With regulations thrown out by courts, street performers battle for share of audience
(July 5, 2019) Now in its second summer after municipal government regulations were deemed unconstitutional in court, the street performer business on the Boardwalk has returned to its earlier self-regulating practices.
Guitarist Paul Richardson of New York City, a veteran Boardwalk performer for the past decade, said last summer provided a lesson in market forces.
“Sometimes, there’s a ton of performers here and, in that case, maybe we make a little bit less,” he said. “If it’s too hard to find a spot to earn sufficiently, people tend not to come back, so it kind of regulates itself.”
Violinist Bill Hassay Jr., who was legally vindicated in 2013 in U.S. District Court after the ACLU challenged an aspect of the noise ordinance on his behalf, said the scene on the Boardwalk has returned to previous practices, following the more recent court ruling against city government’s lottery system of performance space assignments.
“The ground impact was people were limited to street ends,” he said. “The big impact is that was ruled unconstitutional and now, with the exception of the North Division and Dorchester Street ends, you can set up anywhere.”
The post-litigation outcome is allowing performers increased flexibility regarding space allotments, which is much the same as when Hassay began serenading tourists with violin music in 1995.
“We’ve gone from lawsuit to lawsuit right back to where it originally was,” he said. “Before, when we had to be at street ends, it was kind of constipated, where everybody was locked into one spot, and when we were assigned lottery spots and you had to be there or not.”
Concurring with those sentiments was magician Joseph Smith, otherwise known as the Amazing Josini, who has entertained crowds with sleight-of-hand tricks for the last decade.
“It’s back to the way it was before the government intervention,” he said. “It’s first come, first served on the Boardwalk. You get to a spot first, that’s your spot.”
In 2016, the city enacted a lottery system for Boardwalk buskers that followed a first-served permit procedure the prior year that caused numerous performers to camp overnight outside City Hall to assure prime spots.
“There wasn’t even a drawing the first year,” he said. “There were people camping outside, because whoever was at the office first, they’re the ones that got the prime picks as to where they wanted to set up at.”
To remedy the camping tendency, Smith said a lottery drawing was launched in 2016, which did eliminate one problem, but caused others.
“Initially, that seemed like a fair process,” he said.
In practice, Smith said in some instances the lottery process lumped together acts that didn’t mesh successfully.
“If I’m right here and I’ve got a guy with a tuba over there and he’s pounding the Boardwalk with it, I can hardly hear myself talk to my audience,” he said. “We were kind of boxed into that situation a lot of times.”
Hassay said before the most recent lawsuit, he testified before the Ocean City Council that limiting performers to street ends each week would create more problems than it solved.
“The businesses get tired of seeing the same person out there under their window day after day,” he said. “I said, ‘it’s just going to create more complaints,’ and they totally dismissed that.”
Smith questioned the effectiveness of the lottery system employed in 2016 after the city denied a physically challenged youth from raising money for a worthy cause.
“A kid came here with his parents who would come every summer and set up to play guitar,” he said. “The kid had some degenerative disease and when he was getting tips, he was actually helping to raise money for his cause.”
Smith said police told the youth he couldn’t perform on the Boardwalk without signing up at City Hall, only to later discover the assignment would be for the following week after the family’s vacation had concluded.
“I just thought that was so unfair,” he said. “He’s trying to raise money, so let the kid do his thing. I would have literally moved for the kid.”
Violations of the lottery system were also subject to a fine, Smith said.
“They actually had penalties for that if you violated the system,” he said. “It was close to criminalizing us.”
Hassay said after the 2015 permitting process was deemed illegal in court, the lottery system enacted the following summer also proved to be unconstitutional.
“You had to tell them what you were going to do, and, if they approved, they would permit you to do it,” he said.
From Smith’s perspective, Boardwalk buskers are regulated by the public without the need for government oversight.
“The way I look at what I do … it’s the purest form of democracy,” he said. “If they don’t want me here, they’ll vote with their wallet. If they tip, that’s telling me that they like what I’m doing.”
Hassay also said quality acts are the only ones that survive from summer to summer.
“It’s not easy to be out there,” he said. “Whatever you do, you have to be really good, because if you’re just going to come out here and bang a guitar, the competition is too stiff.”
Smith said economic realities can flush out less polished performers.
“This is an expensive town to stay in, so if you come here and you’ve got an act and it’s not really raking in the dough, and I mean fast, you’re going to be out of there soon,” he said.
“That’s what happened. A few acts did come that nobody saw before, but there were only here for like a week and they were done.”
Many would-be acts learned a quick lesson following the lifting of previous guidelines for performers last summer, Smith said.
“Everybody gets this notion that it’s Ocean City with thousands of people,” he said. “I’m going to come here and rake in all this money and it’s going to be falling in my lap like manna from heaven.”
Smith said the reality turns out a bit different for many aspiring street entertainers.
“First of all, you’ve got to be super talented and you’ve got to have a super presentation that really compels people first of all to stop, and then to tip,” he said.
Recalling a legendary cohort, Smith boiled down the essence of the street performer’s approach.
“A friend of mine wrote a book on street performers, his name was Jimmy Talksalot from New Orleans,” he said.
“He had a great philosophy that said there are three principals to street performing: first you get them to stop, then you get them to watch and the you get them to pay.”
Smith said competition is the backbone of the economic system.
“It’s free enterprise in its purest form,” he said. “That’s what we didn’t like … the government with their hands in our business.”
Following the lifting of restrictions on Boardwalk performers, a tradition which traces back a half century, Richardson said new challenges have cropped up.
“The main thing going on right now is some of us will show up at noon to get a spot for 7 at night,” he said. “Then the next day someone will be here at 10 a.m. and otherwise you don’t get a spot or you’re up by Tenth Street or something way up there.”
Overall, Hassay said the post-litigation scene for buskers has changed for the better.
“The point is the lawsuit has made us more diffuse and it has not, probably to the surprise of people, encouraged everybody to get out here,” he said. “If you look around, there are not that many of us.”