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School and promoter liable for un-refunded tickets

October 29, 2012
Morning Journal News

EAST LIVERPOOL - The city school district and a concert promoter have both been found liable by Municipal Court Judge Melissa Byers Emmerling for $170 in un-refunded ticket sales to a local purchaser.

Pennsylvania Avenue resident Guy Taylor filed the small claims suit July 25 against Superintendent James Herring and Terrance Smitherman of T&T Promotions, alleging he purchased seven tickets to a Bow Wow concert that was canceled.

Herring ordered the concert canceled after he said Smitherman failed to secure liability insurance required by the rental contract he signed to use district facilities.

Taylor was seeking $3,000 plus interest since the Nov. 6, 2011 date of the canceled concert.

Testimony was heard during an Aug. 27 hearing by Taylor, Smitherman, Herring and the district's building and grounds director, Mark Reed.

In a ruling last week, Byers Emmerling noted Smitherman met with then-principal Jack Cunningham on Aug. 1, 2011 about the concert and was advised he had to pay custodial and security fees, with the school to receive 100 percent of parking and concession fees.

Cunningham also permitted pre-sale of tickets and for the tickets to be advertised and sold from the high school, according to the judge, who noted tickets went on sale Sept. 5, with 250 sold over the next two months, bringing in $6,550.

She went on to say, however, that the only contract in existence was not signed until Oct. 12, a month after the tickets were sold and, although it refers to a reverse side, that side was blank. Nor did it include rules and regulations referred to in the contract language.

The contract states, "A liability policy... is strongly recommended and may be required," and the judge said there is no written documentation that the district required Smitherman to purchase liability insurance, in what amounts, or by what date.

Although district officials presented at the hearing six internal memos between school employees, Byers Emmerling said Smitherman was not aware of any of those and said the memos indicate the district had not required liability insurance until after Oct. 31, "long after tickets were pre-sold."

She pointed out Reed testified that Smitherman had indicated he would provide proof of insurance by the Friday prior to the concert but then the school failed to wait until Friday to cancel the event.

The court found that there was no written contract requiring the liability insurance nor any existing proof that Smitherman was ever notified he had only until noon the Thursday before the concert to present the policy.

Byers Emmerling ruled that Smitherman pre-sold tickets to a concert that was canceled and owes Taylor the $170 he spent, "regardless if he was unable to perform the contract due to the school's actions."

Secondly, she ruled that the board of education is jointly liable for the $170, saying the district "knowingly took advantage of the consumers by selling tickets to an event without the liability insurance being in place... the school should not have sold any tickets until the liability policy was filed."

Although Herring had testified the school was not a party to the concert, the judge disagreed, saying the district was in a joint venture with Smitherman since it received a profit, not just a fee; because all promotions to the public listed the school as presenting or sponsoring the event; because tickets were sold at the school by school employees; and the event was promoted within the school.



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