seagull on beach

In the ongoing battle to prevent topless beaches, OC closed the year with an encouraging legal decision.

(Dec. 28, 2018) Ocean City’s legal battle over prohibiting women from baring their breasts on the beach continued this year with a federal civil suit challenging the resort’s ban and ended with a federal district court judge denying the plaintiff’s request for a temporary injunction to lift the ban until the lawsuit is decided.

Civil rights attorney Devon Jacob, representing Eastern Shore resident Chelsea Eline and four other plaintiffs, filed suit in U.S. District Court in Baltimore on Jan. 16 and filed a preliminary injunction request with Chief Judge James K. Bredar on June 29 to lift the restriction pending the lawsuit’s resolution.

In June 2017, Ocean City passed an emergency ordinance prohibiting females from baring their breasts in public within city limits subject to a fine of up to $1,000.

Along with Eline, fellow plaintiffs Megan Bryant of Lothian, Maryland, Rose MacGregor of Salisbury, Christine Coleman of Long Island City, New York, and Angela Urban of Pittsburgh, filed their discrimination lawsuit in January 2018, contending Ocean City’s ordinance banning public nudity violates the constitution’s equal protection clause, since men don’t have to cover their chests, but women do.

Eline, who was known as Chelsea Covington two years ago, set the wheels of the case motion in August 2016, when she advised the Ocean City Police Department and the Worcester County State’s Attorney of her intention to go topless on the beach.

Ocean City had nothing on the books that specifically banned toplessness and then-State’s Attorney Beau Oglesby (now a Worcester County Circuit Court judge) sought the advice of the Maryland Attorney General.

In the meantime, a policy memo sent to the Ocean City Beach Patrol on June 6, 2017 advising guards to leave the issue of bare-topped female sunbathing to the police department was leaked to social media.

That led to coast-to-coast news coverage, with many people misconstruing the memo to mean that Ocean City was about to allow semi-nude women on the beach.

City officials scrambled to refute that misconception, with Mayor Rick Meehan declaring days later that Ocean City is not and would never be a topless beach.

The council followed up its intentions on June 10 last year by passing an emergency ordinance prohibiting the practice. Four days later, the attorney general’s office told the mayor and council in a letter of advice that the city appeared to be on solid legal ground were a challenge to be made to the Maryland Court of Appeals.

In the injunction motion filed this past June, however, Jacob contended the case could drag out for years depending on appeals, while also arguing against the legitimacy of separate topless rules for men and women.

“The gender classification does not further an important government interest, but rather codifies longstanding discriminatory and sexist ideology in which women are viewed as inherently sexual objects,” the motion reads.

Jacob said the emergency ordinance violates the equal protection clause of the 14th Amendment, while also questioning Ocean City’s assertion that topless sunbathing hurts the resort’s family image.

City Solicitor Guy Ayres has countered that there is no constitutional right to appear nude in public.

On July 27, Ocean City filed a response asking Judge Bredar to deny the plaintiffs’ request for a preliminary injunction to suspend the enforcement of the resort’s anti-nudity ordinance.

In the court motion, Ocean City government’s attorney Bruce Bright noted parties seeking preliminary injunctions are required to demonstrate the request is, “likely to succeed on the merits at trial.”

Citing a long list of court rulings in Maryland and elsewhere that upheld government prohibitions of public nudity, Bright argued that Eline and her co-plaintiffs are unlikely to prevail in this case.

Among the cases he referenced was a Maryland U.S. District Court decision in 2016 that affirmed Prince George’s County’s right to restrict the location of adult clubs.

Bright pointed to a previous topless scandal in the area, when the Fourth Circuit Court of Appeals in Richmond upheld the conviction (and $25 fine) of a woman who had been charged with sunbathing sans bathing suit top on Assateague in 1989.

Although U.S. District Court on Aug. 23 denied the plaintiff’s request for a preliminary injunction, it later granted an extension until Dec. 7 so the litigants could gather additional expert testimony.

Testifying for Ocean City in U.S. District Court on Dec. 7 were Mayor Rick Meehan, Councilwoman Mary Knight, City Clerk Diana Chavis and Ocean City Chamber of Commerce Executive Director Melanie Pursel.

On Dec. 20, Judge Bredar sided with the city’s argument, concurring that government has the right to protect the public’s sensibilities, even though these sensibilities could change over time. That time has yet to come, said Bredar, whose opinion also concluded that Eline’s case was unlikely to win at trial.

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