Unedited Press release by lawyer Mark W Benjamin

(I'll try to "fix" later and add "fixed" version below original--Greg Lang)

Sent: Saturday, March 08, 2008 11:25 AM
Subject: [PHISH] PRESS RELEASE: Theater Nights Are Exempt From MN Smoking Ban
MARK W. BENJAMINCriminal Defense, P.A.237 Second Avenue SW, Suite 111Cambridge, MN 55008763-691-0900 (office)763-670-9664 (mobile)
Press Release
Minnesota bars that host Theater Nights are engaged in legal activity and are exempt from the Freedom to Breathe Act
Minnesota bars that host Theater Nights are engaged in legal activity that falls squarely within the theatrical production exception of the Freedom to Breathe Act.
When the smoking ban was debated last spring, veterans of Minnesota’s Legion and VFW clubs and small bar owners across the state asked for exceptions, like providing separate ventilated rooms or proof of economic hardship. They got nothing.
But a funny thing happened during the closing days of the legislative session. Rep. Tom Huntley (DFL – Duluth) took a call from the Guthrie Theater. They were worried their actors and actresses wouldn’t be able to smoke real tobacco cigarettes on stage and that this would somehow sully the performance. They demanded a favor from him for their “theatrical productions” and Mr. Huntley slipped the exception into the conference committee bill with little or no public debate.
But Mr. Huntley – who is, in fact, the creator of Theater Night – didn’t define “theatrical productions”. Now he complains that bars across the state are violating the “spirit” of the law. But America is a nation of laws, not spirits. And Minnesota bars that host Theater Nights are following the letter of the law. Thus, they are engaged in legal activity. How can that be?
Because of the “void for vagueness” doctrine – best defined in Wikipedia as:
a legal concept in American constitutional law, whereby a civil statute or, more commonly, a criminal statute is adjudged unconstitutional when it is so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application," as the United States Supreme Court articulated in Connally v General Construction Co., 269 U.S. 385, 391 (1926). A statute is void for vagueness when:
1) It is unclear what persons fall within its scope; 2) What conduct is forbidden; and/or 3) What punishment may be imposed.
Due process requires that a law be reasonably definite as to what persons and conduct are covered as well as the punishment for any violation. In determining whether a law is void for vagueness, courts have imposed the following tests:
1) Does the law give fair notice to those persons subject to it?
2) Does the law guard against arbitrary and discriminatory enforcement? And
3) Can it be enforced with sufficient “breathing room” for First Amendment rights?
Two questions – Does the MN Department of Health want to be in the business of defining:
1) Who is and who is not an “actor” or “actress”; and
2) What is and what is not a “theatrical production”?
That said, the Freedom to Breathe Act – as enforced by the Minnesota Department of Health – does not pass the “void for vagueness” doctrine because:
1) The smoking ban does not give “fair notice” to owners and patrons of bars that Theater Night might be an illegal activity.
2) The smoking ban – as the Minnesota Department of Health proposes to enforce it – does not prevent “arbitrary and discriminatory enforcement”.
Indeed, the MDH Press Release this past Wednesday illustrates exactly our concerns regarding fair notice and arbitrary and discriminatory enforcement. The Release baldly states in the first sentence:
“theater nights” being held in bars do not fall within the theatrical production exemption of the Freedom to Breathe Act
without explaining why. The Minnesota Department of Health simply believes that “theatrical productions” cannot legally exist in a bar. To which we reply that the stage for the popular TV sitcom “Cheers” was … a bar.
After our first theatrical production at Barnacle’s Resort and Campground on February 9th, the Minnesota Department of Health fended off media inquiries about how they were going to respond to the Theater Night phenomenon sweeping across the state. They claimed they were consulting with the Attorney General who was “studying” the matter. We were led to believe that the Attorney General would soon issue an opinion on the legality of Theater Night.
So we were surprised that the Minnesota Department of Health issued a legal opinion on Wednesday:
http://www.health.state.mn.us/news/pressrel/ftb030508.html
without providing any foundation for their determination that Theater Night is illegal.
It’s a lame opinion at that. They state they have “determined after seeking legal advice” that Theater Nights in bars are illegal. They just won’t say how they reached that determination or who helped them reach it. They refuse to produce the written legal opinion that would more fully inform Minnesota bar owners why Theater Night is supposedly illegal. And they haven’t even updated their website FAQ regarding “Smoking as Part of Theatrical Productions” since … August 2007:
http://www.health.state.mn.us/divs/eh/indoorair/mciaa/ftb/docs/F2BTheater.pdf
Wednesday’s Press Release was not intended to inform Minnesota bar owners; it was intended to scare them. Thus, they state:
The department has the authority to levy fines of up to $10,000 on establishments that fail to comply with the law (emphasis added.)
But they refuse to explain what “fail to comply with the law” means. This creates uncertainty and confusion – which creates fear and intimidation. And that is exactly what the Minnesota Department of Health intended this past Wednesday. Fear is their only weapon left because the law is not on their side – and they know it.
It was four weeks ago today that a Minnesota bar hosted the first Theater Night. Since then, scores of bars have followed suit – without a single ticket issued or fine levied. Frankly, we had hoped to test the legality of Theater Night in a court of law. But that hasn’t happened and the bluff and bluster from the Minnesota Department of Health continues unabated.
No more.
If the Minnesota Department of Health will not do battle with us in a court of law, then I challenge them to engage with me in a live, unscripted televised debate. They can pick their champion, the place, the date and the time. My little Geo Metro and I will buzz on down to the Cities and we will hash this out once and for all. In the end, Minnesota bar owners will see that Theater Night is a completely legal activity – and their fear will be gone.
It takes courage to fight for freedom and I am not afraid of the Minnesota Department of Health. Are they afraid of me?