Topic: News
Theater Nights Smoking in Bars Loophole. Page 2
Watch: The great ban loophole of MinnesotaSmoking performance video
Patrons of Barnacles on Mille Lacs Lake found a loophole in Minnesota's Freedom to Breathe Act,
which banned smoking in bars and restaurants.
FreedomToAct.com
List
of Bars, Updates on “Theater Night” news.
http://freedomtoact.com/
The Tavern League of Minnesota
http://www.tavernleaguemn.org/
April 18,
2008
Hello Everyone -
It's time for another update. As you
know, Robert Ripley (of Bullseye Salon in Elko) was served an injunction
by the MDH to stop theater nights on the basis of irreparable
harm. This week Robert was very busy interviewing several
attorneys to fight the injunction. As of today, Robert has retained a
very good attorney to represent him and I might add all of us, his name
is Patrick H. O'Neill, Jr. In addition, Mark Benjamin will be
aiding in this case as well. It is imperative that we band together and
help Robert out with the financial expense. This is not just for Robert
but for all of us, we are all in this together. This is an
investment in our future, when we win this case, we will no longer have
to suffer or endure the intimidation and scare tactics of the MDH. We
will be able to continue "theater nights" and keep our businesses going
legally. We have called the MDH's bluff and they are afraid of losing,
of which there is a high probablity they will (lose that is!) The
Defense of Rights Fund that was started will be used towards Robert's
legal expenses (i.e. attorney). We will be sending him an initial
payment tomorrow. The total attorney fee will be $12,000. I know this
sounds like a lot, but if we all kick in and solicit donations from our
bar patrons we should easily be able to come up with this amount if not
more. Just as an example, if each bar had a donation jar and 50 people
contributed $10.00 that would be $500 per bar and if we had 50 bars
collecting donations that would total $25,000. I know that some of you
have already contributed to the fund and we thank-you very much. Robert
is also planning a "Smoker's Rally" at his place either on April 26th or
May 3rd. This should raise more in legal defense funds and should be a
lot of fun. As his plan becomes more concrete we will let you know the
exact date. Several bands have offered to play for free and others
have volunteered to help as well. Let's spread the word and make
this a huge success!
This is a call to action, we have a great chance
of winning but we cannot do it alone. Please get those donation jars up
and running. It will take all of us to do this and believe me, we have
come this far and we are not going to quit !!! It's time to say enough
is enough and we are fighting back!
Thanks everyone,
Sheila,
Robert and Mark
Donations can be sent to:
Minnesota Tavern League
235 East Roselawn Suite 17
Maplewood, MN 55117
(Make checks
payable to Minnesota Tavern League and indicate it is for the Defense of
Rights Fund)
AN OPEN LETTER TO MR. JOHN STINE, DIRECTOR, ENVIRONMENTAL
HEALTH DIVISION, MINNESOTA DEPARTMENT OF HEALTH
Dear Mr. Stine,
A number of Minnesota bars have recently received your letter concerning Theater Night. You clearly state the opinion of the Minnesota Department of Health (MDH), namely that “’theater nights’ in bars do not fall within the theatrical production exemption of the MCIAA.” Your letter goes on to say:
Establishments that allow patrons and employees to smoke using the theatrical production exemption are violating the MCIAA regulations. Establishments electing to continue allowing patrons and employees to smoke indoors will be subject to formal enforcement procedures. The MCIAA regulations allow for both criminal and civil enforcement actions, including but not limited to, civil administrative penalties of up to $10,000 per violation. Establishments found in violation may also be subject to license suspension or revocation.
The Theater Night phenomenon has swept the state for more than four weeks now without a single ticket issued by a city police officer or a county sheriff.
Meanwhile, MDH fended off inquiries from the press for three weeks claiming that it was “conferring”, “consulting” and “studying the issue” with the Attorney General. And when the time came for release of the much-anticipated legal opinion, it came from MDH and not the Attorney General. We have learned that the “legal advice” upon which MDH relied did not come from the Attorney General. And MDH refuses to release a copy of the written legal opinion (if it even exists) upon which it relies.
Your letter makes reference to “formal enforcement procedures” that MDH will initiate (finally!) if establishments do not come into compliance. Since you have not informed the public about these procedures, I will.
Minnesota Statute 144.989 is known as the “Health
Enforcement Consolidation Act”.
Minnesota Statute 144.99 is titled
“Enforcement”. Its subdivisions give your agency all of the legal tools
it needs to enforce compliance with the smoking ban. To date, you have
used none of them.
Like Subdivision 3 – “Correction orders” –
that allows your commissioner to issue correction orders requiring a
person to “correct a violation of the statutes, rules, and other actions
listed in subdivision 1. The correction order must state the
deficiencies that constitute the violation; the specific statute, rule,
or other action; and the time by which the violation must be corrected.”
Your letter doesn’t do that Mr. Stine.
Or Subdivision 4 – “Administrative penalty orders” – that allows your commissioner to “issue an order requiring violations to be corrected and administratively assessing monetary penalties for violations of the statutes, rules, and other actions listed in subdivision 1. The procedures in section 144.991 must be followed when issuing administrative penalty orders.” Your letter doesn’t do that either, Mr. Stine.
But let’s look at Minnesota Statute 144.991 so we can see what procedural process MDH has refused to invoke.
Subdivision 2 of that statute says the contents of an administrative penalty order “must include”:
(1) a concise statement of the facts alleged to constitute a violation;
(2) a reference to the section of the statute, rule, variance, order, stipulation agreement, or term or condition of a permit that has been violated; a statement of the amount of the administrative penalty to be imposed and the factors upon which the penalty is based; and
(3) a statement of the person's right to review of the order.
If the bar doesn’t agree with the allegations contained in the administrative penalty order, the bar is entitled to an expedited administrative hearing under Subdivision 5. At such a hearing, MDH would be required to prove that “theatrical productions” in bars is not in compliance with the MCIAA and is an illegal activity.
Assuming that the administrative law judge was to rule against the bar and in favor of MDH, the bar can appeal his/her decision under Minnesota Statute 14.63 which states:
Any person aggrieved by a final decision in a contested case is entitled to judicial review of the decision under the provisions of sections 14.63 to 14.68, but nothing in sections 14.63 to 14.68 shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo provided by law. A petition for a writ of certiorari by an aggrieved person for judicial review under sections 14.63 to 14.68 must be filed with the Court of Appeals and served on the agency not more than 30 days after the party receives the final decision and order of the agency.
Given the constitutional issues involved here (a public health agency determining what constitutes a theatrical production), I think that it is highly likely that we would all end up at the Court of Appeals.
Mr. Stine, I am writing this to you as an “open letter” because I have found that the best way to confront bullying tactics is to do so openly. And there is little doubt in my mind that your letter is a bullying tactic.
Please have your agency avail itself of the law and enforce it as it sees fit. It is time to put up or shut up. Until then, the show must go on.
Sincerely yours,
Mark W. Benjamin
Attorney at
Law
Criminal Defense, P.A.
237 Second Avenue SW, Suite
111
Cambridge, MN 55008
763-691-0900 (office)
763-670-9664
(mobile)
Dear Smoker's Club,
Last night was one of very deep and inciting gatherings of Americans
that I have missed since the Freedom to Act(Breathe) Act was passed in
Minnesota giving victory to the handful of public funded anti smokers
and their legislative lackeys the infectious victory over the freedom of
state citizens and businesses'.
Buggs Place at 904 Concord
In south Saint Paul held the event at great risk from a self appointed
health department police force that now wears black trench coats as they
attempt to frighten business owners into signing a document promising to
not hold theatre nights.
Mark Benjamin ( the lawyer from
Cambridge MN that began the acting gig) and Buggs family owners are both
Marines that do not run like the colors Red White and Blue in our
national standard. The waitresses ran their wheels of all day and into
the night, and I will ad with huge and friendly
smiles.
Just like in our old life most of the patrons were
non smokers, that fully enjoy the company of those that do.
Ashtrays and open pull tabs laid on top of the bar in full sight for
the trench coat wearing undercover smoke sleuths. I feel that if every
smoker and business owner sent one dollar to create a defense fund for
the freedom to act act that hero's like Mark Benjamin could carry this
battle to a satisfactory conclusion for every citizen in this socially
defective dog fight. Freedom belongs to those that show up, and for one
of the few times over the years a Marine, lawyer, and yes a non smoking
Sunday school teacher that genuinely loves freedom and detests tyrants
has stepped up to the plate,
Last night was like coming
home after being gone a long while. I forgot what a "free smoke tasted
like"
The Health police have tripped over their own ignorance when they wrote "Their law" banning smoking, not wanting to offend the Cake eating starched collar crowd they assumed that the blue collar plebeian would not be interested in the arts and theatre , they left the provision to use real cigarettes in plays in their law.
The anti smoking and cheaply made anti smoking barn doors have been
left partly open, and free people are responding respectfully to the
law. Fox News channel 9 recorded the whole event and today will be
pointing hard questions to the MDH. sorry for the long rant, I have not
learned how to put great and good news into one paragraph, I know that
you all understand what I am saying...Bless all of the respectful
fighters for freedom.
Archie Anderson
Coon rapids
Minnesota
April 3, 2008
Bar bows out of ‘theater night’
Dave Olson, The Forum
March 24, 2008
The curtain dropped on “theater night” at the Toad Lake Store near Frazee, Minn., about three weeks ago.
“We had a camera. We had a microphone. It was humorous. People enjoyed being able to smoke,” said manager Sue Rader, describing the atmosphere of the Becker County bar and grill before state officials declared what was and wasn’t acceptable under a state law regarding a ban on smoking in restaurants and bars.
The Minnesota Department of Health sent letters to businesses earlier this month warning them that an exemption to the Freedom to Breathe Act that allows actors to smoke in theater productions does not apply to bars that make patrons part of a sham show.
Rader said she put an end to theater night after hearing about the crackdown.
As a result, the business is not likely to see repercussions, according to Ronda Stock, community health supervisor for Becker County.
“I think that put them off the hook,” said Stock, who added that she’s not aware of any other businesses in Becker County holding theater nights.
Public health officials in Otter Tail, Clay, Norman and Mahnomen counties said they had not heard of any problems either.
A business in Clay County suspected of violating the smoking ban would receive a warning letter before enforcement action is taken, said Keely Hyland, a health educator for the county.
For restaurants and bars with licenses administered by the state, violators of the smoking ban face potential fines of up to $10,000.
Businesses that have their licenses administered locally could have their license suspended, or face petty misdemeanor charges if they violate the smoking ban, said Dale Dorschner, indoor air unit supervisor for the Minnesota Department of Health.
Dorschner estimated that across the state a dozen businesses or fewer are continuing to hold theater nights after being warned.
He said he’s not aware of any such events being held in northwest Minnesota.
Theater night activities vary, and some facilities are more sophisticated than others, said Dorschner.
“I’ve heard of basically just taking Scotch tape and writing ‘actor’ and pasting it on your chest and going around smoking,” said Dorschner, who added that patrons who violate the no-smoking rule may also face consequences.
That possibility put a damper on theater nights at the Toad Lake Store, Rader said.
“To tell you the truth, we weren’t that busy. A lot of people were scared to come out,” said Rader, adding that customers regularly air complaints about the Freedom to Breathe Act, which took effect in October.
“Everybody’s upset about it, even the nonsmokers are upset, because
it’s one more right that we don’t have,” said Rader.
http://www.in-forum.com/articles/index.cfm?id=195853§ion=News&freebie_check&CFID=21385294&CFTOKEN=39581575&jsessionid=8830ce2ce10f223527c3
Babbitt bar gets smoking citation for
"Gunsmoke Monologues"
Duluth News Tribune -
03/15/2008
'Theater night' bar cited for violating
smoking ban
Minnesota Public Radio - Saint
Paul,MN,USA
Tank's Bar in Babbitt, Minnesota, is the first bar to
receive a ticket for staging a so-called "theater night" in violation of
the statewide smoking ban. ...
Babbitt bar gets smoking ban ticket for
hosting 'theater night'
Pioneer Press - St.
Paul,MN,USA
A bar owner in Babbitt who was cited for hosting a
"theater night" to get around the statewide smoking ban says
he'll fight the citation in court. ...
Babbitt bar gets smoking ban ticket for
hosting 'theater night ...
Reiten Television KXMB
Bismarck - Bismarck,ND,USA
Tank's Bar and other taverns have hosted
theater nights to get around a law that bans smoking in
workplaces. A loophole in the law allows actors and
...
March 17, 2008
The
bars seem to be fully in compliance with the law. If there is any
actual law breaking going on I would say the actual perpetrator is the
MN Dept. of Health for using what amounts to terrorist threats based
upon a knowledgeable and deliberate misinterpretation of the letter of
the law in order to intimidate bar owners with the proverbial "Iron
Fist".
I do not know if this is similar to the sort of
infraction that would be incurred when someone misidentifies themselves
as a police officer, but it seems to be in the same ball park. For
a responsible government agency to say "This is the law and we will
enforce it with $10,000 fines." when it is neither the law nor would the
possible infractors actually be subject to a $10,000 fine for a first
infraction seems to me to be something punishable.
As far
as all the folderol and muzzamarole about "protecting the employees" we
pretty much all know that this is more of a propaganda ploy than it is
the actual motivation of the law. "employee protection" only
popped up in the antismoking arsenal when the "health of the general
public" argument fell through because of the counterargument that people
were free to choose where to go for their playtime.
The
bans are meant purely as tool of behavioral change: social engineering
aimed at denormalizing smokers and smoking. The laws would never
be passed on that basis though, so "employee protection" is thrown up as
a cover.
If "employee protection" were TRULY the
concern, there'd be no reason to outlaw smoking owners from hiring
smoking employees to open a smoking bar. If "employee protection"
were TRULY the concern we'd see no fussing about allowing nursing homes
to provide an outdoor shed with a roof to protect elderly smokers from
the rain and snow. If "employee protection were TRULY the goal we
wouldn't see groups like the MN DoH and ASH move so seamlessly to
pushing bans in parks or parking garages or condos or
apartments.
This ban, like all the others, is based upon
lies: lies about the health effects of low levels of secondary smoke and
lies about the economic effects of bans. Laws based upon lies are
not proper laws at all, and any citizens who are willing to stand up to
them and resist in any way at all deserve nothing but respect and
admiration.
Michael J. McFadden
Author of "Dissecting
Antismokers' Brains"
http://www.antibrains.com/author.html
Smokers
give bar's 'production' rave reviews
At
Lake Mille Lacs tavern, cigarettes are merely props used to act out an
exception in smoking ban
02/11/2008
BY
JASON HOPPIN, Pioneer Press
LAKE
MILLE LACS - On a night when wind chills were expected to reach minus-40
or below, revelers hunkered down for a night of drinking at Barnacle's
Resort, a popular winter redoubt for ice fishermen and snowmobilers on
the north shore of Lake Mille Lacs.
Helmets and
jackets were stuffed everywhere. A plastic kiddie pool full of crushed
ice held red meat, which was raffled off throughout the night. Two
tables of Texas Hold 'Em were full, and someone was telling the story of
the night Minnesota Vikings fullback Jim Kleinsasser sat there - right
there - in that very stool. Smoke wafted through the bar.
Wait
... smoke? As in cigarettes?
On
this Saturday night, and every Saturday night going forward until
someone tells them to stop, the owners at Barnacle's are allowing their
customers to light up. It's not so much an act of civil disobedience
against the statewide smoking ban as it is exploiting an exception that
allows smoking as part of a theatrical production.
You
see, all those people drinking and smoking and laughing and telling the
government to mind its own business? They're really actors.
"You
are looking at a stage. You are looking at a playhouse," said Mark
Benjamin, who cooked up the idea. "Those are not cigarettes - those are
props."
Obviously.
The
night was a big hit with patrons - er, actors - who bought $1 buttons
that said "ACT NOW!" to denote that they were part of the production.
Playbills were printed up, and the local police
were
notified. Sheila Kromer, Barnacle's co-owner, said the police told her
they wouldn't visit unless someone complained.
Charlie and
Sylvia Tapelt live in the area and are regulars at Barnacle's. Charlie
said it was great to be able to smoke in a bar again instead of standing
outside in the cold, a notion his wife seconded - even though she
doesn't smoke.
If
customers don't want to drink in a smoky bar, they have the choice to go
somewhere else, Sylvia Tapelt said.
"People
should be allowed to decide," she said.
John
and Vicki Kurkowski were visiting for the weekend from their home in
White Bear Lake. Asked what it was like to smoke in a bar again, a wide
smile spread across John Kurkowski's face.
"It's great,"
he said.
Since the
smoking ban went into effect in October, compliance has been good.
However, when the final version of the ban was hammered out last year,
state lawmakers inserted a provision allowing smoking as part of a
theatrical production. But they never defined the meaning of a
"theatrical production."
That's where
Mark Benjamin comes in. A lawyer and nonsmoker, Benjamin said he was a
partner at a big firm making big money until he started growing his hair
long and wearing an earring. He knew about the theatrical exception, but
it wasn't until he was at the Renaissance Festival, an annual event
where people dress in medieval costumes, that he had his epiphany.
If
Shakespeare was right - that all the world's a stage - why can't a bar
become a theater? And does it matter if the "actors" don't have to
memorize lines? After all, who's to define the meaning of art?
"We're
telling the Legislature when they convene (Tuesday). They can either get
rid of this exception, or they can listen - actually listen - to the
small bar owners who tried to be heard last year," Benjamin said.
Amid
all the Vikings jerseys and snowmobiler jackets, Benjamin and two
friends worked the bar in Renaissance costumes, making hourly
announcements about the "production." Their garb bothered no one - they
may as well have been dressed as nicotine fairies, for all anyone cared.
Benjamin had
been looking for a bar to take him up on his idea for some time before
he found Barnacle's. Owner Kromer said she also knew about the exception
and had been looking for a lawyer to see what she could do about it -
"some way to celebrate it, I guess you could say."
Kromer said
business is dramatically down this winter, the busiest time of the year
for the bar. She said she testified against the smoking ban, to no
avail.
"Several of
the legislators said, 'You know, you've got to be innovative. Come up
with something to get the people in your bar.' Right? OK. What's wrong
with a theater night? Is that not being creative? If it can bring
business back into my bar (it's good). There are a lot of bars that are
hurting," Kromer said.
For
this night at least, Kromer said, the customers were back.
http://www.twincities.com/ci_8226733?source=most_viewed
Mark
W. Benjamin: Bars could stage a challenge to statewide smoking
ban
This
spring the Legislature will review the Freedom to Breathe Act that
swatted smokers out of warm Minnesota bars and onto freezing sidewalks.
There smokers huddle and, hands shaking, try to light up.
Meanwhile,
the hands of small bar owners are shaking for different reasons. They
worry over their balance sheets, awash in red ink, and lay off their
part-time help. As the nation slides into recession, things can only get
worse.
It's
a cliché in the Twin Cities that the backbone of our economy is the
small-business owner, but not in Greater Minnesota where small business
might be the only employer in town. So shouldn't small-business owners
get a financial hardship exception if they've been hurt by the smoking
ban?
That
question was asked last spring when the Legislature was lobbied to
provide just such an exception. But the Legislature said no. After all,
there should be no exceptions when it comes to the public health. Right?
Not
quite. In fact, our legislators carved out exceptions for scientific
study participants, Native Americans, tobacconists, truckers, farmers,
actors and actresses and ... wait! What was that last one?
That's right.
When the smoking ban was debated, some theater-going, latte-drinking,
Volvo-driving legislators got their undies all in a bundle that a few
performers might not be allowed to smoke cigarettes on stage. Really.
They worried that performers might have to suck on straws or pencils or
-- you know -- "act" like they were smoking. Heavens! Whatever would
become of The Theatre?
Not
to worry. Our legislators quietly slipped in an exception for
"theatrical productions" so that actors and actresses could puff away
onstage and the delicate flower of artistic expression could more fully
flourish in the North Star State.
But
in their haste they forgot to define where "theatrical productions"
could be performed. And they forgot the words of the Bard, "All the
world's a stage, and all the men and women merely players." If we have
Shakespeare in the park, can't we have Shakespeare in the bar?
See,
the act prohibits smoking in a bar but not in a "theatrical production."
In a bar you get a $300 ticket but in a "theatrical production" you get
applause and accolades. So if you're a bar owner and don a beret,
declare your bar a stage, hand out scripts and direct your patrons --
ahem -- performers to fire up some heaters, then you've got a bona fide
"theatrical production" going on. The acting might not be so good, but
the smoking will be sheer bliss -- and legal to boot. There really is no
business like show business.
There's also
no business like criminal defense. Any Barney Fife cop who writes a
ticket against an owner/director or patron/performer will quickly find
himself performing -- and bombing -- in court. What, will he suddenly
become a theater critic and render his opinion on the quality of the
script, the pathos of the performance or the layout of the set design?
That trial would be a theatrical production in itself.
Our
shameless legislators favored the artistic integrity of a few theater
owners over the blue-collar work ethic of a few thousand small bar
owners. But our bar owners don't have to take it any longer. If they
want, they can put on their very own "Theater Nights," set up "Acting"
and "No Acting" sections, notify patrons that there will be some smoking
during the performance and defy the government to define Art.
It's
not the Freedom to Breathe Act; it's the Freedom to Act Act. If you're a
small bar owner, hand out scripts and cigs and tell your patrons to
break a leg. Their performances might not win any Tony awards, but your
business will never be better. And until our legislators write a
hardship exception into the smoking ban, well, they have a saying in the
performing arts: "The show must go on."
Mark
W. Benjamin, a nonsmoker, is an attorney in Cambridge, Minn. He is part
of an effort to stage a "tobacco troupe" production at a Minnesota bar
this evening.
http://www.startribune.com/opinion/commentary/15443781.html
See More: Theater Nights Smoking in Bars Loophole. Page 1