TRI In The News

Ocean City Artist Sues City

9/12/2011

TRI IN THE NEWS: OCEAN CITY ARTIST SUES CITY

From The Baltimore Sun

Original article available here.

As the summer tourist season winds down in Ocean City, a federal judge in Baltimore is considering whether restrictions on street performers along the famous 3-mile boardwalk are unconstitutional, after the question was raised by a rabble-rousing spray-paint artist, who sued the town in June alleging civil rights violations.

"To restrict [us] is basically to restrict the American dream," plaintiff Mark Chase declared last month while chain smoking outside the city's U.S. district courthouse after a hearing.

The self-taught artist, who specializes in sci-fi landscapes with an underlying religious theme, takes particular exception to Ocean City ordinances requiring permits for outside entertainers, prohibiting them from selling their work, and forcing them to perform in certain locations.

He claims the rules amount to prior restraints on freedom of expression and has asked a judge to strike them down, which could change the face of the boardwalk by opening it up to all kinds of artists who want to sell their work.

Chase already won a temporary victory last week, when U.S. District Court Judge Ellen L. Hollander issued a preliminary injunction, preventing the town from enforcing the permit requirement and sales ban, so long as any goods sold are considered "expressive material."

The order will remain in place as long as the litigation continues, and it could become permanent — an outcome with implications for other artists and even vacationers, many of whom consider the entertainers part of the attraction.

"It's like a euphoric moment for us right now," Chase said in an interview last week. He claims his case is being watched by officials in other boardwalk towns on both coasts. "[This could] open up doors all across the United States," he said.

His lawsuit is at least the second such case filed against Ocean City in Baltimore's federal court by a street performer within the past two decades.

In 1995, a federal judge ruled in favor of a puppeteer named Jim Starck and some others, who sued over similar constitutional issues after the city banned most "peddling" activity on the boardwalk. Town officials were trying to shut down performers then, Chase claims, and they're trying it again, now.

"They're trying to squeeze us completely off the boardwalk," Chase said.

Ocean City officials point out, however, that no one but Chase is complaining.

"He's an [expletive]," Ocean City's attorney, Guy R. Ayres III, said after the hearing, having told the judge that the town "can't risk public property and lives so that he can make more money on the boardwalk."

The 29-year-old painter and father of three is an admitted agitator. He's loudly protested Ocean City's laws and refused to get a performance permit or even collect sales tax on his artwork — a likely violation of state law, according to a spokeswoman for the Comptroller of Maryland.

"Mr. Chase's position is that he's exempt," said his lawyer, John R. Garza, who was hired to represent Chase by the Rutherford Institute, a civil rights advocacy group based in Virginia. "He may be wrong."

Chase says he discovered spray paint artistry a decade or so ago on vacation in Cancun and taught himself how to do it in his Glen Burnie backyard.

An 11-minute video on his website, stellarpaintings.com, shows him using paper cutouts and cans to produce various shapes, including the three moons he created in that particular painting shown online. He likes to include sets of three, he said, to represent the Holy Trinity.

When he paints on the beach, he cordons off an area around him as he works and sits in the center, spraying and smudging to pulsating music as crowds gather. His paintings — which frequently feature mountains and waterfalls — typically take less than 15 minutes to make.

He initially started selling his work on the craft and fair circuit, he said in court, then set up shop in Ocean City a couple of years ago at a summertime rental space on the "Jolly Roger Pier." But he couldn't make a go of it there, and relocated closer to the boardwalk — also known as Atlantic Avenue — at a concrete pad by the intersection with North Division Street.

Most of Ocean City's 4 million summer visitors traipse along the boardwalk, which is closed to cars, and many of them come through North Division Street, which offers easy beach access.

Chase, who lives at a hotel along the beach during the summer season, said he worked 12 hours a day there, pulling in a $1,000 at a time. The money eclipses the salary he makes during the rest of the year, driving a school bus in Anne Arundel County.

"I'm one of the hippest things on the boardwalk, as some of the newspapers has said," he claimed in court.

But a new Ocean City rule implemented this June banned street performers from that area, so public safety officials could use it for staging in the event of disaster.

Fire Chief Christopher Larmore said in court last month that he asked for the change and agreed to "give up all street ends, all 28 blocks north of Division street, just in return for" that one spot. He says it's wider than other streets and has both an entrance and exit.

But Chase doesn't want to let it go and says he shouldn't have to. He's since relocated a block over to Caroline Street, and claims his sales are down about $750 a day because of it.

He complained to the press, and the Rutherford Institute got wind of it and tracked him down. The group offered to help him file suit, which he did in late June, claiming that restrictions on his art performances are unconstitutional

So far, the judge agrees with him on two points — the permit requirement and the sales ban — though she declined to strike down the location rule, which she found to be a "reasonable time, place, and manner restriction."

The city began requiring the permits as a way to know who might be interacting with children, Ocean City Mayor Richard W. Meehan said in court. Last year, 550 people signed up for the performance art permits, many of them costumed performers who greet kids and pose for pictures. The town wanted to know who was under the outfit, in case issues were reported.

Meehan also said that the limits on sales are there to keep merchants from selling goods on the boardwalk and competing with brick and mortar stores, though he acknowledged that an artist whose performance produces a product is not necessarily a merchant.

"I think he is operating a business, but he falls under the category of street performer, and will be treated as such," Meehan said after the hearing.

Under the town's rules, Chase and other performers were only allowed to accept tips, and they couldn't suggest prices for their performances or products. Judge Hollanders temporary order has reversed that for now.

"I'm thrilled," Chase said of the development. "So many people can now show up on weekends and do their things without being thrown off the boardwalk."

He shrugged off the idea of competition. Said Chase: "Every artist should be showcased, there's plenty of people in the world to appreciate it."