Will a busking ordinance in West Chester restrict First Amendment rights?

This article can be found published on the Daily Local News‘ website.
West Chester Borough Council is looking to pass a busking ordinance, which will allow street performances, but under certain regulations, including during certain times and at certain locations. (Lisa Suckstorf)

West Chester Borough Council is looking to pass a busking ordinance, which will allow street performances, but under certain regulations, including during certain times and at certain locations. (Lisa Suckstorf)

WEST CHESTER — West Chester is toying with the idea of passing a busking ordinance, which would allow street performances, but will implement regulations on the performers, or buskers, in the borough.

But would the passage of the ordinance with its specific regulations be a restriction on a person’s First Amendment rights to freedom of speech?

Some people in attendance at a hearing Tuesday night regarding the ordinance think so.

“It’s an attack on free speech and First Amendment rights in many respects,” said Oliver Kocher, a borough resident. “To try to stifle other people simply because you don’t like what they have to say really isn’t appropriate. … People are out there promoting art and promoting culture and it seems to me this is a direct attempt to stifle the display and dispersion of people’s art.”

However, those on the other side of the “street” have a different view and believe that permitting busking in the borough will only add disturbance to the community.

“Catty-corner to me, we do have street performers that are there every day,” said Malena Martinez, who owns Malena’s Vintage Boutique on the corner of Church and Gay streets. “I would just like council and people who are here to realize that although you get to walk by and experience it for about five minutes, people like myself experience it eight to 10 hours a day, seven days a week.”

…[Please continue the story on the Daily Local News website by clicking here.]

Martinez says it’s not just her that finds the performances to be annoying as her customers have also stated the same to her.

“For you, it’s a passing moment,” she said. “(What) if that was outside of your office, your window every day? My door is closed, my music is on and, although they are not amplified, I can still hear them above everything.”

There is currently nothing in the borough’s codes either allowing or banning busking.

The borough recognizes that having street performers can enhance the character of the community and wants to encourage buskers, but only to the extent that they do not interfere with the “quiet enjoyment of residents, public safety and the ability of businesses to conduct their businesses uninterrupted,” as the ordinance states.

“Busking is an important element to a vibrant downtown in any community when it is grounded in a set of rules that respect the needs on the busker, business owners and residents of the community,” borough Manager Michael Cotter said in a release. “The draft ordinance balances those interests and protects the rights of all impacted by busking.”

The borough recognizes street performing, in the ordinance, to include acting, singing, playing musical instruments, pantomime, juggling, magic, dancing, reading aloud, puppetry and reciting, but “shall not include the production of items for sale.”

“It’s my understanding that West Chester has a large group of people who want to promote the arts and culture here,” Kocher said. “It sounds like it’s something that a lot of people are in favor of, but they are only in favor of it at certain times. They are only in favor of it when they don’t have to hear it. Unfortunately, that’s not how freedom works.”

The draft ordinance states that buskers must obtain a permit, or registration card, for free from the borough in order to perform. Any busker wishing to perform on private property must obtain written permission from the property owner and which is also submitted to the borough.

For groups, each individual member must register with the borough and all have their cards with them when they perform. The cards will have the year it was issued to the busker.

If the card is lost, the borough will issue a replacement at a cost that is to be determined.

One resident who came to the hearing felt that since other people or businesses have to pay for a permit in the borough, the same should be required of the buskers.

Busking will also be limited to between the hours of 9 a.m. to 9 p.m. Sundays through Thursdays, and 9 a.m. to 11 p.m. on the much busier Fridays and Saturdays.

As it states in the current draft ordinance, busking may only take place in the borough’s Town Center Zoning District — along Gay and Market streets, from South Franklin Street to about New Street, and down High Street, from Chestnut Street to Price Street — and within the borough’s Institutional Zoning District — around the university — and in public areas except within 100 feet of a school, library or church while in session and a hospital.

Borough Council, the director of public works or the police chief may exclude additional areas.

Street performers will have to also abide by noise disturbance codes already set forth in the borough and may not use amplifiers or a similar device which amplifies sound for a radio, television, phonograph, cassette player, drum or musical instrument at any time.

Performers are allowed to ask for monetary contributions.

Busking cannot interfere with people passing through a public area, nor can it obstruct any entryway into a building. Police are permitted to disperse groups which are found to be blocking the public’s way or if they create a noise disturbance.

Any performer found to be in violation of the ordinance will be, upon conviction, brought in front of a magisterial district judge and if found guilty of a summary offense, will be subject to a fine of no less than $25 for the first offense.

Every offense after that can result in a fine of no more than $1,000 each time.

If a person defaults on his or her fine, he or she may face up to 30 days of imprisonment at Chester County Prison.

“People will have the right to undertake the activities defined in the ordinance as long as they are not busking,” Cotter said in the release. “The proposed ordinance is intended to regulate busking as a commercial activity only and represents a reasonable set of time, place and manner retractions on that commercial activity.”

Former councilman Stephen Shinn had a little bit of advice to give to the current council in regards to the draft ordinance.

“If you were going to leave any single piece in, I would say the times that you have now are probably very appropriate,” he said. “When I was reading the text of the ordinance, I asked myself, ‘What is the issue that really needed addressed and what is the issue that needed to be solved?’ If it’s noise disturbances, I feel like you’re using a sledgehammer when you need a screwdriver.”

The hearing will continue at 6 p.m. Sept. 21 at the Municipal Building.

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Categories: Arts & Entertainment, Community, Government, Local Government

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