To avoid a legal showdown with the Rutherford Institute and ACLU on First Amendment grounds, the Chestertown Council moved forward with an amendment Monday that permanently upholds the right of musicians to perform for tips in Fountain Park during the Farmers’ Market—and without the requirement of a permit.
“This satisfies the ACLU,” said Chestertown Town Manager Bill Ingersoll as he introduced the ordinance. He said street performers, also known as buskers, could play in Fountain Park as long as they do not overlap into designated areas for the Farmers’ Market and the Crafts Market.
“[They] can busk in the Park during the Farmers’ Market and during the Crafts Market but not necessarily within them,” Ingersoll said.
The proposed ordinance would prohibit buskers from playing during designated planned events where a permit has been granted, such as the Tea Party, Down Rigging, Tea Time Tour, Crazy Days, and the Wildlife Festival.
Councilwoman Linda Kuiper wanted language added to the ordinance that exempts the Farmers’ Market from being categorized as an “event” because a committee that oversees the Farmers’ Market could choose to exclude music.
“I wanted to put in the record before we vote that it is the intent of the Town Council that the Farmers’ Market is not considered an event within the context of this ordinance,” Kuiper said.
Ingersoll said he purposely left the Farmers’ Market out of the ordinance because it didn’t fall under planned events like the Tea Party and the Wildlife festival.
“It’s a regular event like First Fridays, it’s a weekly event,” Ingersoll said. “I left it out of the [ordinance] so busking is legal there…we’re not trying to start a new debate, we’re trying to solve problems. I wrote the ordinance so it doesn’t say anything about the Farmers’ Market” as an event.
Ingersoll said that regardless of what a committee decides, busking will still be “legal in the park during the Farmers’ Market.”
“Busk all you want in the Park,” Ingersoll said. “You’ll be next to the Farmer’s or you’ll be next to the Crafts Market, and you may even be in if they’ve invited you.”
The issue of busking came to a head this summer over a confrontation between Mayor Margo Bailey and a busker who was playing for tips during Farmer’s Market.
Shortly after confrontation, the ACLU and Rutherford Institute weighed in on the side of the buskers on First Amendment grounds.
Introduction of the bill raised concerns of all the council members. The video below of the exchanges among council members is about 10 minutes.
ORDINANCE 08-2012
AMENDMENT TO §145-13 PERMIT REQUIRED
WHEREAS, The Town of Chestertown has no specific regulations allowing or prohibiting the playing of music in publicly owned spaces in the Town of Chestertown, and,
WHEREAS, the Town has become aware that the playing of music in public areas (commonly referred to as busking) is connected with and individual or individuals rights to free speech,
NOW, BE IT THEREFORE RESOLVED that the Town of Chestertown add a provision to its Ordinances concerning permits, excepting busking from the requirement to obtain permits and describing the situations where busking may be regulated:
Section 145-13 Permit required: (EXISTING LANGUAGE)
It shall be unlawful for any individual, association, corporation or organization to use the streets, sidewalks, public rights-of-way, or town-owned property for any event or activity without first obtaining a permit from the town as provided in this article. NEW TEXT TO BE ADDED: NO PERMIT SHALL BE REQUIRED, HOWEVER, FOR STREET MUSICIANS OR OTHER PERFORMERS OF THE ARTS WHO ARE EXERCISING THEIR RIGHT OF FREE SPEECH ON THE AFOREMENTIONED PUBLIC PROPERTIES EXCEPT THAT SAID MUSICIANS AND PERFORMERS SHALL NOT BE PERMITTED TO PERFORM WITHIN THE AREA OF AN EVENT FOR WHICH THE TOWN HAS ALREADY GRANTED A PERMIT FOR A SPECIFIED ACTIVITY INCLUDING, BUT NOT LIMITED TO, THE CHESTERTOWN TEA PARTY, EVENT PARADES, DOWNRIGGING WEEKEND, THE TEA TIME TOUR, CRAZY DAYS AND THE CHESTERTOWN WILDLIFE FESTIVAL. STREET MUSICIANS AND OTHER PERFORMERS SHALL AT ALL TIMES COMPLY WITH ALL OTHER PROVISIONS OF THE TOWN CODE, INCLUDING SPECIFICALLY THE TOWN NOISE ORDINANCE AND CODE PROVISIONS PROHIBITING THE OBSTRUCTION OF SIDEWALKS AND PUBLIC PASSAGE, AND MAY ACCEPT VOLUNTARY MONETARY CONTRIBUTIONS OF APPRECIATION FOR THE DISPLAY OF THEIR TALENTS.
This amendment having been introduced on November 5, 2012 is hereby adopted this 19th day of November, 2012 and becomes effective December 10, 2012.
MAYOR AND COUNCIL OF CHESTERTOWN
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Margo G. Bailey, Mayor
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James R. Gatto, Councilmember
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Linda C. Kuiper, Councilmember
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W. S. Ingersoll, Town Manager Mabel Mumford-Pautz, Councilmember
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Date Mauritz Stetson
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