No Court Tomorrow in Virginia Friday, April 04, 2008

Greg --Just went on the web site and saw that you had posted that there will be a court hearing tomorrow in Virginia. There won't be. It was scheduled for an arraignment only -- the purpose of which would have been to inform Tom Marinaro of his rights and what he is charged with.

I sent a letter to the court on Monday informing them that we are waiving that hearing and asking for a new court date -- the purpose of which will be to argue the law to the judge, namely, that the "theatrical productions" exception is unconstitutionally vague and therefore unenforceable.

We haven't heard back yet on the date and time but I will be issuing a press release on that as soon as I get word.Please let everyone know. Thanks.-- Mark Benjamin

Greg - Below is a post from the Yahoo's Smoker's Forum. Thought it was worth posting on your website.

Greg - Below is a post from the Yahoo's Smoker's Forum. Thought it was worth posting on your website. Sheila

Re: [Minnesota smokers] Theater Night Update 3-18-08
Tuesday, April 1, 2008 10:59 PM
From:
"Scott Berosik"
To: minnesotasmokers@yahoogroups.com
A special thank you to all that is supporting the pro smokers of Minnesota. And a special thanks to Mark and Sheila for working forward to a possible compromise on the smoking ban in bars. Since Oct. 1st I have maybe spent 2 dollars in a Minnesota bar, I just don't feel comfortable sitting in a bar and not having my cigarette in my hand. I'm sorry to all the bars I used to patronize but the war is on and I feel that the issue must be put up front and forward to drive a point. A special thanks to the owners of Bulls eye Bar for there stand on the issue. you are not alone.

A word to the Minnesota smokers "GET OFF YOUR %#&" and show your support at the government meetings. I was at the Minneapolis meeting when they where considering overturning the smoking ban. There where about 75 smokers and bar owners and a handful of Drs. that where escorted to there cars after testimony (for a smoking ban and the dangers of second hand smoke) of course. I was shocked to see only 75 people at this meeting.

A story for the smokers of Minn. I live in No. St. Paul Minnesota and graduated from No. High School in 1976. During 1975 about a third of the 11th grade class had an old fashioned 60's style "walk out" and "sit in" to fight for the right to smoke on school grounds (legal for 18 year old students), after a 3 day expulsion it was decided to allow smoking on school grounds for legal aged students and a smoking lounge was built for us. After we received our smoking lounge Tartan High School followed suite and a long line of other schools followed. What ever happened to the "stick together and prevail" attitude of that era? If an 18 year old person is old enough to make the decision to risk there life in a war I think they have the right to make the decision to walk or not walk into a bar that has second hand smoke in it.
Just goes to show that if enough of us get together things can get accomplished. But we need to get together next time a government meeting is in session concerning our right to smoke in a bar.

Again thanks to all who are fighting for the rights of smokers and all other rights that are being taken advantage of by our government officials.

March 31, 2008 - Smoking ban study released - A brief review of the fiscal impact of a statewide smoking ban on lawful gambling.

Minnesota Gambling Control Board

Suite 300 South1711

West County Road B

Roseville, Minnesota 55113

651-639-4000

March 31, 2008 - Smoking ban study released - A brief review of the fiscal impact of a statewide smoking ban on lawful gambling.

http://www.gcb.state.mn.us/PDF_Files/Smoking%20ban%20study.pdf

My comments: I did a quick read of the report and it seems unbiased. Note page 17, the St. Paul numbers before and after the local ban and page 19, from areas with no ban before the statewide ban. This seems to mirror the first hand accounts from bars that have been posted here. Below is a report I recieved at 9 AM April 04, 2008

Sent: Tuesday, April 01, 2008 12:39 AM
Subject: Smoking Ban Impact on Charitable Gambling
Hello - I am writing again to bring to your attention the report by the Gambling Control Board on the Impact of the Smoking Ban on Charitable gambling. http://www.gcb.state.mn.us/PDF_Files/Smoking%20ban%20study.pdf In our rural area, Meeker County, many of our communities obtain donations to support youth, community sports, and our citizens special needs. Much of the money is raised by charitable gambling. Notice how Meeker County is mentioned, but it does not mention that the ban only affected restaurants. Many bars obtained exemptions by paying $150 to allow smoking. The County Commissioners repealed the County Ban and deferred to the State Ban that went into effect on Oct. 1, 2007. That is when all the bars went "smokefree" like the rest of the state. I have mentioned for the past couple years in my visits to you at the Capitol, that many organizations and charitable sponsors would be affected by a smoking ban. Now the GCB has a report that appears to support this claim. It is just another bullet in the back for small establishments and our wonderful community organizations. Please consider the fallout from the Smoking Ban and support some relief for the small establishments, our communities and those affected by this law. Thank you again for your time and your hard work on behalf of the business and citizens of Meeker County.

Lia NistlerFormer Bar Owner

241 Cedar Avenue South

Watkins, MN 55389

320=764=2530

MN Smoking Ban Theater Night Press Release 2008.03.29

Note: "Open Letter to John Stine" is at bottom of this posting in this maroon color. One page black ink printable copy of "open letter".http://ocrscans.homestead.com/03-01-08open.html

MN Smoking Ban Theater Night Press Release 2008.03.29

MARK W. BENJAMINCriminal Defense, P.A.

237 Second Avenue SW, Suite 111

Cambridge, MN 55008

763-691-0900 (office)

763-670-9664 (mobile)

Press Release

The Minnesota Department of Health is threatening bar owners to sign a document giving MDH authority to enforce the smoking ban; MDH currently does not have that authority in the law.

For the last several days, Minnesota Department of Health inspectors have descended upon Theater Night bars – unannounced and brandishing a document – demanding to talk to the owner. They then thrust the document at the owner – a copy of which we only got last night.

We scanned it and posted it:
https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgBzm0FNj5-omsp8dW7Oqthoy_doz7dt9-w1efgxfHzZbZr-1-HvhiElb5Q-azraZU5zhTgPVQ1XQWP67dq7JAeqpkOPBiVgTFyjg8-iwdXIs-RZYkbD13MhFsyfeI6yVFBwV3NOHxhdt4Y/s1600-h/03-29-08MNDOH_html_m3f2aba90.png

The owner is given no time to consider the document’s legal ramifications and is told to sign it immediately or risk the following:

“I understand that if I refuse to comply that I have been duly notified that swift and decisive enforcement actions will follow by the Minnesota Department of Health that may include District Court Injunction for Relief (Court Order), Administrative Penalties up to $10,000, and suspension or revocation of my establishment’s food and beverage licenses. *** Immediate action is required to prevent MDH enforcement actions."

“I understand that if I do hold one or more of these [Theater Night] events where my patrons and my food and beverage employees are allowed to smoke indoors, that state and local authorities will take enforcement action that may lead to the loss of my food, beverage, and lodging license and the loss of my liquor license.”

We were curious why MDH suddenly decided to send their inspectors out en masse and require immediate compliance. It turns out that MDH finally found a way to enforce the smoking ban using the administrative procedures outlined in my previous Open Letter to John Stine (see attachment.) <Maroon letter below>

Here’s the relevant part:
Subdivision 2 [of Minn. Stat. 144.991] says the contents of an administrative penalty order “must include”:

(1) (1) a concise statement of the facts alleged to constitute a violation;

(2) (2) a reference to the section of the statute, rule, variance, order, stipulation agreement, or term or condition of a permit that has been violated;

(3) (3) a statement of the amount of the administrative penalty to be imposed and the factors upon which the penalty is based; and

(4) a statement of the person's right to review of the order. (emphasis added.)

Obviously, the MDH has determined that it has no legal authority to enforce the state-wide smoking ban by “a reference to the section of the statute” so it has decided to enforce the ban by reference to a “stipulation agreement”. Neat trick, but first you have to get the bar owner to sign the stupid thing.

This backdoor method of enforcing a statute that is unconstitutionally vague on its face (what constitutes a “theatrical production”?) is sad and shameful behavior by a once-proud Minnesota institution.

We have notified all of our participating bar owners of the consequences of signing this document. Any bar owner signing it will provide a legal basis for enforcement of the smoking ban -- where no such basis existed beforehand.

The MDH is adding to its growing list of questions which, to date, remain unanswered:

1. For three weeks, the MDH and the Attorney General’s Office consulted regarding the enforcement of the smoking ban. On March 5th, the MDH issued a press release stating that it had received “legal advice” upon which it decided that bars hosting Theater Night were engaged in illegal activity. Who gave the “legal advice”? Hint: it wasn’t the Attorney General’s Office.

2. Why does the MDH refuse to produce the written legal opinion declaring that bars hosting Theater Night are engaged in illegal activity?

3. Some city officials have complained that they have been “leaned on” by the MDH to harass and intimidate Theater Night bars by threatening the loss of a liquor license (Maplewood) or over-regulation as a condition precedent for a “theatrical productions” permit (Vadnais Heights). Is the MDH engaged in a concerted and coordinated effort to enforce the smoking ban through threats and intimidation by proxy?

4. Why won’t the MDH take me up on my invitation to a live, unscripted televised debate regarding the legality of Theater Night?

5. The “stipulation agreement” document the MDH has so recently sent out to Theater Night bars promises “swift and decisive enforcement actions” if it is not signed. We are now seven weeks into Theater Night with only three petty misdemeanor tickets issued by local law enforcement (two in Babbitt; one in Chisholm) and nothing issued by the MDH. What’s been holding you guys up?

The show goes on.

One page, black type printable copy of "open letter" below.

http://ocrscans.homestead.com/03-01-08open.html

AN OPEN LETTER TO MR. JOHN STINE, DIRECTOR, ENVIRONMENTAL HEALTH DIVISION, MINNESOTA DEPARTMENT OF HEALTH
Dear Mr. Stine,
A number of Minnesota bars have recently received your letter concerning Theater Night. You clearly state the opinion of the Minnesota Department of Health (MDH), namely that “’theater nights’ in bars do not fall within the theatrical production exemption of the MCIAA.” Your letter goes on to say:
Establishments that allow patrons and employees to smoke using the theatrical production exemption are violating the MCIAA regulations. Establishments electing to continue allowing patrons and employees to smoke indoors will be subject to formal enforcement procedures. The MCIAA regulations allow for both criminal and civil enforcement actions, including but not limited to, civil administrative penalties of up to $10,000 per violation. Establishments found in violation may also be subject to license suspension or revocation.
The Theater Night phenomenon has swept the state for more than four weeks now without a single ticket issued by a city police officer or a county sheriff.
Meanwhile, MDH fended off inquiries from the press for three weeks claiming that it was “conferring”, “consulting” and “studying the issue” with the Attorney General. And when the time came for release of the much-anticipated legal opinion, it came from MDH and not the Attorney General. We have learned that the “legal advice” upon which MDH relied did not come from the Attorney General. And MDH refuses to release a copy of the written legal opinion (if it even exists) upon which it relies.
Your letter makes reference to “formal enforcement procedures” that MDH will initiate (finally!) if establishments do not come into compliance. Since you have not informed the public about these procedures, I will.
Minnesota Statute 144.989 is known as the “Health Enforcement Consolidation Act”. Minnesota Statute 144.99 is titled “Enforcement”. Its subdivisions give your agency all of the legal tools it needs to enforce compliance with the smoking ban. To date, you have used none of them.
Like Subdivision 3 – “Correction orders” – that allows your commissioner to issue correction orders requiring a person to “correct a violation of the statutes, rules, and other actions listed in subdivision 1. The correction order must state the deficiencies that constitute the violation; the specific statute, rule, or other action; and the time by which the violation must be corrected.” Your letter doesn’t do that Mr. Stine.
Or Subdivision 4 – “Administrative penalty orders” – that allows your commissioner to “issue an order requiring violations to be corrected and administratively assessing monetary penalties for violations of the statutes, rules, and other actions listed in subdivision 1. The procedures in section 144.991 must be followed when issuing administrative penalty orders.” Your letter doesn’t do that either, Mr. Stine.
But let’s look at Minnesota Statute 144.991 so we can see what procedural process MDH has refused to invoke.
Subdivision 2 of that statute says the contents of an administrative penalty order “must include”:
a concise statement of the facts alleged to constitute a violation;
a reference to the section of the statute, rule, variance, order, stipulation agreement, or term or condition of a permit that has been violated;
a statement of the amount of the administrative penalty to be imposed and the factors upon which the penalty is based; and
a statement of the person's right to review of the order.
If the bar doesn’t agree with the allegations contained in the administrative penalty order, the bar is entitled to an expedited administrative hearing under Subdivision 5. At such a hearing, MDH would be required to prove that “theatrical productions” in bars is not in compliance with the MCIAA and is an illegal activity.
Assuming that the administrative law judge was to rule against the bar and in favor of MDH, the bar can appeal his/her decision under Minnesota Statute 14.63 which states:
Any person aggrieved by a final decision in a contested case is entitled to judicial review of the decision under the provisions of sections 14.63 to 14.68, but nothing in sections 14.63 to 14.68 shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo provided by law. A petition for a writ of certiorari by an aggrieved person for judicial review under sections 14.63 to 14.68 must be filed with the Court of Appeals and served on the agency not more than 30 days after the party receives the final decision and order of the agency.
Given the constitutional issues involved here (a public health agency determining what constitutes a theatrical production), I think that it is highly likely that we would all end up at the Court of Appeals.
Mr. Stine, I am writing this to you as an “open letter” because I have found that the best way to confront bullying tactics is to do so openly. And there is little doubt in my mind that your letter is a bullying tactic.
Please have your agency avail itself of the law and enforce it as it sees fit. It is time to put up or shut up. Until then, the show must go on.
Sincerely yours,
Mark W. Benjamin
Attorney at Law
Criminal Defense, P.A.
237 Second Avenue SW, Suite 111
Cambridge, MN 55008
763-691-0900 (office)
763-670-9664 (mobile)

Star Tribune Editorial on the U of MN "research" on tested reduction in "nicotine" after the state smoking ban.

Here is the editorial in the Saturday Star Tribune. http://www.startribune.com/opinion/editorials/17111696.html

I use "nicotine" in a generic sense here. The two chemicals tested for are "continan" and something called "NNAL". Both are byproducts of exposure to smoke. These were done by testing urine. The presence of the substance in the urine indicates that it is being flushed from the body. The human body does not replenish these substances so we can logically conclude that the "flushed level" of these substances in urine will decrease with time if there is no replenishment. For example, I don't smoke and have been exposed to less that one hour of second hand smoke per year since the 2005 Minneapolis bar smoking ban so we would expect my urine levels to be very low or "baseline". (According to wikipedia nicotine is found in low quantities in common foods. http://en.wikipedia.org/wiki/Nicotine )

This study is at best a "reaffirmation" study where you test to see if what you expect really happens. We would expect that if there is indeed no new exposure to secondhand smoke the "flush" level of the drugs would be reduced. This is precisely what happened. The study might be mildly useful for a baseline but it doesn't constitute "news". Most prisons are smoke free nowadays and at intake prisoners are routinely asked if they smoke or are around smokers. Military inductees in "boot camp" are routinely confined to base for the same four to six weeks so there is a "control".

That said, this study might be useful (with all the previous bans and billions spent on smoking health research has this not been done before?) but the urine "flush rate" following a cessation of new smoke exposure should be well known. This should reaffirm already well known information and as such is not newsworthy. The study of was being submitted for peer review and potential publication. It might past muster for newsworthiness if it contained a dramatically unexpected finding. If you flipped 100 of a new design coin (like the state quarter) and it turned out 50/50 this would not be newsworthy because the results were not anomalous. If they were it should still have peer review for errors if results are anomalous.

From what I can tell this survey was well run but the results were as expected and not anomalous. Basically the took 24 nonsmoking volunteers who worked at bars, restaurants and bowling alleys, test their ruling (flush out) just before the ban and then again four to six weeks later after a work shift of at least six hours. Like duhh! the level of nicotine related chemicals in urine went way down. This is the expected rate (like the Minnesota quarters if they flipped 50/50). There is nothing that could possibly make this newsworthy, especially before a peer review and publication. Then it might have a minor news value of "local peer reviewed and published" but that is in the future. Th original Star Tribune Story and this editorial seem curiously timed to counter the "smoke theater" effort with a story with a good headline but not much substance.

I consider this research to be good but not newsworthy because the findings were as expected. The timing of the news release is highly suspect. If you want to dig more into the details of the study here is a press release by Clear Way Minnesota which says it gets 3% of Minnesota's tobacco settlement money (which last I heard was $4.5 billion) http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/03-27-2008/0004780926&EDATE=

I have received email that the key researcher behind this is involved with pharmaceutical companies promoting smoking cessation "patches" and such. I have a major beef with these because of their commerical advertising. They show someone who just quit smoking, but wearing "a patch" going over to the outdoor railng talking to people who are curently smoking."

I favor the original clean indoor air act because I had to avoid cig smoke for the first six months after I quit. The commercials tell people, that when quitting the "patch is so powerful and you can be around smoke. Here is information sent to me about our esteemed U of MN researcher.

U researcher: Study shows smoking ban reduces risk
http://www.startribune.com/lifestyle/health/17035651.html

The doctor who did this study of 2nd hand smoke in bars is a Psychiatrist. (?)
She's also involved in the development of a nicotine addiction vaccine for a bio pharmaceutical company and is a cheerleader for Big Medicine smoking cessation products. Follow the money.http://cbs4denver.com/health/Colorado.news.Denver.2.550333.html
http://en.wikipedia .org/wiki/ NicVax
http://www.apa.org/ppo/issues/ hatsukamitest603 .html

This has been considered in the proposed legislative compromise. Any bar that allows smoking will be required to have specific signage indicating smoking. If you just quit (even with the patch) it would be wise to stay away for a while.

Can We Post:Bird's Nest Threat.

Apparently the Minnesota Department of Health has made itself the government arbitor of what constitutes "real theater" and thus "art". Has the DOH taken any documented action against "real theater" like the Jungle Theater in Minneapolis who was been observed having actor smoking without required ntoification that there will be smoking?

Just my opinion but when dealing with the MN DOH keep the conversation focused on the legal perspective not your personal business situation. Ask the public official contacting you to specifically state your rights. If they don't know these they should be enforcing the law. If they say they have a "legal opinion" ask them to detail it and don't just accept "the Department" . One option of a "legal opinion" by a named lawyer is that a grievance can be potentially filed against the MN State Bar Association. Greg Lang

To: sheila kromer
Sent: Friday, March 28, 2008 11:39 AM
Subject: Letter
Sheila, I have just received a phone call from Dale Dorschner with the health department. He asked if I was still having Theater night and is sending a letter for me to sign and send back to him. It will state that I will quit Theater nights.I told him I would not stop because I would have to close my doors and put all my help out of work. He said the Theater exemption was for real theaters like the Guthrie etc. So that's where I am at this point. I will send the letter to Mark as soon as I get it. Birdie

Update for Shiela Kromer of Barnacles.

Hello Everyone,

A little activity going on today. Have you noticed that the MDH always seems to do their work late in the week, especially Fridays. I wonder why??? Perhaps to heighten their effect? Robert sent a copy of the MDH letter and I have forwarded it to Greg to post on the website www.freedomtoact.com . Please keep checking the website. The bar owners that were contacted either by phone or in person are Bullseye Saloon (& a bar next to him), Bugg's Bar, Bird's Nest and Dusty Eagle. These are the bars that we know of. If anyone else has been contacted, please let Mark or myself know. To date, we (at Barnacles) have not been contacted at all. Mark will be issuing a press release probably on Monday. Below I have included e-mails from Birdie (Bird's Nest) and Robert (Bullseye Saloon). You go guys!! We are with you 100%.


From Birdie:
Sheila, I have just received a phone call from Dale Dorschner with the health department. He asked if I was still having Theater night and is sending a letter for me to sign and send back to him. It will state that I will quit Theater nights.I told him I would not stop because I would have to close my doors and put all my help out of work. He said the Theater exemption was for real theaters like the Guthrie etc. So that's where I am at this point. I will send the letter to Mark as soon as I get it. Birdie


From Robert:
Hey guys-Robert Ripley here at Bullseye Saloon. The MDH (his name was Dale) physically stopped into my bar yesterday at about 3pm. I was not there so I insteadtalked to them on the phone. They asked me to come down immediately and sign this letter. I politely declined. (ok, not super politely). Dale told me thathe saw "evidence" of smoking going on, (but he did not actually witness anyone smoking) and asked if I was holding theatre nights. I told him we were. He thentold me that, and I quote, "The MDH is of the legal opinion that these theatre nights violate the MCIAA." I responded that "I am of the legal opinion that weare NOT breaking any laws whatsoever." He asked if I could give him a "verbal" agreement that we would cease theatre nights immediately, and I asked if hecould turn around and let the bartender know that she was being laid off today... I explained that I am trying to keep as many Minnesoatans working as possible, and I would like that single-motherbartender to be able to bring a paycheck home to her 4-yr old son this week. I think he got the point. He left the form for me telling me that if I did not faxit back before morning they "could" impose legal action like court, $10,000 fine, and loss of license. I asked him if he had the power to ticket anyone, andhe said no. I asked him if he was going to take away my liq license... and he said that I was "jeopardizing" it. He started snapping pictures ofeverything in the bar until the bartender told him to stop taking pictures of her. They then went to the bar next door to me and did the same thing. The barowner over there did the same thing I did.Blowhards.I have the letter if you want me to fax it.Here is my number if you would like to speak further on this matter.Robert Ripley