Babbitt bar in court Friday over smoking plays

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Babbitt bar in court Friday over smoking plays
Duluth News Tribune
Published Friday, May 23, 2008

It’s finally time for the smoking plays to go on trial.


The first criminal case involving an alleged violation of the Minnesota Freedom to Breathe Act is scheduled to begin Friday afternoon in St. Louis County District Court in Virginia.


Tom Marinaro, the owner of Tank’s Bar in Babbitt, was issued a $300 ticket on March 14 by Babbitt police for allowing a patron to violate the act. The violation is a petty misdemeanor, and Marino said the patron who prompted the ticket was a snowmobiler from the Twin Cities.


A loophole in the smoking ban allows cigarette smoking in “theatrical productions.” The last-minute exemption was sought by members of the theater community, including the Guthrie Theater in Minneapolis, to allow real cigarettes to be used during performances.


But bar owners across the state desperate to boost flagging revenue began holding tongue-in-cheek “theater nights” this winter, where patrons were declared actors and therefore allowed to light up at will.


Marinaro said the theater nights helped boost his business, until the Department of Health threatened to pull his liquor license and effectively close the bar down in early April.


“We’re down about 40 percent right now,” Marinaro said. He has had to cut staff hours and lay off a manager because of lost revenue, he said. Marinaro also cited a recent letter from the head of the Minnesota Tavern League, which said 186 Minnesota bars, taverns and restaurants have closed since the Oct. 1 Freedom to Breathe Act went into effect “because of a loss of business,” Marinaro said.


Sixth Judicial District Chief Judge James Florey will hear the Marinaro case, the first of its kind to be tried in Minnesota.


A Scott County District Judge recently ruled on a civil violation of the Freedom to Breathe Act.


On May 15, Judge Jerome Abrams issued a temporary injunction to halt Robert Ripley, owner of Bullseye Saloon in Elko, from holding any more theater nights. In his ruling, Abrams said he could find little resemblance to what most people would think of as a theatrical production in bars’ smoking plays.


“There is not the slightest suggestion that talent or an interest in conveying a message, other than smoking, is sought from any actor,” Abrams wrote.


John Linc Stine, director of environmental health at the Minnesota Department of Health, said that’s the kind of ruling the department is looking for as these cases come up.


“We want to assure the understanding of this law gets established by a legal interpretation as soon as possible,” Stine said in a telephone interview from a conference in Georgia.


The Department of Health is pushing for a permanent injunction in the Bullseye Saloon case, as well as another case that is pending in Dakota County.


Stine said other bar owners who already are or are thinking about holding “theater nights” probably will look at those rulings for guidance.


“‘What’s the status of my liquor license if I’m not in compliance with the laws?’ That’s one of the questions I know is going on in many local courthouses around the state,” Stine said. “Once we have a judge’s decision that stands, that will become clearer and clearer.”


Cambridge, Minn., attorney Mark Benjamin, who hatched the theater nights idea and is representing Marinaro, said he believes the matter will ultimately be decided in the Minnesota Supreme Court.


“Given that we don’t have any clear definition of what ‘theatrical performance’ means, the ambiguities have to be resolved in these criminal cases,” Benjamin said.


Benjamin plans to argue that the Minnesota Department of Health failed to consider the mental health of bar and restaurant owners facing significant declines in their business while they and legislators crafted the Freedom to Breathe Act, which seeks to create a healthy working environment free of tobacco smoke.


“The bars that are holding theater nights are doing it out of economic necessity,” Benjamin said. He said more than 100 bars were holding theater nights at one point, and some continue to do so today, but not as visibly.