Art that 'has to be heard': Ocean City, Boardwalk buskers reignite fight over noise
OCEAN CITY, Md. — Robert Peasley loves to play music. As he describes it, it's "the glue" that keeps him together.
Performing lifts Peasley's spirit, especially when his audience is comprised of children. For those guests he trades in the classic hits he likes to play for "Old McDonald Had A Farm" or "You Are My Sunshine."
“Since I’m not able to get up on a stage to perform, this is the next best thing,” said Peasley, who uses a wheelchair.
Peasley has played on the Ocean City Boardwalk for more than 10 years. He’s one of many buskers who frequent the Boardwalk, but their presence hasn’t always been welcomed.
For more than 30 years, Ocean City has fought to get rid of street performers. Each attempt has failed either because town officials backed off under the threat of litigation or a federal court struck down Ocean City’s restrictions. Now the resort is trying again.
Town leaders introduced a revised noise ordinance earlier in April that would make several acts, like singing, shouting, playing music with an amp and more on the Boardwalk a misdemeanor, if it surpasses certain decibel levels.
Bill Hassay Jr., a violinist who’s performed on the Boardwalk since 1995, said Ocean City has made its position on street performers clear for years: It wants them gone.
“Every two or three years they pass another ordinance that limits how we can function here and every couple of years they lose in court,” Hassay said.
Ocean City passes its restrictions likely betting it will take years for a court to strike down the ordinance, Hassay said. Once a court provides a remedy, Hassay said he feels town leaders give it some time, then start working on a new way to restrict buskers.
“Freedom of expression and freedom of speech are very important,” Hassay said. “Governments should not be in the business of limiting that. They should encourage it — and they do not do that in Ocean City."
Ocean City respects the First Amendment, said Ocean City Mayor Rick Meehan, but it also must address the concerns of those who feel the Boardwalk is too loud.
The Boardwalk is lively on many summer nights with music originating from Boardwalk shops and buskers, the screams of excitement coming from rides at Jolly Rogers and Trimper's, and the sounds of bells and buzzers emanating from various arcades.
The town’s newest proposed ordinance targets noise on the Boardwalk, not street performers directly, but Meehan admitted the buskers partly motivated Ocean City to revisit its noise ordinance.
The revised noise ordinance would restrict noise levels to below 60-75 decibels, depending on the time of day and area of the Boardwalk, according to the proposed ordinance. The town set these proposed standards with the help of an acoustical engineer.
Some buskers feel the decibel standards are so low that normal activities, such as two people talking, could be considered a violation. According to the CDC, a normal conversation is approximately 60 decibels and the sound of a washing machine or dishwasher is 70 decibels.
“Over the years, we've passed ordinances that we felt were going to be sufficient for us to reasonably address noise issues, but they failed the test at the court level,” Meehan said. “I think we're moving in the right direction (this time).”
If Ocean City went to court over this newest ordinance, it would likely lose, according to Mark Graber, regents professor and constitutional law scholar at the University of Maryland Francis King Carey School of Law.
An entity isn’t allowed to discriminate against someone’s speech, Graber said. A government can’t tell someone they can be as loud as they want while telling another person to be quiet.
“I think Ocean City is determined to strikeout, having gone 0-2 in federal court,” said Graber, who reviewed the proposed ordinance before offering his opinion. “This also looks like a swing and a miss.”
Nuisance vs. entertainment
Peasley has yet to have an issue with the police about his performances. His amp is a small unit that fits on the underside of his wheelchair.
Ocean City, Peasley said, had gone overboard in the past with its restrictions on performers. Its 2015 rules that forced street performers to register to perform on the Boardwalk were especially difficult for Peasley because of his mobility challenges, he said.
Parts of Ocean City's 2015 rules were struck down in federal court because they were considered “facially unconstitutional" and a violation of the First Amendment, according to the May 2018 ruling by U.S. District Judge Richard Bennett.
“I don’t mind Ocean City having some restrictions as long as they don’t try to stop us completely,” Peasley said.
The resort’s newest proposed ordinance shocked Lucian Ionescu when he first heard about it. Ionescu is another violinist who has performed on the Boardwalk for 10 years.
Ionescu lives in Florida with his three children and performs throughout south Florida and the Florida Keys. Police there haven’t had issues with Ionescu’s performances, unlike in Ocean City.
On his first day, Ionescu remembers being approached by Ocean City police because he was playing his violin on a bench. Ionescu said police told him that he couldn’t perform while sitting on the benches, and when he refused to move, the police officers told him to leave and not return.
Ionescu said he uses the smallest, battery-powered amp he could find, yet police continued to "harass" him for several years.
Ocean City considers street performers a nuisance because its “super protective of the shop owners” on the Boardwalk, said Joe Smith, a magician and ventriloquist who has performed on the Boardwalk for 11 years.
He added, “One man’s nuisance is another man’s entertainment.”
There has been some animosity between buskers and Boardwalk businesses, street performers say. Some businesses look at the performers as an annoyance that's distracting people from shopping at their stores, while others are "jealous" the acts can make money with no overhead or permit from the town.
All the buskers want is to be left alone to perform, Smith said, but issues with Boardwalk businesses and the irresponsible behavior of certain acts have left performers and officials at odds. The numerous lawsuits haven't helped either.
“I think ever since we won the 2015 lawsuit, they have been trying to figure out a way to get back at us,” Smith said.
Court battle after court battle
Ocean City’s fight with the Boardwalk buskers began in 1988 when the town prohibited a clown and a juggler from performing on the Boardwalk, according to court documents from the 2013 lawsuit Hassay filed against Ocean City. Since then, the resort has faced several lawsuits, in 1995, 2005, 2009 and 2011.
When buskers perform opposite of Boardwalk businesses, who play music themselves, it can create a situation in which each party might turn the volume up to be heard over the other, Meehan said.
Town officials have received noise complaints about the Boardwalk through the years, Meehan said. The noise complaints range from members of the public who are upset at shops to business owners who complain about other businesses or buskers.
“If we were forced to turn a blind eye to this and not to address it, that in itself would probably create a bad image,” Meehan said.
After Ocean City lost its court battle against a spray paint artist in 2011 over the resort's permitting system for buskers, it waited about three months before town leaders passed an ordinance making it a noise violation if a person's music could be heard 30 feet away, according to the court documents from Hassay's lawsuit.
“Music is the art form that communicates emotions,” Hassay said. “In order to communicate emotions, it has to be heard. They were basically saying, ‘You can go out there and play, but you have to play at such a low level that somebody walking 30 feet away from you won’t be able to hear you.' ”
The rule was ultimately struck down in a federal court.
Two years later, Ocean City was back in federal court being sued by a group of street performers for yet another set of rules. The lawsuit was led by Anthony Christ.
Ocean City had enacted an ordinance in 2015 that required buskers to register each week to perform on the Boardwalk, according to court documents. It also instituted certain restrictions on where, when and how people could perform.
Prior to the 2015 ordinance, Christ was a resident, and not a performer. After he saw what was happening, he became "incensed," and decided to become a performer so he could file a lawsuit against Ocean City.
“I always thought the performers were a part of the sand and part of the mystique of Ocean City,” Christ said. “They’re out there trying to make a living."
"We have to challenge it"
After Ocean City’s loss in 2015, officials realized they had to rewrite the ordinance, Meehan said. The town went “the extra mile” this time and hired an acoustical engineer to take noise readings on the Boardwalk to help set guidelines for what could be considered excessive noise.
The consultants recommended noise above 60-75 decibels be considered excessive, with specific levels set for different times of day and areas of the Boardwalk.
“The ordinance still allows everybody, particularly somebody that is exercising their First Amendment right to do so, but not at the expense of becoming detrimental to everybody else around them,” Meehan said of the proposal.
Ocean City plans to move forward with its proposed ordinance, despite the threat of another lawsuit, Meehan said.
The ordinance passed on its first reading April 19 and is set to come back before the Town Council in May.
Some buskers would prefer to avoid another court battle, but Ionescu feels the town is leaving them no choice but to fight again.
“We have to challenge it. It’s not fair,” Ionescu said.
A normal conversation between two people would reach the noise restrictions Ocean City is considering, Ionescu said. The squawking of the sea birds would exceed the decibel levels.
The ordinance's language seems overtly targeted at the Boardwalk buskers, according to Graber, which would make it discriminatory and unconstitutional. Graber added Ocean City will never be able to pass a successful ordinance unless it tells all parties to quiet down, which Graber believes is unlikely.
Even though Graber thinks Ocean City’s proposed ordinance is unconstitutional and likely to get struck down by a federal court, it could still be a while before a court were to intervene.
“What’s important is to treat speech equally,” Graber said. “(Street performers) have just as much of a right for people to hear their speech as those who do have the money to buy a building and speak from within their property.”