My opinions on bars risking the $10K fines and alternatives.

(disclaimer) These are the opinions of myself Greg Lang and not lawyer Mark W. Benjamin or Barnacles Shiela Kromer or any other person.

The Minnesota Department of Health sent out a letter giving a vague opinion on the "smoking theater" being illegal and threatening a draconian $10,000 fine and criminal penalties. You can read the letter here (click on image fore larger image. http://freedomtoact.blogspot.com/2008/03/blog-post.html
The $10,000 threat is definitely intimidating. We have a test case with the first court appearance April 04, 2008. I am not a lawyer and am not "privy" to Mark Benjamin's specific legal strategies but he has discussed this a lot and I have read virtually everything. Also, I have "some" knowledge of courts and law so here goes.

First off the description of "theater" is vague and undefined. In the 19th Century the "Chautauqua" http://en.wikipedia.org/wiki/Chautauqua was a very popular form of "theater", sometimes with partisan slant. With so-called "street theater" imitation is no the sincerest form of flattery but there were classics like the San Francisco "diggers" holding a mock funeral for the "hippy" after the "Summer of love". Added to that we have at least two cases reported where the so-called legitimate theater (Jungle Theater) had smoking on stage with no warning, playbills or notifications. (I quit smoking more than 30 years ago before the original Minnesota clean air act and I had to avoid cigarette smoke for close to six months to avoid "nicotine fits". Also I had an asthmatic girlfriend. I would have been a real bind if we planned a "smoke-free" evening out, bought two pricey tickets and then were exposed to smoke. This happened post ban at the Jungle Theater. ) I would ask if the Minnesota Department of Health sent out this letter to the so-called "legitimate" theaters.

The next argument, which is pervasive with the court is if the wording of the so called "Freedom to breath" law is vague the legislature had and has the right to reopen the law and revise it. The MN Court of Appeals and MN Supreme Court tend to consider this argument very persuasive. There are many other arguments that I'll leave to Mark for the sake of brevity.

If the MN Appeals or Supreme Court throws out the "Freedom to Breath" law or in effect rules that Skakesphere was right when he state "The whole world is a stage" and we are all actors there could be legal chaos! For example, this summer we will be hosting Republican National Convention. There will be many protests and "informal theater". What if some of these protesters want to enter indoor spaces and have "smoking theater?".

The solution to this is for the legislature, while still in session to adopt reasonable requirement for smoking in bars, private clubs and VFW's. Basically the local municipality would have to make an ordinance to allow this, prominent posting that there is smoking would be required and specific ventilation would be required.

It's up to bar owners but with the weather getting warmer it might not be worth it the risk of the potential $10K to have indoor smoking. Bars might print out and post updates on this. One trick to save ink costs is to cut and paste text to a notepad and print that out. Also, on outdoor patios you might have occasional open stage "theater nights". It will give people hope and an outlet. A huge number of people dislike the bar smoking bans but found nowhere to turn.

Also, try to support and promote the Tavern League of Minnesota. They have done a lot and their website has a lot of useful information. http://www.tavernleaguemn.org/