Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Christ v. Town of Ocean City

United States District Court, D. Maryland

May 9, 2018

ANTHONY C. CHRIST, et al., Plaintiffs,
v.
TOWN OF OCEAN CITY, MARYLAND, Defendant.

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

         In 2015, Defendant Ocean City, Maryland (“Ocean City” or “the City”) enacted a set of regulations (“the New Ordinance”) that govern where, how, and when individuals may perform on certain areas of the Ocean City boardwalk. The New Ordinance was the result of efforts of a Boardwalk Task Force, established to address issues previously raised in litigation in this Court. Enacted in the interests of public safety and decreasing congestion on the boardwalk, the regulations require that between and including South First Street and Ninth Street, performers register for one of thirty-three designated areas beginning one week ahead of time. The regulations then impose additional time, manner, and advertising restrictions both to these designated areas and also to the street ends of the rest of the boardwalk between and including Tenth Street and 27th Street.

         These regulations govern “performers” as defined by the New Ordinance, including the eleven Plaintiffs in this case. The Plaintiffs range from a puppeteer and a stick balloon artist who desire to travel up and down the boardwalk performing to small audiences at a time, to two singers and a visual artist who set up their own stages and hope to attract a crowd. They assert that certain regulations in the Ordinance violate their First Amendment rights by imposing an unlawful prior restraint on speech and unlawful time, place, and manner restrictions. Both the Plaintiffs and Ocean City have filed Motions for Summary Judgment. (ECF Nos. 78, 79.) The parties' submissions have been reviewed, and this Court held a hearing on April 17, 2018. At that hearing, the parties essentially agreed that there are no genuine issues of fact to be litigated and that this Court may rule on the issues in this case as a matter of law.

         For the reasons stated below, this Court GRANTS IN PART and DENIES IN PART both Motions. The City's Motion for Summary Judgment (ECF No. 78) is PARTIALLY GRANTED and Ocean City may enforce three of the regulations that Plaintiffs challenge in the interests of public safety and decreasing congestion on the boardwalk: Ocean City may enforce the provisions of Chapter 62 which prohibit performing anywhere on the boardwalk after 1:00 a.m., specifically prohibit performing at any time on the street ends of North Division and Dorchester Streets, and further restrict the placing or allowing of an item exceeding six feet above the ground on the boardwalk. These three restrictions on “performers” and “performing” are FACIALLY CONSTITUTIONAL under the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights.

         As to all other remaining regulations, the City's Motion for Summary Judgment (ECF No. 78) is DENIED and Plaintiffs' Motion for Summary Judgment (ECF No. 79) is PARTIALLY GRANTED. Ocean City may not enforce the remaining regulations that Plaintiffs challenge which, as enacted: require all performers wishing to perform between and including First South Street and Ninth Street to register for a designated area beginning one week ahead of time; require performers in the same stretch of the boardwalk to only occupy one of those designated areas and various related restrictions; ban performing before 10:00 a.m. on the entire boardwalk; and prohibit signage or advertising on umbrellas utilized by performers. These restrictions on “performers” and “performing” are FACIALLY UNCONSTITUTIONAL in violation of the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights.[1] The City shall not enforce these provisions as enacted.[2]

         BACKGROUND

         I. Challenges to Ocean City's boardwalk regulations

         Ocean City, Maryland (“Ocean City” or “the City”) is a seaside community located on Maryland's Eastern Shore alongside the Atlantic Ocean.[3] The City's easternmost platted street is a boardwalk that runs from South Second Street to around 27th Street (“the boardwalk”). Three miles long, the boardwalk's width ranges from approximately thirty-two (32) feet to eighty (80) feet. In addition to being a point of access to the beach, the boardwalk is lined with many retail and food shops, hotels, and other attractions. The boardwalk is also known for hosting “street performers, ” including the Plaintiffs in this case. According to the City Council of Ocean City, the boardwalk attracts approximately 8, 000, 000 visitors annually. (ECF No. 79-3.)

         There is a history in this Court of “boardwalk litigation, ” involving previous challenges to Ocean City's boardwalk and noise regulations. Markowitz v. Mayor & City Council of Ocean City, et al., No. MJG-95-1676 (D. Md. 1995); Chase v. Town of Ocean City, 825 F.Supp.2d 599 (D. Md. 2011)[4]; Hassay v. Mayor, 955 F.Supp.2d 505 (2013). That history is summarized below.

         A. 1995

         On May 4, 1995, Ocean City enacted an ordinance that:

[P]rohibited, from April 15 to October 15, all “peddling, ” “soliciting, ” “distributing” and “hawking” on the entire Boardwalk, as well as all streets, beaches and parking lots on the east side (i.e., East of Baltimore Avenue to 33rd Street and East of Coastal Highway from 33rd to 146th Streets) . . . [and] permitted “peddling and soliciting” for noncommercial purposes on the west side but allowed use of a table or stand . . . to promote “religious, political or philo[sophical] beliefs.”

Markowitz v. Mayor & City Council of Ocean City, et al., No. MJG-95-1676 at 3 (D. Md. 1995).[5]Three street performers and a non-profit organization brought suit seeking a declaration from this Court that the ordinance was unconstitutional under the First Amendment to the U.S. Constitution both facially and as-applied and seeking a permanent injunction preventing its enforcement. This Court began its opinion by assuming that the ordinance was content-neutral, and accordingly assessed whether it met intermediate scrutiny as a proper time, place, and manner restriction. Under this analysis, the City had a substantial interest in regulating crowd movement on the boardwalk but failed to show that the ordinance was narrowly tailored. Id. at 13. Specifically, Judge Marvin J. Garbis of this Court held that Ocean City had not “explain[ed] how its interest in avoiding pedestrian congestion [wa]s jeopardized by each form of expressive activity banned on the boardwalk.” Id. at 13-15. Rather, the total ban “at all times and in all places [wa]s vastly overbroad” and did not leave open ample alternative channels of communication. Id. at 15-16.

         After concluding that the ordinance failed under intermediate scrutiny, Judge Garbis determined that in fact strict scrutiny applied because the ordinance was content-based. Id. at 16-17. As this Court explained:

The Ordinance is not content neutral. It more narrowly restricts speech with a commercial motive than speech with a noncommercial motive. The Ordinance permits solicitors to use a table or stand only if they use the table to “display items promoting the individual's religious, political or philo[sophical] beliefs.” A solicitor displaying the same items for a commercial purpose could not use a table.

Id. Because the City had not justified only restricting commercially motivated activity, the ordinance failed under both intermediate and strict scrutiny.[6] Id. at 17. Accordingly, this Court concluded that “the Ordinance's sweeping restriction of significant forms of expressive activity violates the First Amendment . . . Ocean City's Ordinance bans, or narrowly restricts, substantial amounts of expressive activity which the City has not shown to affect its purported interest in avoiding pedestrian congestion.” Id. at 19. This Court went on to state that in order for such regulations to pass constitutional muster, the City “must determine those forms of expressive activities, if any, that actually harm or substantially threaten” the City's interests. Id. Then, “[f]or each targeted activity, the City must consider when, where, and how the activity harms or threatens the City's interests and develop an ordinance which directly addresses the evil posed by each activity.” Id. at 20.

         B. 2011

         Sixteen years later in September of 2011, Plaintiff Mark Chase filed a complaint for a preliminary injunction to enjoin the enforcement of several post-Markowitz boardwalk regulations under the First Amendment.[7] Chase v. Town of Ocean City, 825 F.Supp.2d 599 (D. Md. 2011) (“Chase I”). Of import in this case are two categories of regulations that Chase challenged: restrictions on the location and manner of peddling, soliciting, hawking, and street performing and a registration requirement for “unlicensed solicitors.”[8]

         Beginning with the location and manner restrictions, the regulations mandated that no individual could engage in peddling, soliciting, hawking, or street performing “other than within the area encompassed in the extended boundaries of the street ends, ” with the exception of a complete ban on North Division Street. Id. at 606. First, Judge Ellen L. Hollander of this Court analyzed whether the restrictions were content-based or content-neutral in order to determine whether strict scrutiny or intermediate scrutiny applied. Chase argued that the regulations were content-based because they only applied to “certain kinds of speech . . . each of which involve[d] speech that seeks to engage in some commercial exchange or receipt from the public.” Id. at 616 (emphasis added). This Court rejected that argument, explaining that there was no connection between the City's justification for the location restrictions-concerns for public safety and the management of the free flow of pedestrian traffic-and the content of the speech. Id. at 619. Rather, witnesses testified about stationary crowds that gathered around street performers regardless of the content of any one performance. Id. at 620-21. Second, considering the record before this Court and applying intermediate scrutiny, this Court held that the restrictions were justified by the City's substantial interests in public safety and the free flow of pedestrian traffic, and narrowly tailored to meet those interests:

By limiting peddling, hawking, soliciting, and street performing to the parts of the boardwalk that are within the “extended boundaries of the street ends, ” the ordinance ensures that those activities occur at the boardwalk's intersections with other city streets, where congested traffic has sufficient room to maneuver around stationary crowds. Furthermore, the restriction on North Division Street applies only to a single street end, because that particular street end is the only one large enough to accommodate the City's emergency equipment in the event of a fire or medical incident on the beach or boardwalk.

Id. at 620. Finally, the location limitations left ample alternative avenues for Chase's expression because he could utilize dozens of locations on the boardwalk.[9] Id.

         Turning to the registration requirement for “unlicensed solicitors, ” this Court began by explaining that there is a heavy presumption against laws subjecting the exercise of First Amendment freedoms to the prior restraint of a license. Id. at 627 (citations omitted). This Court then noted that the provision was content-neutral and did not “unconstitutionally vest[] unbridled discretion in an administrative official.” Id. However, despite asserting that the City's interest was to protect children from possible inappropriate conduct by street performers hiding their identities, the provision applied to all performers-regardless of whether they wore costumes-as well as religious and political solicitors. Id. at 629. Accordingly, the provision was overbroad because it “fail[ed] to strike a balance between the speech affected and the governmental interests [asserted by] Ocean City.” Id. at 628. Accordingly, this Court issued a Preliminary Injunction prohibiting Ocean City from enforcing various regulations. Id. at 631-32. After five months of discovery, the parties filed a proposed Consent Decree, concluding the litigation, which this Court approved on February 6, 2012. Chase v. Town of Ocean City, No. ELH-11-1771, 2015 WL 4993583, at *1 (D. Md. Aug. 19, 2015) (“Chase II”).

         C. 2013

         In 2013, a violinist challenged a noise ordinance enacted by Ocean City that prohibited “the audibility of musical instruments and amplified sound at a distance greater than thirty feet.” Hassay v. Mayor, 955 F.Supp.2d 505 (2013). The violinist, William Hassay, asserted that the restriction prevented him from communicating any emotion with his music, and therefore he had stopped playing on the boardwalk. Id. at 512. During a hearing on the plaintiff's motion for a preliminary injunction, two of the Plaintiffs in this case, Mark Chase and Alex Young, testified that they had also been warned and/or cited for violating the restriction. Id. at 513-14. In addition, an expert provided unrebutted testimony that on the boardwalk, a musician needed to play at a level of at least seventy decibels for the music to be intelligible to an audience fifteen feet away. Id. at 524. At seventy decibels, however, the music would also be “easily audible” at a distance of thirty feet and accordingly violate the restriction. Id.

         Applying intermediate scrutiny[10] Judge Hollander held that the plaintiff had established a likelihood of success on the merits with respect to his First Amendment claim. Specifically, the restriction was not narrowly tailored to prevent excessive noise and did not leave open ample alternative channels for communication given that, “[i]n effect, the 30- Foot Audibility Restriction [wa]s tantamount to a complete ban on the use of musical instruments and amplified sound on the boardwalk.” Id. at 524. Accordingly, this Court entered a preliminary injunction against the enforcement of the restriction as applied to the boardwalk. Id. at 527. Ultimately, the parties jointly requested that the injunction be made permanent. Hassay, Case No. ELH-13-1076 at ECF No. 43.

         II. Enacting Chapter 62

         About three and a half years after Chase I, Ocean City established a Boardwalk Task Force (the “Task Force”) in an effort to help the Mayor and City Council of Ocean City draft, revise, and enact a new ordinance addressing “the issues that had plagued the Boardwalk.” (ECF No. 78-1 at 3.) The Task Force consisted of five individuals: a member of the Ocean City Downtown Association, a Board Member of the Ocean City Development Corporation, an owner of a restaurant and an owner of a shop on the boardwalk, and Mark Chase, one of the Plaintiffs in this case and the previous litigant in Chase I. (ECF No. 78-5.) In February and March of 2015, the Task Force held four work sessions, whereby the members studied the issues concerning the boardwalk, heard from members of the public, and ultimately created an eighty-seven page report summarizing witness testimony, applicable case law, and offering recommendations in connection with the boardwalk regulations. Chase II, 2015 WL 4993583, at *3. After the Town Attorney reviewed the report, accepting many of the Task Force's recommendations but also the concerns raised by Plaintiff Chase in his dissent to the report, he submitted his own report to the Mayor and City Council. Id. at *4. On June 15, 2015, the City Council repealed the regulations at issue in Chase I and replaced them with the current Ocean City regulations (the “New Ordinance” or “Chapter 62”). Id.

         Prior to the New Ordinance becoming effective on July 27, 2015, Ocean City asked this Court to modify the Preliminary Injunction and Consent Decree entered into as a result of Chase I and to allow enforcement of the New Ordinance. Id. Fatal to Ocean City's request, however, were that there were not yet any constitutional challenges to Chapter 62. Id. at *5 (“[T]o the extent that the Town has enacted a new law, no case or controversy is now pending before the Court as to the legality of such new provisions; no challenge has been lodged to the New Ordinance.”). Accordingly, on August 19, 2015, this Court denied Ocean City's motion. Id. Two months later, on October 29, 2015, then pro se Plaintiffs initiated the instant action challenging the newly enacted Chapter 62.[11]

         III. Chapter 62 regulations

         In implementing the several boardwalk regulations, Chapter 62 discusses the “findings and purposes” that led to the enactment of the new Code of the Town of Ocean City, Maryland, Chapter 62, Boardwalk Performing and Vending. (ECF No. 79-3.) The City Council of Ocean City asserts that performing on the boardwalk must be regulated because, among other reasons, the amount of available space is limited due to the size of the boardwalk and large crowds of visitors.[12] Ocean City's Chapter 62, Boardwalk Performing and Vending, § 62-2(d)(1). The Council asserts that this is particularly true between South First Street and Ninth Street, where there has been “conflicting claims for available spaces, significant congestion, and consistent overcrowding.” Id. Accordingly, Chapter 62 states that regulation is necessary “to allocate and manage the use of the limited space on the Boardwalk, to provide law enforcement, Town officials, and members of the public with certainty as to what types of activities are permitted, and to address the present issues of overcrowding, disorder, and unnecessary conflict.” § 62-2(d)(4). Further, Chapter 62 asserts that members of the Ocean City Police Department and Ocean City Beach Patrol requested that in addition to North Division Street, performing also be prohibited on the street ends of Dorchester Street to ensure emergency vehicles are able to access the beach quickly and efficiently. § 62-2(d)(6).

         Section 62-3 of Chapter 62 then states that “[n]o person shall engage in performing or vending along the Boardwalk, except as specifically allowed in this chapter.” Performing is defined as “engag[ing] in a musical instrument, singing, dancing, acting, pantomiming, puppeteering, juggling, engaging in magic, presenting or enacting a play, work of art, physical or mental feat or creating visual art.” § 62-1. A performer is defined as a person who performs, with “[i]ndicia of a performer” including “seeking or accepting voluntary contributions through any means, including passing around a hat or leaving open an instrument case or other receptacle, soliciting, or accepting, directly or indirectly, donations after a performance, [and] attempting to draw attention, convene an audience or engage onlookers as spectators or participants in a performance.” Id.

         The Ordinance contains regulations that apply to the street ends of the entire boardwalk as well as regulations that only apply to “the Boardwalk's most congested areas, ” between and including South First Street and Ninth Street. § 62-10. Generally, the Ordinance designates thirty-three[13] spaces as the only areas performers may occupy between South First Street and Ninth Street. In order to occupy one of these spaces between May 15 and September 15, performers must engage in a lottery and selection system every week in order to register to use a space for the following week. On the other hand, performers at the street ends between and including Tenth Street and 27th Street “may engage in expressive activities on a first come, first served basis.” § 62-9. The Ordinance then contains a time restriction that applies to the entire boardwalk in addition to miscellaneous restrictions, some of which only apply to designated spaces and some of which apply to performing on the entire boardwalk. The regulations are discussed by category in more detail below.

         A. The registration requirement

         Chapter 62 establishes a lottery and selection system (the “system”) that applies to the thirty-three designated areas between and including South First Street and Ninth Street from May 15 through September 15 of each year. § 62-7. Under the system, thirty-three (33) spaces have been designated as performance areas by the Town Director and approved by City Council. § 62-8(a); ECF No. 79-11. Performers may obtain one of these designated spaces by participating in the system for two periods of use: Monday through Thursday and Friday through Sunday. § 62-8(a). At the time of the lottery and selection, performers must affirm that the nature and scope of their activities constitute permissible performing. §§ 62-8(c-d). The selection takes place one week in advance of using the desired space, at 9:30 a.m. every Monday at the office of the Town Clerk. § 62-8(b). There are two drawings, the first of which is for 10' by 10' spaces for performers who actually require that amount of space. Id. The second drawing is for any remaining 10' by 10' spaces in addition to smaller designated spaces. Id. Finally, any remaining open spaces are available on a first-come, first-serve basis until Friday at 3:00 p.m. when the selection period closes. Id.

         B. Time, place, and manner restrictions

         i. Restriction on location

         The thirty-three (33) spaces designated between and including South First Street and Ninth Street range from 5' by 5', 5' by 10', or 10' by 10'. (ECF No. 79-11.) In light of public safety concerns and decreasing congestion on the boardwalk, there are absolutely no designated areas, however, on the street ends located at North Division Street and Dorchester Street. § 62-6. Performers may not select a designated space on the same street end for consecutive election periods during the same week. § 62-10(a). Accordingly, a performer cannot attempt to select the same designated spot for both Monday through Thursday and Friday through Saturday of the same week. Id.

         ii. Time restriction

         The Ordinance prohibits performing on the entire boardwalk between 1:00 a.m. and 10:00 a.m. § 62-10(k).[14]

         iii. Miscellaneous restrictions

         There are various provisions that regulate a performer's use of his or her designated space. A performer may not allow anything in his or her space to extend beyond the space's boundary. § 62-10(b). Performers also may not occupy more than one designated space or solicit another person to obtain or occupy an additional designated space on his or her behalf, § 62-10(f), or purchase, sell, barter, or exchange any designated space in any fashion other than the selection system, § 62-10(h). An additional miscellaneous restriction that does not depend on the establishment of a designated space and applies to the entire boardwalk is that no performer “shall place or allow any item exceeding six feet above the ground.” § 62-10(d).

         C. Advertising restrictions

         Finally, there are two provisions of Chapter 62 that govern advertising on the entire boardwalk. First, if an individual utilizes an umbrella for shade from the sun, the umbrella may not include signage or advertising. § 62-10(d). Second, performers may not “advertise, or employ an individual to advertise, his or her performance . . . outside of the designated space or street end area which the performer . . . occupies.” § 62-10(o).

         IV. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.