Judge stops Elko saloon from using smoking ban loophole

The statewide smoking ban outlaws smoking in bars and restaurants, but allows actors to light up for theatrical performances.

Some bar owners have been exploiting that loophole by calling customers "actors" and their bar a "theater."

The Minnesota Health Department went to court to stop the practice at the Bullseye Saloon in Elko, and Scott County District Judge Jerome Abrams granted a temporary injunction.

The ruling prohibits the bar from holding any more theater nights. Bar owner Robert Ripley says he strongly disagrees with the decision.

"If a judge is going to rule what is and what is not theater, it's going to get sticky."

"If a judge is going to rule what is and what is not theater, it's going to get sticky," Ripley said. "There are definitely some options at this point on how to go forward on this. I don't want to get into it too much until I have really had a chance to speak with my attorney on how we are going to go."

Ripley wants to carefully consider his options. He says he's not the only bar owner affected by the ruling and says the industry will be watching.

John Linc Stine, director of Environmental Health at the Minnesota Department of Health, says the agency will continue to take action against bars that violate the law.

"We think it's important to protect the health of people in establishments, the people that work there and the people who go there as patrons. Secondhand smoke is dangerous and harmful to their health," Stine said. "This judge's decision is consistent with our views and we are pleased with it."

Another hearing is planned to review the Health Department's request for a permanent injunction against the Bullseye.

Mark Benjamin, an attorney who invented theater nights as a way to skirt the ban, says he's not intimidated by the ruling.

He says smoking should be protected under the constitutional right to freedom of expression. Benjamin says burning tobacco deserves the same protection as burning the American flag.

"Our position has been that the burning of tobacco can be expressive conduct, because we are certainly protesting the way in which the smoking ban is applied to certain establishments that are really having a hard time of it, laying off waitresses and bartenders, going out of business, that sort of thing," said Benjamin.

Benjamin fears that until the Legislature officially defines what theater is, the state could wind up with a patchwork quilt of court rulings that could help some bars and hurt others.

And so, in the words of Mark Benjamin, "the show must go on."

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