Christ et al v. Mayor of Ocean City et al

Filing 88

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 5/9/2018. (dass, Deputy Clerk) (c/m 5/9/18-das)

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

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Plaintiffs,

Civil Action No. RDB-15-3305

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v.
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TOWN OF OCEAN CITY,
MARYLAND,

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Defendant.
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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
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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
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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

Specifically, the references to “performer” and “performing” in these Sections of the Code of the Town of
Ocean City, Maryland, Chapter 62—Section 62-7, “Performing and vending in the designated spaces,”
Section 62-8, “Allocation and selection of designated spaces,” the portions of Sections 62-10(j)-(k) which
prohibit performing before 10:00 a.m., and the portion of Section 62-10(d) which prohibits signage or
advertising on an umbrella utilized by a performer—ARE FACIALLY UNCONSTITUTIONAL in violation
of the First Amendment of the United States Constitution and Article 40 of the Maryland Declaration of
Rights. Therefore, pursuant to the Severability Clause of Chapter 62, Section 62-14, the references to
“performer” and “performing” are STRICKEN from the above provisions of Chapter 62. Accordingly, the
various derivative references to performers found in Section 62-10 are STRICKEN as well—namely the
references to “performer” and “performing” in Sections 62-10(a)-(c), 62-10(f)-(i), and 62-10(o).
2 While the regulations at issue also apply to vendors and vending, the Plaintiffs are all individuals who do or
have performed on the boardwalk and accordingly are entitled to the full protections of the First
Amendment. Unlike performers, whether vendors or vending receive the same constitutional protections or
can be regulated as commercial speech depends on whether the items being vended constitute protected
expression under the First Amendment. Chase v. Town of Ocean City, 825 F. Supp. 2d 599, 624 (D. Md. 2011).
This involves “distinguishing among artwork with presumptively expressive content,” “potentially expressive
content,” or “no expressive content.” Id. Neither in the briefings nor at the hearing were such facts discussed.
Rather, Plaintiffs arguments focus on the regulations governing performers. See ECF No. 79-1 at 32
(“Chapter 62 requires every individual who desires to perform on the Boardwalk between May 15 and
September 15 to go register with the Clerk’s office in person.”) (emphasis added). Accordingly, this Court’s
analysis discusses the constitutionality of the regulations as they apply to performing and performers.
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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,
3 While the background information is mostly drawn from information provided by the parties, this Court
also takes judicial notice of basic geographic information widely known throughout Maryland. See Chase v.
Town of Ocean City, 825 F. Supp. 2d 599, 603 n.2 (D. Md. 2011) (citing United States v Johnson, 726 F.2d 1018,
1021 (4th Cir. 1984); Davenport v. City of Alexandria, 710 F.2d 148, 151 (4th Cir. 1983)).
4 The Plaintiff in Chase, Mark Chase, is one of the Plaintiffs in this case.

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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 contentneutral, 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
The ordinance read “religious, political, or philological beliefs.” As Judge Garbis explained in Markowitz, this
was an apparent typographical error in view of another regulation’s reference to philosophical issues. No. MJG95-1676 at 3 n. 2.
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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.

As explained in more detail below, a content-based restriction must pass strict scrutiny, or be the least
restrictive means of achieving a compelling governmental interest. On the other hand, a content-neutral
restriction needs to only pass intermediate scrutiny, or materially advance an important or substantial interest
and be narrowly tailored to serve that interest. American Entertainers, LLC v. City of Rocky Mount, NC, __ F.3d
__, 2018 WL 1972885, at *3 (4th Cir. Apr. 27, 2018).
7 “In order to receive a preliminary injunction, a plaintiff ‘must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.’” W.V. Ass’n of Club Owners &
Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (quoting Winter v. Natural Res. Defense Council,
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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 contentneutral 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

Inc.,555 U.S. 7, 20, 129 S. Ct. 365 (2008)). Accordingly, the Chase I opinion discusses the merits of Chase’s
First Amendment claims.
8 The third category was restrictions on commercial expression and activity, which this Court found failed
intermediate scrutiny. Chase, 825 F. Supp. 2d at 622-27. First, Ocean City could not justify the provision by
arguing that its purpose was to “prohibit pure commerce on the boardwalk” given that the boardwalk is lined
by commercial activity such as shops and attractions. Id. at 625. Second, the ordinance did not leave ample
alternative avenues for the plaintiff to communicate his protected expression. Id.

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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
This Court also found that the manner restrictions, including provisions prohibiting obstructing or blocking
pedestrian or vehicular traffic, violating the town’s noise ordinances, and using fire or other hazardous
materials, were constitutional. Chase I, 825 F. Supp. 2d at 621-22.

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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 30This Court declined to determine whether in fact the restriction was content-neutral or content-based given
that it failed even under intermediate scrutiny. Hassay, 955 F. Supp. 2d at 520.
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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

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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,
This case was initially assigned to Judge William M. Nickerson and subsequently reassigned on September
28, 2017 to the undersigned Judge Richard D. Bennett upon Judge Nickerson’s retirement from this Court.
12 As discussed supra note 1, Chapter 62 also applies to vending. Given that the challenges raised only apply to
performing, this opinion omits Chapter 62’s references to vending when appropriate.
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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
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Ordinance designates thirty-three13 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. §§ 628(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.
While the map provided to this Court only shows thirty-two spaces, ECF No. 79-11, both parties assert
that there are thirty-three designated areas on the boardwalk.
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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

Two related provisions establish that performers may occupy their designated spaces or street ends
between 10:00 a.m. and 1:00 a.m. §§ 62-10(i-j).

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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.” § 6210(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.

The Plaintiffs

The Plaintiffs are eleven street performers who perform or have performed on the
Ocean City boardwalk. Jim Starck is a puppeteer who, prior to the enforcement of Chapter
62, would walk up and down the boardwalk with marionettes and perform to crowds of five
to fifteen people consisting of mostly children for a few minutes at a time. (Starck Aff., ECF
No. 79-19.) Bill Campion also performs for mostly children by creating animals, items, and
characters out of stick balloons. (Campion Aff., ECF No. 79-14.) He has testified that his
performances only take a few minutes and prior to Chapter 62, he would change his location
throughout the day. (Id.) Joseph Smith is a magician and ventriloquist who performs to
slightly larger crowds, but would also change locations during the day and into the night.
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(Smith Aff., ECF No. 79-18.) Anthony Button is a mime who performs in a “gold costume”
and varies between maintaining “statue like stillness” and interacting with pedestrians.
(Button Aff., ECF No. 79-13.) He testified that his audiences vary in size and that being
confined to a designated space “fundamentally alters and undermines the character of [his]
performance.” (Id.)
Mike Moeller sketches portraits of visitors while sitting in a folded chair with a small
easel and motorized cart that carries his supplies and displays examples of his previous work.
(Moeller Aff., ECF No. 79-17.) He testified that he often attracts an audience, and prior to
Chapter 62, he might have changed locations on the boardwalk due to changing pedestrian
traffic, weather, other performers, and other conditions. (Id.) Mark Chase is a visual artist
who creates paintings in front of his audience. (Chase Aff., ECF No. 79-15.) He testified
that his performances take fifteen minutes or less, typically draw a crowd of a couple dozen
individuals, and cannot be done in a 5’ by 5’ or 5’ by 10’ space. (Id.)
Don Bloom is a musician who performs with a microphone, amplifier, music stand
and guitar case. (Bloom Aff., ECF No. 79-12.) He testified that he requires more space
because he draws a crowd, yet because performing in the 5’ by 5’ and 5’ by 10’ spots is
“doable,” he has to enter the second lottery each week. (Id.) For various reasons including
competing performers and events Ocean City sponsors throughout the summer, he testified
that being limited to one space for several days hinders his performances. (Id.) Alex Young is
also a musician who performs with a small stationary set up and testified that prior to
Chapter 62, he would perform until 4:00 or 5:00 a.m. (Young Aff., ECF No. 79-20.)

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Finally, Plaintiff Anthony Christ has not been a regular performer on the boardwalk.
(Christ Aff., ECF No. 79-16.) However, on September 5, 2015, he went to the boardwalk
and sang the National Anthem in a designated space that was not registered to him. (Id.)
After an officer advised Chase that he would be cited if he sang another song, Chase sang
another song and received a citation for violating Chapter 62. (Id.) The final two Plaintiffs,
Alexandra Dawson and Ion Ionescu, are asserted in the Fourth Amended Complaint to be a
gymnast and violinist respectively. (ECF No. 73.)
V.

Motion to Dismiss

Plaintiffs filed the Original Complaint in this case pro se on October 29, 2015. (ECF
No. 1.) At first, the Plaintiffs had difficulty naming the proper defendants or effecting
proper service of process. Subsequently, on March 21, 2016, Judge William M. Nickerson of
this Court issued a Memorandum and Order quashing service of process, directing the Clerk
of this Court to reissue summons, and directing the Plaintiffs to attempt to effect proper
service. (ECF Nos. 30, 31.) On September 9, 2016, after retaining counsel, Plaintiffs filed a
Third Amended Complaint naming only the Town of Ocean City, Maryland as a Defendant
and limiting Plaintiffs’ claims to the First Amendment and Article 40 of the Maryland
Declaration of Rights. (ECF No. 51.)
On October 12, 2016, Ocean City filed a Motion to Dismiss Plaintiffs’ Complaint for
failure to state a claim. Christ v. Mayor of Ocean City, No. WMN-15-3305, 2017 WL 1382315
(D. Md. Apr. 18, 2017).15 In ruling on the Motion to Dismiss, Judge Nickerson noted that all
of the Plaintiffs engage in works and performances that are protected speech under the First
This case was subsequently reassigned on September 28, 2017 to the undersigned Judge Richard D. Bennett
upon Judge Nickerson’s retirement from this Court.
15

17

Amendment, and the boardwalk is a traditional public forum. Id. at *2. This Court applied
the intermediate scrutiny standard and found that Plaintiffs had stated their claims:
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.”
Id. at *3. After this Court denied the Motion to Dismiss, Plaintiffs filed the operative Fourth
Amended Complaint. (ECF No. 73.) Discovery ensued, and on October 2, 2017, both
Ocean City and the Plaintiffs filed Motions for Summary Judgment. (ECF Nos. 78, 79.) On
April 17, 2018, this Court held a hearing solely on legal argument, with nine of the eleven
Plaintiffs present. (ECF No. 87.)
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant
summary judgment if [a] movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A
material fact is one that “might affect the outcome of the suit under the governing law.”
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248. To make this showing, the non-moving party must “do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
18

In ruling on a motion for summary judgment, a court must consider the facts and all
reasonable inferences in the light most favorable to the non-moving party. Judd, 718 F.3d at
312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). When both parties file motions for
summary judgment, as here, this Court applies the same standard of review to both motions,
considering “‘each motion separately on its own merits to determine whether either of the
parties deserves judgment as a matter of law.’” Defenders of Wildlife v. North Carolina Dept. of
Transp., 762 F.3d 374, 392 (4th Cir. 2014) (quoting Bacon v. City of Richmond, Va., 475 F.3d
633, 638 (4th Cir. 2007)).
ANALYSIS
At the hearing of April 17, 2018, the parties essentially agreed that there are no factual
disputes to be addressed and that this Court should rule on the issues as a matter of law.
Plaintiffs challenge Chapter 62 under the First Amendment to the United States Constitution
and its Maryland counterpart, Article 40 of Maryland’s Declaration of Rights. The First
Amendment states in pertinent part that “Congress shall make no law . . . abridging the
freedom of speech.” Article 40 “is read generally in pari materia with the First Amendment”
and Plaintiffs do not assert that the protection of Article 40 exceeds that of the First
Amendment. Nefedro v. Montgomery County, 414 Md. 585, 593 n. 5, 996 A.2d 850 (Md. 2010);
Tepeyac v. Montgomery County, 5 F. Supp. 3d 745, 754 n. 4 (D. Md. 2014). Accordingly, this
Court considers the Plaintiffs’ claims in the context of the First Amendment.
The Fourth Amended Complaint raises both facial and as-applied challenges to the
various provisions of Chapter 62. (ECF No. 73 at ¶¶ 129-30, 138-39.) As the United States
Court of Appeals for the Fourth Circuit explained in Educational Media Co. at Virginia Tech,
19

Inc. v. Insley, 731 F.3d 291 (4th Cir. 2013), “[t]he difference between a facial challenge and an
as-applied challenge lies in the scope of the constitutional inquiry.” 731 F.3d at 298 n. 5.
Under the First Amendment, a plaintiff may successfully challenge the facial constitutionality
of a statute by showing that the law is “overbroad” because “‘a substantial number of its
applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”
United States v. Stevens, 559 U.S. 460, 473, 130 S. Ct. 1577 (2010) (quoting Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449 n. 6, 128 S. Ct. 1184 (2008)).
Accordingly, under a facial challenge a court may consider hypothetical applications of the
law to nonparties. Preston v. Leake, 660 F.3d 726, 738 (4th Cir. 2011). On the other hand, “an
as-applied challenge is ‘based on a developed factual record and the application of a statute
to a specific person.’” Insley, 731 F.3d at 298 n.5 (quoting Richmond Med. Ctr. for Women v.
Herring, 570 F.3d 165, 172 (4th Cir. 2009)). Aside from providing affidavits for nine of the
eleven Plaintiffs, neither party addressed in their briefs nor at the hearing any individual
Plaintiff’s as-applied challenges to Chapter 62. Further, the majority of the case law relied on
and distinguished by both parties concerns whether the regulations are overbroad, and
accordingly

facially

unconstitutional.

Therefore,

this

Court

addresses

the

facial

constitutionality of the Chapter 62 regulations.
It is established that all of the Plaintiffs’ activities—including singing, puppeteering,
miming, and drawing—are protected speech under the First Amendment and covered by
Chapter 62’s definition of “street performer.” See Chase v. Town of Ocean City, 825 F. Supp. 2d
599, 614 (D. Md. 2011). Judge Nickerson has specifically previously so held in this case.
Christ v. Mayor of Ocean City, No. WMN-15-3305, 2017 WL 1382315 (D. Md. Apr. 18, 2017).
20

Further, it is established that the boardwalk is a traditional public forum. See Chase, 825 F.
Supp. 2d at 614-15 (summarizing cases and concluding that the boardwalk constitutes a
traditional public forum). In a traditional public forum, the government’s power to regulate
speech “is ‘limited, though not foreclosed.’” Reynolds v. Middleton, 779 F.3d 222, 229 (4th Cir.
2015) (quoting Clatterbuck v. City of Charlottesville, 708 F.3d 549, 555 (4th Cir. 2013)). If the
government regulates speech based on its content, the restriction must pass strict scrutiny, or
“be narrowly tailored to serve a compelling government interest.” Christian Legal Society v.
Martinez, __ U.S. __, 130 S. Ct. 2971, 2984 n. 11 (2010). In contrast, content-neutral “time,
place, and manner” restrictions need only pass intermediate scrutiny. As the Fourth Circuit
recently discussed in American Entertainers, LLC v. City of Rocky Mount, North Carolina, __ F.3d
__, 2018 WL 1972885 (4th Cir. Apr. 27, 2018), the court will uphold a regulation under
intermediate scrutiny “if ‘it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.’” 2018 WL 1972885, at *3 (quoting Satellite Broad & Commc’ns
Ass’n v. F.C.C., 275 F.3d 337, 355 (4th Cir. 2001)). This Court begins by analyzing whether
Chapter 62 is content-based or content-neutral.
I.

Chapter 62 is content-neutral16

As the Supreme Court recently explained in Reed v. Town of Gilbert, Arizona, __U.S. __,
135 S. Ct. 2218 (2015), “[g]overnment regulation of speech is content-based if a law applies
16 This analysis does not apply to the challenged advertising restrictions. See infra Part II.C. A restriction on
advertising is a restriction on commercial speech which receives intermediate scrutiny. Educational Media Co. at
Virginia Tech, Inc. v. Insley, 731 F.3d 291, 297 (4th Cir. 2013) (“Under Central Hudson [Gas & Elec. Corp. v. Pub.
Serv. Comm’n of New York, 447 U.S. 557, 100 S. Ct. 2343 (1980)], a restriction on commercial speech must
withstand ‘intermediate scrutiny’ in order to survive a First Amendment challenge.”)

21

to particular speech because of the topic discussed or the idea or message expressed.” 135 S.
Ct. at 2227 (citations omitted). There are two categories of content-based regulations. First,
there are regulations that on their face “draw[] distinctions based on the message a speaker
conveys.” Id. (citation omitted). A regulation does this either by regulating speech by
particular subject matter or by its function or purpose. Id. Second, facially neutral regulations
may still be content-based if they “cannot be ‘justified without reference to the content of
the regulated speech,’” or they “were adopted by the government ‘because of disagreement
with the message [the speech] conveys.’” Id. (quoting Ward v. Rock Against Racism, 491 U.S.
781, 791, 109 S. Ct. 2746 (1989)). On the other hand, if a “‘regulation was adopted for a
purpose unrelated to the suppression of expression—e.g., to regulate conduct, or the time,
place, and manner in which expression may take place,’” the regulation is content-neutral.
American Entertainers, 2018 WL 1972885, at *3 (quoting Giovani Carandola, Ltd. v. Bason, 303
F.3d 507, 512-23 (4th Cir. 2002)) (emphasis added).
Plaintiffs argue that Chapter 62 is content-based because “[i]t regulates the expressive
conduct of only those who ‘engage in performing or vending.’” (ECF No. 79-1 at 19
(quoting § 62-3).) Accordingly, Plaintiffs assert that “Chapter 62 is a regulatory scheme for a
certain kind of speech: performing” and therefore it is content-based. (ECF No. 84 at 3
(emphasis added).) Plaintiffs also reference “Admissions” from Ocean City that the New
Ordinance does not address religious or political speech.17 In response, Ocean City asserts

17

Some of the specific admissions (ECF No. 79-6) are:
1. Chapter 62 does not address religious/political speech.
2. Performer is a defined term within Chapter 62 and is not applicable to persons engaging in
religious/political speech.
3. Persons wishing to engage in religious/political speech are not required to use designated spaces.

22

that Chapter 62 is content-neutral because it does not require “an enforcement authority to
examine the content of the message conveyed by the street performer to determine” if
Chapter 62 has been violated. (ECF No. 78-1.)
Following this Court’s content-based versus content-neutral analyses in Markowitz
and Chase I, Chapter 62 is content-neutral. As described above, the 1995 ordinance in
Markowitz was content-based because it “more narrowly restrict[ed] speech with a
commercial motive than speech with a noncommercial motive.’” No. MJG-95-1676 at 16-17.
It also “permit[ted] solicitors to use a table or stand only if they use[d] the table to ‘display
items promoting the individual’s religious, political or philo[sophical] beliefs.’” Id. (emphasis
added). The ordinance, then, clearly regulated speech on the basis of its content and the
message the speaker was conveying.
In contrast, the current Chapter 62 is similar to that at issue in Chase I and does not
draw distinctions based on the message a performer conveys. In fact, the Plaintiffs make the
same argument that this Court previously rejected; they argue that the regulations are
content-based because they only apply “to certain kinds of speech.” 825 F. Supp. 2d at 616
(emphasis added). However, as in Chase I, there is no connection between the City’s
justification for enacting Chapter 62, concerns for public safety and the management of the
free flow of pedestrian traffic, and the content of the Plaintiffs’ performances. Id. at 619.
Plaintiffs attempt to distinguish Chapter 62 from the ordinance at issue in Chase I by noting
that Chapter 62 only applies to two types of activities: performing and vending. The amount
of restricted activities, however, does not alter the fact that Ocean City is not restricting an
activity based on the message it conveys.
23

Chapter 62 defines performing 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. While
Ocean City has not banned all potential types of performances, there is no “connection
between Ocean City’s justification for its restriction of locations on the boardwalk,” public
safety and the free flow of pedestrian traffic, and “the content of the speech.” Chase I, 825 F.
Supp. 2d at 619; see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S. Ct. 925, 929930 (1986) (“A regulation that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some speakers or messages but not
others.”); American Entertainers, 2018 WL 1972885, at *3 (applying intermediate scrutiny
because the defendant’s purpose for adopting the ordinance at issue—“regulat[ing] the
deleterious secondary effects of adult entertainment”—was unrelated to the suppression of
expression); Peck v. City of Las Vegas, No. 2:15-cv-02070, 2016 WL 4697339, at *6 (D. Nev.
Sept. 6, 2016) (explaining that the provisions regulating street performances were contentneutral because they “d[id] not distinguish based on the content of the message conveyed by
the performers . . . [or] prohibit or restrict street performers from communicating a
particular set of messages”). Therefore, the regulations in Chapter 62 are content-neutral.
II.

Chapter 62 regulations

Having determined that Chapter 62 is content-neutral, this Court applies intermediate
scrutiny. To pass intermediate scrutiny, the regulations must be “narrowly tailored to serve a
significant governmental interest” and “leave open ample alternative channels for
communication of the information” that the speaker wishes to communicate. Clark v.
24

Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065 (1984). The parties do
not dispute that Plaintiffs have met their “‘initial burden of proving that speech was
restricted by the governmental action in question.’” Reynolds v. Middleton, 779 F.3d 222, 226
(4th Cir. 2015) (quoting Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000)). The burden
then is on Ocean City to prove the constitutionality of Chapter 62. Id. (citing McCullen v.
Coakley, __ U.S. __, 134 S. Ct. 2518 (2014)). In Reynolds, the Fourth Circuit articulated what
“the [City] must present in order to carry its burden of proof” under intermediate scrutiny,
explaining: (1) the existence of a governmental interest may be established by “common
sense and the holdings of prior cases”; (2) “objective evidence is not always required to show
that a speech restriction furthers the government’s interests”; and (3) the government is
required “to present actual evidence supporting its assertion that a speech restriction does
not burden substantially more speech than necessary; argument unsupported by the evidence
will not suffice to carry the government’s burden.” 779 F.3d at 228-29 (citing McCullen, 134
S. Ct. at 2535).
This Court begins by noting that Ocean City has established substantial government
interests for enacting Chapter 62. As Plaintiffs acknowledged during the hearing, the City has
a substantial interest in public safety and the free flow of pedestrian traffic. See Chase, 825 F.
Supp. 2d at 620 (explaining that the ordinance was “justified by Ocean City’s substantial
interests in public safety and the free flow of pedestrian traffic”); see also McCullen, 134 S. Ct.
at 2535 (recognizing “the legitimacy of the government’s interests in ‘ensuring public safety
and order, [and] promoting the free flow of traffic on streets and sidewalks’” (quoting
Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 376 117 S. Ct. 855 (1997))). The
25

City also has a significant interest in managing competing uses when large groups intend to
use public property. See Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011,
1034 (9th Cir. 2009) (“The Supreme Court has recognized a government’s significant interest
in managing competing uses when large groups of people intend to use public property.”
(citing Thomas v. Chicago Park Dist., 534 U.S. 316, 322, 122 S. Ct. 775 (2002))).
The issue in this case is whether the categories of regulations materially advance and
are narrowly tailored to serve those interests, and whether they leave ample alternative
channels of communication. In determining whether Chapter 62 “‘materially advances
[Ocean City’s interests] by redressing past harms or preventing future ones,’” the Fourth
Circuit has instructed that lower courts may consider the facts presented “along with a
healthy dose of common sense” and logic. Reynolds, 779 F.3d at 229 (quoting Ross v. Early,
746 F.3d 546, 556 (4th Cir. 2014), cert. denied, __ U.S. __, 135 S. Ct. 183 (2014)). “In addition
to furthering a significant governmental interest, a narrowly tailored regulation ‘must not
burden substantially more speech than is necessary to further the government’s legitimate
interests.’” Id. at 230 (quoting McCullen, 134 S. Ct. at 2535). While the regulation does not
need to be the least restrictive means available, “‘the government still may not regulate
expression in such a manner that a substantial portion of the burden on speech does not
serve to advance its goals.’” Id. (quoting McCullen, 134 S. Ct. at 2535). Courts must consider
“the amount of speech covered by the ordinance and whether there is an appropriate
balance between the affected speech and the governmental interests that the ordinance
purports to serve.” Watchtower Bible & Tract. Soc. of N.Y., Inc. v. Village of Stratton, 536 U.S.
150, 165, 122 S. Ct. 2080 (2002). Further, “a court ‘must . . . take account of the place to
26

which the regulations apply,’ including the ‘nature’ of the forum and ‘the pattern of its
normal activities.’” Hassay v. Mayor, 955 F. Supp. 2d 505, 521 (D. Md. 2013) (quoting Madsen
v. Women’s Health Ctr., Inc., 521 U.S. 753, 772, 114 S. Ct. 2516 (1994)). Finally, Chapter 62
must leave open adequate alternative channels of communication, though they “‘need not be
the speaker’s first or best choice or provide the same audience or impact for the speech.’”
Reynolds, 779 F.3d at 232 (quoting Ross, 746 F.3d at 559).
This Court addresses the constitutionality of each category of challenged regulations
below.
A.

The registration requirement

As described above, performers wishing to perform on the boardwalk between and
including South First Street and Ninth Street may only do so in one of the thirty-three
designated spaces. In order to occupy one of these spaces, performers must engage in a
lottery and selection system and, if chosen, register for their space.18 The lottery occurs on
Monday mornings one week in advance of the period of use. If selected, performers must
affirm that the nature and scope of their activities constitute permissible performing. If any
spaces are not claimed during the initial selection, they remain available for registration on a
first-come, first-serve basis until Friday at 3:00 p.m. when the registration period closes.
As this Court previously noted in Chase I, “[t]he Supreme Court has long been wary
of laws ‘subjecting the exercise of First Amendment freedoms to the prior restraint of a
license,’ Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992) (citations omitted),
and there is a ‘heavy presumption’ against their validity.” 825 F. Supp. 2d at 627 (citation
As noted previously, the lottery and selection system is only in place during the summer months, between
May 15 and September 15.
18

27

omitted). However, such a law may be constitutional if it (1) is content-neutral; (2) does not
apply to an overbroad amount of speech; (3) strikes “‘an appropriate balance between the
affected speech and the governmental interests that the ordinance purports to serve’”; (4)
establishes clear criteria for obtaining a license; and (5) is ordinarily subjected to procedural
safeguards so that an individual denied a license may be able to obtain a judicial
determination of whether a license may validly be withheld.19 Id. (citations omitted).
Plaintiffs argue that they are entitled to summary judgment because the Ordinance is
a prior restraint and Ocean City has not “struck a balance between the affected speech and
the interests the Town purports to serve.” (ECF No. 79-1 at 37.) Plaintiffs argue that the
specific registration requirements—registering in person one week ahead of time, disclosing
the individual’s name and performance, and requiring registration even for spaces not
initially assigned during the lottery—are unconstitutional restrictions hindering anonymity
and creating procedural and temporal hurdles to engaging in speech. Ocean City argues that
the system was enacted to prevent congestion and overcrowding on the boardwalk and to
protect the safety of the public, and does so without burdening more speech than necessary.
(ECF No. 83 at 10.) Further, Ocean City asserts that in light of a situation where a street
performer was accused of child molestation, the public expressed concern regarding a lack of
knowledge as to the identity of the street performers. (Id. at 9.)

19 At the hearing, counsel for Ocean City asserted that the lottery and selection system is more akin to a “sign
up” than a “permitting” requirement. However characterized, the system requires individuals to receive
authorization from the City before engaging in certain expression in one of the thirty-three designated areas,
and accordingly, imposes a prior restraint on speech. See Forsyth County, Ga. v. Nationalist Movement, 505 U.S.
123, 130, 112 S. Ct. 2395 (1992) (explaining that an ordinance requiring a permit before authorizing public
speaking is a prior restraint on speech).

28

As this Court explained in Hassay, “Ocean City ‘may not regulate expression in such a
manner that a substantial portion of the burden on speech does not serve to advance its
goals.’” 955 F. Supp. 2d at 521 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109
S. Ct. 2746 (1989)). In Chase I, the registration requirement for unlicensed solicitors failed
because it required all performers and religious and political solicitors to register even though
the City’s interest was to protect children from potential inappropriate conduct by costumed
performers. 825 F. Supp. 2d at 629. Accordingly, the registration requirement was “vastly
overinclusive with respect to the City’s stated concerns about the anonymity of costumed
performers.” Id. With respect to the specific interests asserted here—public safety and
decreasing congestion—the United States Courts of Appeals for both the Fourth and Ninth
Circuits have struck down overly broad speech regulations on the ground that they did not
take into account whether all the regulated individuals actually created traffic or congestion
problems.
In Cox v. City of Charleston, SC, 416 F.3d 281 (4th Cir. 2005), the Fourth Circuit
considered a local parade ordinance that prohibited organizing, holding, or participating in a
parade, meeting, exhibition, assembly or procession on the streets or sidewalks of the city
unless authorized by a written permit. Specifically, the Fourth Circuit was tasked with
determining whether the ordinance, without an exception for small gatherings, was facially
constitutional. Id. at 284-87. The court began by noting that the ordinance applied to
political speech and created both a “procedural hurdle for filling out and submitting a
written application” and a “temporal hurdle of waiting for the permit to be granted.” Id. at
285. The court then explained that the city’s justification for requiring registration—safety—
29

did not apply to groups of two or three individuals. Id. As to these smaller groups, the
ordinance criminalized expression that did “nothing to disturb the peace, block the sidewalk,
or interfere with traffic.” Id. at 286. Accordingly, “[b]ecause the City ha[d] not established
why burdening such expression [wa]s necessary to facilitate its interest in keeping its streets
and sidewalks safe, orderly, and accessible,” the ordinance burdened substantially more
speech than necessary to further the asserted interests and was facially unconstitutional. Id.
Subsequently, in Green v. City of Raleigh, 523 F.3d 293 (4th Cir. 2008), the Fourth Circuit
upheld a notice requirement for picketers that allowed anonymous picketing and contained a
small group exception for groups of fewer than ten individuals.
The Ninth Circuit specifically addressed an ordinance concerning street performers in
the context of crowd size in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en banc).
The ordinance at issue required street performers at the Seattle Center to obtain permits and
established a first-come first-serve rule for using designated locations.20 Id. at 1034. The city
asserted that the permitting requirement promoted its interest in increasing safety by
reducing territorial disputes and hostile performer behavior and alleviating coordination and
traffic flow concerns. Id. at 1041-46. Upon review of the constitutionality of the requirement,
the court first generally discussed “single-speaker” registration requirements and noted that
the requirement was “not limited to only those performers who seek to attract (or who do,
in fact, attract) a crowd of a sufficiently large size.” Id. at 1041. The court then explained that
the permitting requirement was not narrowly tailored because it was overbroad, did not
meaningfully promote the city’s asserted interests, and addressed interests that could have
Notably, distinct from the facts of this case, the permit system did not place a limit on the number of
permits that could be issued or assign a particular performer to a designated space. Id. at 1037.
20

30

been achieved by less intrusive means. Id. In its discussion, the court found “particularly
compelling” the fact that:
[The permitting requirement] applies to a large number of individuals who
have no connection to the City’s asserted reasons for the permitting requirement .
. .. Similarly, the permitting requirement applies to street performers who pose
no realistic coordination or traffic flow concerns, as well as those who might.
It is hard to fathom how an individual performing for two or three others in a
park as large as the Center would pose coordination or traffic flow problems
for the City. . . The City has not provided any evidence that street performers
usually, or even sometimes, gather crowds of the size that might justify
coordination-of-use permits . . ..
Id. at 1045-46 (emphasis added).
The court further opined whether the requirement would be constitutional if it
applied “only to those performances that are ‘aimed at attracting an audience.’” Id. at 1046.
The court explained that it would still not be constitutional because most performers seek to
attract a crowd regardless of whether they actually attract one, and leaving to an enforcement
authority the determination of whether a performer sought to attract a crowd would lend
itself to discriminatory enforcement. 21 Id. at 1047-48. Subsequently, in Dowd v. City of Los
Angeles, No. CV09-06731, 2013 WL 4039043 (C.D. Cal. Aug. 7, 2013), the United States
District Court for the Central District of California distinguished a Venice boardwalk
ordinance from that in Berger on the ground that unlike in Berger, it did not require a permit
for all performers. Rather, a permit was only required for performers wishing to set up

The Ninth Circuit also opined that perhaps “the City could draft a rule for the Seattle Center that requires
performances that attract an audience of a given size to obtain a permit, and enforce that rule for
performances that actually attract that size audience.” Berger, 569 F.3d at 1047 (citing Santa Monica Food Not
Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006).
21

31

equipment, and regardless, anyone could perform in an unoccupied space after noon each
day if the registered performer was not present. 22 Id. at *9.
As in City of Charleston and Berger, the registration requirement in this case is overbroad
and is not narrowly tailored to advance Ocean City’s interests. Although the City’s interests
are public safety and preventing congestion on the boardwalk, the lottery system applies to
all street performers regardless of whether an individual performer actually draws a crowd.
For example, street performers such as Plaintiffs Jim Starck and Bill Campion, puppeteers
and stick balloon artists, are required to participate in this process although their
performances are catered to small audiences and only last a few minutes. Even though the
nature of their performances do nothing to “disturb the peace, block the sidewalk, or
interfere with traffic,” Chapter 62 requires them to register a week before engaging in their
protected speech. City of Charleston, 416 F.3d at 286. While the registration requirement need
not be the least restrictive means available, “‘the government still may not regulate
expression in such a manner that a substantial portion of the burden on speech does not
serve to advance its goals.”23 Reynolds, 779 F.3d at 230 (quoting McCullen v. Coakley, __ U.S.
Another case the parties cite is Peck v. City of Las Vegas, No. 2:15-cv-02070-JAD-PAL, 2016 WL 4697339
(D. Nev. Sept. 6, 2016), in which the United States District Court for the District of Nevada considered a
registration and lottery system for obtaining spots in a pedestrian mall. Ultimately, the court upheld the
registration requirement as applied to street performers wishing to obtain a spot through the lottery process
when registration could be done (1) online or in person, (2) within 72 hours after using a performance zone,
and (3) anonymously. However, the court held that the plaintiff had a likelihood of showing that a regulation
requiring all individuals to register, even if they did not wish to perform in spots that required participating in
the lottery system, burdened more speech than necessary.
23 During the hearing, counsel for Ocean City cited dicta from Chase I whereby this Court opined that even if
the City had relied on the interests of preventing congestion and ensuring the free flow of pedestrian traffic
for the “unlicensed solicitors” registration requirement, the registration provision still would not have been
narrowly tailored in part because, “[f]or instance, Ocean City’s registration requirement does not designate a
particular boardwalk location for each registered performer or solicitor, nor does it limit the total number of
performers and solicitors who may be registered or who may operate on the boardwalk at any given time.”
825 F. Supp. 2d at 630. Certainly, Chapter 62 both limits a performer to a particular area and only allows
22

32

__, 134 S. Ct. 2518, 2535 (2014)); see also Boardley v. U.S. Dept. of Interior, 615 F.3d 508 (D.C.
Cir. 2010) (holding that a licensing scheme requiring advanced permits to engage in
expressive activity in national parks was unconstitutional, explaining in part that the
government failed to show that most individuals and small groups engaging in free speech
would pose significant crowding issues or strain park resources).
Further, the City has not offered any reason why beginning the sign up process one
week ahead of time or closing registration at 3 p.m. the Friday before the operative week
further the interests of public safety and the free flow of pedestrian traffic. Under the
current system, a performer who has registered with the City before—but failed to register
the specific week prior—cannot spontaneously walk up to the boardwalk and claim an
unoccupied spot. The limitation is even more restrictive for those visiting Ocean City for
limited periods of time who wish to express themselves on the boardwalk. Compare City of
Charleston, 416 F.3d 281 at 285 (“‘Both the procedural hurdle of filling out and submitting a
written application, and the temporal hurdle of waiting for the permit to be granted may
discourage potential speakers.’” (quoting Grossman v. City of Portland, 33 F.3d 1200, 1206 (9th
Cir. 1994))); with Peck v. City of Las Vegas, No. 2:15-cv-02070, 2016 WL 4697339, at *11 (D.
Nev. Sept. 6, 2016) (“It also does not squash a person’s ability to engage in a spontaneous
performance because registration can be accomplished up to 72 hours after a performer has
used one of the designated performance zones.”) (emphasis added).

thirty-three designated area between and including South First Street and Ninth Street. However, the
requirement is still not narrowly tailored to serve the City’s interests given that it substantially burdens the
speech of performers who do not threaten public safety or the free flow of traffic.

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One issue counsel for Ocean City raised during the hearing on April 17, 2018 was the
administrative burden placed on the City to determine when a performer may potentially
attract a crowd sufficiently large to implicate its interests. Notably, the Fourth Circuit ended
its opinion in City of Charleston addressing that concern:
[W]e decline [the plaintiff’s] invitation to announce a numerical floor below
which a permit requirement cannot apply. The relevant legislative body (the
city council here) is the proper forum for balancing the multitude of factors to
be considered in determining how to keep the streets and sidewalks of a city
safe, orderly, and accessible in a manner consistent with the First Amendment.
We emphasize, however, that cities have a number of tools at their disposal to
meet that goal. Rather than enforcing a prior restraint on protected
expression, cities can enforce ordinances prohibiting and punishing conduct
that disturbs the peace, blocks the sidewalks, or impedes the flow of traffic. . .
Cities can also pass ordinances that “regulate only the volume, location, or
duration of [protected] expression,” rather than subjecting all speech to a
permit requirement. . . And, if the legislative body determines that a permit
requirement is absolutely necessary to effectuate the relevant goals, it should
tailor that requirement to ensure that it does not burden small gatherings
posing no threat to the safety, order, and accessibility of streets and sidewalks.
416 F.3d at 286 (citations omitted). 24 By failing to differentiate among performers, “a
substantial portion of the burden on speech does not serve to advance [Ocean City’s] goals.”
McCullen v. Coakley, __ U.S. __, 134 S. Ct. 2518, 2535 (2014). Accordingly, Chapter 62’s
registration requirement is not narrowly tailored and is facially unconstitutional.25
B.

Time, place, and manner restrictions
i.

Restriction on location

Having held that the registration requirement is unconstitutional, this Court next

Subsequently, in Green v. City of Raleigh, 523 F.3d 293 (4th Cir. 2008) the Fourth Circuit held that the City of
Raleigh provided a “well-considered justification” for eliminating a notice requirement for picketing on
sidewalks and other public ways for groups of fewer than ten people.
25 Because the registration requirement does not meet the narrowly tailored prong, this Court does not
address whether it leaves open ample alternative methods of communication.
24

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considers whether Ocean City may still limit street performing to the designated areas. As
described above, there are thirty-three designated spaces—ranging from 5’ by 5’, 5’ by 10’, or
10’ by 10’—located between and including South First Street and Ninth Street with the
exceptions of North Division and Dorchester Streets. Chapter 62 also requires street
performers to occupy the same space from Monday through Thursday and Friday through
Sunday, but does not allow one performer to occupy the same space during both time
periods in a given week. The Plaintiffs again assert that these location restrictions are
overbroad because by applying to all performers, they substantially burden more speech than
necessary to advance the City’s interests. Further, Plaintiffs assert that the areas unnecessarily
restrict some street performers to a maximum 10’ by 10’ area.
Beginning with the absolute bar of performing on the street ends of North Division
and Dorchester Streets, this time, place, and manner restriction is narrowly tailored to meet
the City’s substantial interests in public safety and the free flow of traffic. In Chase I, this
Court held that the ban on North Division Street was constitutional “because that particular
street end [wa]s 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.” 825 F. Supp. 2d at 620.
Chapter 62 states that since Chase I, “members of the Ocean City Police Department and
Ocean City Beach Patrol have indicated that they need to be able to access the beach via
Dorchester Street in addition to North Division Street.” § 62-2(d)(6). In support, Lieutenant
Ward Kovacs, a thirty-three-year veteran of the Ocean City Beach Patrol, testified during the
task force hearings that the majority of the patrol’s vehicles are kept at their headquarters
building on Dorchester Street. (ECF No. 78-3 at 11.) Further, the Lieutenants and Captains
35

operate out of headquarters and that is where testing for upcoming lifeguard seasons occurs.
(Id.)
With regard to interactions with street performers, Lieutenant Kovacs testified that
there are between twenty to forty boardwalk crossings daily at Dorchester Street with either
trucks or ATVs, and for the last third of their 10:00 a.m. to 6:00 p.m. shift, almost every
crossing involves performers. (Id.) While most interactions are “just inconveniences . . .
some are life-threatening delays.” (Id.) He further explained how getting from headquarters
to North Division Street requires traveling on Baltimore Avenue which is unsafe for the
ATVs and often congested. (Id. at 12.) In response to a question regarding whether all
performers—or only performers that draw a crowd—cause issues for the patrol, Lieutenant
Kovacs testified that “it’s an impedance to our travel regardless of whether they have a large
crowd or not.” (Id. at 14.) Finally, during the discussion regarding Dorchester Street, Plaintiff
Chase stated that he “ha[d] no problem” with a ban on Dorchester Street. (Id.) A ban on the
particular street ends at North Division and Dorchester Streets promotes the City’s interests
in public safety and leaves ample alternative avenues for the Plaintiffs’ expressions.
This Court now turns to whether constraining all performers to the designated areas
is narrowly tailored to meet the City’s interests, and is guided by similar factors that
invalidated the permitting requirement. As this Court instructed in Markowitz, in enacting its
regulations the City needed to determine whether street performing actually harms or
threatens the City’s interests, and if so, “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 [the] activity.” No. MJG-95-1676 at 20. Like the registration requirement,
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constraining all performers to the designated areas is an overbroad regulation of speech.
First, there are performers who by their nature do not draw a crowd and accordingly
seek to be able to travel along the boardwalk during a single day. Under Chapter 62,
however, they are limited to one designated area on the boardwalk. While, like in Chase I, this
Court recognizes that limiting performances to the boardwalk’s intersections with other city
streets allows congested traffic the room to maneuver around stationary crowds, 825 F.
Supp. 2d 599 at 620, not all performers draw the type of stationary crowds leading to public
safety and congestion of traffic concerns.26
Second, assuming that Ocean City could still enforce the Monday through Thursday
and Friday through Sunday restrictions, Ocean City has not attempted to offer any
connection between the City’s interests in public safety and crowd control and preventing a
street performer from being able to change which spot he or she occupies from one day to
the next. Rather, Ocean City asserts that requiring the designated areas to change was
enacted because “numerous members of the public have commented on the need for a
system that rotates performers. . . This portion of the Ordinance ensures that business
owners, residents and visitors are not exposed to the same performer drawing a large crowd
for extended periods of time . . ..” (ECF No. 78-1 at 22.) There is not, however, a substantial
government interest in meeting the public’s desire for a “rotation system.” There are
performers who by their nature do not travel to seek an audience, but still wish to be able to

26 Notably, this Court’s ruling in Chase I on the preliminary injunction stated that “on the record presently
before the Court, [the restriction on location] appears narrowly tailored” to the City’s interests. 825 F. Supp.
2d at 620. At that time, the only street performer challenging the restriction and who testified at the
preliminary injunction hearing was one of the current Plaintiffs, Mark Chase, and the case did not involve a
facial challenge to the restriction’s constitutionality.

37

vary their designated areas from day to day based on outside factors. 27 There is no
justification for why performers who do in fact draw crowds are prohibited—or required—
to change their locations from day to day.
Nor can Ocean City rely on an interest in preventing “conflicting claims for the
available spaces” because the City has not offered evidence that there are actually territorial
disputes among street performers. In Dowd v. City of Los Angeles, No. CV09-06731, 2013 WL
4039043 (C.D. Cal. Aug. 7, 2013), the United States District Court for the Central District of
California discussed how a space allocation system on the Venice, California boardwalk was
created to remedy the problem of conflicting claims for available space on the boardwalk.
The court noted, however, that the ordinance contained the following, unchallenged
findings:
There were numerous altercations over the locations and amounts of space
that any one person or organization could use. Frequently, the altercations
became violent, requiring law enforcement response to preserve the public
peace. Persons wishing to secure spaces often arrived prior to dawn . . .
Unregulated, the Boardwalk became a place where only the strongest and
earliest arrivals could secure space to exercise their rights of free expression
without threat of intimidation. It is, therefore, necessary to regulate the use of
the limited space on the Boardwalk to prevent conflicting claims for the space
and to allocate the limited space available fairly to all who desire to use it for
lawful purposes.
Id. at *8. Aside from generally citing “conflicting claims for the available spaces,” there is
little support that problems actually occur on the Ocean City boardwalk. On the other hand,
Plaintiffs direct this Court to one reportable incident report for street performers in the
For example, Plaintiff Bloom testified that during the summer on Wednesdays, Ocean City sponsors a band
in an area close to a designated space. (ECF No. 79-12 at ¶ 27.) Accordingly, while that might be a space
where he can perform his music in a given week on Monday and Tuesday, he cannot perform there on
Wednesday.
27

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summer of 2014 that lists ten incidents, none of which occurred among performers. (ECF
No. 79-10.) Accordingly, the City has not provided “actual evidence” that such conflicts
occur that necessitate assigning designated areas.28 See Reynolds, 779 F.3d at 231 (explaining
that in “the absence of evidence of a county-wide problem, the county-wide sweep of the
Amended Ordinance burdens more speech than necessary”).
ii.

Time limitation

Chapter 62 also states that performers may not engage in performing on the
boardwalk between 1:00 a.m. and 10:00 a.m. § 62-10(k). Plaintiffs argue that the time
restrictions are not narrowly tailored to further the City’s interests. Ocean City asserts that
“[a]t the Task Force hearings, members of the public discussed the annoyance and
inconvenience experienced by various persons as a result of a performer[] playing hours into
the night.” (ECF No. 78-1 at 28.) Plaintiffs challenge this general statement by asserting that
the City did not explain why noise ordinances are insufficient to alleviate the public’s
concerns, and further assert that the City has offered no justification for the precise start and
stop times. (ECF No. 84 at 13-14.)
Beginning with the 10:00 a.m. restriction, Ocean City articulates no reason why street
performers must wait until then to begin performing. This Court in Chase I has previously
noted that the boardwalk draws its larger crowds later in the day. See Chase I, 825 F. Supp. 2d
at 605 (“The crowds that street performers draw on the boardwalk vary considerably, but are
significantly larger at night.”); see also ECF No. 78-3 at 11 (Lieutenant Kovacs testifying that
While there was some testimony during the task force hearings regarding street performers arriving on the
boardwalk early to “claim” locations, ECF No. 78-3 at 8, 15, there is no testimony concerning conflicts among
street performers for locations. Rather, Plaintiff Chase testified that street performers began arriving early
because storeowners actually began placing items in their regular spots. (Id. at 16-17.)
28

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during the patrol’s 10 a.m. to 6 p.m. shifts, the personnel rarely encounter performers during
the first third of their shift.). Nor “with a healthy dose of common sense” does this Court
conclude that street performers cause problems with public safety or the free flow of
pedestrian traffic—for example—after 8:00 a.m. that require a 10:00 a.m. start time. Reynolds,
779 F.3d at 229. Accordingly, the City has failed to show that prohibiting individuals from
performing on the boardwalk before 10:00 a.m. is narrowly tailored to the interests of public
safety and promoting the free flow of pedestrian traffic.
Unlike the morning 10:00 a.m. restriction, the nighttime 1:00 a.m. restriction is
narrowly tailored to the City’s interests. During the task force hearings, two members of the
public expressed concerns about performers remaining on the boardwalk late into the night.
(ECF No. 78-4 at 29, 32-33.) Further, in the interests of public safety and decreasing
congestion on the boardwalk, 1:00 a.m. is a reasonable time restriction given that bars along
the boardwalk are required to stop selling alcoholic beverages one hour later, at 2:00 a.m.
Accordingly, “common sense and logic” dictate that prohibiting individuals from performing
on the boardwalk past 1:00 a.m., regardless of the specific nature of their performance, is
narrowly tailored to the interests of public safety and promoting the free flow of pedestrian
traffic. Reynolds, 779 F.3d at 230.
iii.

Miscellaneous restrictions

Having found that the regulations requiring registration and designating performance
areas are facially unconstitutional, this Court now addresses the regulation that states: “[n]o

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performer . . . shall place or allow any item exceeding six feet above ground . . ..”29 § 6210(d). Plaintiffs only argue that this limitation would prohibit a performer over six feet tall
from utilizing an umbrella. (ECF No. 79-1 at 54-55.) Section 62-10(d), however, has an
exception for umbrellas. § 62-10(d) (“Performers and venders can utilize an umbrella for sun
shade . . ..) Having raised no other argument, Plaintiffs have not shown how this restriction
burdens their right to freedom of speech, and accordingly, this restriction is constitutional.
See Dowd v. City of Los Angeles, No. CV09-06731, 2013 WL 4039043 (C.D. Cal. Aug. 7, 2013)
(finding four-feet height restriction was not overly broad).
C.

Advertising restrictions

Finally, two provisions of Chapter 62 regulate advertising. 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 and venders may not “advertise, or employ an
individual to advertise, his or her performance or vending outside of the designated space or
street end area which the performer or vender occupies.” § 62-10(o). As to the second
restriction, performers are no longer restrained to designated performance areas and
accordingly this restriction’s derivative reference to “performer” is stricken as well. As to the
first restriction, it appears to be a restriction on commercial speech and accordingly subject
to intermediate scrutiny. Chase I, 825 F. Supp. 2d at 622 (“As an express regulation of
advertising, this provision appears to be a restriction on commercial speech, subject to
intermediate scrutiny.”). Notably, Chapter 62 does not prohibit a performer from using an
umbrella; it prohibits the placement of an advertisement on the umbrella. Ocean City “avers
Plaintiffs do not appear to challenge the rest of this provision which also prohibits “affix[ing] props or
equipment to the Boardwalk surface.”
29

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that the justification behind this regulation is to limit the collateral effects [that] widespread
advertising could have on the Boardwalk.” (ECF No. 83 at 12.) Ocean City has not offered
any evidence, however, connecting the placement of an advertisement on an already existing
umbrella to any such “collateral effects” or threats to the public safety or free flow of
pedestrian traffic. In fact, this Court finds no reference to advertising anywhere in the eightyseven page report from the Boardwalk Task Force. (ECF No. 78-5.) Accordingly, the City
has not provided “actual evidence” that problems occur that necessitate this advertising
restriction, and it is not a proper restriction on commercial speech.
III.

Effect on Chapter 62’s regulations of vendors and vending

The Code of the Town of Ocean City, Maryland, Chapter 62, Section 62-14 states
that:
If any portion, subsection, sentence, clause or phrase of this chapter is for any
reason held by a court of competent jurisdiction to be invalid, such a decision
shall not affect the validity of the remaining portions of this chapter. The City
Council hereby declares that it would have passed this ordinance and each
portion or subsection, sentence, clause and phrase herein, irrespective of the
fact that any one of more portions, subsections, sentences, clauses or phrases
be declared invalid.
As described supra note 1, Plaintiffs are all individuals who do or have performed on the
Ocean City boardwalk. This Court’s analysis depended on the fact that Plaintiffs engage or
engaged in fully protected speech under the First Amendment. On the other hand, neither in
their briefings nor at the hearing did the parties provide this Court with the information
necessary to analyze the constitutionality of Chapter 62’s regulation of vendors and vending.
Accordingly, as described in this Court’s Order, the references to “performer” and
“performing” are STRICKEN from: Section 62-7, “Performing and vending in designated
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spaces”; Section 62-8, “Allocation and selection of designated spaces”; Section 62-10(j)-(k),
setting the 1:00 a.m. through 10:00 a.m. ban; and the portion of Section 62-10(d) which
prohibits signage or advertising on an umbrella utilized by a performer. Further, the various
derivative references to performers found in Section 62-10 are STRICKEN as well—namely
the references to “performer” and “performing” in Sections 62-10(a)-(c), 62-10(f)-(i), and
62-10(o).
CONCLUSION
This Court recognizes Ocean City’s substantial interests in making the boardwalk safe
and orderly for its citizens, personnel, and visitors. This Court also recognizes the efforts
Ocean City put into enacting Chapter 62. However, with the exception of three provisions,
Chapter 62’s restrictions place a substantial burden on speech that does not implicate or
hinder the City’s interests. As this Court stated over twenty years ago in Markowitz, Ocean
City must determine the forms of expressive activities that “actually harm or substantially
threaten” the City’s interests and “develop an ordinance which directly addresses the evil posed
by each activity.” No. MJG-95-1676 at 19-20 (emphasis added).
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 the Code of the Town of Ocean City,
Maryland, Chapter 62, Boardwalk Performing and Vending which prohibit performing
anywhere on the boardwalk after 1:00 a.m.; specifically prohibit performing at any time on
43

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 “performer” 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. The City shall not
enforce these provisions as enacted.
Specifically, the references to “performer” and “performing” in these Sections of the
Code of the Town of Ocean City, Maryland, Chapter 62, Boardwalk Performing and
Vending—Section 62-7, “Performing and vending in the designated spaces”; Section 62-8,
“Allocation and selection of designated spaces”; the portions of Sections 62-10(j)-(k) which
prohibit performing before 10:00 a.m.; and the portion of Section 62-10(d) which prohibits
44

signage or advertising on an umbrella utilized by a performer—ARE FACIALLY
UNCONSTITUTIONAL in violation of the First Amendment of the United States
Constitution and Article 40 of the Maryland Declaration of Rights. Therefore, pursuant to
the Severability Clause of Chapter 62, Section 62-14, the references to “performer” and
“performing” are STRICKEN from the above provisions of Chapter 62. Accordingly, the
various derivative references to performers found in Section 62-10 are STRICKEN as
well—namely the references to “performer” and “performing” in Sections 62-10(a)-(c), 6210(f)-(i), and 62-10(o).

A separate order follows.

Dated: May 9, 2018
/s/
Richard D. Bennett
United States District Judge

45