Former county manager refutes some details in lawsuit over Smoke Out

Published 12:00 am Wednesday, December 2, 2009

By Jessie Burchette
Salisbury Post
A former county manager has provided a deposition for a woman injured at the biker-fest Smoke Out that could help her lawsuit against the county.
Lori Lynn Funkhouser of Fort Valley, Va., has named the county, the Rowan Fair Association, Flat Black (promoter of the event) and others in a civil lawsuit filed in June 2006 in Rowan County Superior Court.
She alleges that the promoter, county and Fair Association were negligent in allowing a biker to consume alcohol and do a burnout in an area used by pedestrians. She was struck by the motorcycle and claims significant injuries that have impaired her ability to work.
Funkhouser is seeking unspecified damages. If the lawsuit is successful, it could be costly to county taxpayers.
The county has taken position that the fairgrounds was leased to the Rowan County Fair Association by the county and county officials had no control and little knowledge of what occurred there in 2004 when the incident occurred.
In late April, Tim Russell, who was fired as county manager in 2005, said in the deposition that the county was kept apprised of proposed uses of the fairgrounds and had knowledge of the sale and consumption of alcohol.
Russell gave sworn testimony refuting that given earlier by Tony Hilton, the county risk manager who handles insurance and assesses risks for the county.
In a February deposition, Hilton said the county did not tell the Fair Association which events to hold on the fairgrounds. “Rowan County was not consulted regarding which events were to be held on the fairgrounds property, and Rowan County did not approve which events were to be held on the Fairgrounds property.”
Hilton said the county was unaware the Fair Association provided alcoholic beverages for sale and consumption on site.
Russell responded that the “Fair Association made a policy of consulting with the commission with respect to events it wanted to hold at the fairgrounds.
“In fact, the county did participate in meetings with the Fair Association regarding proposed uses of the Fairgrounds, including but not limited to Smoke Out, and the county was aware of the fact that the Fair Association provided alcoholic beverages for sale and consumption on the site during events.”
Russell’s testimony in part appears to contradict comments he made in July 2003 after then-County Commissioner Leda Belk raised concerns about activities at the fairgrounds, including nude or nearly nude bikers at Smoke Out.
During a a meeting of the Rowan County Board of Commissioners, Belk said she received numerous complaints about lewd and indecent behavior at the June 2003 Smoke Out, the first year it was held at the fairgrounds.
Russell responded that the contract had no provisions for the county to control activities at the fairgrounds and suggested that once the 50-year contract expired in 2006, the county could include new provisions.
Russell cited the discussions at that July 2003 meeting in his deposition as proof the county was aware of what occurred at Smoke Out. “The county was thus very well aware of the nature of Smoke Out, including the problems with security, alcohol use and conduct which included nudity, reckless driving and other similar conduct.”
In his deposition, Russell also noted that he has since become aware of the county mass gathering ordinance that requires a permit from the Health Department for gatherings in excess of 1,000. He noted the permit could have been revoked at any time if an event violated the rules.
The county enforced the mass gathering ordinance for the first time in June 2007, the final Smoke Out in the county.
Hilton said this week that if Russell had meetings with the Fair Association or had any role in approving events at the fairgrounds, he never communicated that to staff.
Ken Deal, county director of administration and the de facto deputy county manager, said Thursday that Russell never informed him of meetings with the Fair Association or discussions about events proposed for the fairgrounds.
“I was never told of any meetings,” Deal said. “We were told ‘hands-off. It’s their responsibility to have functions they deem appropriate.’ ”
Deal also said he was unaware the Fair Association had a multi-year permit for the sale of beer at the fairgrounds until the debate that occurred last year after the 50-year lease ended.
The lawsuit continues in the deposition phase. A firm in Charlotte that specializes in liability issues is handling the case for the county.
Under the county’s self-insurance plan, the county is responsible for the first $250,000 of costs. An umbrella policy covers the next $2 million. Anything beyond $2 million is paid with tax dollars.
County officials have said previously that the Fair Association insurance did not have an alcohol rider รณ which is required if alcohol is sold or consumed.
Russell was fired on Aug. 1, 2005, after it was disclosed he had hired private investigators to find the writer of hundreds of anonymous letter critical of county spending. The investigators conducted surveillance of homes, businesses, government buildings and a church as they targeted more than a dozen people. Most of the people and facilities targeted were in Kannapolis.