Is it art or a violation? Judge will decide next week.

Mesabi Daily News
http://www.virginiamn.com/articles/2008/05/23/news/doc48379441517a2501640765.txt

Hey Greg - Can we post the Mesabi article below. Is it art or a violation? Judge will decide next week By CHARLES RAMSAY Regional Editor Published: Friday, May 23, 2008 11:14 PM CDT VIRGINIA - Judge James Florey will be ruling next week on the smoking-ban, theatrical-nights case of Tom Marinaro and Tank's Bar in Babbitt. Summations were given in a brief bench trial in District Court in Virginia Friday, with the Babbitt city attorney arguing a state law had been broken, and Marinaro's attorney, Mark Benjamin, claiming it was a case with overtones of personal rights, interpretation of art and also the First Amendment. Babbitt City Attorney Mike Kearney urged that Marinaro be convicted of the petty misdemeanor, which carries a $300 fine, in the March 14 incident in which Babbitt police officers ticketed Marinaro and one patron in the bar for smoking when postings noted the "Gun SMOKE Monologues'' were occurring in the bar. Testimony was given from Babbitt officers, as well as Marinaro and his co-owner, Marie Rinta. Benjamin, who advocates for clients in such cases, said this was the first smoking-ban case in the state to make it to trial. A state law, the Freedom to Breathe Act, took effect Oct. 1, 2007, which bans smoking in bars and other public places. Some bar owners said during legislative debates on the ban in 2007 and at the time the law took effect they would suffer economic losses. Others, however, said people's rights were being ignored. Advocates have said that smoking is harmful to health and persons should not have to be exposed to the dangers of second-hand smoke. Babbitt Police Officer Trevor Lionberger testified how he went in plainclothes to Tank's Bar in Babbitt about 12:30 p.m. March 14 after being directed to come to work early and go observe if smoking was going on. He said he was there awhile and did not see that. He returned a little before 3 p.m., the stated time the production was supposed to start, and a few minutes after 3 p.m., he noticed four to five persons smoking, with nametags that said "actor'' on them. There was no announcement of a play, no lines, no scripts observed, Lionberger said. He added that he stepped outside and called Police Chief Terry Switajewski, who was there in 20 seconds. Switajewski said on the stand he had "received numerous complaints'' and also one from a city councilor, about the smoking in the bar. He added he met with co-owners Marinaro and Rinta that morning and told them citations would be issued. When he went in after being called, the Babbitt police chief testified that he saw the "Monologues'' sign, and several people smoking. A customer was issued a citation, and Switajewski stated he asked that Marinaro and Rinta be called to the bar. Benjamin asked if he had formal training in the arts, to which the chief replied no. Switajewski allowed that he had studied up on the law, but consulted with the city attorney's office. Benjamin observed that the officer didn't do much investigating about a production, but Switajewski replied he didn't ask him to. The police chief said he also didn't look for playbills inside. Marinaro testified on the stand that he put playbills out about the "Monologues'' and signs were on the front and back of the bar. Benjamin asked him if he had talked with customers about the law, Legislature and freedoms, to which Marinaro affirmed he did. Kearney asked if he was present at the bar at the time of the citation and Marinaro said he was called and arrived soon after. Kearney also asked him how conversations in the bar went after the smoke-ban took effect Oct. 1. Marinaro said discussions were the same. Under questioning from Benjamin, Marinaro told how the bar's profits were down 40 percent since the law was enacted, that a longtime employee was laid off, the adjoining restaurant shut down two days a week, and employee hours were cut back. In closing arguments, Kearney noted that in Marinaro's own words, there was no difference in discussions among bar staff or customers after Oct. 1, and that there was "nothing offered here today that there was a theatrical production.'' No acting or staging "makes a mockery'' of what a theater production is, he added. Benjamin began his summation by noting a 1989 U.S.. Supreme Court decision which ruled a burning of the U.S. flag can be protected under the Constitution's First Amendment protecting "expressive conduct.'' "We choose to burn tobacco cigarettes,'' he said. He continued that the ban is economically devastating to rural bar owners, and that the legislation covering the smoking ban wasn't written well. Marinaro had taken the time to study the law so he wouldn't run afoul, and had playbills, designated times and persons designated as actors. "How do you define an art performance?" Benjamin asked. We're not in a position to judge, from different tastes in music, to walking into the Renaissance Fair downstate, he added. The language in the law, covering theatrical performances, is unclear. "The ambiguity is there and people like Mr. Marinaro have to figure it out,'' he said. Florey said he will issue a written decision by next week.