TRI In The News

Boardwalk Performer Sues OC

July 11, 2011

7/11/2011

TRI IN THE NEWS: BOARDWALK PERFORMER SUES OC

From Delmarva Now

OCEAN CITY -- A street performer has filed a lawsuit against the town of Ocean City, alleging his First Amendment rights have been violated by restrictions on where he makes his art and by police determined to keep him off the Boardwalk.

Mark Chase, a spray-paint artist, said the City Council is overstepping its bounds by prohibiting him from creating and selling his paintings on the Boardwalk, according to the U.S. District Court complaint. He will be represented by the Virginia-based Rutherford Institute, a group that advocates for free speech nationwide.

Chase used to perform daily in the area of North Division Street until City Council voted to ban activities there that cause large crowd gatherings. The ordinance was proposed after Ocean City Fire Department Chief Chris Larmore told the council about potential safety issues that can be caused by large crowd gatherings in the area, which is the main route for safety vehicles to get to the beach and Boardwalk.

Chase also alleges he has been harassed by police, according to the complaint. Officers shooed him away unnecessarily from a different Boardwalk spot just as he was setting up his equipment, the complaint says. A police officer who's not named in the lawsuit reportedly told Chase a single complaint about his spray art would be reason enough for police to evict him from any spot he wanted to perform.

There have been cases similar to Chase's where courts have ruled in favor of the plaintiff, said John Whitehead, president of the institute. He said the crackdown is a result of council members allegedly having it out for Chase.

"In a lot of these cases, we see people tend to irritate city officials by showing up at meetings, and someone decides it's time for him or her to go," Whitehead said.

Ocean City solicitor Guy Ayres said that isn't the case.

"He contends this was aimed at him because that's where he goes, but it really isn't," Ayres said of the ordinance quashing performances at Division Street. "It's a public safety issue to ensure access by police, fire and beach patrol, and there are other areas where street performing is permitted. I don't think his First Amendment rights are being deprived merely because they're prohibiting that location."

Ayres also said Chase's typical setup, which includes painting equipment, speakers, a generator and other supplies, makes it more of a problem for him to get out of the way of emergency vehicles in a timely fashion than for less-encumbered performers.

"It's not like he's up there juggling and can just move away," Ayres said.

Whitehead said from the facts he's seen, he doesn't believe the action was taken for safety purposes. If it was, the town will have to prove it.

"That's going to be an issue," Whitehead said.

Chase is also taking issue with the fact the town code requires performers pay for and obtain a permit in order to be able to practice their skills on the Boardwalk. He's asking the court to rule Ocean City's permit-to-perform system inherently stifles free speech.