Chase v. Town of Ocean City, Civil Action No. ELH–11–1771.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation825 F.Supp.2d 599
PartiesMark CHASE, Plaintiff, v. TOWN OF OCEAN CITY, Defendant.
Docket NumberCivil Action No. ELH–11–1771.
Decision Date09 September 2011

825 F.Supp.2d 599

Mark CHASE, Plaintiff,

Civil Action No. ELH–11–1771.

United States District Court, D. Maryland.

Sept. 9, 2011.

[825 F.Supp.2d 603]

John R. Garza, Garza Regan and Associates PC, Rockville, MD, for Plaintiff.

Guy R. Ayres, III, Ayres Jenkins Gordy and Almand PA, Ocean City, MD, for Defendant.


Mark Chase, plaintiff, a self-described “spray paint can artist,” is a visual artist whose medium is quick-drying, gloss-based enamel spray paint. Chase is also a street performer; he creates his paintings in the open air before a live audience. During the spring and summer months, Chase creates his paintings on or about the boardwalk in the resort venue of Ocean City, Maryland, where he sells his paintings to the public.

On June 28, 2011, plaintiff filed suit (ECF 1), against the Town of Ocean City, Maryland (“Ocean City” or the “City”), defendant, alleging that various town ordinances violate his right to free expression, guaranteed by the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights. The ordinances at issue impose several restrictions on the activities of “peddling, soliciting, hawking or street performing” on the boardwalk, prohibit all sales on and near the boardwalk, and establish registration requirements. Plaintiff seeks a declaratory judgment, preliminary and permanent injunctive relief, compensatory and punitive damages, and an award of attorneys' fees and costs. See Complaint at 12–13 (ECF 1).

Presently before the Court is plaintiff's Motion for Preliminary Injunction (“Motion”) (ECF 2). After the parties submitted memoranda of law and documentary exhibits, see Plaintiff's Memorandum in Support of Motion for Preliminary Injunction (“Mem.”) (ECF 2–4); Defendant's Response to Plaintiff's Motion for Preliminary Injunction & Memorandum in Support of Response (“Opp.”) (ECF 5), the Court held an evidentiary hearing on August 23, 2011. Testimony was presented by the plaintiff, as well as three Ocean City officials: Richard W. Meehan, the Mayor of Ocean City; Ocean City Fire Chief Chris Larmore; and Corporal Richard Wawrzeniak of the Ocean City Police Department. Several exhibits were also introduced into evidence.1 For the reasons that follow, I will grant plaintiff's Motion in part and deny it in part, and will preliminarily enjoin certain aspects of the disputed statutory scheme.

A. Ocean City and Its Boardwalk

Ocean City, Maryland, is a seaside community located on Maryland's Eastern

[825 F.Supp.2d 604]

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 City is one of Maryland's major summer vacation destinations. According to Mayor Meehan, Ocean City receives around four million visitors every year between mid-May and mid-September, and receives another four million visitors during the remaining portion of the year. July and August are the peak months for summer tourism.

The City's easternmost platted street is Atlantic Avenue, which is also known as the boardwalk. The boardwalk is a wooden pedestrian walkway that is located 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, and between 50 and 75 feet wide. The boardwalk is lined with shops and other attractions for pedestrians.

Although the boardwalk is primarily used only by pedestrians, the City operates a “tram” as a means of public transportation along the boardwalk. Corporal Wawrzeniak described the tram, a wheeled motor vehicle that transports passengers, as being slightly wider than a minivan, and composed of a front vehicle, operated by a driver, towing several trailers, each of which has 10–15 rows of passenger seating. At the southern end of the boardwalk, from South Second Street to Fourth Street, there is a concrete roadway next to the boardwalk, between the boardwalk and the beach, on which the tram operates. North of Fourth Street, the tram runs on the boardwalk.3

There are no restrictions on pedestrian access to the boardwalk. Moreover, there is no admission charge or identification requirement for entry on the boardwalk (or the beach), nor is there any restriction on the number of people who can be on the boardwalk at any given time. In the evenings during the peak months of summer, the boardwalk is highly congested, with pedestrians walking along and flocking to the many shops, eateries, and attractions that the boardwalk has to offer. In the day, the boardwalk is a point of access to the beach.

Although the tourist traffic on the boardwalk creates challenges for crowd control, it is very desirable to Ocean City. In Mayor Meehan's words, crowds are “what we want.”

Street performers are among the boardwalk's many attractions. Indeed, Mayor Meehan acknowledged that street performers are part of the “experience” that draws visitors to the boardwalk. By Mayor Meehan's estimate, on a clear summer night, as many as 25 to 40 street performers could be performing at various locations along the boardwalk. The parties submitted photographs depicting a variety of street performers, including plaintiff; other painters, caricaturists, and visual artists; magicians and clowns; musicians; and performers in costume portraying pop culture characters such as Spongebob Squarepants and Spiderman.

[825 F.Supp.2d 605]

The crowds that street performers draw on the boardwalk vary considerably, but are significantly larger at night. Corporal Wawrzeniak testified that, on occasion, some performers have drawn “hundreds” of spectators for night performances. According to Corporal Wawrzeniak, the most significant challenge law enforcement encounters with regard to street performers is management of the crowds they attract, so as to ensure safe passage of the public along the boardwalk and unimpeded emergency access to the boardwalk. Because the boardwalk is highly congested, Corporal Wawrzeniak indicated that each performer's ability to manage his or her own crowd is “paramount.”

B. The Ordinances

At issue in this case are several ordinances enacted by Ocean City that impose regulations that apply to the boardwalk, see Code of the Town of Ocean City (“City Code”), ch. 62, art. I (1999, Supp. No. 18, May 16, 2011) (available at http:// oceancitymd. gov/ City_ Clerk/ City_ Code/), and its registration requirements for “unlicensed solicitors.” See id. §§ 62–1, 62–3, 62–7. 4

In brief, the regulations applicable to the boardwalk fall into three categories. First, there is a categorical limitation on commercial activity that applies to the entire boardwalk, as well as public streets within 75 feet of the boardwalk and certain additional areas. See id. § 62–4. Second, an ordinance limits the locations on the boardwalk where a person can engage in “peddling, soliciting, hawking or street performing.” Id. § 62–5(b)(1) (as amended by Ordinance 2011–23, adopted June 20, 2011). Third, there are restrictions as to the manner in which a person may engage in “peddling, soliciting, hawking or street performing.” See id. § 62–5(b)(2)-(12). I shall review each of these categories in more detail.

1. Limitation on Commercial Activity

The categorical limitation on commercial activity throughout the boardwalk is set forth in City Code, § 62–4. With exceptions not relevant here, it provides:

Sec. 62–4.—Limitations on commerce on the boardwalk and immediately adjoining public areas.

It shall be unlawful for any person upon the boardwalk or upon its benches, ramps, stairs and other fixtures or upon the Caroline Street pad, or other street-end pads adjoining the boardwalk, or upon any other publicly owned surface or street situated within 75 feet of the edge of the boardwalk, or upon [two specified city blocks] to engage in the public sale, rental or exchange for a donation of any goods, wares, merchandise, foodstuffs, refreshments or other commodities or services.5

[825 F.Supp.2d 606]

2. Limitation on Location of Peddling, Soliciting, Hawking, and Street Performing

The limitation on the locations in which a person may engage in peddling, soliciting, hawking, or street performing is found in City Code, § 62–5(b)(1), as part of a larger list captioned “Prohibited acts on the boardwalk.” It states:

Sec. 62–5.—Prohibited acts on the boardwalk.

* * *

(b) It shall be unlawful for any person engaging in the permitted activity of peddling, soliciting, hawking or street performing 6 on the boardwalk to:

(1) Exercise or perform such activity or display in any area of the boardwalk other than within the area encompassed in the extended boundaries of the street ends[, except for the area encompassed within the extended boundaries from the south side of the boardwalk ramp on the south side of N. Division Street to the north side of the boardwalk ramp on the north side of N. Division Street, where such activity is also prohibited].Id. (brackets indicate language added by Ordinance 2011–23, adopted June 20, 2011).

Although the ordinance does not define the phrase “extended boundaries of the street ends,” the parties have agreed on its meaning. As Corporal Wawrzeniak explained at the hearing, many of the City's east-west streets terminate or “end” at the western edge of the boardwalk. The “area encompassed in the extended boundary” of a given “street end” refers to the portion of the boardwalk at the boardwalk's intersection with an east-west street. It is delineated by the east and west edges of the boardwalk, and by invisible lines extending across the boardwalk, as a continuation of the northern and southern edges of the east-west street.

Section 62–5(a) of the Code articulates the basis for § 62–5(b)(1)'s...

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