no case law in
any way related to free speech and expression claims. Upon
review of the allegations in the Third Amended Complaint and
the relevant case law, the Court concludes that
Plaintiffs' allegations are more than sufficient to state
claims for relief.
Third Amended Complaint details each of the provisions in the
now amended Chapter 62 that Plaintiffs assert
unconstitutionally restricts, burdens, or unduly regulates
their protected speech and expression. ECF No. 51
¶¶ 26-80. Chapter 62 lays out a system whereby a
limited number of designated performance spaces on the
Boardwalk are assigned by lottery each Monday morning.
Performers must be physically present at the Office of the
Town Clerk between 9 a.m. and 9:30 a.m. each Monday for the
lottery drawing. The size of the performance spaces are
limited, the number of performers assigned to each space is
limited, and performers are prohibited from using the same
space for more than a two week period. The ordinances
prohibit certain kinds of performances, including “the
application of substances to others, such as paints, dyes,
and inks.” Id. ¶ 46.
Third Amended Complaint then details the nature of each
Plaintiff's performance and explains how the new
restrictions limit and impair those performances.
Id. ¶¶ 81-129. For example, Plaintiff Bill
Campion, a balloon artist, has been able for 21 years to walk
up and down the Boardwalk making his animal figures and
handing them to children. Under the new ordinances, he is
“restricted to one spot where many fans of his work,
both parents and children, often cannot find him.”
Id. ¶ 89. Plaintiff Bob Charles Peasley, a
singer and guitar player, suffers from partial paralysis and
uses a wheelchair. His physical restrictions make it
difficult for him to be physically present for the weekly
lottery. Plaintiff Joseph Smith is a magician and
ventriloquist and his performances often drawn larger crowds
and require a larger space than permitted under the new
provisions of Chapter 62. Plaintiff Mark Chase is a visual
artist whose medium is quick-drying enamel spray paint, which
is prohibited under the new ordinances.
Chase was the Plaintiff in the previous action challenging
the provisions of Chapter 62. In that action, Judge Hollander
held that “‘it goes without saying that artistic
expression lies within . . . First Amendment
protection'” and concluded that Plaintiff
Chase's “public performance of painting, and his
paintings themselves, are clearly protected speech under the
First Amendment.” Chase v. Town of Ocean City,
825 F.Supp.2d 599, 614 (D. Md. 2011) (quoting Nat'l
Endowment for the Arts v. Finley, 524 U.S. 569, 614
(1998)). The same is certainly true of the works and
performances of the other Plaintiffs. Judge Hollander also
concluded that she was “readily satisfied that the
[Ocean City B]oardwalk constitutes a traditional public
forum.” Id. at 615. While the government may
impose reasonable “time, place, and manner”
restrictions on speech in a traditional public forum, those
restrictions “must satisfy an intermediate level of
scrutiny . . . . In order to pass intermediate scrutiny, a
‘time, place, and manner' restriction on speech
must (1) be ‘justified without reference to the content
of the regulated speech'; (2) be ‘narrowly tailored
to serve a significant governmental interest'; and (3)
‘leave open ample alternative channels for
communication of the information' that the speaker wishes
to communicate.” Id. (quoting Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293
noted above, Plaintiffs provide numerous examples in the
Third Amended Complaint of just how the new ordinances have
restricted the performance of their various artistic
endeavors. They have further alleged that these restrictions
are “substantially broader than necessary to achieve
[Ocean City's] interest” and fail to “leave
open ample alternative channels for communication of the
information that speakers may wish to communicate.” ECF
No. 51 ¶¶ 78, 79. While Ocean City may be able to
refute those allegations, at this stage in the proceedings
the Court must accept them as true and draw all inferences in
Plaintiffs' favor. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
the remedies sought by Plaintiffs in the Third Amended
Complaint is for this Court “enjoin, both preliminarily
and permanently, the Defendant from enforcing Ocean City Code
Chapter 62 to the extent they (a) unduly burden Plaintiffs
from engaging in speech and expression in public forums, and
(b) wholly forbid certain activities that constitute speech
and expression protected by the First Amendment to the United
States Constitution.” ECF No. 51, Relief Sought ¶
3. Ocean City, argues that Plaintiffs “baldly request
injunctive relief” without sufficiently alleging the
four factor required for injunctive relief under Winter
v. Natural Resources Defense Council, Inc., 555 U.S. 7
(2008). Ocean City posits that this is an additional ground
acknowledge that they will be seeking permanent injunctive
relief in this litigation, but note that they have not yet
moved for a temporary restraining order or a preliminary
injunction. If they do move for preliminary relief,
they will set out how the four Winter factors are