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High drama in the courts: Bar owners try to skirt state’s smoking ban

By Judith Yates BorgerMonday, April 28, 2008
For years, bar owners around the country have been trying to dream up ways to skirt smoking bans.

Actor Daniel Radcliffe smokes a cigarette in his role as Alan Strang in a London production of "Equus." The law's exception was granted for such scenes.
REUTERS/Dylan Martinez
Actor Daniel Radcliffe smokes a cigarette in his role as Alan Strang in a London production of “Equus.” The law’s exception was granted for such scenes.

Dressed in his favorite Renaissance Festival outfit, complete with tights and feathered cap, Mark Benjamin was the very romanticized image of the Bard this winter as he encouraged other “actors” at Barnacles Bar in Mille Lacs, Minn., to light up and act out in a creative attempt to take advantage of the theater exception to the statewide smoking ban in October.

Later this year, Benjamin will get a chance to say fie to the law again, but this time he’ll be telling it to the judge. Benjamin will represent Tom Marinaro, owner of Tank’s bar in Babbitt, Minn., who was ticketed for “directing” a play that allowed patrons to smoke. On May 6, Robert Ripley, owner of the Bullseye Saloon in Elko, Minn., will go before a Scott County judge for the same charge. Ripley said Benjamin will also participate in that case.

While the Minnesota “actors” who smoke in bars have drawn attention from across the country, they aren’t the only ones to dream up ways to skirt smoking bans. Some have declared themselves exempt private clubs, other have said they don’t understand the “no” in “no smoking.” They’ve lost in the courts. Benjamin’s odds of winning are probably about the same.

Consider Taverns for Tots, a group of Toledo, Ohio, bar owners who banded together to tap into the exemption that allowed smoking in private clubs in the city. Taverns for Tots charged customers $1 for membership in their club, whose activities were smoking and drinking. Those who didn’t join weren’t served and those who did were issued membership cards and their names were put on a roster.  The “clubs” made donations to local children’s funds and declared themselves nonprofit.

 Toledo sued. No cigar, said the judge (PDF), who called Taverns for Tots a “sham.”

Other attempts
That was 2004. Two years later Ohio passed a smoking ban, which rejected a competing proposal that would have carved out exceptions for bars, some restaurants, bowling alleys, bingo halls and private clubs. The law prohibits lighting up in almost all indoor spaces. The bar owners sued, calling the law unconstitutional. Not so, said a Hamilton County judge in March.

The owner of Apache Corral in Riverside, Calif., took a page from Taverns for Tots and added a twist. Giving each of four employees 1 percent ownership, the proprietor argued that the Apache Corral fell under the owner-operated exemption. But a Riverside County judge didn’t buy it because the four “owners” weren’t listed on the liquor license and did not share in any profits or losses. The owner paid a $150 fine following the 2000 decision.

And then there was Oklahoma City’s Meridian Lanes that argued the bowling alley was really a smoking area for the adjacent restaurant, which was allowed under Oklahoma law. Sorry, said the judge (PDF) in November 2006. Just because a place has a license to serve food doesn’t make it a restaurant if the food is secondary to the main use for the space, like bowling.

There have also been court battles over the accoutrements of smoking.

The owner of the Bent Barrel in Las Vegas tried to convince a judge that a ban on ashtrays and matches violated his First Amendment rights because he used them to advertize the bar. Didn’t work. (PDF)

Perhaps the best was in Austin, Texas, where the owner of three bars substituted candle holders for banned ashtrays. In March the Fifth Circuit Court of Appeals reversed (PDF) a lower court that had agreed with the proprietor that the ordinance was vague.

The definition of ashtrays posed a similar problem in Frankfort, Ky., where proprietors argued any receptacles could be used as ashtrays, and, as a result, the law was unconstitutionally vague. The court didn’t buy it.

“We believe that, despite the existence of dinnerware, toilets, drinking glasses and palms of hand, the citizens of Frankfort are more than capable of discerning what an ashtray is and what Frankfort’s ordinance requires,” wrote Judge Thomas D. Wingate of the Franklin Circuit Court. (PDF)

Free expression?
Sometimes the courts have turned down efforts to add exemptions to smoking bans. The Colorado Legislature, like 19 other states, rejected a proposed amendment that would have created an exception for theatrical productions.  Last year three nonprofit playhouses tried to convince the courts that to ban the smoking of cigarettes in theatrical productions violated the First Amendment right of free expression. What is Virginia Woolf without a cigarette?, they argued.

In February the Colorado Court of Appeals affirmed the trial court that had concluded there were reasonable alternatives to smoking, such as fake cigarettes. What’s more, theater by definition requires viewers to use some imagination. An appeal to the Colorado Supreme Court is expected within the next week.

“The audience is aware that the scenes are not real. Murders are not committed, actors do not fire live bullets at each other or at the audience, the theater is not set afire to illustrate the burning of Rome in Julius Caesar,” the Supreme Court said.

New York started out ahead of that issue. In New York City theaters, which have fallen under a statewide smoking ban since 2003, actors may smoke herbal cigarettes. If they want to smoke tobacco, the production has to apply for a waiver from the city. It’s an arduous process.

But when it comes to smoking, you gotta love the Dutch. As of July 1, it will be illegal to smoke cigarettes wholly or partially made of tobacco in restaurants, hotels and coffee shops in Holland. Marijuana smokers who roll their own without adding tobacco can toke up without worry, however.

Focus on Minnesota
Although news of Minnesota’s theatrical approach to the ordinance went viral over the Internet, a search did not turn up any proprietors outside the state who tried the same trick. Maybe others are waiting to see what will happen in Minnesota.

If they head up to Virginia later this year, they’ll get a hint when Benjamin and Mike Kearney, city administrator for Babbitt — a town that covers about 108 square miles just south of the Canada — argue the law before a St. Louis County judge. They’ll even get a chance to see what it’s like for the folks who slog through snow at the end of April just to get to Tank’s Bar.

Benjamin will be representing Marinaro and Marie Rinta, owners of Tank’s Bar in Babbitt. For about a month earlier this winter Tank’s declared itself a playhouse for an “improvisational theatrical production entitled, The Gunsmoke Monologues”  that started at  3 p.m. and ran until the bar closed.

Babbitt being the kind of town where communication is open, Chief of Police Terry Switajewski had told Marinaro  and Rinta that there was a ticket in their future if the smoking continued. On March 14 Switajewski made good. The fine? Up to $300.

“He was just doing his job,” said Rinta, speaking about the chief. “There are no hard feelings.”

But the show—and the smoking — went on. In fact, a patron who was visiting from the Twin Cities and had also been given a ticket, returned to his table and lit up, according to Rinta.

“Performances” continued until the following Wednesday when a person from the Minnesota Department of Health stopped by with a copy of the law and a Post-it note that said the bar’s food and liquor license would be suspended and the owners would be looking at a $10,000 fine if “The Gunsmoke Monologues” continued.

“With the threat of shutting us down and a $10,000, fine they won,” Rinta said.

Marinaro and Rinta got the idea to test the theater exemption when they saw media coverage of a similar play at Barnacles Resort and Campground in Aitkin, Minn. That’s how they heard about Benjamin. When they got hit with the tickets they went to him for legal representation.

There are 10 exemptions to Minnesota’s smoking ban (PDF), including one for shops where customers are sampling tobacco products, and another for family barns.  Why couldn’t a bar owner add a smoke shop and say the patrons are just sampling the goods? Or bring in a cow and call it a family barn?

Benjamin said he had been trying to come up with a way to fight the smoking ban for a while when he was “all duded up at the Minnesota Renaissance Festival. The theater exemption just clicked for me.” 

Whether he did it consciously or not, by choosing the theater exemption Benjamin put his finger on the resentment that has long bubbled between the Iron Range and Twin Cities, blue collar versus white collar. He says the law is “mean spirited” and favors the kinds of Minnesotans who go to the Guthrie Theater while penalizing the kinds of folks who smoke in VFW halls.

“Regular schmoes just trying to make a living don’t have a watering hole to go to any more,” he said. “I don’t see a lot of respect for our side. When the bar owners and vets ask for an accommodation, they’re not given a bone, but the Guthrie gets exactly what it wants.”

That may be the reason that the ploy has attracted so much attention. Or, maybe because it’s just plain quirky.

Judith Yates Borger reports on legal affairs, science and other subjects. She can be reached at judy [at] judithyatesborger [dot] com.