MARK W. BENJAMIN
Criminal Defense, P.A.
237 Second Avenue SW, Suite 111
Cambridge, MN 55008
763-691-0900 (office)
763-670-9664 (mobile)
Press Release
MN Court of Appeals rules against Theater Night; No standards provided; Appeal to follow
The Minnesota Court of Appeals ruled today against Tom Marinaro, owner of Tank’s Bar in Babbitt, Minnesota. Mr. Marinaro was issued a ticket in March 2008 for allowing patrons to smoke in his bar. Two months later, he went to court and alleged that his patrons were performing in his improvisational play, The Gunsmoke Monologues. Under Minnesota law, it is legal for actors to smoke indoors during a “theatrical performance”.
The district court judge ruled that Mr. Marinaro’s play was a sham because his patrons did not perform on stage, did not wear costumes and did not read scripts.
Today the Court of Appeals ruled that the district court judge did not abuse his discretion in determining that Mr. Marinaro’s play was not a play. Unfortunately, the Court declined to provide any standards by which Minnesota bar owners might comport their conduct so as to not run afoul of the law. The Court said it would not issue “advisory opinions concerning hypothetical situations” and that it was “neither necessary nor prudent … to attempt to set forth an all-purpose definition of the term ‘theatrical performance’”.
But the continuing economic distress of some Minnesota bar owners is anything but hypothetical as they continue to cut hours, lay off employees and go out of business. The legislature declined to provide clarification of the “theatrical performance” exception and now, sadly, the Court of Appeals has done the same.
It is for that reason that Mr. Benjamin and Mr. Marinaro will seek review by the Minnesota Supreme Court.
Our show goes on.
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