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Ihnken v. Garnder

United States District Court, D. Maryland

September 3, 2014



CATHERINE C. BLAKE, District Judge.

Plaintiff Dale Ihnken filed this action, raising a number of constitutional and state law claims, against various Frederick County officials for their shutting down of an arts and music festival Ihnken put together in June 2009. On February 27, 2013, the court granted summary judgment for the defendants on all claims except for Ihnken's procedural due process claims in Counts III and X of his complaint.[1] The defendants now move for summary judgment again on those claims, and Ihnken has cross-moved. The court will grant summary judgment in favor of the defendants as to the Frederick County Commissioners' and Bill Bigelow's liability, as well as to Frederick County Sheriff Charles Jenkins' liability in his official capacity. Due to disputes of fact as to the remaining issues, summary judgment otherwise will be denied to both parties.


The court summarized the facts of this case in its February 27, 2013, memorandum opinion. (Mem., ECF No. 22, at 1-6.) Discovery since has shed additional light on what transpired between the parties.

Ihnken contracted with Erin Aylor, the owner of a 91-acre farm in Frederick, to lease his land for the Summer Solstice PROJEKT ("the festival"), a three-day festival combining camping, art, and music. (Venue Contract Agreement, ECF No. 36-10; Summer Solstice PROJEKT Schedule, ECF No. 36-23.) 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." (Venue Contract Agreement.) The permit was finally approved on June 18, 2009, the day the festival started. (Defs.' Mem., ECF No. 36-1, at 14; Permit, ECF No. 36-3, at 7.)

The first night of the festival there were several complaints about the volume of the music, and county sheriff's deputies responded to Aylor's farm around 11:00 p.m. to have Ihnken turn it off. ( E.g., Lori L. Linthicum Aff., ECF No. 36-25, ¶ 13; Police Report, ECF No. 36-31, at 1-3.) Ihnken refused to do so, citing the permit, but ultimately agreed to turn the music off around 3:00 a.m. (Police Report at 3-5.) The next day, after determining the festival was occurring in violation of the permit's terms, Zoning Administrator Larry Smith revoked the permit and, accordingly, Frederick County Sheriff Charles Jenkins shut the festival down. ( E.g., Smith Dep., ECF No. 36-13, at 64:22-65:6; Smith Aff., ECF No. 36-5, ¶¶ 11-15.)

Although the parties disagree about whether a legal basis for revoking the permit and shutting down the festival existed, what the permit allowed or what representations Ihnken and Aylor made to obtain it are not material to the procedural due process issues in this case. The summary of facts here will focus, therefore, on what happened between Ihnken and county officials from the time the festival began to when the decision to revoke the permit finally was made, as those are the facts pertinent to determining what process Ihnken was accorded before the permit was revoked.

A. Thursday night

After the sheriff's office received multiple complaints about the loud music coming from Aylor's farm, Lieutenant Thomas Winebrenner reported to the event and, according to his account, the following transpired: When Winebrenner told Ihnken he had to turn the music off, Ihnken objected, citing the permit. (Police Report at 3.) When Winebrenner inquired as to how late the permit allowed the music to play, Ihnken told Winebrenner to look at the permit. ( Id. ) When Winebrenner told Ihnken he would start making arrests for disturbing the peace, Ihnken stated he could not because of the permit. ( Id. at 3-4; see also Ihnken Dep., ECF No. 36-7, at 137:15-138:4.) Winebrenner told Ihnken that "perhaps I just need to revoke the permit and end the festival right now." (Police Report at 4.) When Ihnken asked if he could do that, Winebrenner said he did not know but that he needed a resolution to the "noise issue." ( Id. ) The two eventually reached an agreement that Ihnken would turn the music off by 3:00 a.m. and would turn it down in the meantime. ( Id. at 4-5; see also Ihnken Dep. at 138:25-139:10 (stating they agreed the music would go off at 3:30 a.m.).)

Before leaving, Winebrenner told Ihnken that if he received additional calls he would shut down the festival. (Police Report at 5.) He also told Ihnken that the police would investigate the permit in the morning. ( Id.; Ihnken Dep. at 156:1-7.) In his affidavit, Winebrenner states, "I made it clear that I was going to advise my superiors to look at the permit when the permit office opened in the morning, and to come back and deal with him in the morning. I told Mr. Ihnken if there were any issues with the permit, they were going to be addressed in the morning.... I told him, I am pretty sure once we look at the permit, you are not going to be able to do this anymore.'" (Winebrenner Aff., ECF No. 36-35, ¶ 12.) In the early morning on Friday, Winebrenner relayed the night's events to the supervisor entering on duty after him by email. ( See Winebrenner Email, ECF No. 36-36.) There appears to be no material dispute that the encounter between Winebrenner and Ihnken occurred as alleged by the defendants.

B. Friday morning

The next morning, the Frederick County Board of County Commissioners ("the Board") became aware of the previous night's events after Commissioner Jan Gardner received a complaint from a constituent. (June 19, 2009 Emails, ECF No. 36-37, at 2-3.) She forwarded it to the rest of the Board, as well as to Sheriff Jenkins and Smith. ( Id. )

Smith, Sheriff Jenkins, Zoning Inspector Bill Bigelow, and another sheriff's deputy went to Aylor's property to investigate around 10:00 a.m. on Friday. (Police Report at 8; June 19, 2009 Emails, ECF No. 36-37, at 1.) When they arrived, they were unable to find Aylor, and Ihnken was away running errands. (Ihnken Dep. at 150:16-151:23, 161:8-162:8; June 19, 2009 Emails, ECF No. 36-20, at 3.)

While they were on the property, Smith and Sheriff Jenkins observed what they viewed as further violations of the permit and law. Smith observed a beer truck with beer on a tap and heard from Bigelow that a bartender was on the premises even though Aylor and Ihnken had not obtained a license to serve alcohol and the permit did not indicate that alcohol would be at the event. (Smith Aff. ¶ 12; Smith Dep. at 53:3-7.) Smith testified at his deposition, however, that, despite his observations, he did not know who was selling alcohol nor did he speak with anyone who was selling alcohol. (Smith Dep. at 53:8-13.) Sheriff Jenkins similarly testified that he never spoke with a beer vendor or saw anyone actually consuming alcohol, although he saw the presence of a vendor and people bringing their own alcohol onto the premises. (Jenkins Dep., ECF No. 36-38, at 68:22-69:4, 85:13-19.) Smith also became concerned about the fact that there was only one driveway serving the property for the "hundreds of people... camping" and the 1, 000 to 1, 200 or more people he heard would be attending. (Smith Aff. ¶ 13; see also Smith Dep. at 49:9-16.)

At some point while on the property, Smith made the decision to revoke the permit and Jenkins made the subsequent decision to shut down the festival. Smith stated in his affidavit that he decided to revoke the permit because of the music from the previous night, the observed violation of the alcohol ordinance, and safety concerns arising from the limited means of entering and exiting the event. (Smith Aff. ¶¶ 13, 15.) With the permit revoked, the use of the land for the festival was no longer authorized under the county's zoning laws. (Smith Aff. ¶ 16.) According to Smith, it was Jenkins who decided to shut down the festival. (Smith Dep. at 64:22-65:6.) Jenkins testified at his deposition that he decided to shut down the festival when Ihnken indicated that he did not intend to end the music before 5:00 p.m. and the perceived violation of the alcohol ordinance. (Jenkins Dep., ECF No. 36-38, at 83:5-20.) County Commissioner Kai Hagen, who also visited the property on June 19th, observed in an email later that the alcohol violation appeared to be the "straw that broke the camel's back." (June 19, 2009 Emails, ECF No. 36-20, at 3-4.) After making the decision to revoke the permit, Smith informed those who appeared to be in charge that he was shutting down the festival. (Smith Dep. at 66:8-22.)

The parties have varying recollections of when the decision to revoke the permit and shut down the festival was made and with whom Smith and Jenkins spoke and when they spoke to them. Smith does not remember when he made the decision to shut down the festival, but believes it was sometime between 10:00 a.m. and noon. (Smith Dep. at 66:5-11.) Jenkins testified at his deposition that he informed Ihnken at 1:00 p.m. that the festival would be shut down. (Jenkins Dep., ECF No. 36-38, at 91:12-17.) Smith claims to have "spoke[n] to several people" at the property, whom he does not identify. (Smith Aff. ¶ 15.) He testified at his deposition, however, that he never spoke with Ihnken or gave him notice of his intent to revoke the permit. (Smith Dep. at 53:17-19, 64:7-18, 65:15-21.) Jenkins testified at his deposition that he spoke with Ihnken and attempted to come to a compromise as to when the music could be played but that Ihnken refused to turn off the music any earlier. (Jenkins Dep., ECF No. 36-38, at 54:19-55:17, 60:18-61:10.) He also testified that he does not remember ever discussing the presence of alcohol with Ihnken. ( Id. at 68:8-17, 69:7-12.) He did indicate, however, that he made the decision to shut down the festival after Ihnken refused to turn the music off at an earlier time. ( Id. at 83:5-20.)

Keith Ihnken, the plaintiff's brother and the person considered "third in charge" at the festival after Ihnken and Aylor, testified at his deposition that he spoke to Smith and Jenkins when they first arrived at the property, while Ihnken was away running errands. (Keith Ihnken Dep., ECF No. 36-39, at 31:6-9, 36:8-16.) According to Keith, Smith and Jenkins told him the festival had violated the permit, they were going to shut it down, and they wanted to be let on the property. ( Id. at 33:20-24.) Keith eventually told them to leave Aylor's property, at which point, according to Keith, they blocked both ends of the street and turned away people trying to get to the festival, telling them they were shutting it down. ( Id. at 31:6-18.) Keith testified at his deposition that Smith, Jenkins, and the other officials there would not allow Ihnken's vehicle back on the property when he returned from running errands and that he "vaguely remember[s]" them talking with Ihnken about the permits but does not remember any details. ( Id. at 37:15-38:9.)

Ihnken testified at his deposition that he discussed the times allowed for music under the terms of the permit with Smith and Jenkins but that they essentially told him the decision to shut down the festival already had been made. (Defs.' Mem. at 25 (citing Ihnken Dep. at 58:13-59:15)[2]; see also Ihnken Dep. at 171:18-20 (testifying that he was told the event was being shut down as he drove up to the property); Ihnken Resp. to Interrogs., ECF No. 40-1, at 5 (stating that he attempted to negotiate with Jenkins when he arrived back at the property and that Jenkins informed him the decision had already been made).)

As a result of the festival being shut down, Ihnken was forced to forfeit the costs of the festival, including the rent he paid Aylor for the space. Ihnken had plans to hold three additional festivals in 2009, but he states that, as a result of the cancellation, his reputation was ruined and he could no longer produce similar festivals. (Ihnken Resp. to Interrogs. at 2.) Thus, the county's decision ...

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