Judge ends smoking at Babbitt bar -- no ifs, ands or butts

By MARY LYNN SMITH, Star Tribune

Last update: May 30, 2008 - 6:29 PM

A bad review can kill a theater production, but a district court judge this week ruled that a Babbitt, Minn., bar's theater night is downright illegal.

St. Louis County District Court Judge James Florey fined the owner of Tank's Bar in Babbitt $300 for violating the statewide ban on smoking. Like dozens of other bar owners around the state, Tank's owner, Tom Marinaro, has tried to take advantage of an exemption within the ban that allows actors to smoke during a theatrical production.

But the judge gave a thumbs-down to such productions.

"The [Legislature] did not intend the theatrical production exemption ... to become a blanket exception simply by having patrons in a bar put on name tags indicating the word 'actor,'" Florey said in a memorandum attached to his ruling on the case. "To hold as such would be an absurd result."

Mark Benjamin, the attorney representing Tank's Bar and the instigator behind the smoking theater nights in bars, said he probably will appeal the judge's decision. In the meantime, the "Gun SMOKE Monologues" at Tank's has been shut down and the bar should be smoke-free.

"The [state] Health Department told the owner a few weeks ago that they would close his business unless he stopped this 'unlawful activity,''' Benjamin said.

Earlier this month, a Scott County district judge approved a temporary restraining order, stopping an Elko bar from staging theater nights. A trial expected in June probably will determine whether to permanently end the smoke-filled productions.

The judge in that case said theater nights in the Bulleye Saloon in Elko didn't resemble a legitimate production.

"There is no script, choreography, staging, etc., which resembles anything,'' said Scott County District Court Judge Jerome Abrams. "There is not the slightest suggestion that talent or an interest in conveying a message, other than smoking, is sought from any actor.''

State health officials want to put an end to the rogue theater nights, saying they are a sham and are staged only to get around the smoking ban. Bar owners and their advocates insist their theater productions are improvisational theater and are legally exempted from the ban, which went into effect in October.

Just before the Legislature passed the ban last year, lawmakers added the exemption in response to concerns by the Guthrie Theater in Minneapolis.

While considering the Tank's Bar case, the judge turned to a few dictionaries for help in determining what constitutes a theatrical production. According to the judge, theater nights in Tank's Bar don't make the cut when it comes to literary or artistic work.

Benjamin said the Legislature should have defined what constitutes a theatrical production but didn't. "If it comes down to an individual judge's perception of what a theatrical production is, then we have some real problems,'' he said.

Mary Lynn Smith • 612-673-4788

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