OC Unplugs ‘Walk Buskers for ‘19

OCEAN CITY – After a lengthy discussion, and public comments that raised the specter of legal action over violated rights, Ocean City Council unanimously approved an ordinance that would unplug boardwalk performers playing for tips.
The unanimous vote April 25 means buskers will not be able to use amplifiers this summer. According to city attorney Dorothy McCrosson, the city heard numerous complaints about noise on the boardwalk.
Later in the meeting, Mayor Jay Gillian said the issue was not all performers, but a small percentage of them. The administration received numerous complaints in previous summers, both from boardwalk merchants and from summer visitors, about the buskers.
Gillian, who owns and operates Gillian’s Wonderland on the boardwalk, said at the meeting that many visitors want the city to be like a Disney resort. But that’s a private enterprise, he said, while the boardwalk is a public area. While Disney can audition performers, under the First Amendment of the Constitution, the city cannot limit who gets to perform or what they present. The city can, however, limit how loud they get.
“We just need something for the bad people who have no talent, no anything and come up there and just scream and sing and do whatever,” Gillian said. “It’s almost like beggars, and I hate that word, because it sounds like I’m elitist or something like that. I can tell you that’s really what this is all about.”
The city wrestled with the issue for years, eventually allowing amateur performers to play for tips on the boardwalk after they fill out an application and pay a $50 fee for the season to be assigned spots. Gillian suggested some performers do well financially.
Earlier this year, the city was set to ban all amplification. A singer with an acoustic guitar would still need to follow limits on noise, which state the performance should not be audible 30 feet past the boardwalk railing where the performers set up. But as performer Bryan Woolbert pointed out before the final vote in March, that would leave out his electronic piano, which would be inaudible without power. The city agreed to amend the ordinance to make certain Woolbert could continue to perform this summer.
But that raised new questions.
Over a lengthy comment period, several speakers took issue with the latest version. For instance, what difference does it make if there is an amp if the sound meets the requirements of the ordinance? And what about horns, flutes, drums or other instruments that may be louder than the ordinance allows, even without amplification? Like a keyboard, an electric guitar is also inaudible without amplification. City officials pointed out that an acoustic guitar is allowed, but speakers said it is not the same thing, and produces a completely different sound.
Chris Leibrant, the owner of a music store on Asbury Avenue, cited an example of one of his former students who plays electric guitar. Using only the student’s first name, Robbie, Leibrant said he depends on a wheelchair and plays electric guitar on the boardwalk. The guitar is manufactured to be used while in a wheelchair. 
Showing an image of Robbie with his guitar, Leibrant said, “Like the keyboard which you’re permitting to be amplified, electric guitar must also be amplified or it’s silent. You hear nothing from it. So to exclude Robbie from playing, I wonder if that’s any kind of a problem.”
He said the student plans to show up to play on the boardwalk this summer, with his guitar and amplifier.
“So is it going to be a problem when the police unplug him?” he said. He suggested this could lead to lawsuits or complaints filed against the city, or a call to the American Civil Liberties Union (ACLU).
Other speakers raised similar concerns. Resident Georgina Shanley said she would not want her tax money going to settle lawsuits over a First Amendment issue on the boardwalk.
Earlier in the meeting, Shanley also took issue with the time limits for speakers at city council meetings.
“As citizens, we have an expectation that we will be treated with respect and given enough time to finish our thought. I think the three minutes is outrageous, and people in the middle of a sentence are gaveled out,” she said. “The role of council is to make informed and responsible decisions. How can you make informed and responsible decisions if you don’t listen to the public? This is the people’s house. You’re serving us.”
The comments clearly hit a nerve, with several members of council responding later in the meeting.
“To say we don’t listen just doesn’t make sense. If we didn’t listen, this would have been passed a month ago,” said Councilwoman Karen Bergman. “We listen to everybody that comes up here.”
Resident Steven Fenichel also addressed the issue, suggesting some in the city may take issue with an African American singing a song like Bob Marley’s “Get Up, Stand Up” on the boardwalk.
“I hope not. But there is content to some of the songs, and it’s not a case at all having to do with decibels. It’s having to do with someone having an appearance or words to a song that are found to be distasteful,” he said.
Later in the meeting, Councilman Michael DeVlieger stated that he loves Bob Marley and other reggae stars like Jimmy Cliff.
It would not be possible to craft the perfect ordinance, he suggested.
“I know we live in a world where everything has to be legislated and no common sense can be allowed anymore, but I’m sorry, common sense will have to prevail,” he said. “I think it’s going to have to be reasonably enforced and we’re going to have to have some kind of balance and logic.”
Councilman Tony Wilson stated that some of his favorite music, including Hootie and the Blowfish, REM and Nirvana, had great success when releasing acoustic music, such as on “MTV Unplugged” when he was in college, saying “those guys rocked it,” while Gillian said he favors Elton John and Billy Joel, adding “some people don’t like it.”
According to McCrosson, the ordinance was discussed at great length before it was even brought to council. She has stated that the city receives numerous complaints about the buskers each summer.
“We struggled to strike a balance between the freedom of expression that these performers are entitled to and the concerns of the people that come to the administration, that come to individual council people with their complaints about sound, the type of entertainment that’s up there. Not everyone who’s up there is performing music. Some people are doing things that some of the passers-by don’t consider to be artistic,” she told council members.
But there is a right to freedom of expression, she said, which means the city cannot limit the type of performance that may take place. The only area that can be addressed is the volume of the performers, she said.
Gillian, who rarely speaks at length at meetings, described his frustration with the issue. He said he also works to limit the noise from amusement parks and the music from a miniature golf business that was cited by several speakers. He said he told the police to avoid issuing summonses whenever possible, in this and other matters, a stance he said frustrates many officers. Gillian added that he hears more complaints from visitors than from boardwalk merchants.
Councilman Robert “Bob” Barr, who uses a wheelchair, said he was in favor of the ordinance until Leibrant raised the issue of his student. Barr said he was not aware of the existence of an adaptive instrument and wanted to make certain that people with disabilities were not kept from performing.
Gillian said council and the public should trust him and the city staff.
“Now Bobby, you know me and you know (Ocean City community services director) Mike Allegretto and his team. That’s never going to be a problem. If someone comes up there, whatever they need, we’re going to take care of them,” Gillian said. “You pass this ordinance, you have my word, we will do it properly. Because we don’t have a choice, as everyone reminds us in this room, with the First Amendment.”
Barr joined in the unanimous vote.
After the vote, Shanley told council that she received an email from an attorney with the ACLU who suggested there could be an issue with the ordinance if it was stricter with limits on expressive sound, like songs or performances, than it is on incidental noise like those from an amusement ride.
To contact Bill Barlow, email bbarlow@cmcherald.com.