Christ et al v. Mayor of Ocean City et al

Filing 65

MEMORANDUM. Signed by Judge William M Nickerson on 4/18/2017. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTHONY C. CHRIST et al.

v.
MAYOR OF OCEAN CITY et al.

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Civil Action No. WMN-15-3305

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MEMORANDUM
Plaintiffs 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.
Plaintiffs 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-111771.

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.
After 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.”
30 at 4.

The Court also opined that certain other claims that

Plaintiffs appeared to be asserting would not be viable.
8.

ECF No.

Id. at

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.
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On 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.”
35.

ECF No.

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.
After Ocean City was properly served, it filed a motion to
dismiss the Third Amended Complaint on October 12, 2016.
No. 57.

ECF

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.
In moving to dismiss, Ocean City argues that Plaintiffs’
allegations supporting their claims are “little more than legal
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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.
The 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.

The Third Amended Complaint then details the nature of each
Plaintiff’s performance and explains how the new restrictions
limit and impair those performances.
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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.
Plaintiff 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
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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 (1984)).
As 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
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inferences in Plaintiffs’ favor.

Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
Among 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 for dismissal.
Plaintiffs 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.1

If they do move for preliminary relief, they will

set out how the four Winter factors are met.

They are not

required to do so, however, at this stage in the proceedings.

1

As noted above, Plaintiffs while proceeding pro se made such
motions, but Plaintiffs’ counsel withdrew the then pending
Motion for Ex-Parte Injunction immediately after entering his
appearance.
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The Motion to Dismiss will be denied.

A separate order

will issue.

___/s/_________
___________________
William M. Nickerson
Senior United States District Judge

DATED: April 18, 2017

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