Mark Benjamin press release on appeals hearing

MARK W. BENJAMIN

Criminal Defense, P.A.

237 Second Avenue SW, Suite 111

Cambridge, MN 55008

763-691-0900 (office)

763-670-9664 (mobile)

markbenjamin@msn.com

www.markwbenjamin.com

 

Press Release

Local News Video Report of Oral Arguments at Court of Appeals on April 16^th in Duluth.

Link:  http://www.wdio.com/article/stories/S883113.shtml?cat=10335

Cambridge Attorney Mark W. Benjamin appeared before the MN Court of Appeals yesterday on behalf of his client Tom Marinaro.

Last May, Mr. Marinaro was found guilty of allowing his customer-actors to smoke in his bar during a performance of his improvisational play "The Gunsmoke Monologues".  The district court ruled that his play did not fit within the "theatrical productions" exception to Minnesota's state-wide smoking ban.  Why?  Because his customer-actors did not wear costumes, read from scripts or restrict their performances to a stage.

These standards do not exist in the language of the statute and bar owners have been uncertain just what would satisfy the Minnesota Department of Health.  No bars have hosted Theater Night since last spring, worried that they might inadvertently run afoul of the law, 

That could all change if the Court of Appeals affirms the district court.  For the first time, bar owners would have legal authority to employ those standards in hosting future Theater Nights.  Simply put, all performances would be restricted to a stage and all customer-actors would wear costumes and read from scripts.  Oh yes, and they would smoke too.

Strangely enough, a loss for Mr. Marinaro would be a victory for Minnesota's small bar owners.  Theater Night 2.0 would be born and better than ever.

Mr. Benjamin emphasized that Mr. Marinaro and other small bar owners mean no disrespect to law enforcement or the courts.  They simply want the same thing the Guthrie Theater wants.  They want to make money -- legally.

The Court of Appeals has up to 90 days to reach a decision.

Our show goes on.

New Study of National Heart Attack Admissions and Mortality Finds No Evidence of a Short-Term Effect of Smoking Bans

First the source link to the story.  Also posted on my http://freedomtoact.com  http://tobaccoanalysis.blogspot.com/2009/04/new-study-of-national-heart-attack.html

Redrant:  The money quote:  "The Helena, Montana study examined  304 heart attack admissions in one community over a period of six months.  This study examined a total of 217,023 heart attack admissions and 2.0 million heart attack deaths in 468 counties in all 50 states over an eight-year period."

I recall reading and the Consumer report website about an IBM executive who complained of "chest pains"  $150K of diagnostic work and testing it was finally determined that he had taken up yard work and was experiencing "weed wackier muscle strain", a common condition if you are not adapted to this type of "lifting".  Also, we have to assume that if didn't balk at even the co-pays, he had a rather large residence that required a lot more weedwacking than my 40 foot city lot.    I recently sniped at a doctor posting at http://minnpost.com who wrote that the Framingham heart study "contained few women" when the charter group was over 50% women.  http://freedomtoact.blogspot.com/2009/03/minnpost-doctor-claims-framingham-heart.html

A glaring error but this doctor and it indicates a mindset.  The charter Framingham group contained no minorities (Framingham, MA had a very low percentage of minorities in 1948, somewhat comparable to the Twin Cities at the time).  If you use "victimology logic" you might conclude that the Framingham study charter group must not have included women because it didn't include minorities!  Of course, a few seconds of fact checking  on the Internet could dispel this.  

That is point one.  The mindset.  If you think you are fighting "social injustice", evil corporations or whatever, you are  not likely to question the idea that the the Framingham study contained few women.

Actually, the doctor writing this column is pretty good.  He tends to write about how doctors don't tend to adapt to research and the huge disparities in diagnosis and treatment rates.  I can't recall him taking on "heart attack" hospital admissions rates and I don't know if the aforementioned IBM executive was admitted there is wild inconsistency in hospital admission rates for "heart attacks".  First off, these are for hospital admissions, not actual verified heart attacks.  Someone complains of chest pain and someone calls the ambulance.  (They don't call it "heartburn" for nothing.)  For starters, except for a true serious heart attack where you are "down" an actual heart attack is very  difficult to diagnose.  Basically, an EKG, preferably with a past reference EKG.  Also if heart tissue actually dies there is detectable blood and urine waste tracers which apparently are different for the typical "sore muscle" waste tracers.  

That said, the Framingham heart study found that at least in males 25% of heart attacks were "silent".  They did yearly EKG's so I would assume the diagnosis was done with EKG variances.  On the other extreme I knew the late  "Meet the Press" Tim Russert's family.   I happened to know that Tim got "top notch" medical treatment, had an exercises regime and a there was an on site heart defillabrator.  

For a second example a now retired co-worker (who was very "high strung") was basically forced to go to a doctor after he became totally tired after carry a rather heavy computer a couple of hundred feet (endurance and energy recovery are good hints).  The doctors ordered him admitted and he had (as I recall) a quadruple bypass.  

Basically, "walking wounded".  He looked in rough shape but he took more asprin than I did (dollar stores have a bottle of 200 USP asprin for $1.  Cheapest insurance around!)  The Framingham study found the link between asprin and dramatically reduced heart attack risk.  He could have gone a long time this way as walking wounded.  If he had a massive heart attack and died that would not be a hospital admission.  It would have been a "statistic". 

The point here is that if a reduction in "admissions" occurs" after a smoking ban there could be a number of reasons.  Smokers might stay home more or frequent more "smoke friendly" establishments (Minnesota Indian casinos, exempt from the smoking bans have greatly expanded smoking sections) and if at home, the person might take an aspirin or die in their sleep.  I am wondering if nowadays the "patient harvesting" hospitals are advising the admission of more people for "heart attacks" with good insurance versus non-insured?  We would have to look at initial hospitalisations recommendations versus actual hospitalisation.  

Yet another variable.  Basically, the Helena study was "cherry picking" data, a "gotcha" of sorts.  This is a very large study where the "law of large numbers" applies.

Of course the anti-smoking "family" has no problem sacrificing science for "propaganda".  They don't debate.  I wonder why?  Greg Lang

Smoking Ban Appeal this Thursday

MARK W. BENJAMIN

Criminal Defense, P.A.

237 Second Avenue SW, Suite 111

Cambridge, MN 55008

763-691-0900 (office)

763-670-9664 (mobile)

markbenjamin@msn.com

www.markwbenjamin.com

 

Press Release

REMINDER – Theater Night – Oral Arguments at Court of Appeals – April 16^th at 10:40 a.m. in Duluth.

This Thursday morning, April 16^th at 10:40 a.m., at the St. Louis County Courthouse, 100 North Fifth Avenue West, Mark Benjamin will argue before the Minnesota Court of Appeals on behalf of his client Tom Marinaro, owner of Tank’s Bar in Babbitt, Minnesota. 

Factual Background.  On the afternoon of March 14, 2008, Mr. Marinaro received a citation for violating Minnesota’s smoking ban, even though his bar was participating in “Theater Night” at the time.  Mr. Marinaro demanded a court trial and claimed he was innocent, given that the ban allows smoking during “theatrical performances” by “actors” and “actresses”.  This exception provides no guidance, standards or restrictions on what constitutes a “theatrical performance”.  Mr. Marinaro, a former steel worker, put on the best play he could and claimed that smoking in his bar was legal as long as the play was being performed.  The trial court disagreed and fined him $300.  Mr. Marinaro appealed.

Legislative Background.  In the closing days of the 2007 legislative session, a conference committee was formed to iron out differences between the House and Senate versions of the smoking ban.  Rep. Tom Huntley of Duluth – as a favor to the Guthrie Theater – introduced a “theatrical performances” exception in the committee.  One of the legislators warned that the exception’s language was broad enough to allow acting (and smoking) in bars, not just playhouses.  He was greeted with laughter and the new exception was voted in as written.

Theater Night Background.  The first Theater Night was performed on February 9, 2008 (3 days before the new legislative session) at Barnacles Bar in Aitkin.  Within three weeks, approximately 100 bars across Minnesota were hosting their own versions of Theater Night.  Despite this, the legislature refused to limit or clarify the language of the “theatrical performances” exception.  The Department of Health cracked down on several bars with administrative penalties.  Nobody appealed these actions and Theater Night seemed doomed.

Our Goal.  We hope the MN Court of Appeals will properly rule that the legislature shirked its duty to define its terms and declare that Mr. Marinaro comported his conduct within the admittedly broad language of the “theatrical performances” exception.  Bar owners are hoping for a favorable ruling so their businesses and employees’ jobs can be saved.  We ask the legislature to examine the law and provide reasonable accommodations for our blue collar bar owners and veterans clubs – just as it did for the Guthrie.

Our show goes on.