Mark W. Benjamin: Bars could stage a challenge to statewide smoking ban

This spring the Legislature will review the Freedom to Breathe Act that swatted smokers out of warm Minnesota bars and onto freezing sidewalks. There smokers huddle and, hands shaking, try to light up.

Meanwhile, the hands of small bar owners are shaking for different reasons. They worry over their balance sheets, awash in red ink, and lay off their part-time help. As the nation slides into recession, things can only get worse.

It's a cliché in the Twin Cities that the backbone of our economy is the small-business owner, but not in Greater Minnesota where small business might be the only employer in town. So shouldn't small-business owners get a financial hardship exception if they've been hurt by the smoking ban?

That question was asked last spring when the Legislature was lobbied to provide just such an exception. But the Legislature said no. After all, there should be no exceptions when it comes to the public health. Right?

Not quite. In fact, our legislators carved out exceptions for scientific study participants, Native Americans, tobacconists, truckers, farmers, actors and actresses and ... wait! What was that last one?

That's right. When the smoking ban was debated, some theater-going, latte-drinking, Volvo-driving legislators got their undies all in a bundle that a few performers might not be allowed to smoke cigarettes on stage. Really. They worried that performers might have to suck on straws or pencils or -- you know -- "act" like they were smoking. Heavens! Whatever would become of The Theatre?

Not to worry. Our legislators quietly slipped in an exception for "theatrical productions" so that actors and actresses could puff away onstage and the delicate flower of artistic expression could more fully flourish in the North Star State.

But in their haste they forgot to define where "theatrical productions" could be performed. And they forgot the words of the Bard, "All the world's a stage, and all the men and women merely players." If we have Shakespeare in the park, can't we have Shakespeare in the bar?

See, the act prohibits smoking in a bar but not in a "theatrical production." In a bar you get a $300 ticket but in a "theatrical production" you get applause and accolades. So if you're a bar owner and don a beret, declare your bar a stage, hand out scripts and direct your patrons -- ahem -- performers to fire up some heaters, then you've got a bona fide "theatrical production" going on. The acting might not be so good, but the smoking will be sheer bliss -- and legal to boot. There really is no business like show business.

There's also no business like criminal defense. Any Barney Fife cop who writes a ticket against an owner/director or patron/performer will quickly find himself performing -- and bombing -- in court. What, will he suddenly become a theater critic and render his opinion on the quality of the script, the pathos of the performance or the layout of the set design? That trial would be a theatrical production in itself.

Our shameless legislators favored the artistic integrity of a few theater owners over the blue-collar work ethic of a few thousand small bar owners. But our bar owners don't have to take it any longer. If they want, they can put on their very own "Theater Nights," set up "Acting" and "No Acting" sections, notify patrons that there will be some smoking during the performance and defy the government to define Art.

It's not the Freedom to Breathe Act; it's the Freedom to Act Act. If you're a small bar owner, hand out scripts and cigs and tell your patrons to break a leg. Their performances might not win any Tony awards, but your business will never be better. And until our legislators write a hardship exception into the smoking ban, well, they have a saying in the performing arts: "The show must go on."

Mark W. Benjamin, a nonsmoker, is an attorney in Cambridge, Minn. He is part of an effort to stage a "tobacco troupe" production at a Minnesota bar this evening.