Fiddle quibble cripples speech, OC's boardwalk hams say

The ACLU has filed a new grievance with Ocean City Police Department in regards to the protection of free speech for boardwalk performers.

According to the statement from the ACLU to town lawyer Guy Ayres, on July 29, violinist Ion Lucian Ionescu was issued a verbal warning by Officer Richard Wawrzeniak after a merchant complained of the sound level of Ionescu's amplifier. Following this, on July 30, Ionescu was allegedly given a written citation by Officer Ishmael Haimerl for the same issue, with Lt. Mark Pacini allegedly telling Ionescu that if a car is 15 feet long, and he can hear him from two car lengths away, then he's in violation of town ordinances.

This citation, along with Pacini's description of the code, would mark a direct violation of the December 2013 court case Hassay V. Mayor and City Council of Ocean City, in which US District Judge Ellen Hollander ruled that enforcement of the "30 foot rule" is unconstitutional and can not be enforced on the boardwalk. Wawrzeniak was also a defendant in this case.

Ayres, however, stated the ACLU's description is not an accurate account of events.

"He was never issued a citation for violating the code," Ayres said. "He was given a warning."

Ayres further stated that Ionescu's performance was "exceptionally loud," able to be heard at upwards of 150 feet away.

"Officers are told in their training to not enforce the 30 foot rule on the boardwalk," Ayres said. "They're told that a court case has deemed it unenforceable."

Though Ayres stated that officers are told not to enforce the 30 foot rule on the Boardwalk, town ordinances still clearly dictate that it is part of town code. Found in Section 30-272 of the Ocean City Town Ordinance.

"The using of, operating of or permitting to be played, used or operated any radio receiving set, musical instrument, phonograph, sound amplification system or other machine or device for the producing or reproducing of sound on or directed toward a public beach, the boardwalk, streets or other public ways at any time in such a manner as to be plainly audible at a distance of 30 feet from the source of such sound which is deemed to be unreasonably loud," the ordinance reads.

READ MORE: OC boardwalk performers protest

When asked why the ordinance still seemingly enforces the law that has for nearly three years been deemed unconstitutional, Ayres first stated that it did not still contain the 30 foot rule, and then later said that he was unaware that it did still contain the rule.

In the case of Ionescu, Ayres said that the 30 foot rule was irrelevant, as Ionescu was in violation of a different part of the noise ordinance, which states that any volume which is loud enough to be deemed disturbing the peace is in violation.

"He was extremely loud, so much so that businesses were complaining about it," Ayres said. "At that point, it's reasonable to ask him to turn it down."

Ayres further said that only the boardwalk is exempt from the 30 foot noise ordinance, and other areas of the town are still able to enforce it.

However, both the ACLU grievance and town ordinances state that this is not entirely true. In fact, the general noise ordinance for the town, which the ACLU says performers are often threatened to be cited in violation, states a 50 foot limit for sound. However, this rule can only be enacted between midnight and 7 a.m. Additionally, the ruling in the aforementioned court case has also deemed this ordinance not enforceable on the boardwalk, as it has been stated as unconstitutional.

Despite this recent incident, communications manager for the Town of Ocean City Jessica Waters said that she believes the police force, performers and the town have made great strides in finding compromise.

"There were certainly a lot of problems that we had to overcome," Waters said. "But I think the boardwalk patrol has done a great job with working with the performers to find a common ground."

The ACLU, meanwhile, has said that unconstitutional enforcement, including threat of citation and arrest, are still taking place on the boardwalk. The statement states that if these incidents continue, and officers involved do not receive disciplinary action, the ACLU is prepared to take the issue back to court.