Ihnken v. Jenkins

DALE IHNKEN v. CHARLES JENKINS, et al.

Civil No. CCB-11-3508

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

February 11, 2015

MEMORANDUM

Dale Ihnken organized a festival in Frederick County, Maryland, that was to be held Thursday, June 18, 2009, through June 21, 2009. On the afternoon of Friday, June 19, however, county officials revoked the temporary land use permit that ostensibly authorized that festival and ordered the immediate cancellation of all festival programming. Ihnken subsequently brought this lawsuit, suing the county and many of its officials under a host of legal theories. The court previously granted summary judgment in favor of the county and its officials on most of those claims. (See Order, ECF No. 23; Order, ECF No. 46.) Still pending are Ihnken's claims that Frederick County Sheriff Charles Jenkins and Frederick County Zoning Administrator Larry Smith revoked the permit without due process of law, in violation of the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Constitution. Jenkins and Smith now move to limit Ihnken's possible recovery to nominal damages. For the reasons explained below, that motion will be denied.

ANALYSIS

"In order for a plaintiff who has suffered a deprivation of procedural due process to recover more than nominal damages, he must also prove that the procedural deprivation causedsome independent compensable harm." Burt v. Abel, 585 F.2d 613, 616 (4th Cir. 1978) (per curiam). Jenkins and Smith argue that revocation of the temporary land use permit authorizing Ihnken's festival would have been justified even if the county had employed a constitutionally adequate process to do so.¹ Ihnken's asserted damages, however, derive not simply from the alleged deprivation of process but from the substantive decision to revoke the permit, including lost profits and his tarnished reputation as a festival promoter. (See Mem. 7, ECF No. 45; Mot. In Limine Ex. HH, Interrog. Answers 1-2, 10-14, ECF No. 53-1.) Jenkins and Smith thus argue that "the failure to accord procedural due process could not properly be viewed as the cause of" Ihnken's losses unless adequate process would have generated a different substantive result. Carey v. Piphus, 435 U.S. 247, 260 (1978). Contending it would not, they claim Ihnken can recover no more than nominal damages as a matter of law.

Jenkins and Smith style their filing as a motion in limine, but that is not an accurate description. Rather than seek to exclude "a specific category of evidence," their motion "urges the Court to exclude a theory of damages," which is not the office of a motion in limine. Imagexpo, LLC v. Microsoft Corp., 299 F. Supp. 2d 550, 551 (E.D. Va. 2003). "Unlike a summary judgment motion, which is designed to eliminate a trial in cases where there are no genuine issues of fact, a motion in limine is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions." Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013) (quoting Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)). "In light of their limited purpose, motions in limine 'should not be used to resolve factual disputes,' which remains the 'function of a motion for summary judgment, with itsaccompanying and crucial procedural safeguards.'" Williams v. Johnson, 747 F. Supp. 2d 10, 14 (D.D.C. 2010) (quoting C & E Servs., Inc. v. Ashland Inc., 539 F. Supp. 2d 316, 323 (D.D.C. 2008)).² Indeed, Jenkins and Smith incorporate by reference the exhibits appended to their prior motion for summary judgment. (See Mot. In Limine 4-5.) The court will apply the summary judgment standard here.

The procedural protections applicable to motions for summary judgment preclude, among other things granting judgment unless "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) (emphases added). Under that standard, the court must view the evidence in the light most favorable to the nonmovant and draw all justifiable inferences in his favor. Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 283 (4th Cir. 2013) (en banc). At the same time, the court must not yield its obligation "to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat v. Balt. Ravens FootballClub, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (citation and internal quotation marks omitted).

Here, genuine issues of material fact remain unresolved as to the adequacy of the county's justifications for revoking Ihnken's permit. As noted in the court's previous memorandum on summary judgment, Smith decided to revoke the permit on the basis of the music played after 5:00 PM in violation of the permit conditions, the perceived violation of the alcohol ordinance, and safety concerns arising from the limited means of entering and exiting the event. (See Mot. Summ. J. Ex. C, Smith Aff. ¶ 13, 15, ECF No. 36-5.) Jenkins' decision to shut down the festival was premised on Ihnken's statement that he did not intend to end the music before 5:00 P.M. and the observed violation of the alcohol ordinance. (See Mot. Summ. J. Ex. EE, Jenkins Dep. 83:5-20, ECF No. 36-38.) Ihnken offers evidence calling into question each of those bases of action.

As to the purported violation of the permit by playing loud music after 5:00 PM, that conclusion was based on a potentially false premise: that the permit allowed music only between the hours of 8:00 AM and 5:00 PM. As this court has previously held, the permit "is ambiguous." Ihnken, 927 F. Supp. 2d at 232. The permit indicated that the festival would include "arts & crafts w[ith] music and demonstrations." (Mot. Summ. J. Ex. A, Permit 1, ECF NO. 36-3.) It provided that the festival would begin on June 18 at 8:00 AM and end on June 21 at 5:00 AM, suggesting the event would continue through the evenings and finally conclude early on the morning of morning of June 21. (See Permit 2.) Smith derives his contrary interpretation of that document from a column of text on pages four through seven of the permit, which is labelled "comments" and reads like an ongoing discussion about the event but which Smith characterizes as conditions on it. (See Permit 3-7; Smith Aff. ¶¶ 5-6; Mot. Summ. J. Ex.D, Ridgell Aff. ¶¶ 6-7, ECF No. 36-6.) Specifically, that column states that Richard Ridgell of the Office of Life Safety found "[t]he plans ACCEPTABLE with the following provisional comment[]: . . . . The permit indicates that a Festival/ Arts & Crafts event with music and demonstrations will be held on June 18-21 between the hours of 8:00 a.m. and 5:00 p.m." (Permit 4.) A subsequent comment, however, notes that the festival would include overnight activity, specifically camping. (Permit 6.) That notation is inconsistent with the supposed "condition" on which Smith relies, but it is entirely compatible with the permit's representation that the festival would end early in the morning of June 21. It will be for a jury to sort through these seemingly contradictory signals.

Smith suggests that Frederick County's zoning ordinance authorized him to revoke the permit on the basis of use inconsistent with environmental standards, even if none of the permit's express conditions were violated. (See Mot. In Limine 5-6; Smith Aff. ¶¶ 7, 9.) That conclusion is legally dubious. Smith premises his interpretation of the zoning ordinance on a provision requiring the Zoning Administrator to determine "[b]efore issuing a permit" that "[t]he proposed activity is in compliance with all safety, heath, and environmental standards." Frederick Cnty., Md., Code of Ordinances § 1-19-8.700(A)(1). That provision is silent as to the consequences of the Zoning Administrator's mistaken issuance of a permit. Even when read against a separate provision authorizing the Zoning Administrator to revoke zoning certificates for "noncompliance with any conditions or requirements imposed under" the County's zoning ordinance, Frederick Cnty., Md., Code of Ordinances § 1-19-2.110(G), it does not appear to authorize revocation of an already issued permit on the basis of the Administrator's reconsideration of its initial decision.

In any case, the scope of the Administrator's legal authority need not be resolved here,because the record contains a genuine dispute of fact as to whether the festival violated the "environmental standard" applicable to noise—the County's noise ordinance, which incorporates by reference (with some modifications not relevant here) Md. Code Regs. § 26.02.03.01-.03. See Frederick Cnty., Md., Code of Ordinances § 1-11-6. There is no dispute the music at the festival was loud, but it may not have exceeded the applicable noise limitations. See Md. Code Regs. § 26.02.03.02(B)(1). Although an incident report drafted by the commanding officer who responded to the festival on Thursday night indicates one officer had a "sound meter" on the scene, it does not reveal the decibel level that meter recorded. (See Mot. Summ. J. Ex. Y, Incident/Investigation Report 3, ECF No. 36-31.) And Smith reported that he was not personally "aware of any measurements taken with respect to the level of noise at the festival." (Mot. Summ. J. Ex. H, Smith Dep. 56:14-17, ECF No. 36-7.) According to Ihnken, sheriff's officers at the festival refused to reveal to him the reading of their sound meter, despite his request. (See Mot. Summ. J. Ex. E, Ihnken Dep. 138:16-20, ECF No. 36-7.) In any case, he had asked the technicians operating the festival's soundboard, which was equipped with a "constant decibel meter," for the festival "to keep it below halfway, which is way below the local ordinance." (Id. at 131:15, 23-24.) When Ihnken asked those technicians "if we were over [the limit] . . . they said no." (Id. at 138:16-17.)³

As to violation of the alcohol ordinance, Smith and Jenkins never...