06 March 2008

Smoking Ban Showdown

Minnesota passed a smoking ban that went into effect in October 2007, effectively ending smoking in all but a few places in Minnesota. This February, however, some creative individuals found a loophole in the new statutes.

The resulting brainstorm, "The Tobacco Monologues" debuted at a Lake Mille Lacs bar last weekend when patrons ponied up a buck for a button that identified them as actors, with a license to light up.

More bars are expected to stage the performances this weekend. [...]

[Sheila] Kromer [owner of Barnacles Resort and Campground in Aitkin, MN] said her January liquor sales are down about 26 percent from last year, in large part because of the smoking ban. The bar clears out by 10:30, she said, as smokers seek a warm place for a cigarette.

"They might go out once," she said. "But when they head out a second time for a smoke, they just leave."

But last weekend, the "play" kept the bar full until it closed at 1 a.m., Kromer said. "People had fun and they had a smile on their faces."

A sheriff's deputy showed up after someone complained but left without issuing a ticket because the bar seemed to be following the letter of the law.

Since then, Kromer said, she's received about a dozen calls and e-mails from other bar owners interested in directing similar "theater nights."

Kromer said she'll be staging a repeat performance of the Tobacco Monologues and [Mark] Benjamin [creator of the Tobacco Monologues], a Sunday school teacher, will be there in full garb: black velvet tights, white puffy shirt, black velvet hat complete with a plume and enormous black leather boots.
Well, it didn't take long for some to complain that the spirit of the law wasn't being followed. The state's health department is now threatening to fine bars that don't stop holding "theater nights."

State health officials are trying to pull the curtain down on bar owners who are staging "theater nights" to get around the state smoking ban.

Health Department officials issued an ultimatum on Wednesday: The bar owners are violating the state's smoking ban and will be fined if they don't stop. Hanging up a playbill and dubbing bar patrons actors doesn't constitute a theatrical production, which is exempted from the smoking ban, state officials said. [...]

[Rob] Fulton [director of St. Paul-Ramsey County Public Health] said his department employees don't initiate visits to bars but have responded to a couple of complaints about "theater nights." "We pick up a copy of the script and the playbill and then we pass it on" to the Minnesota Department of Health, Fulton said.

"On the face of it, it's utterly ridiculous to think you can invite a whole bunch of people to a bar and call it a theater," he said. [...]

"These bars are attempting to circumvent the Freedom to Breathe Act," state Health Commissioner Sanne Magnan said Wednesday. "The law was enacted to protect Minnesotans from the serious health effects of secondhand smoke. We expect all establishments to comply with the law."

Sanne said the theatrical exemption was never intended to fill up a whole public room with smokers. And the state can fine violators up to $10,000, she said.

Sanne said her department issued its statement on Wednesday to make it clear that "theater nights" in bars aren't going to be tolerated. "We hope they will comply with the law," she said.
The government is stating that "hanging up a playbill and dubbing bar patrons actors doesn't constitute a theatrical production," that "it's utterly ridiculous to think you can invite a whole bunch of people to a bar and call it a theater," and that "the theatrical exemption was never intended to fill up a whole public room with smokers." So, what does the actual law state? Here is the theatrical production exemtion in Section 144.4167 Subdivision 9.

144.4167 Subd. 9. (PERMITTED SMOKING - Theatrical productions)
Sections 144.414 to 144.417 do not prohibit smoking by actors and actresses as part of a theatrical performance conducted in compliance with section 366.01 [see below]. Notice of smoking in a performance shall be given to theater patrons in advance and shall be included in performance programs.

366.01 Subd. 2. (TOWN BOARD POWERS LISTED - Amusements, performances; pets, firearms)
They may by ordinance prohibit or license and regulate the keeping of billiard, pool, and pigeonhole tables, games of amusement, games of skill, juke boxes, roller skating rinks, bowling alleys, circuses, shows, and theatrical performances. They may fix the price and duration of the license. When in their opinion the public interest requires it, they may revoke the license. Within any platted residential area of the town, they may license and regulate the presence or keeping of dogs or domestic animal pets and regulate or prohibit the discharge of firearms, when deemed to be in the public interest.
I'm not an attorney, but I'm not seeing how the government can argue that the theater nights are not in compliance with the law. The new smoking ban clearly exempts "smoking by actors and actresses as part of a theatrical performance conducted in compliance with section 366.01," and Section 366.01 Subsection 2 simply states that town boards may either prohibit or regulate theatrical performances. If the local government hasn't banned theatrical performances in bars, and as long as the bar owners are complying with any local regulations regarding theatrical performances, then those who are actors and actresses in the theatrical performance are exempted from the smoking ban.

The government can argue that the theatrical performance exemption wasn't intended to allow bar owners to turn their places of business into centers of interpretive and improvisational theater, but the government did allow the exemption to be written into law. There was nothing more than the Town Board Powers section of the state statutes provided to define compliance for a theatrical performance, so it seems to me that the government will have two choices if this ends up in court: 1) the government can attempt to define in the law what is and isn't considered art, or 2) the government will need to amend or strike Section 144.4167 Subdivision 9 of the state statutes.

I'd love to see the Minnesota Legislature define art, because it wouldn't be long until some performers wouldn't be in compliance with the legal definition of "art." If that were to happen, you can be certain that the section of the statute that defined a "legitimate performance" would be challenged on first amendment grounds. Amending the current exception in the law would likely provide similar challenges.

The strangest part of all of this is the fact that the theatrical performances exception actually was put in the new smoking ban to begin with. Members of the arts community didn't want the "integrity" of their performances diminished by prohibiting actors and actresses from smoking when a script called for it. In essence, they didn't want performers to have to act as if they were smoking while they were doing that thing called acting.

One needs to wonder how this will affect the incumbents in the elections this fall. The government puts a referendum on the ballot for a constitutional amendment to add a special tax for the environment and the arts, then they pass major new taxes and fees in a transportation bill, there is talk about removing the sales tax exemption from clothing, and now they may be looking at fining bar owners up to $10,000.00 for performances that appear to be in compliance with the law.

When Minnesotans are cutting back their family budgets to allow for the higher taxes and resulting higher prices, and when those same Minnesotans can't even go down to their local bar for a beer and a smoke because the government has banned the activity or tried to fine the establishment out of business, the "vote the bums out" mentality will likely take hold quick, fast, and in a hurry.

The state should not be able to take away private property rights as they have so far to date. Once we have no right to our own property, or the free use thereof, then we basically become nothing more than dependent wards of the state.

Good luck to the bar owners and others on their side in this fight.


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