Christ v. Town of Ocean City

• Citation: 312 F.Supp.3d 465
• Decision Date: 09 May 2018
• Docket Number: Civil Action No. RDB–15–3305
• Parties: Anthony C. CHRIST, et al., Plaintiffs, v. TOWN OF OCEAN CITY, MARYLAND, Defendant.
• Court: U.S. District Court — District of Maryland

312 F.Supp.3d 465

Anthony C. CHRIST, et al., Plaintiffs,

v.TOWN OF OCEAN CITY, MARYLAND, Defendant.

Civil Action No. RDB–15–3305

United States District Court, D. Maryland.

Signed May 9, 2018

David Gray Wright, Kahn Smith and Collins PA, Adam G. Holofcener, Baltimore, MD, for Plaintiffs.

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

Richard D. Bennett, United States District Judge

MEMORANDUM OPINION

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 (D.Md. 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...