MN Smoking Ban Theater Night Press Release 2008.03.29

Note: "Open Letter to John Stine" is at bottom of this posting in this maroon color. One page black ink printable copy of "open letter".http://ocrscans.homestead.com/03-01-08open.html

MN Smoking Ban Theater Night Press Release 2008.03.29

MARK W. BENJAMINCriminal Defense, P.A.

237 Second Avenue SW, Suite 111

Cambridge, MN 55008

763-691-0900 (office)

763-670-9664 (mobile)

Press Release

The Minnesota Department of Health is threatening bar owners to sign a document giving MDH authority to enforce the smoking ban; MDH currently does not have that authority in the law.

For the last several days, Minnesota Department of Health inspectors have descended upon Theater Night bars – unannounced and brandishing a document – demanding to talk to the owner. They then thrust the document at the owner – a copy of which we only got last night.

We scanned it and posted it:
https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgBzm0FNj5-omsp8dW7Oqthoy_doz7dt9-w1efgxfHzZbZr-1-HvhiElb5Q-azraZU5zhTgPVQ1XQWP67dq7JAeqpkOPBiVgTFyjg8-iwdXIs-RZYkbD13MhFsyfeI6yVFBwV3NOHxhdt4Y/s1600-h/03-29-08MNDOH_html_m3f2aba90.png

The owner is given no time to consider the document’s legal ramifications and is told to sign it immediately or risk the following:

“I understand that if I refuse to comply that I have been duly notified that swift and decisive enforcement actions will follow by the Minnesota Department of Health that may include District Court Injunction for Relief (Court Order), Administrative Penalties up to $10,000, and suspension or revocation of my establishment’s food and beverage licenses. *** Immediate action is required to prevent MDH enforcement actions."

“I understand that if I do hold one or more of these [Theater Night] events where my patrons and my food and beverage employees are allowed to smoke indoors, that state and local authorities will take enforcement action that may lead to the loss of my food, beverage, and lodging license and the loss of my liquor license.”

We were curious why MDH suddenly decided to send their inspectors out en masse and require immediate compliance. It turns out that MDH finally found a way to enforce the smoking ban using the administrative procedures outlined in my previous Open Letter to John Stine (see attachment.) <Maroon letter below>

Here’s the relevant part:
Subdivision 2 [of Minn. Stat. 144.991] says the contents of an administrative penalty order “must include”:

(1) (1) a concise statement of the facts alleged to constitute a violation;

(2) (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;

(3) (3) a statement of the amount of the administrative penalty to be imposed and the factors upon which the penalty is based; and

(4) a statement of the person's right to review of the order. (emphasis added.)

Obviously, the MDH has determined that it has no legal authority to enforce the state-wide smoking ban by “a reference to the section of the statute” so it has decided to enforce the ban by reference to a “stipulation agreement”. Neat trick, but first you have to get the bar owner to sign the stupid thing.

This backdoor method of enforcing a statute that is unconstitutionally vague on its face (what constitutes a “theatrical production”?) is sad and shameful behavior by a once-proud Minnesota institution.

We have notified all of our participating bar owners of the consequences of signing this document. Any bar owner signing it will provide a legal basis for enforcement of the smoking ban -- where no such basis existed beforehand.

The MDH is adding to its growing list of questions which, to date, remain unanswered:

1. For three weeks, the MDH and the Attorney General’s Office consulted regarding the enforcement of the smoking ban. On March 5th, the MDH issued a press release stating that it had received “legal advice” upon which it decided that bars hosting Theater Night were engaged in illegal activity. Who gave the “legal advice”? Hint: it wasn’t the Attorney General’s Office.

2. Why does the MDH refuse to produce the written legal opinion declaring that bars hosting Theater Night are engaged in illegal activity?

3. Some city officials have complained that they have been “leaned on” by the MDH to harass and intimidate Theater Night bars by threatening the loss of a liquor license (Maplewood) or over-regulation as a condition precedent for a “theatrical productions” permit (Vadnais Heights). Is the MDH engaged in a concerted and coordinated effort to enforce the smoking ban through threats and intimidation by proxy?

4. Why won’t the MDH take me up on my invitation to a live, unscripted televised debate regarding the legality of Theater Night?

5. The “stipulation agreement” document the MDH has so recently sent out to Theater Night bars promises “swift and decisive enforcement actions” if it is not signed. We are now seven weeks into Theater Night with only three petty misdemeanor tickets issued by local law enforcement (two in Babbitt; one in Chisholm) and nothing issued by the MDH. What’s been holding you guys up?

The show goes on.

One page, black type printable copy of "open letter" below.

http://ocrscans.homestead.com/03-01-08open.html

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”:
a concise statement of the facts alleged to constitute a violation;
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
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)