Response to MN Court of Appeals ruling on Theater Night

MARK W. BENJAMIN

Criminal Defense, P.A.

237 Second Avenue SW, Suite 111

Cambridge, MN 55008

763-691-0900 (office)

763-670-9664 (mobile)

markbenjamin@msn.com

www.markwbenjamin.com

Press Release

MN Court of Appeals rules against Theater Night; No standards provided; Appeal to follow

The Minnesota Court of Appeals ruled today against Tom Marinaro, owner of Tank’s Bar in Babbitt, Minnesota. Mr. Marinaro was issued a ticket in March 2008 for allowing patrons to smoke in his bar. Two months later, he went to court and alleged that his patrons were performing in his improvisational play, The Gunsmoke Monologues. Under Minnesota law, it is legal for actors to smoke indoors during a “theatrical performance”.

The district court judge ruled that Mr. Marinaro’s play was a sham because his patrons did not perform on stage, did not wear costumes and did not read scripts.

Today the Court of Appeals ruled that the district court judge did not abuse his discretion in determining that Mr. Marinaro’s play was not a play. Unfortunately, the Court declined to provide any standards by which Minnesota bar owners might comport their conduct so as to not run afoul of the law. The Court said it would not issue “advisory opinions concerning hypothetical situations” and that it was “neither necessary nor prudent … to attempt to set forth an all-purpose definition of the term ‘theatrical performance’”.

But the continuing economic distress of some Minnesota bar owners is anything but hypothetical as they continue to cut hours, lay off employees and go out of business. The legislature declined to provide clarification of the “theatrical performance” exception and now, sadly, the Court of Appeals has done the same.

It is for that reason that Mr. Benjamin and Mr. Marinaro will seek review by the Minnesota Supreme Court.

Our show goes on.

Greg, Here is the Wisconsin Tavern League Letter in response to the passage of their smoking ban.

Quick "redrant".   It seems a bad idea to consort with zealots.  Success just encourages zealots to push for more extreme actions.

As in politics if side "B" tries to be "side A lite" it demoralises those on the "B" side and reduces public support for "B".

Also, other states except for Minnesota and Wisconsin seem to be able to restrict smoking at tribal casinos.  The inability here seems based very much in the intense lobbying and large political contributions of the tribal casino industries.  I've been following this for almost a year and a half and the there has not been one word of criticism from the anti-smoking groups about the large expansion of smoking sections in Minnesota Tribal Casino's.  Perhaps "money talks (or silences)  Greg Lang

May 15, 2009

 Dear (Wisconsin) Tavern League Member:

 As you already know, Senate Bill 181, a Statewide Smoking Ban, has passed the Senate and the Assembly and awaits the Governor’s signature.  This bill was a result of negotiations between our association and Smoke Free Wisconsin, The American Cancer Society and thirty other groups they were representing.

 This was not an easy decision.  The Tavern League of Wisconsin Board of Directors, consisting of thirty-eight fellow TLW Members debated long and hard before reaching a unanimous decision to support a compromise very similar to the one that was agreed on.  It was a gut wrenching decision for all involved, but one we felt was in the best interest of our membership.

 The necessity to compromise was a result of actions taken by Governor Jim Doyle.  We found ourselves stuck between a rock and a hard place.  The governor, a strong proponent of the smoking ban, placed his extreme version of a ban in the State budget and forced Senate leadership into a vote on May 13^th.  Faced with the probability of the budget being passed with a very strict Smoking Ban, we felt compelled to act.  The Governor’s Bill would have included excessive fines, an immediate start-up date and no restrictions placed on municipalities regarding their ability to pass stronger bans locally along with other components placing even heavier burdens on your business.

 The hardest thing I’ve had to do to date as your president was to sit and negotiate an agreement with the very same people we have been fighting the past several years.  This was especially difficult given the amount of time, effort, money and emotion that our members have poured into the fight.  No one, including myself, is satisfied with how this battle ended however this was our only option.

 Please understand this was not an easy decision and one that was not taken lightly.  We had to reconcile the interests of members in the growing number of communities with smoking bans with the interests of members without bans.  We also knew the issue was not going to go away which factored in to our decision to act and get pre-emption, phase in and lower penalties.

 If you want to blame the TLW for agreeing to this deal that is your prerogative, however please remember the position we found ourselves in and that we only did what we believed was in the best interest of our Membership.  Had Governor Doyle not made this one of his top priorities and included it in his budget bill we would have fared much better. 

 It is my hope that you continue to support the Tavern League of Wisconsin.  Like you, I operate a small business and see the many values of the Tavern League of Wisconsin.  We were the only group fighting this ban and we did the best job we could.  Thank you for taking the time to read this letter and I hope you have a better understanding of why and how things happened.

 Sincerely,

 Rob Swearingen

 

 

Frequently Asked Questions

 

1.                  I thought the powerful Tavern League of Wisconsin could have defeated the smoking ban again this year.  Why did the TLW compromise if they could have killed the bill again?

 

We could not have killed the bill.  Last session there were 18 authors of the bill this year there were 34 authors.  Unlike last session, Governor Doyle took the unprecedented step of including an extreme smoking ban in his state budget bill.  He had us in a very difficult position – either compromise or risk passage of his smoking ban in the budget.  Governor Doyle’s bill would have taken effect August 1^st and allowed local governments to ban outdoor smoking and fine business owners up to $500 for violations.  Based on that information the TLW Board of Directors unanimously agreed to seek a compromise which would include three main provisions.  1.  A year long phase in, 2.  Pre-emption of local smoking ordinances, and 3.  Lower fines.  The compromise accomplished that objective.  Some members have said we should have fought to the bitter end.  Our objective was to defeat the smoking ban and when that became unachievable we tried as best we could to do what was in the best interest of the Membership. 

 

2.                  What does pre-emption mean and how will it affect me?

 

This is one of the most important elements of the bill.  We felt it was so important to achieve pre-emption or we would be fighting battles in municipalities to ban smoking outdoors.  This provision of the bill prohibits local municipalities from enacting any ordinances restricting smoking outside of a licensed establishment.  In addition, the pre-emption language eliminates any existing local smoking ordinance and local fines on July 5, 2010 and replaces them with the state law.  Pre-emption provides you certainty that you can create an outdoor smoking area which will not be jeopardized by a local ordinance.  It also reduces fines in communities with an existing smoking ban.

 

3.                  What are the penalties in the bill?

 

The penalties of the bill do not go into effect until July 5, 2010.  The bill requires a warning be issued to the licensee holder or a person in charge of a licensed establishment for a first violation.  Subsequent violations shall be $100 for all violations occurring on a single day.  A person smoking on the premise would face a fine of at least $100 but nor more than $250.  The bill eliminates any municipal fines that may currently exist in communities with smoking bans effective July 5, 2010.  Very importantly, the bill provides that neither a municipality nor the Department of Revenue may use any smoking violations to revoke, suspend or refuse to renew a liquor license or permit.

 

4.                  Why aren’t the casinos covered by the bill?

 

According to the legislative staff attorneys the state does not have the authority to impose a smoking ban on a tribal casino or have the ability to enforce a smoking ban if it were imposed. 

5.                  When is Jim Doyle up for re-election?

November 2, 2010.

 You are receiving this email as a member of the Tavern League of Wisconsin.  Because parts of this email may be categorized as commercial you may want them discontinued.  If you would like these emails discontinued, please reply to this message and ask for removal from our list.  You can also email info@tlw.org or call 608/270-8591 and ask that your email address be taken off of our list

More apartments are snuffing out smoking

Article: http://www.startribune.com/lifestyle/health/44563632.html

Lighting up is now prohibited in about 2 percent of the rental properties in Minnesota, according to Live Smoke Free.

RedRant:  First off the comment I posted in the Star Tribune discussion section.  

"according to Live Smoke Free, a program of the Association for Nonsmokers-Minnesota funded by a Minnesota Department of Health grant."

Hmm! A political advocacy group funded by public money? Hello!!!! This got it's start in California specifically San Francisco and Berkeley. A few problems. In the Bay Area they have very high housing costs so rental tenure is somewhat akin to property ownership. If the "lifer tenant" leaves the landlord can get far higher rent and rent to a friend. Also, in CA they have the idea that marijuana is "medicine". If "Dr. Feelgood" can give prescriptions for pot here will smoke free building have to allow people smoking pot but not smoking cigarettes? The next buildings at the SW corner of the Lake Street Bridge are smoke free. You often see slacker guys smoking on the front stoops. Hmm! Something tells me they are not leaseholders.

posted by bikemiles on May. 8, 09 at 2:04 AM 

First off, "follow the money".  First off, these anti-smoking organisations seemed to get the bulk of their funding from public money grants or pharmaceutical companies pushing anti-smoking "medications".  The MN DOH has done good work on the recent flu pandemic.  That said should they be in the business of funding political advocacy.  This is a pattern which goes way back to "Smoke Free Minnesota" having almost unlimited public money to complain about the non-existant "big tobacco funding".  

The tobacco settlement money was public.  The Minnesota case was brought in the name of the public so the money is public despite any sleigh-of-hand in fund designation. 

I don't have a problem with private market rental housing having a nonsmoking provision.  The complex at the south west corner of the Lake Street bridge opened a few years back smoke free.  No one was displaced.  It is rental and I have seen no big "apartment available" signs so it must be working.  

What is funny to watch is the smokers on the stoops.  Especially, on Saturday and Sunday morning it's the "twenty-something" "slacker" type males on the stoop smoking.  I live in the neighborhood and use the Lake Street Bridge often so I do a "stoop census".  I can't recall a twenty-something women smoking on the stoop.  

Go figure!   Sounds like "twentysomething" single women who embraced the smoke free lifestyle are "picking up" smoking males. 

Greg Lang http://freedomtoact.com 

Healthy Menus Cause Some To Pick Less Healthy Options

http://www.redorbit.com/news/health/1680536/healthy_menus_cause_some_to_pick_less_healthy_options/

Redrant: In the experiment subjects were given menus with and without "healthy" options.  As the "healthy" option became more extreme (veggie burgers) the subjects were even more likely to choose the most "unhealthy" item (a bacon-cheeseburger).  The researcher theorised that this was 

"vicarious goal fulfillment," in which merely having the opportunity to act in a way that achieves long-term objectives satisfies a person’s goal, even if they ultimately do not make the healthier choice"

I disagree with this theory.  To me the addition of a "veggie burger" triggers a defensive reaction to "food police/nanny state" type chiding.  This would seem to explain the more strong willed people being the most likely to choose the bacon cheeseburger" when the veggie burger is listed.

At the story link I wrote this comment #1:

Posted by Greg Lang on 05/01/2009, 04:23
Interesting study but I disagree with the logic. The "healthy options" on the menu might trigger a defensive reaction. This might be compared to very hard sell from store personnel deterring you from buying something you might have wanted anyway. We are constantly bombarded by "Nanny Culture" and "Food Police" people and messages. Many are by self-righteous, often unpleasant people. The "veggie burger" on the menu might trigger this defensive response in people. It's a stretch to so that because the "healthy" item was on the menu people considered it. As for those with "high self control" (whatever that means) reaction more strongly these people are more likely to respond strongly to perceived or subconscious cohersion. Here is an experiment. Blow up a picture of "Mary Poppins" or other "nice Nanny" into a poster with the caption "Be sure to eat your vegetables" and put it in the produce section. I'd guess that produce sales would go down.

Greg Lang

(original article) http://www.redorbit.com/news/health/1680536/healthy_menus_cause_some_to_pick_less_healthy_options/

Healthy Menus Cause Some To Pick Less Healthy Options

A new study finds that simply thinking of a healthy food can satisfy our good intentions of eating well, ironically making it easier to eat less healthier foods.

Researchers at Duke University found that people were significantly more likely to choose the least-healthy option on a menu when the menu included a single healthy option, such as a fruit or a veggie burger.

"Because the healthy option is there, it somehow satisfies this healthy eating goal in them and then they felt liberated to sort of go crazy and choose something really, really bad for them," said Dr. Gavan J. Fitzsimons of Duke University, in an interview with Reuters.

Fitzsimons, who led the study, and his team were exploring something they call "vicarious goal fulfillment," in which merely having the opportunity to act in a way that achieves long-term objectives satisfies a person’s goal, even if they ultimately do not make the healthier choice.

The researchers hypothesized that people would select the least-healthy option on a menu more often when the menu included a food that represented a healthy goal, compared to when they were presented with a menu with only less-healthy options.

In every one of their experiments, Fitzsimons and his colleagues found their hypothesis held true.

For instance, among 70 undergraduate students, 37% chose a bacon-cheeseburger when the alternatives included a veggie burger.  However, just 17% did so when the veggie burger wasn't on the menu.

Similar results were seen when salad was included on a menu with french fries, chicken nuggets, and baked potato (more selected the fries) and when 100-calories worth of Oreo cookies were offered along with original Oreos, chocolate covered Oreos, and golden Oreos (more people picked the chocolate-covered cookies).

Surprisingly, those with high levels of self-control were more likely to make the less-healthy choices when offered a healthy option than those who had less self-control.

Additional experiments showed that people who were more restrained unconsciously acted as if they had fulfilled their health goals by simply considering a healthy choice.

Fitzsimons concluded that persuading people healthier requires more than merely adding healthier options to the fast food or school cafeteria menus.   Indeed, people should avoid fast food joints altogether if they really want to keep eating healthily, he said, while schools should eliminate unhealthy choices entirely rather than trying to lure children away from the pizza with fruit and vegetable offerings.

By offering a few nutritious choices, fast food restaurants may entice health-conscious customers with the possibility that they might pick these items, Fitzsimons said.

As a result, purveyors of junk food continue to see their profits grow.

"It's not from salads,” said Fitzsimons.

The study was published in the Journal of Consumer Research.

---

On the Net:

• Duke University
• Consumer Research

Story from REDORBIT NEWS:
http://www.redorbit.com/news/display/?id=1680536

Published: 2009/04/30 15:54:39 CDT

© RedOrbit 2005

The state's smoking ban is back at the Legislature.

http://blogs.twincities.com/politics/2009/04/up_in_smoke.html

Up In Smoke

The state's smoking ban is back at the Legislature. Two efforts to carve out exceptions to the ban narrowly missed being included in the House HHS bill tonight.

The first try came from Rep. Tom Rukavina, DFL-Virginia, who attempted to set a up a scheme where bars could have a ventilated room with no food or liquor service. It failed, 63-69, but not before a Rukavina-esque blast across the floor fo the House.

"You love to hammer on those poor smokers with a regressive tax and then make them stand outside when its 35 below and make them feel like second-class citizens,” he chided.

The next came from Rep. Larry Howes, R-Walker. It would set up "shelters" seperate from the main body of a bar where people can smoke. Kind of like smoking outhouses.

That too was defeated, but it was close. The full House was evenly divided, 67-67.

Posted by City Hall Scoop on April 27, 2009 9:52 PM | Permalink

Mark Benjamin press release on appeals hearing

MARK W. BENJAMIN

Criminal Defense, P.A.

237 Second Avenue SW, Suite 111

Cambridge, MN 55008

763-691-0900 (office)

763-670-9664 (mobile)

markbenjamin@msn.com

www.markwbenjamin.com

 

Press Release

Local News Video Report of Oral Arguments at Court of Appeals on April 16^th in Duluth.

Link:  http://www.wdio.com/article/stories/S883113.shtml?cat=10335

Cambridge Attorney Mark W. Benjamin appeared before the MN Court of Appeals yesterday on behalf of his client Tom Marinaro.

Last May, Mr. Marinaro was found guilty of allowing his customer-actors to smoke in his bar during a performance of his improvisational play "The Gunsmoke Monologues".  The district court ruled that his play did not fit within the "theatrical productions" exception to Minnesota's state-wide smoking ban.  Why?  Because his customer-actors did not wear costumes, read from scripts or restrict their performances to a stage.

These standards do not exist in the language of the statute and bar owners have been uncertain just what would satisfy the Minnesota Department of Health.  No bars have hosted Theater Night since last spring, worried that they might inadvertently run afoul of the law, 

That could all change if the Court of Appeals affirms the district court.  For the first time, bar owners would have legal authority to employ those standards in hosting future Theater Nights.  Simply put, all performances would be restricted to a stage and all customer-actors would wear costumes and read from scripts.  Oh yes, and they would smoke too.

Strangely enough, a loss for Mr. Marinaro would be a victory for Minnesota's small bar owners.  Theater Night 2.0 would be born and better than ever.

Mr. Benjamin emphasized that Mr. Marinaro and other small bar owners mean no disrespect to law enforcement or the courts.  They simply want the same thing the Guthrie Theater wants.  They want to make money -- legally.

The Court of Appeals has up to 90 days to reach a decision.

Our show goes on.

New Study of National Heart Attack Admissions and Mortality Finds No Evidence of a Short-Term Effect of Smoking Bans

First the source link to the story.  Also posted on my http://freedomtoact.com  http://tobaccoanalysis.blogspot.com/2009/04/new-study-of-national-heart-attack.html

Redrant:  The money quote:  "The Helena, Montana study examined  304 heart attack admissions in one community over a period of six months.  This study examined a total of 217,023 heart attack admissions and 2.0 million heart attack deaths in 468 counties in all 50 states over an eight-year period."

I recall reading and the Consumer report website about an IBM executive who complained of "chest pains"  $150K of diagnostic work and testing it was finally determined that he had taken up yard work and was experiencing "weed wackier muscle strain", a common condition if you are not adapted to this type of "lifting".  Also, we have to assume that if didn't balk at even the co-pays, he had a rather large residence that required a lot more weedwacking than my 40 foot city lot.    I recently sniped at a doctor posting at http://minnpost.com who wrote that the Framingham heart study "contained few women" when the charter group was over 50% women.  http://freedomtoact.blogspot.com/2009/03/minnpost-doctor-claims-framingham-heart.html

A glaring error but this doctor and it indicates a mindset.  The charter Framingham group contained no minorities (Framingham, MA had a very low percentage of minorities in 1948, somewhat comparable to the Twin Cities at the time).  If you use "victimology logic" you might conclude that the Framingham study charter group must not have included women because it didn't include minorities!  Of course, a few seconds of fact checking  on the Internet could dispel this.  

That is point one.  The mindset.  If you think you are fighting "social injustice", evil corporations or whatever, you are  not likely to question the idea that the the Framingham study contained few women.

Actually, the doctor writing this column is pretty good.  He tends to write about how doctors don't tend to adapt to research and the huge disparities in diagnosis and treatment rates.  I can't recall him taking on "heart attack" hospital admissions rates and I don't know if the aforementioned IBM executive was admitted there is wild inconsistency in hospital admission rates for "heart attacks".  First off, these are for hospital admissions, not actual verified heart attacks.  Someone complains of chest pain and someone calls the ambulance.  (They don't call it "heartburn" for nothing.)  For starters, except for a true serious heart attack where you are "down" an actual heart attack is very  difficult to diagnose.  Basically, an EKG, preferably with a past reference EKG.  Also if heart tissue actually dies there is detectable blood and urine waste tracers which apparently are different for the typical "sore muscle" waste tracers.  

That said, the Framingham heart study found that at least in males 25% of heart attacks were "silent".  They did yearly EKG's so I would assume the diagnosis was done with EKG variances.  On the other extreme I knew the late  "Meet the Press" Tim Russert's family.   I happened to know that Tim got "top notch" medical treatment, had an exercises regime and a there was an on site heart defillabrator.  

For a second example a now retired co-worker (who was very "high strung") was basically forced to go to a doctor after he became totally tired after carry a rather heavy computer a couple of hundred feet (endurance and energy recovery are good hints).  The doctors ordered him admitted and he had (as I recall) a quadruple bypass.  

Basically, "walking wounded".  He looked in rough shape but he took more asprin than I did (dollar stores have a bottle of 200 USP asprin for $1.  Cheapest insurance around!)  The Framingham study found the link between asprin and dramatically reduced heart attack risk.  He could have gone a long time this way as walking wounded.  If he had a massive heart attack and died that would not be a hospital admission.  It would have been a "statistic". 

The point here is that if a reduction in "admissions" occurs" after a smoking ban there could be a number of reasons.  Smokers might stay home more or frequent more "smoke friendly" establishments (Minnesota Indian casinos, exempt from the smoking bans have greatly expanded smoking sections) and if at home, the person might take an aspirin or die in their sleep.  I am wondering if nowadays the "patient harvesting" hospitals are advising the admission of more people for "heart attacks" with good insurance versus non-insured?  We would have to look at initial hospitalisations recommendations versus actual hospitalisation.  

Yet another variable.  Basically, the Helena study was "cherry picking" data, a "gotcha" of sorts.  This is a very large study where the "law of large numbers" applies.

Of course the anti-smoking "family" has no problem sacrificing science for "propaganda".  They don't debate.  I wonder why?  Greg Lang