Smoking ban drama gets a new actor: District judge

Scott County judge will give one of the first court interpretations of law that bars skirt with "theater nights."

By MARY LYNN SMITH, Star Tribune

Last update: May 6, 2008 - 8:19 PM

Whether a bar owner can stage "theater nights" to get around the statewide smoking ban is now in the hands of a Scott County district judge.

The case could provide the first pivotal court decision in a standoff between Minnesota health officials and some bars that are taking advantage of an exemption in the statewide ban that allows actors to smoke during a theatrical production.

In a hearing Tuesday, state health officials asked the court to order the Bullseye Saloon in Elko to stop hosting "theater nights," saying it violates the statewide smoking ban. The ban went into effect last October after the Legislature passed it in spring of 2007.

But Patrick O'Neill, the attorney representing the bar, argued that the Legislature didn't define what constitutes a theatrical performance. The Bullseye Saloon, he said, is following the letter of the law. In addition, smoking is an integral part of the bar's theater production and expressive conduct is protected by the First Amendment, he said.

The Bullseye Saloon and dozens of other bars in the state have printed up playbills and programs for theater nights. Patrons who buy an actor guild button are cast as "actors," allowing them to smoke as part of the "performance."

Bar owners call it improvisational theater; state health officials call it a sham.

Scott County District Court Judge Jerome Abrams said Tuesday that he probably will decide whether to issue a temporary injunction within the next 10 days. A trial on whether to permanently close theater nights at the Elko bar probably would be scheduled in June.

It will at least provide one of the first court interpretations of the state law, said John Linc Stine, director of the environmental health division at the State Health Department.

Theater nights, however, could have a long run in the courts because the judge's ruling is likely to be appealed. A similar case has been filed in Dakota County against Bugg's Place in South St. Paul. The bar there obtained a theater license from the city before beginning its "theater nights" in March.

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

In Scott County, Health Department officials argued Tuesday that unlike performances at such theaters as the Guthrie in Minneapolis and Penumbra in St. Paul, "theater night" pseudo performances are not legitimate theater.

But O'Neill pointed out that the "Seinfeld" TV show was a show about nothing and the show "Cheers" was about people in a bar. The patrons in the Elko bar are merely playing themselves in a continuing performance dubbed the "Unconstitutional Ban,'' he said.

Citing a transcript from the legislative committee, O'Neill pointed out that legislators chose not to narrowly define theater performance.

"It's then not up to a judge or the Department of Health to determine what is legitimate theater,'' O'Neill said.

Mary Lynn Smith • 612-673-4788

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