Curtains may fall on faux theater

Location: MN Topic: News Theater Nights Smoking in Bars Loophole. Page 1

Read more:  Theater Nights Smoking in Bars Loophole. Page 2Curtains may fall on faux theater By Judy Keen, USA TODAY 3-6-08

VADNAIS HEIGHTS, Minn. — The Old Clover Inn here and scores of other bars are evading a statewide smoking ban by interpreting literally William Shakespeare’s observation that “all the world’s a stage, and all the men and women merely players.”

Bars, nightclubs and taverns are holding “theater nights” to take advantage of an exemption in the ban that allows smoking by performers in theatrical productions. In participating bars, every employee and customer is an actor, and drinking, chatting, playing pool — and smoking — are part of the performances. Since the first performance on Feb. 9, more than 100 bars across the state have joined the protest.

Twenty-three states and the District of Columbia have passed smoking bans that cover restaurants and bars, the Campaign for Tobacco-Free Kids says. Four other states ban smoking in restaurants but exempt stand-alone bars. A 2005 Gallup Poll found that 40% of Americans supported setting aside non-smoking areas in bars, while 29% said smoking should be totally banned in them and 28% said there should be no smoking restrictions.

The Old Clover Inn, a homey tavern on a county road, calls its nightly production As the Clover Turned. A playbill advises that the play features “numerous uncredited actors in the role of bar patrons.” There’s no actual performance, but everyone who donates $1 for a button that says “Act Now!” is considered an actor and is free to smoke.

Old Clover Inn owner Dan Mundt says theater nights are a way to bring back patrons he lost when the ban took effect Oct. 1, but state officials served notice this week that they intend to end the bars’ experiments in showbiz. On Thursday, Mundt received a letter from the Department of Health notifying him that theater nights are illegal.

Minnesota Health Department Commissioner Sanne Magnan says bars’ theater nights are not covered by the exemption and warns that her agency will begin enforcing the ban, which means establishments that allow smoking face fines of up to $10,000.

“We really think that the curtain is going to fall,” Magnan says. “These theater nights are attempting to circumvent” the law.

‘A mean-spirited law’

State Rep. Tom Huntley, a chief author of the ban, says the exemption was requested by the Guthrie Theater in Minneapolis and other theaters. “I can’t imagine Humphrey Bogart in Casablanca without a cigarette in his hand,” he says, but the law did not intend to permit bar theatrics. “If these bars keep going around the law, they better be prepared to pay a lot of money in legal expenses,” he says.

Mark Benjamin, a lawyer who discovered the loophole and came up with the idea for theater nights, says he expects some bar owners to ignore the warning. “I don’t see any legal reasoning behind it,” he says. He predicts that if citations are issued, courts would “rule that this is a perfectly legal activity.”

The Old Clover Inn faces new local restrictions, too. The Vadnais Heights City Council this week voted to require licenses for free theatrical performances. Currently, only theaters that charge admission must be licensed.

That’s bad news for Mundt, whose revenue declined 30% after the ban. He laid off one of his five bartenders and considered closing on Mondays before theater nights revived business. Mundt plans to hold his final theater night Tuesday, before the new city regulation takes effect.

Benjamin, a former smoker and former Marine, decided to take on the smoking ban after learning that his local VFW in Isanti and other military clubs were losing business. “It’s a mean-spirited law that disrespects our veterans and blue-collar bar owners,” he says.

It took Benjamin three months to persuade a bar to hold a performance. The first was at Barnacle’s Resort on Mille Lacs Lake on Feb. 9. After the ban took effect, says Sheila Kromer, who owns Barnacle’s with her husband, Jim, “there were more customers outside smoking than inside. It was just terrible.”

In January, the bar’s busiest month because it’s a popular ice-fishing destination, business was down 26% from a year earlier. “I was desperate,” Kromer says. When Benjamin suggested the performance, she told him, “What have we got to lose?” Benjamin showed up at the first Barnacle’s performance wearing velvet tights, a puffy shirt and plumed hat and proclaimed dramatically, but since then few productions have featured real acting.

Huntley says a “short-term downturn” in business after the ban takes effect is to be expected, but most bars rebound after a few months. The law, he says, was meant to protect employees and patrons from secondhand smoke.

Patrons would like a choice

Customers at the Old Clover Inn say the issue is more complicated than that. “It’s a stupid law,” says smoker Jim Suchy, a disabled Vietnam veteran. “We should have put it to a vote of the people.” Terry Nyblom, a smoker and auto technician, agrees. “It’s amazing how these politicians can screw up somebody’s income without thinking twice,” he says.

Retiree and smoker Dave Bergman says he came to the Old Clover Inn less often when the ban was being observed. He thinks bar owners should have the option of allowing or banning smoking, and customers could choose which sort of bar to patronize.

Liz Wright, a nurse and occasional social smoker, appreciates smoke-free bars and doesn’t mind standing outside to smoke, but she likes that idea. “This is America and we should have a choice,” she says.

Nancy Schwarzrock, a personal care attendant and non-smoker, prefers not to be surrounded by smokers but worries that places like the Old Clover Inn will be forced to close. “Who are we hurting? I have a choice to come in the bar or not come in the bar.”

Minnesota Health Department is angered by private businesses defying the new smoking ban

March 5, 2008

The MN department is throwing a public tantrum by issuing an empty threat to bars and restaurants which are using a legally allowed exemption in the statewide ban.

The Minnesota Department of Health served notice Wednesday that it is prepared to punish bars that try to get around the state indoor smoking ban by using a theatrical production exemption.

MN attorney Mark Benjamin discovered an exemption in the smoking ban will allows smoking by actors during the performance of a play… hundreds of bars and restaurants in Minnesota are hosting performances nightly and allowing actors / patrons to light up with reckless abandon.

More on the story here:

The 6-month-old smoking ban has an exemption for theatrical productions, but Health Department Commissioner Sanne Magnan said bars appear to be improperly circumventing the law….. “It’s time for the curtain to come down on this play of theatrics and get on with the business of protecting Minnesotans from the harms of secondhand smoke,” Magnan said.

Sorry to burst your maniacal desire to control businesses with unreasonable restrictions Sanne, but protecting Minnesotans from workplace “health hazards” is OSHA’s mandate. And air quality testing by Johns Hopkins University, the American Cancer Society, a Minnesota Environmental Health Department, and various researchers whose testing and report was peer reviewed and published in the esteemed British Medical Journal……prove that secondhand smoke is 2.6 – 25,000 times SAFER than occupational (OSHA) workplace regulations:

As for the businesses using the legal exemption to allow smoking……attorney Mark Benjamin said he would gladly defend anyone cited as violating the unnecessary and apparently unenforceable statewide smoking ban.

The American spirit always finds a way to overthrow the yoke of oppression…..even here in liberal Minnesota.

Furthermore, Clearing the Air thinks that the state law has no legal merit at all, afterall OSHA federal workplace regulations cannot and should not be ursurped by local workplace smoking ban regulations. Especially since these bans are closing down hundreds of businesses and eliminating thousands of jobs.   Mark Wernimont

Our view: Minnesota’s smoking ban needs to be reviewed

February 29. 2008

And the Oscar for Most Creative Way to Get Around State Law goes to…

… Matt Benjamin, the Cambridge lawyer and nonsmoker credited with finding a dramatic loophole in the state’s smoking ban.

OK, Benjamin probably should get a Tony, not an Oscar.

After all, his dramatic loophole is just that; it allows smoking in bars by having the bars hold a feigned “theatrical production.” As one of the exceptions in the Freedom to Breathe Act implemented in October, smoking is allowed in public places as long as it’s part of a theatrical production.

Thus Benjamin suggested earlier this month that bars offer “theater nights” in which all patrons are given a script and considered actors in the production. Several bars statewide have taken his suggestion; some reportedly because they are experiencing hard times in the wake of the ban.

We applaud Benjamin’s creativity. Still, we urge legislators to immediately eliminate this exception.

While they are at it, this also might be a good time to determine the true economic impact of the ban. Examine everything from the impacts on bar business to the savings of tax dollars otherwise destined for smoking-related illnesses.

As for the exception itself, it’s hard to argue it was needed in the first place. Sorry, we just don’t see real cigarette smoke making much of a difference in experiencing live theater, whether it’s the Guthrie or local productions.

Think of it this way: Fake props have been used for decades to represent everything from guns to blood. Why should the illusion of smoking be any different?

Most of all, though, now that Benjamin has exposed a potential loophole through which bars are reported to be jumping, it needs to be closed. As this board has noted in more than a dozen Our Views the past several years, a statewide ban is most importantly about protecting public health.

Sure, some bars might have held “theater nights” just once as a way to protest the ban. But news reports from across the state show there are bar owners who see this as a way to help regain business they say they have lost because of the ban.

We empathize with the change in business for those bars, but even that doesn’t justify the price workers and nonsmoking patrons would pay should these “plays” become nightly features.

Virginia bar raises the curtain on smoking ban loophole February 24, 2008 VIRGINIA, Minn. (AP) – The Queen City Sports Palace in Virginia is the latest bar to embrace the arts as a way to exploit a loophole in the state’s indoor smoking ban. The Freedom to Breathe Act bans smoking in most public workspaces, but allows smoking in theatrical productions. There’s the rub. A growing number of bars are following the lead of lawyer Mark Benjamin and staging tongue-in-cheek plays, with the puffing patrons as actors and actresses. Sports Place owner Doug Foschi says he ran the idea past the Virginia city attorney, who couldn’t find a reason why Foschi couldn’t stage his play.| The title of the show? “The Tobacco Monologues.” He says it’s now playing every night from 4 p.m. until 2 a.m. State Representative Tom Huntley of Duluth helped craft the act. He says the theatrical exception was never intended to fill up a whole room full of people smoking.
Prosecutor warns against ploy to evade smoking ban 2/23/2008 MOORHEAD, Minn. — The Clay County attorney is criticizing a growing movement to get around Minnesota’s statewide smoking ban, and he says bar owners who join it risk legal trouble. A loophole in the ban allows performers to smoke during theatrical plays, so several bars have staged “theater nights” so that patrons can smoke. The premise is that the patrons are actors, so their cigarettes are props.
Smoking ban workaround catches on at bars across state By MARY LYNN SMITH, Star Tribune February 22, 2008 What started as a quirky idea to get around the statewide smoking ban appears to be spreading like wildfire. Dozens of bars are expected to stage “theater nights” this weekend in which patrons are dubbed actors. The law, which went into effect in October, permits performers to smoke during a theatrical production. “Two weeks ago, we had one bar doing this,” said Mark Benjamin, a criminal defense attorney who launched the theater-night idea. He estimates 50 to 100 bars could be on tap for theater nights this weekend based on phone calls, e-mails and requests for the how-to-stage-a-theater-night packet that he’s devised. And many bar owners are passing on the information quickly among themselves without getting in contact with him. State Health Department officials didn’t return calls Thursday, but said earlier this week that they are waiting for a state attorney general’s opinion on the legality of theater nights. State legislators who championed the ban said last week that the loophole likely will be plugged and the bar theater nights will end. But until that happens, Kenn Rockler, executive director for the Tavern League of Minnesota, said he’s getting calls and e-mails from bar owners. Lisa Anderson, owner of Mike’s Uptown bar in Hill City, said that last Saturday she staged a “theater night” and packed in four times the usual crowd that has come in since the smoking ban took effect. Anderson said she has been helping other bar owners who want to put on their own tobacco productions. “I’m going to continue to do this,” she said. “It increased my business.” So will Brian Bauman, owner of The Rock nightclub in Maplewood, which staged a theater night Tuesday and nearly doubled the usual crowd. At least 10 other bar owners wandered through his bar that night, taking stock of the event’s success. It won’t work for every bar or restaurant because some are carving out a niche with nonsmokers, he said. “We’re a rock bar and the majority of the people who come here smoke,” Bauman said. Until the state puts a stop to this, “we have every intention of doing this again. …We have our karaoke night and we have our rock night. Now we will have our theater night.” Mary Lynn Smith • 612-673-4788

Maplewood Nightclub Exploits Smoking Ban Loophole “Before The Ban” will feature smokers at The Rock Nightclub 19 Feb 2008 MAPLEWOOD, Minn. — Smoking will take place indoors at The Rock Nightclub in Maplewood tonight. A live performance titled “Before The Ban” will allow performers to smoke indoors because of a loophole in Minnesota’s statewide smoking ban. The smoking ban allows actors to smoke in theatrical performances. Barnacle’s Resort in Mille Lacs held a “performance” earlier this month that allowed smoking. The resort handed out programs and sold buttons designating their customers as performers. Barnacle’s Resort co-owner Sheila Kromer says she plans to repeat the production every Saturday. The Rock Nightclub says “Before The Ban” is a performance that “brings you back to a much happier place in time.” The smoking ban outlawed smoking in bars, restaurants and most other indoor workplaces in Minnesota last October.

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