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.
Saturday, September 13, 2008
Wednesday, September 10, 2008
Star Tribune MN smoking survey and my "redrant"
First the story link. I tried to post in the comments section but I kept getting a "cannot connect" message. http://www.startribune.com/lifestyle/health/28119824.html?page=1&c=y
Here is my posting aka "redrant". I don't doubt a drop overall but I would have to see the details of the survey.
As for the overall state rate there was a strong demographic attrition of the "greatest generation" that fought in WWII. Let's say the typical WWII vet was born in 1920. By 2000 they would be eighty years old. My father, who smoked died in 2003 at age 85. Males especially, of my father's age had a very high rate of smokers.
Next off, as smoking is becoming more demonised people may be less likely to admit to smoking if they do smoke. I've talked to a number of "chippers" (occasional smokers) who claim they don't smoke because they can go all week without smoking. Higher prices and smoking restrictions might increase the number of "chippers" who would deny they smoke or refuse to participate in the survey.
This might be like a survey of illegal drug use or binge drinking. Accurate answers require trust in the survey and it's confidentiality and smokers already have a "tension" with the anti-smoking forces. Will "big brother" get your survey answers?
Restriction indeed cause some reduction in smoking but they cause a "tension" with the survey takers which could skew results.
Costs reduce smoking some but there are ways around this. I see non-big tobacco brands for under $30 per carton. Out of state might be cheaper.
http://www.taxadmin.org/FTA/rate/cigarett.html
I have heard that reservation cigs are cheaper and there are internet sales and "roll your own" are well under $10 per carton. Someone taking these routes might be less inclined to cooperate with the survey. I don't smoke but I have been told the "small tobacco" brands are pretty good. The actual cost of the tobacco is a very small portion of the final cost for a carton so quality comes cheap, at least here in the US. The point being that a smoker that gets "creative" may be less likely to cooperate with a survey.
Finally, smokers might react with "alternatives" which they might not share with the survey. Here is a story link "Decline is cigarette sales offset by use of alternative products. http://www.smokingmad.com/decline-in-cigarette-sales-offset-by-use-of-alternative-products.html
Here is my posting aka "redrant". I don't doubt a drop overall but I would have to see the details of the survey.
As for the overall state rate there was a strong demographic attrition of the "greatest generation" that fought in WWII. Let's say the typical WWII vet was born in 1920. By 2000 they would be eighty years old. My father, who smoked died in 2003 at age 85. Males especially, of my father's age had a very high rate of smokers.
Next off, as smoking is becoming more demonised people may be less likely to admit to smoking if they do smoke. I've talked to a number of "chippers" (occasional smokers) who claim they don't smoke because they can go all week without smoking. Higher prices and smoking restrictions might increase the number of "chippers" who would deny they smoke or refuse to participate in the survey.
This might be like a survey of illegal drug use or binge drinking. Accurate answers require trust in the survey and it's confidentiality and smokers already have a "tension" with the anti-smoking forces. Will "big brother" get your survey answers?
Restriction indeed cause some reduction in smoking but they cause a "tension" with the survey takers which could skew results.
Costs reduce smoking some but there are ways around this. I see non-big tobacco brands for under $30 per carton. Out of state might be cheaper.
http://www.taxadmin.org/FTA/rate/cigarett.html
I have heard that reservation cigs are cheaper and there are internet sales and "roll your own" are well under $10 per carton. Someone taking these routes might be less inclined to cooperate with the survey. I don't smoke but I have been told the "small tobacco" brands are pretty good. The actual cost of the tobacco is a very small portion of the final cost for a carton so quality comes cheap, at least here in the US. The point being that a smoker that gets "creative" may be less likely to cooperate with a survey.
Finally, smokers might react with "alternatives" which they might not share with the survey. Here is a story link "Decline is cigarette sales offset by use of alternative products. http://www.smokingmad.com/decline-in-cigarette-sales-offset-by-use-of-alternative-products.html
Tuesday, September 9, 2008
I recieved my MN refundable $50/100 political donation refund in one month.
Redrant: September 09, 2008 Update. I just checked my checking account online and found a $50 deposit from the Minnesota Department of Revenue. I am waiting for a far larger State Property Tax refund so I "had a cow" when I $50. With a bit of checking I discovered that I had indeed opted for the direct deposit of the $50 campaign donation refund. This is the $50 I received. Here is the timeline for this. The $50 check is dated August 02, so figure it was mailed August 03. The forms needed to receive the refund is postmarked August 06 so figure I
received a day or two later. I recall filling out the forms and sending in the donations quickly so figure I mailed it August 08 to 10. A direct deposit was made on September 05. Thus my $50 was tied up for a bit over a month. Greg Lang
Go to http://spendastamp.com for details on the program.
The original post is pasted below.
Monday, August 11, 2008
Update on my $50 refundable campaign donation.
After a week I didn't hear back from Dave Shegstad but it could have been an email glitch. I sent a $50 check instead to the campaign for Adam Steele who is a very strong opponent of the bar smoking ban. I mailed the $50 check on Monday and received a reply with the forms needed to get a response in the Friday mail. This is a prompt response. It included personal response. I am using a new computer without OCR software but the letter reaffirmed Adam Steele's very strong support for changing the bar smoking ban.Here are web pages I found with information on Adam Steele and his candidacy. http://northernherald.finalhost.net/campsite.pdfhttp://northernherald.finalhost.net/http://northernherald.com/Here is the Tavern League's page on the Campaign Donation refund. http://www.tavernleaguemn.org/PCR.htmHere is the official State of Minnesota page.http://www.taxes.state.mn.us/individ/other_supporting_content/political_contrib_refund.shtmlTo reiterate the basics. You must be a resident of Minnesota but you do not have to donate to a candidate (or political group) in your district. I once donated to a Democratic challenger in Burnsville, and got my refund. On off years in the past I have made this donation to the state Republican party but I have had second thoughts about this. Not matter how explicitly you tell them that this will be the only contribution that year they will still call seeking more. I've had people tell it's the same with the Democratic donations. Besides, it seems more effective to give to an individual candidate, especially one who shares your views. Adam Steele is running for district 4A in Bemidji and I live in Minneapolis. This is a perfectly legal and acceptable way to give the refundable donation.Some ground rules and caveats. The candidate has to agree to campaign spending limits to be eligible and must be running for a Minnesota constitutional office or be a Minnesota political party. What this means is that you won't be eligible for a refund if you donate to the "Paris Hilton for President" campaign http://www.funnyordie.com/videos/64ad536a6d . The National congressional campaigns are not eligible either.Basically local is better. Adam Steele is eligible. If you send a check to any candidate for this write "refundable MN political contribution" on the check. If the candidate did not agree they are required to send the check back. Again, Adam Steele sent me the refund material back promptly so he is definitely eligible.Send a note with your concerns to the candidate. This is why it is better to donate to an individual candidate. Adam Steele sent me a personalised reply. $50/$100 means a lot to these candidates and raising basic money will make them eligible for further campaign financing.One important caveat is that if you owe municipalities in Minnesota or the State of Minnesota debts, fines and penalties the $50/100 refund can be seized for this. This could conceivably include unpaid first half property taxes and other taxes in arrears. The second half property taxes are not due until (I think) October 15 so these are non in arrears. Basically, if you got your state and federal tax refunds and economic stimulus checks intact and haven't received arrears notices since then you should be OK. They cross check for arrears child support but again if you got your refunds you should be OK.The donations must be monetary, not goods or services. That a technical point but it makes sense.That said, it is a very good program and I highly recommend donations to Adam Steele. He has a long history of aggressively fighting the bar smoking bans so he could be a valuable asset if elected.Basically your "cost" for this donation is two stamps. One is to mail the check and the other is to mail in the application for the refund. The Sate of Minnesota will refund your $50 to $100 within six weeks if you meek the criteria. It is not difficult.The refundable limit is $50 for and individual and $100 for a married couple. This can only be done once per calendar year. It is designed to increase citizen influence in government. $50/100 won't "buy" much influence but it helps support the candidates who support your beliefs.The bar/tavern culture is under assault from the same "global warming" politicians and bureaucrats who believe that if they can drive energy prices up high enough we will all embrace their "Potekem Village" alternative energy fantasies. (MY father ran an electric power plant so I know energy realities, see my http://fourfiftygas.com/) A good way to fight back is with the $50/100 refundable MN campaign contribution.Note to other candidate favoring a MN bar smoking ban revision. Email me through the http://freedomtoact.com/ email link or snail mail me at the address on the far right of http://freedomtoact.com/ and I will publish you comments upon verification.Again, this is a very good program. If people want to help save our American bar/tavern culture they have to do more than gripe. We can all afford two stamps.
Posted by Gregory L Lang at 12:28 AM
received a day or two later. I recall filling out the forms and sending in the donations quickly so figure I mailed it August 08 to 10. A direct deposit was made on September 05. Thus my $50 was tied up for a bit over a month. Greg Lang
Go to http://spendastamp.com for details on the program.
The original post is pasted below.
Monday, August 11, 2008
Update on my $50 refundable campaign donation.
After a week I didn't hear back from Dave Shegstad but it could have been an email glitch. I sent a $50 check instead to the campaign for Adam Steele who is a very strong opponent of the bar smoking ban. I mailed the $50 check on Monday and received a reply with the forms needed to get a response in the Friday mail. This is a prompt response. It included personal response. I am using a new computer without OCR software but the letter reaffirmed Adam Steele's very strong support for changing the bar smoking ban.Here are web pages I found with information on Adam Steele and his candidacy. http://northernherald.finalhost.net/campsite.pdfhttp://northernherald.finalhost.net/http://northernherald.com/Here is the Tavern League's page on the Campaign Donation refund. http://www.tavernleaguemn.org/PCR.htmHere is the official State of Minnesota page.http://www.taxes.state.mn.us/individ/other_supporting_content/political_contrib_refund.shtmlTo reiterate the basics. You must be a resident of Minnesota but you do not have to donate to a candidate (or political group) in your district. I once donated to a Democratic challenger in Burnsville, and got my refund. On off years in the past I have made this donation to the state Republican party but I have had second thoughts about this. Not matter how explicitly you tell them that this will be the only contribution that year they will still call seeking more. I've had people tell it's the same with the Democratic donations. Besides, it seems more effective to give to an individual candidate, especially one who shares your views. Adam Steele is running for district 4A in Bemidji and I live in Minneapolis. This is a perfectly legal and acceptable way to give the refundable donation.Some ground rules and caveats. The candidate has to agree to campaign spending limits to be eligible and must be running for a Minnesota constitutional office or be a Minnesota political party. What this means is that you won't be eligible for a refund if you donate to the "Paris Hilton for President" campaign http://www.funnyordie.com/videos/64ad536a6d . The National congressional campaigns are not eligible either.Basically local is better. Adam Steele is eligible. If you send a check to any candidate for this write "refundable MN political contribution" on the check. If the candidate did not agree they are required to send the check back. Again, Adam Steele sent me the refund material back promptly so he is definitely eligible.Send a note with your concerns to the candidate. This is why it is better to donate to an individual candidate. Adam Steele sent me a personalised reply. $50/$100 means a lot to these candidates and raising basic money will make them eligible for further campaign financing.One important caveat is that if you owe municipalities in Minnesota or the State of Minnesota debts, fines and penalties the $50/100 refund can be seized for this. This could conceivably include unpaid first half property taxes and other taxes in arrears. The second half property taxes are not due until (I think) October 15 so these are non in arrears. Basically, if you got your state and federal tax refunds and economic stimulus checks intact and haven't received arrears notices since then you should be OK. They cross check for arrears child support but again if you got your refunds you should be OK.The donations must be monetary, not goods or services. That a technical point but it makes sense.That said, it is a very good program and I highly recommend donations to Adam Steele. He has a long history of aggressively fighting the bar smoking bans so he could be a valuable asset if elected.Basically your "cost" for this donation is two stamps. One is to mail the check and the other is to mail in the application for the refund. The Sate of Minnesota will refund your $50 to $100 within six weeks if you meek the criteria. It is not difficult.The refundable limit is $50 for and individual and $100 for a married couple. This can only be done once per calendar year. It is designed to increase citizen influence in government. $50/100 won't "buy" much influence but it helps support the candidates who support your beliefs.The bar/tavern culture is under assault from the same "global warming" politicians and bureaucrats who believe that if they can drive energy prices up high enough we will all embrace their "Potekem Village" alternative energy fantasies. (MY father ran an electric power plant so I know energy realities, see my http://fourfiftygas.com/) A good way to fight back is with the $50/100 refundable MN campaign contribution.Note to other candidate favoring a MN bar smoking ban revision. Email me through the http://freedomtoact.com/ email link or snail mail me at the address on the far right of http://freedomtoact.com/ and I will publish you comments upon verification.Again, this is a very good program. If people want to help save our American bar/tavern culture they have to do more than gripe. We can all afford two stamps.
Posted by Gregory L Lang at 12:28 AM
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