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Ihnken v. Gardner

United States District Court, D. Maryland

February 27, 2013

Jan GARDNER, et al.

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Neil Stuart Hyman, Law Office of Neil S. Hyman LLC, Bethesda, MD, for Dale Ihnken.

Kevin Bock Karpinski, Karpinski, Colaresi & Karp, P.A., Baltimore, MD, for Jan Gardner, et al.


CATHERINE C. BLAKE, District Judge.

Plaintiff Dale Ihnken was a concert promoter who organized a festival in Frederick County, Maryland, that was to be held Thursday to Sunday, June 18-21, 2009. Shortly after noon on Friday, June 19, however, after the festival had caused reported noise disturbances well into the previous night, county officials ordered the immediate closure and cancellation of the festival, evicting festivalgoers, vendors, presenters, and musical acts bye 3:00 PM. Mr. Ihnken alleges the county's decision resulted in significant financial loss, irreparable harm to his business, and the end of his career as a promoter. He has brought a variety of constitutional and state law claims against the Frederick Board of County Commissioners, sheriff, and zoning administrators in their individual and official capacities. The defendants have moved to dismiss Ihnken's complaint or, in the alternative, for summary judgment. For the reasons set forth below, the defendants' motion will be granted in part and denied in part.


Ihnken first produced a two-day art and music festival in Baltimore called the Winter Solstice PROJEKT in December 2008. He states that he earned $55,000 in profit from the event and sought to partner again with the event's apparent main attraction, a " live" painter named Alex Grey. Ihnken subsequently produced festivals featuring Grey in San Francisco and Knoxville in April and May 2009 that were, according to Ihnken, " very successful." (Pl.'s Opp., ECF No. 15, at 5). During 2009, Ihnken also planned the Summer Solstice PROJEKT (the " festival" ) which was to be a three-day event in Frederick County, Maryland (the " county" ), that, like the previous ones, combined camping, art, and music. The festival was to be held from Thursday to Sunday, June 18-21.

Ihnken contracted with Erin Aylor, the owner of a 91-acre farm in Frederick, to lease the land for the festival. (Pl.'s Opp., Ex. 2 (" Contract" ), ECF No. 15-2). Ihnken's contract with Aylor provided that Aylor, as " host," would acquire the necessary land use permits for the festival, but that Ihnken, as " producer," would pay Aylor $6,000 for use of the land and would " cover all permitting costs associated with the event." ( Id. ). Ihnken apparently was successful in marketing the event, as a Frederick newspaper article from June 11, 2009, indicated that hundreds of people were expected to attend for some or all of the three-day event, that festivalgoers could camp for all three nights, and that

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over a dozen musical acts were slated to perform. (Pl.'s Opp., Ex. 7 (" Frederick News-Post" ), ECF No. 15-7).

Aylor, however, appears to have been less than completely forthcoming in obtaining the appropriate permit or permits for the event. An e-mail sent from Aylor to defendant county commissioner Kai Hagan seeking assistance in obtaining final approval, because of reservations defendant zoning administrator Larry Smith had about the event, appears to suggest, misleadingly, that the festival was going to be mostly an educational gathering for individuals interested in topics like " biodiesel" and " self-sustainability." (Pl.'s Opp., Ex. 6 (" County E-mails" ), ECF No. 15-6, at 6). [1] The e-mail suggests that musical acts would be only an incidental element of the festival, when they were in fact a more central component, and that there would only be a " couple" of acts, when more than a dozen were scheduled. ( Id. ). Furthermore, a letter sent to Aylor by a zoning official during the approval process specifically indicated that the festival would not be considered an " outdoor music festival" under COMAR, (Pl.'s Opp., Ex. 3 (" Approval Letter" ), ECF No. 15-3, at 1), so it is not clear what other representations Aylor made to county officials to obtain the permit without the conditions mandated by COMAR for such a festival. And, while both Ihnken and Aylor's contract and the newspaper article about the event indicated that beer and wine would be served, (ECF Nos. 15-2 & 15-7), Aylor apparently never obtained a permit to sell alcohol, though the vendors at the event were licensed to sell alcohol under Maryland state law. ( See Defs.' Mem., Ex. B (" Police Report" ), ECF No. 12-4, at 8). Neither party has adduced any specific evidence indicating what materials and representations the county relied on in its approval of the festival permit, but the court can infer that Aylor was not entirely frank in his description of the event to the county.

Nevertheless, despite the county's insistence that the permit, " by its terms," did not allow music performances outside the hours of 8:00 AM to 5:00 PM, and that nighttime festivities were not sanctioned, the permit itself is ambiguous. The permit characterizes the planned event as a " festival" with " arts & crafts[,] music[,] and demonstrations." (Defs.' Mem., Ex. A (" Permit" ), ECF No. 12-2, at 1). The permit indicates that the " beginning" and " ending" dates of the event were to be June 18 at 8:00 AM to June 21 at 5:00 AM, ( id. at 2), which would align perfectly with Ihnken's representations to the court and to the Frederick newspaper that the event would run from Thursday through Saturday night, ending the early morning of Sunday, June 21.

" Comments" from March 13, 2009, attached to the permit, however, appear to state that the festival would run between the hours of 8:00 AM and 5:00 PM on Thursday, Friday, Saturday, and Sunday. ( Id. at 4). But another attached comment, dated April 9, 2009, states that " overnight camping has not been a temp[orary] use normally covered by this type of permit" and seeks additional information from Aylor. ( Id. at 6). This indicates that Aylor had informed the county the festival would indeed run through the night, possibly after he received the first set of comments stating an end time of 5:00 PM. These comments also appear to reflect an ongoing discussion about the event, not necessarily conditions on the event. This is

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further illustrated by attached comments dated May 28, 2009, that state the use of campsites on the property had been approved. ( Id. at 6-7). This approval is incompatible with the county's assertion that the temporary land use permit " unequivocally" applied only to activities between 8:00AM and 5:00 PM. It is plausible that the 5:00 " AM" indicated on the face of the permit was a mistake. But, even if it was, the permit explicitly allowed camping, an activity that ordinarily occurs after 5:00 PM and before 8:00 AM.

The county argues that the 5:00 AM time on the face of the permit is consistent with the overall schedule of the festival, and that the " 8:00 AM to 5:00 PM" in the permit's comments is a condition on when music and demonstrations could be held at the festival. This is a reasonable— but hardly the only plausible— reading of the permit, given that the " comments" seem to be a running record of correspondence from the county regarding the permit, not a set of conditions. In addition, the Frederick newspaper article published a week before the event indicates that Ihnken was not being surreptitious about the nature of the event as a music and camping festival. ( See ECF No. 15-7). The newspaper article also references several public websites that apparently contained more details about the event, although the contents of those sites are unknown to the court. So, the county would likely have had notice that the festival was being advertised as a day and night affair. In short, the permit itself is ambiguous, and although Aylor may not have provided a full and frank description of the event during the application process, the permit indicates that the county was aware that at least one part of the festival would continue through the night.

On the first night of the event, Thursday to Friday morning, June 18-19, Ihnken scheduled musical acts through the night. The county police received multiple complaints about noise. When officers confronted Aylor and Ihnken about it, they objected to having to turn down or end the music, relying on the permit. (Police Report, ECF No. 12-4, at 3). The police advised Ihnken that " music events could go as late as midnight by county ordinance" and that the music needed to end by midnight. ( Id. ). Ihnken objected to this and asserted that the permit allowed him to play music all night. ( Id. ) After further statements by the police that he might also be breaking the law by " disturbing the peace," Ihnken indicated he would " try to get the music off at 3:00-3:30 AM," and the police appeared to consent to that, advising him that the volume needed to be lowered and that the music " needed to end at 3:00 AM." ( Id. at 4-5). The officers warned Ihnken, however, that further noise complaints would result in their returning to the scene to shut the event down. ( Id. at 5). Ihnken asked whether they had the power to do that, and the officer told him they needed to examine the permit. ( Id. ). The officers left the scene with an intent to check the festival's permits in the morning. ( Id. ). The police continued to receive complaints until 3:00 AM, when Ihnken told an officer by phone that he was stopping the music. ( Id. ).

The next morning, the county board of commissioners received an angry e-mail from a constituent regarding the noise, and the commissioners became aware of the police activity and complaints the night before. (County E-mails, ECF No. 15-6, at 2-3). During that morning, defendant sheriff Charles Jenkins met with county zoning officials, and, at some point on the morning of Friday, June 19, the zoning administrator, defendant Larry Smith, along ...

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