Mesabi Daily News: Babbitt bar smoking ban issue set for court April 28

Mesabi Daily News: Babbitt bar smoking ban issue set for court April 28
'Theater Nights' citation contested.
By JESSE WHITE Staff Writer Published: Saturday, April 12, 2008 11:48 PM CDT VIRGINIA -

Babbitt bar owner Tom Marinaro and his attorney Mark Benjamin will be in St. Louis County District Court in Virginia April 28 to take on Minnesota's smoking ban.

The hearing is expected to garner local and national media attention and the results could have statewide repercussions.

Benjamin, from Cambridge, Minn., is hoping Judge James Florey will render a decision that will finally resolve whether Benjamin's concept of "Theater Nights" in bars is legal or not.

"We've got people in the state that are afraid (to do theater nights). They don't know if it is legal or not," Benjamin. "I would like the courts to resolve this as soon as possible." On March 14, Babbitt Chief of Police Terry Switajewski issued a citation to Thomas Marinaro for allowing smoking in his establishment, Tank's Bar.

At the time, Marinaro was presiding over and directing an improvisational theatrical production entitled "The Gunsmoke Monologues," according to Benjamin - which included the patrons as the actors.

A customer in the bar was also ticketed and he is scheduled to be in court in July.

Benjamin drew headlines across the state earlier this year with his "Theater Night" concept which encourages bar owners to challenge the Freedom to Breathe Act by taking advantage of a loophole that allows smoking during theatrical productions.

Bars put on "plays" and the actors are the staff and customers.

The Freedom to Breathe Act went into effect last fall and made smoking in bars illegal.

However, Minnesota's smoking ban specifically permits smoking by actors and actresses in theatrical productions as long as performance programs notify patrons that there will be some smoking during the play.

Marianaro was charged with a petty misdemeanor, Benjamin said, with a maximum fine of $300.

Marie Rinta, co-owner of Tank's, said she and Marinaro plan to be at the hearing. She's hoping any decision will clarify the Freedom to Breathe Act. "(The decision) will affect the economic situation of this bar and every other bar in Minnesota," Rinta said.

Marinaro was scheduled to be in court earlier this month for an arraignment, but Benjamin waived the appearance to expedite the process.

"We don't dispute the facts that there was smoking going on indoors," he said. "(This way) we get directly to the legal issue."

That issue, according to Benjamin, is whether bar patrons can legally smoke in an establishment if they are taking part in a theatrical production.

Benjamin said that when the Minnesota Department of Health said in a release on March 9 that bars do not become exempt from to Freedom to Breathe Act by holding theater nights and that bars violating the act could face penalties up to $10,000, they cited legal advice as the basis for that determination but have yet to reveal that advice or where it came from.

Benjamin said the Minnesota Attorney General's office didn't give them the advice and that he wants the judge in Marinaro's case to get a copy of it so that a legal ruling can be made.

"The Department of Health says it's illegal but we need a judicial person to make a decision on that. Unfortunately, the Attorney General is sitting out on this," Benjamin said. "I am willing to stipulate to a court order to get that legal document so the judge can make the right decision."

According to Benjamin, only one other bar in northern Minnesota has been ticketed during a theater night, Sabin's Bar in Chisholm.

Benjamin and Chisholm's City Attorney, Lou Cianni, have agreed to indefinitely continue that case until Marinaro's case is resolved in district court in Virginia and/or a court of appeals.

Mike Horridge, owner of Sabin's, said he is still doing theater nights for now but that he has been under constant harassment from Chisholm police officials and the Department of Health.

He said he is looking forward to seeing the results of Marinaro's case but added that regardless of the outcome he foresees appeals court challenges in the future.

"It's probably going to end up in the Supreme Court," he said.

Rinta said the Department of Health, under direction of the St. Louis County Attorney's Office, has also been to her establishment and threatened to suspend their food and beverage license should they continue to do theater nights.

They have since stopped, she said. "It's too bad they made that stand without waiting for," the results of Marinaro's case, Rinta added.
The case is scheduled to be heard at 3:30 p.m. o

Jesse White can be reached at jesse.white@mx3.com. To read this story online and comment on it go to www.virginiamn.com.