Court denies Babbitt bar’s ‘Gunsmoke’ appeal

Smokers at a Babbitt bar were not engaged in a “theatrical performance” and consequently the district court made the right call when it found the owner of the bar guilty of smoking in a public place in violation of Minnesota law, the state Court of Appeals ruled Tuesday.

Smokers at a Babbitt bar were not engaged in a “theatrical performance” and consequently the district court made the right call when it found the owner of the bar guilty of smoking in a public place in violation of Minnesota law, the state Court of Appeals ruled Tuesday.

Tom Marinaro, owner of Tank’s Bar, was accused of violating the state’s Freedom to Breathe act last March when he allowed bar patrons to smoke during nightly productions of the “Gun SMOKE Monologues.” After a bench trial in May, the district court found Marinaro guilty of allowing smoking in a public place in violation of Minnesota law. He was fined $300 for the petty misdemeanor.

Marinaro said his bar suffered a sharp decline in revenues as a result of the Freedom to Breathe act and he was simply trying to find a lawful means of invoking the theatrical performance exception to the act.

Marinaro contended that Gun SMOKE Monologues was a form of improvisational theater in which actors performed without a script.

“There was no discernable evidence of a theatrical production,” 6th Judicial District Judge James Florey wrote in a memorandum to his decision. “The mere addition of wearing a badge that says ‘Actor’ does not create a theatrical production. The Gun SMOKE Monologues has no costumes, script, director, doesn’t take place on a stage or set apart from the general bar area and according to testimony is indiscernible from the general activities taking place in Tank’s Bar before the smoking ban went into effect, but for the ‘Actor’ name tags.”

The defendant appealed that decision to the Court of Appeals.

Reached at his home Tuesday night, Marinaro said he hadn’t had a chance to talk to his attorney, Mark Benjamin of Cambridge, Minn., to consider petitioning the state Supreme Court for further review.

source: http://www.duluthnewstribune.com

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