Judge rules 'theater nights' are just smoke and mirrors

An Elko bar's attempt to get around the statewide smoking ban received an unfavorable legal review in Scott County.

By MARY LYNN SMITH, Star Tribune

Last update: May 15, 2008 - 11:17 PM

A Scott County district judge has dropped the curtain on an Elko bar that has been staging "theater nights" to get around the statewide smoking ban.

Although a later trial will decide if the temporary restraining order sought by state health officials becomes permanent, Thursday's ruling clearly indicates Scott County District Court Judge Jerome Abrams doesn't buy the idea that theater nights are legitimate performances, qualifying for an exemption from the ban imposed in October.

Abrams pointed out that anyone in the bar can become an actor by paying $2 for an "Actor's Guild" button.

The decision has state health officials hoping they can soon halt the rogue smoking productions in bars throughout the state.

"Nothing has been offered to suggest there is a storyline, or even a story, being portrayed on an improvisational basis or otherwise. There is no script, choreography, staging, etc., which resembles anything," Abrams wrote.

"There is not the slightest suggestion that talent or an interest in conveying a message, other than smoking, is sought from any actor," he wrote.

Thursday's ruling left advocates for the bar owners -- who insist such nights are improvisational theater that qualify under a provision of the state ban allowing participants in a theatrical performance to light up -- scratching their heads as to what to do next.

Patrick O'Neill, the attorney representing the Elko bar and a South St. Paul bar in a similar legal situation, said he'll analyze the judge's opinion and decide whether to appeal the temporary injunction or just make his case against a permanent injunction in June.

Another option: redesign the performances to meet the judge's criteria for legitimate theater, said Mark Benjamin, an attorney who initiated "theater nights."

"At first blush, [the decision] isn't good," Benjamin said. But the court may benefit from additional testimony in June, he said.

Said O'Neill, "He leaves the door open for us to present our testimony to convince him that it is theatrical performance. It's expressive conduct. It's a form of protest."

O'Neill argues that the Legislature didn't define theatrical performance. "The judge seems to have set a litmus test for what is a theatrical performance when the Legislature didn't," he said. "We respect Judge Abrams but we still think it's up to the Legislature to define it."

But some legislators say the law as written is just fine and it's time that all the bars staging theater nights stop "thumbing their nose," at the smoking ban.

"I don't know what motivates the bars ... to deliberately bypass the explicit intent of the law by using what are pseudo-theaters," said Sen. Kathy Sheran, DFL-Mankato, one of the ban's proponents. "I'm glad the court recognized that ... it's a way to get around legislation that the majority of Minnesotans are supporting."

Benjamin said he's not sure how many bars are continuing to stage theater nights but he believes it's unlikely it will put an end to them.

"Some have gone dark,'' Benjamin said. But many more are merely keeping it quiet and not advertising them for fear of drawing attention from Minnesota Health Department officials.

Robert Ripley, owner of the Bullseye Saloon in Elko, said he would advise other bar owners to carry on. "Each case will have to be decided on a case-by-case basis," he said. "We're taking baby steps here, and this was definitely a step, although not necessarily in our favor. It did lay some groundwork."

In a similar case, Health Department officials plan to go to court to stop Bugg's Place in South St. Paul from hosting theater nights. The bar obtained a theater license from the city before beginning its tobacco shows in March.

And in Babbitt, the owner of Tank's Bar will go to court next week in St. Louis County to fight a ticket police gave him for violating the smoking ban.

But Thursday's court ruling is a clear signal that theater nights should be at the end of their run, said Doug Blanke, executive director of the Tobacco Law Center at William Mitchell College of Law.

"They thought they were being clever, but from the language of the law and careful legal analysis and some good old common sense, the court has called it for what it is: a pretense and an attempt to defy the law," Blanke said. "This is the kind of thing that the casual reader would say 'This is kind of amusing.' ... But there really is a serious health issue here. The scientific evidence is overwhelming that exposure to second-hand smoke is a serious health issue."

Mary Lynn Smith • 612-673-4788