Press release by Lawyer Mark W. Benjamin on appeal of bar "Theater Night" conviction.

Formal appeal http://presslord.com/cigap.html

MARK W. BENJAMIN
Criminal Defense, P.A.
237 Second Avenue SW, Suite 111
Cambridge, MN 55008
763-691-0900 (office)
763-670-9664 (mobile)


PressRelease

Mark Benjamin files appellatebrief with the MN Court of Appeals to overturn conviction of his bar owner clientwho hosted Theater Night in his bar and allowing his patrons to smoke indoors.
On Friday, September 12, 2008, criminaldefense attorney Mark W. Benjamin filed his appellate brief with the MinnesotaCourt of Appeals to overturn the petty misdemeanor conviction of his client TomMarinaro.

Mr. Marinaro is the owner of Tank’sBar in Babbitt, Minnesota. On March 14,2008, he was issued a citation for allowing his patrons to smoke indoors duringhis theatrical production of “The Gunsmoke Monologues”. Mr. Marinaro pled not guilty and demanded acourt trial, arguing that he and his patrons were engaged in a legal activity, namely,the production and performance of an improvisational play.

His play called attention to lossof individual liberties, governmental intrusion into private business and theeconomic devastation wrought by the state-wide smoking ban. His play also allowed smoking by designated actors and actresses who wished to participate in his play.
Minnesota’s state-wide smokingban took effect on October 1, 2007. It included an exception (inserted during the closing days of the legislativesession) that allowed actors and actresses to smoke as part of a “theatricalperformance”. Short of requiring advance notice to patrons that there might be some smoking during a play, the legislature failed to limit who could put on a theatrical production, orwhether the production required a stage, costumes or scripts.

Minnesota bar owners beganhosting Theater Nights in February 2008 and reported that their revenues – even in a recession economy – jumped back to pre-ban levels virtuallyovernight. Smoking ban advocates whined that Theater Night was a loophole. Bar owners said it a lifeline.

Mr. Marinaro went to court on May23, 2008, was found guilty and issued the maximum fine of $300.

Mr. Benjamin’s appeal makes thefollowing points:

The police chief was pressured by a city councilor to issue Mr. Marinaro a ticket, even though the chief himself wasn’t sure Mr. Marinaro was breaking the law.

The trial judge thought it “absurd” to consider Mr. Marinaro’s production to be a real play because it didn’t have any costumes or scripts and wasn’t performed on a stage.

But a 1970 U.S. Supreme Court case stated that theatrical productions didn’t have to be performed on a stage by professional actors, or be heavily financed or elaborately produced.
When the legislature slipped the “theatrical productions” exception into the smoking ban bill at the last minute, it did so as a favor to the Guthrie Theater.

When a legislator pointed out that that bar owners might use the “theatrical productions” exception to host their own plays and smoke indoors, the other legislators laughed, instead of tightening up the language. Now they want the courts to clean up their mess.

The language of the exception is clear and unambiguous. Smoking during theatrical productions is a legal activity. With no standards provided by the legislature, no cop or court has the authority to judge what is good or bad theater.

Even so, the Minnesota Department of Health still believes smoking during a theatrical production in a bar is illegal because … it’s in a bar.

A reply brief will be filed in 45days. Oral arguments at the Court ofAppeals in St. Paul will take place at a later date.

Attached is a copy of Mr.Benjamin’s brief. http://presslord.com/cigap.html
Our show goes on.