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Opponents of Ocean City topless ban ask judge to stay ordinance

FILE - In this June 9, 2012, file photo, people crowd the beach in Ocean City, Md. Officials in Ocean City said a woman was gored in the chest by a wind-blown beach umbrella on Sunday, July 22, 2018. (Amanda Rippen White/The News Journal via AP, File)

In this June 9, 2012, file photo, people crowd the beach in Ocean City. (Amanda Rippen White/The News Journal via AP, File)

The female plaintiffs in a federal lawsuit over Ocean City’s ban on female topless sunbathing are seeking an injunction prohibiting the enforcement of the ordinance, which was passed last year after the city publicized that it was looking into the issue.

The motion, filed in June, describes the goal of the litigation as “confirming the legal right of women to be bare-chested, in public, in the same places that men are permitted to be bare-chested, for purposes other than breastfeeding.”

Ocean City responded in opposition last month and the plaintiffs replied last week, describing the ultimate question for the court as whether precluding only females from displaying their breasts is substantially related to protecting public sensibility.

Devon M. Jacob, a Pennsylvania solo practitioner representing the plaintiffs, said it may seem “late in the game” to be requesting injunctive relief considering the summer vacation season is nearing an end but it is relatively early in terms of the litigation.

“It’s sort of looking at the long game,” he said, adding that the injunction request just asks for everything to be paused until there is a resolution.

Though the lawsuit was filed in January, the dispute over toplessness in Ocean City has been going on for years. In 2014, plaintiff Chelsea Eline “began openly going bare-chested” on the beach, according to Thursday’s filing, and no families with children complained or left the area.

After being approached in 2016 and asked about the legality of her conduct, Eline asked for clarification from the city, which eventually resulted in the adoption of the emergency ordinance, a measure the complaint calls “the embodiment of classic benevolent sexism and system justification.”

The ordinance includes legislative findings that there is no constitutional right to partial public nudity and stated the government interest in passing the ordinance was protecting the public sensibilities from something “still seen by society as unpalatable.”

A violation of the ordinance is a municipal infraction subject to a fine of up to $1,000.

The city asked the Maryland Office of the Attorney General for guidance and received an advisory letter in June 2017 that men and women are not similarly situated when it comes to sunbathing topless and the city could prohibit women from doing it.

The plaintiffs’ motion for injunctive relief calls the emergency ordinance “an unlawful attempt to codify longstanding sexist ideology, and to ‘legally’ establish that women are first and foremost sexual objects who are inferior to men.”

In response, Ocean City contends that for years it has sought to market itself as a family-friendly resort community, citing the tourism strategic plan from nearly four years ago.

“This identity and character of Ocean City is the bedrock of its tourism-based economy and must be preserved and protected by the Ocean City government for the benefit of taxpayers, residents and visitors,” the opposition states. “The subject Ordinance, in the view of the Mayor and City Council, advances such important governmental objectives and it is directly related to, and formulated and intended to accomplish, those objectives.”

But the plaintiffs call this logic proof that Mayor Rick Meehan is “out of touch with the mainstream opinion” and note that Ocean City is home to heavy alcohol consumption — including underage drinking – and establishments with more risqué names, including Brass Balls Saloon and Big Pecker’s.

The city is represented by Bruce Frederick Bright of Ayres, Jenkins, Gordy & Almand P.A. in Ocean City. Bright did not respond to a request for comment Friday.

The case is Chelsea C. Eline et al. v. Town of Ocean City, 1:18-cv-00145.

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