AN OPEN LETTER TO MR. JOHN STINE, DIRECTOR, ENVIRONMENTAL HEALTH DIVISION, MINNESOTA DEPARTMENT OF HEALTH

Please read the letter below from Mark to John Stine regarding Mr. Stine's letter that many of you received. A Word document of the letter is also attached to this e-mail. This letter will also be posted on the website www.freedomtoact.com . Later tonight I will be sending another update.

Sheila



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)