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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
MARK CHASE, Plaintiff, v. TOWN OF OCEAN CITY, Defendant. Civil Action No. ELH-11-1771

MEMORANDUM OPINION Mark Chase, plaintiff, a self-described "spray paint can artist," is a visual artist whose medium is quick-drying, gloss-based enamel spray paint. Chase is also a street performer; he creates his paintings in the open air before a live audience. During the spring and summer months, Chase creates his paintings on or about the boardwalk in the resort venue of Ocean City, Maryland, where he sells his paintings to the public. On June 28, 2011, plaintiff filed suit (ECF 1), against the Town of Ocean City, Maryland ("Ocean City" or the "City"), defendant, alleging that various town ordinances violate his right to free expression, guaranteed by the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights. The ordinances at issue impose several restrictions on the activities of "peddling, soliciting, hawking or street performing" on the boardwalk, prohibit all sales on and near the boardwalk, and establish registration requirements. Plaintiff seeks a declaratory judgment, preliminary and permanent injunctive relief, compensatory and punitive damages, and an award of attorneys' fees and costs. See Complaint at 12-13 (ECF 1). Presently before the Court is plaintiff's Motion for Preliminary Injunction ("Motion") (ECF 2). After the parties submitted memoranda of law and documentary exhibits, see

Plaintiff's Memorandum in Support of Motion for Preliminary Injunction ("Mem.") (ECF 2-4); Defendant's Response to Plaintiff's Motion for Preliminary Injunction & Memorandum in Support of Response ("Opp.") (ECF 5), the Court held an evidentiary hearing on August 23, 2011. Testimony was presented by the plaintiff, as well as three Ocean City officials: Richard W. Meehan, the Mayor of Ocean City; Ocean City Fire Chief Chris Larmore; and Corporal Richard Wawrzeniak of the Ocean City Police Department. Several exhibits were also

introduced into evidence.1 For the reasons that follow, I will grant plaintiff's Motion in part and deny it in part, and will preliminarily enjoin certain aspects of the disputed statutory scheme. Background2 A. Ocean City and Its Boardwalk Ocean City, Maryland, is a seaside community located on Maryland's Eastern Shore. Situated on a long, narrow spit of land, the City runs north-south along the Atlantic Ocean. It extends for several miles along the coast (i.e. north-south), but is only a few city blocks wide (i.e. east-west), even at its widest point. The City is one of Maryland's major summer vacation destinations. According to Mayor Meehan, Ocean City receives around four million visitors every year between mid-May and mid"Before or after beginning the hearing on a motion for a preliminary injunction," Rule 65(a)(2) of the Federal Rules of Civil Procedure permits a court to "advance the trial on the merits and consolidate it with the hearing," although the court must "preserve any party's right to a jury trial." At the preliminary injunction hearing, the parties indicated that they did not want to proceed immediately to a trial on the merits. The facts are gleaned from the parties' exhibits and the testimony. In addi tion, I take judicial notice of some basic geographic information that is widely known within Maryland. See, e.g., United States v. Johnson, 726 F.2d 1018, 1021 (4th Cir. 1984) (geographical information that is "`generally known within the territorial jurisdiction of the trial court'" is "especially appropriate for judicial notice") (citations omitted); Davenport v. City of Alexandria, 710 F.2d 148, 151 (4th Cir. 1983) (same). -22 1

September, and receives another four million visitors during the remaining portion of the year. July and August are the peak months for summer tourism. The City's easternmost platted street is Atlantic Avenue, which is also known as the boardwalk. The boardwalk is a wooden pedestrian walkway that is located between the ocean beach and the paved streets of Ocean City. It is approximately three miles long, running from South Second Street in the south to about 22nd Street in the north, and between 50 and 75 feet wide. The boardwalk is lined with shops and other attractions for pedestrians. Although the boardwalk is primarily used only by pedestrians, the City operates a "tram" as a means of public transportation along the boardwalk. Corporal Wawrzeniak described the tram, a wheeled motor vehicle that transports passengers, as being slightly wider than a minivan, and composed of a front vehicle, operated by a driver, towing several trailers, each of which has 10-15 rows of passenger seating. At the southern end of the boardwalk, from South Second Street to Fourth Street, there is a concrete roadway next to the boardwalk, between the boardwalk and the beach, on which the tram operates. North of Fourth Street, the tram runs on the boardwalk.3 There are no restrictions on pedestrian access to the boardwalk. Moreover, there is no admission charge or identification requirement for entry on the boardwalk (or the beach), nor is there any restriction on the number of people who can be on the boardwalk at any given time. In the evenings during the peak months of summer, the boardwalk is highly congested, with

Corporal Wawrzeniak testified that the concrete roadway is part of the "boardwalk." Chase differentiated between the concrete roadway and the boardwalk. However, there does not seem to be a dispute that the concrete roadway is considered part of the "boardwalk," as that term is used in the City ordinances at issue in this case. -3-

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pedestrians walking along and flocking to the many shops, eateries, and attractions that the boardwalk has to offer. In the day, the boardwalk is a point of access to the beach. Although the tourist traffic on the boardwalk creates challenges for crowd control, it is very desirable to Ocean City. In Mayor Meehan's words, crowds are "what we want." Street performers are among the boardwalk's many attractions. Indeed, Mayor Meehan acknowledged that street performers are part of the "experience" that draws visitors to the boardwalk. By Mayor Meehan's estimate, on a clear summer night, as many as 25 to 40 street performers could be performing at various locations along the boardwalk. The parties submitted photographs depicting a variety of street performers, including plaintiff; other painters, caricaturists, and visual artists; magicians and clowns; musicians; and performers in costume portraying pop culture characters such as Spongebob Squarepants and Spiderman. The crowds that street performers draw on the boardwalk vary considerably, but are significantly larger at night. Corporal Wawrzeniak testified that, on occasion, some performers have drawn "hundreds" of spectators for night performances. According to Corporal Wawrzeniak, the most significant challenge law enforcement encounters with regard to street performers is management of the crowds they attract, so as to ensure safe passage of the public along the boardwalk and unimpeded emergency access to the boardwalk. Because the boardwalk is highly congested, Corporal Wawrzeniak indicated that each performer's ability to manage his or her own crowd is "paramount." B. The Ordinances At issue in this case are several ordinances enacted by Ocean City that impose regulations that apply to the boardwalk, see Code of the Town of Ocean City ("City Code"), ch. 62, art. I -4-

(1999, Supp. No. 18, May 16, 2011) (available at http://oceancitymd.gov/City_Clerk/ City_Code/), and its registration requirements for "unlicensed solicitors." See id.

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