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About the 2008 "Smoking Ban" in Minnesota

Mark is a former Marine and was disappointed to hear that Minnesota's smoking ban was hurting our veterans' VFW and American Legion clubs. Veterans had warned that the smoking ban would reduce charitable gambling revenue. They sought an accommodation from the 2007 Legislature but were given nothing. Mark researched the law and found that a last-minute exception had been made (as a favor for the Guthrie Theater) for actors and actresses so they could smoke on stage. Mark thought it shameful to favor a few performing artists and turn a cold shoulder on thousands of our veterans. So he decided to protest.
On Saturday, February 9, 2008, Mark published an Op-Ed in the Minneapolis Star-Tribune Opinion page. It explained how the "theatrical performance" exception could be applied to bars. This excepton was so poorly drafted that Mark decided the "Freedom to Breathe Act" should be renamed. Here is his Op-Ed:

The Freedom to Act Act

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 theatre-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 Theater?
Not to worry. Our pink-lunged 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 theatre 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 theatre 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 "Theatre 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 them 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 non-smoker, is an attorney in Cambridge, Minnesota.
That night, Mark and his friends staged Minnesota's first Theater Night at Barnacle's Resort and Campground on the north shore of Lake Mille Lacs. Adorned in Renaissance garb, they encouraged bar patrons to join the Barnacle's Acting Guild (B.A.G.) for a buck, grab an "Act Now!" button and let fly with their own improvisational acting -- while smoking cigarettes. Given that there was a 45-below wind chill outside, many patrons were inspired to participate. Someone complained and the sheriff arrived. He left after determining that everyone was engaged in a completely legal activity. Some say he left the bar smiling. The event is commemorated in a YouTube video:
Within weeks, over one hundred bars were sponsoring Theater Nights of their own. The phenomenon was reported by the Associated Press, FOX News, the BBC, and newspapers around the world.
In the spring of 2008, the Minnesota Department of Health intervened and sued several "Theater Night" bars for alleged violations of the smoking ban. Given the threats of $10,000 fines and legal fees, most bars stopped offering Theater Night to their patrons.
However, Tank's Bar in Babbitt, Minnesota, chose to fight and Mark is currently appealing the case to the Minnesota Court of Appeals. If Mark wins, then Theater Night will be legal once again and cash-strapped bars will be able to save their businesses and jobs for their bartenders and waitresses.
Mark understands that everyone is in favor of public health. But the definition of public health needs to be expanded beyond clean air and pink lungs. People who lose their businesses and jobs are put under incredible mental stress, often manifesting itself in chemical abuse, failed relationships, depression and suicide. Mark believes that mental health deserves a seat at the table when public health policy is discussed. He hopes to find an accommodation for our veterans and blue-collar bar owners.
If you wish to learn more about the smoking ban, log on to: