APPELLATE COURT CASE NO: A08-0972

STATE OF MINNESOTA

IN COURT OF APPEALS

______________________________________________________________________________

STATE OF MINNESOTA,

Respondent,

vs.

THOMAS EUGENE MARINARO,

Appellant.

______________________________________________________________________________

APPELLANT'S BRIEF AND APPENDIX

MICHAEL K. KEARNEY MARK W. BENJAMIN

Attorney for Respondent Attorney for Appellant

Colosimo, Patchin, Kearney & Brunfelt, Ltd. Criminal Defense, P.A.

301 Chestnut St. 237 Second Ave. SW, Suite 111

Virginia, MN 55792 Cambridge, MN 55008

Telephone No. 218-741-4500 Telephone No. 763-691-0900

Attorney Lic. No. __________ Attorney Lic. No. 135665

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases

Attorney General v. Book Named 'Tropic of Cancer, 344 Mass. 11, 184 N.E.2d 328 (Mass. 1962) 24

Barrows v. Mun. Court, 1 Cal.3d 821, 824, 83 Cal. Rptr. 819, 464 P.2d 483, 485 (1970) 26

Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) 25

Gould v. State, 66 Tex. Crim. 122, 146 S.W. 172 (1912) 21

Granville v. Minneapolis Public Schools, Special School Dist. No. 1, 732 N.W.2d 201 (Minn. 2007) 17

Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 540 (Minn. 2007) 17

Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876 (Va. 1988) 26

Hutchinson Tech., Inc. v. Comm'r of Revenue, 698 N.W.2d 1, 12 (Minn. 2005) 16

In re Welfare of S.J.T., 736 N.W.2d 341, 355 (Minn. App. 2007) 16

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) 26

Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) 16

Matter of Hawkeye Distilling Co. v. New York State Liquor Auth., 118 Misc.2d 505, 460 N.Y.S.2d 696 (N.Y. Sup. 1983) 24

Molloy v. Meier, 679 N.W.2d 711, 723 (Minn. 2004) 17

Phelps v. Commonwealth Land Title Ins., 537 N.W.2d 271, 274 (Minn. 1995) 16

Rasmussen v. Glass, 498 N.W.2d 508 (Minn. Ct. App. 1993) 18

Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555 (1970) 18

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) 25

State v. Penny, 42 Mont. 118, 111 P. 727 (1910) 21

State v. Tracy, 667 N.W.2d 141 (Minn. Ct. App. 2003) 16

Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) 17

Ullom v. Independent Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn. Ct. App. 1994) 16

Weston v. McWilliams & Associates, Inc., 716 N.W.2d 634 (Minn. 2006) 20

Statutes

Ariz. Rev. Stat. 36 601.01(B)(7) (2007) 22

Haw. Rev. Stat. 328J 7(6) (2007) 22

Me. Rev. Stat. Ann. tit. 22, 1542(2)(B) (2007) 22

Minn. Stat. 144.414 15

Minn. Stat. 144.4167, subd. 9 8, 15

Minn. Stat. 144.417, Subd 2(a) 5

Minn. Stat. 645.17 7, 20, 25

Other Authorities

David Cornue, Sam Holtzapple, Warren Loy, & Chris Todd, Smoking Bloomberg (2006) (Broadway play) 26

www.improv.org 23

LEGAL ISSUES

1. Whether the court made sufficient findings to determine that Appellant violated Minn. Stat. 144.147, Subd. 2(a) by allowing patrons to smoke cigarettes indoors at his establishment.

The district court held that Appellant had violated Minn. Stat. 144.147, Subd. 2(a)

2. Whether Appellant provided sufficient evidence of an affirmative defense to Minn. Stat. 144.147, Subd. 2(a) by invoking the standards of the “theatrical productions” exception to the state-wide smoking ban.

The district court did not expressly rule on this issue.

3. Whether Appellant’s theatrical production was legal within the clear and unambiguous language of the “theatrical productions” exception in Minn. Stat. 144.4167, Subd. 9.

The district court did not rule on this issue. It is an issue of first impression for the Court of Appeals.

STATEMENT OF THE CASE

On March 14, 2008, Appellant Thomas Marinaro, the proprietor of Tank’s Bar in Babbitt, Minnesota, was charged with a petty misdemeanor of allowing patrons to smoke cigarettes indoors in violation of Minn. Stat. 144.417, Subd 2(a). A court trial was held on May 23, 2008 at the St. Louis County Courthouse before the Honorable James B. Florey, Judge of the District Court. Appellant Marinaro offered the affirmative defense that his conduct was legal and within the “theatrical productions” exception to Minnesota’s state-wide smoking ban. After oral arguments, the court took the matter under advisement and issued its ruling on May 28, 2008 (See, Appendix, pp. 1-9). Appellant was found guilty by the court and was issued a three hundred dollar fine.

STATEMENT OF FACTS

The court made several findings regarding the content, or lack thereof, of Mr. Marinaro’s production:

4. Officer Lionberger … noted that there was no one on stage, rather people were milling about in the normal course of socializing at a liquor serving establishment.

5. No one present indicated when the theatrical production started, therefore there was no direction and there no scripts or indicators setting the theatrical production apart from normal bar activity. There was only the play bill referring to the start time of 3:00 p.m., but no other indicators that a play or theatrical production was taking place existed.

8. Upon entering Tank’s Bar, Chief Switajewski noted that there were 5-6 people sitting at the bar while 8 or 9 people were sitting at tables. There were 4-5 people present who were smoking. One individual had his snowmobile bibs on and merely had a name tag indicating “Actor.”

9. Chief Switajewski also noted that there was no one on the stage or stage area where bands would normally be and there were no signs that a play was taking place. Instead people were grouped up and socializing in the normal fashion of patronizing a bar.

17. [Appellant] did admit that there was not a production taking place on a stage and that there were no scripts or costumes other than the “Actor” badges.

See, Appendix, pp. 2-4.

The court also appeared to disregard the testimonies of Mr. Huovinen, Ms. Rinta and Mr. Marinaro because they were not physically present during the narrow time period the officers were in the bar. See, Appendix, p. 3 (Findings of Fact 11, 12, 13 and 14).

Even so, nowhere in the court’s decision can be found a conclusion of law that Mr. Marinaro’s production did not fall within the “theatrical productions” exception to Minnesota’s smoking ban, nor did it expressly rule that he failed to provide an affirmative defense.

The court’s reasoning, however, can be gleaned from its three-page memorandum wherein it adopted a restricted definition of “theatrical production” from web sites such as Dictionary.com and Merriam-Webster.com. See, Appendix, p. 7.

The court went on to cite Minn. Stat. 645.17 that, among other things, states that “the legislature intends to favor the public interest as against any private interest.” In the very next sentence, however, the court references that the legislature favored a private interest (the Guthrie Theater) over the public interest. See, Appendix, p. 8.

Next, the court argued that Mr. Marinaro’s production of “The Gunsmoke Monologues” is not in the same league as “Twelve Angry Men”:

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 affect [sic], but for the “Actor” name tags. Construing this as falling into the theatrical productions exception would result in an absurd result not intended by the legislature.

See, Appendix, pp. 8-9.

The court concluded, “The result [Appellant] is asking for is not one intended by the legislature and would favor private interests rather than the public interest.” Id.

Appellant Tom Marinaro is a 5-year owner and operator of Tank’s Bar in Babbitt, Minnesota (Transcript, p. 50, ln. 20-24). After the Freedom to Breathe Act (Minn. Stat. 144.411 to 144.417) took effect on October 1, 2007, Mr. Marinaro suffered a forty-percent reduction in profits, laid off his manager of 18 years, shut down his restaurant on Sundays and Mondays, and cut the hours of his bartenders (Transcript, p. 61, p. 61, ln. 10-11; ln. 23 to p. 62, ln.2).

On Saturday evening, February 9, 2008, the first Theater Night was performed at Barnacles Resort and Campground, located on the north shore of Lake Mille Lacs in Aitkin County. Over the next several weeks, other bars decided to host their own Theater Nights.

Theater Night – much like Texas Hold ‘Em Night or Karaoke Night – is a bar-sponsored activity designed to attract patrons. Theater Night allows patrons to participate as actors or actresses in the bar’s theatrical production – including smoking cigarettes indoors – so long as they abide by the parameters set forth by the bar owner. Such parameters require that all patrons must be notified beforehand: (1) that the establishment will host a theatrical production that includes cigarette smoking; (2) when and where the theatrical production will take place; and (3) that only actors and actresses in the production will be allowed to engage in said cigarette smoking.

Theater Night is borne out of a little-known exception to Minnesota’s state-wide smoking ban, Minn. Stat. 144.4167, subd. 9, which states:

Subd. 9. Theatrical Productions. Sections 144.414 to 144.417 do not prohibit smoking by actors and actresses as part of a theatrical performance conducted in compliance with section 366.01. Notice of smoking in a performance shall be given to theater patrons in advance and shall be included in performance programs.

Over three weeks after the first Theater Night had been performed, the Minnesota Department of Health posted a press release (See, Appendix, pp. 23-24) on its web site declaring “’theater nights’ being held in bars do not fall within the theatrical production exemption of the Freedom to Breathe Act.” The Department did not provide any legal reasoning as to how it reached this conclusion. But it is clear that the Department believed that any theatrical production taking place in a bar would be illegal because it was in a bar.

Upon hearing the news of bars around the state hosting Theater Night, Mr. Marinaro decided to host his own theatrical production entitled “The Gunsmoke Monologues” at Tank’s Bar (Transcript, p. 51, ln. 19-21). He researched the law prior to hosting his first Theater Night (Id., p. 51, ln. 22-23) and created a poster (Court File Ex. 1) and playbill (Court File Ex. 2) to notify patrons beforehand that his production would include cigarette smoking indoors, that his production would be performed every day from 3:00 p.m. to closing, and that only actors and actresses would be allowed to participate. Actors and actresses were designated with name tags (Transcript, p. 56, ln. 11-13).

In all respects, Mr. Marinaro attempted to discern how his patrons could smoke in his bar without violating the law. He could find no guidance from the law, however, as to what the state considered a “theatrical performance” – that is, whether his patrons should perform on a stage, wear costumes or memorize scripts.

Mr. Marinaro decided that his production would be an improvisational protest play against overreaching governmental authority, a play that included the burning of tobacco cigarettes (Id., p. 60, ln. 8-11) rather than the American flag (Id., ln. 4-7). Indeed, Mr. Marinaro found that his patrons who participated in his production “felt like they got their freedom back”, felt a “sense of joy”, felt a “sense of loss of what they used to not have” and felt like they shouldn’t “take their freedoms for granted anymore” (Id., p. 64, ln. 15 to p. 65, ln. 9).

Meanwhile, Babbitt Chief of Police Terrance Switajewski was aware of “the theater night phenomenon” sweeping across the state and specifically occurring at Tank’s Bar (Id., p. 29 ln. 21 to p. 30, ln. 4. All told, he had received six complaints but had not acted on any of them because he needed to “understand the law better.” (Id., p. 30, ln. 19). Indeed, Chief Switajewski – a law enforcement veteran of over 28 years (Id., p. 20, ln. 19-24) – was unsure if Mr. Marinaro was violating the law. He called City Attorney Michael Kearney:

Q. Why did you contact Mr. Kearney?

A. Because I wanted to make sure that I was within my rights as a law enforcement officer to give that citation before it was issued. I wanted to be clear and run it by the city attorney.

Q. Okay. Because prior to talking to the city attorney, you yourself, the chief of police, were not clear as to whether or not this was unlawful activity taking place at Tank’s Bar, true?

A. That would be correct.

(Id., p. 32, ln. 12-21, emphasis added).

Things came to a head when Chief Switajewski received a complaint directly from a member of the city council, Paul Hoheisel, on the morning of March 14, 2008 (Id., p. 22, ln. 15-16). Councilor Hoheisel personally met with Chief Switajewski and informed him that he had just received a complaint from a non-smoker who had been at Tank’s Bar and “that people were smoking and there was no acting going on.” (Id., p. 31, ln. 11-18).

Chief Switajewski admitted that “things happened rather quickly” after that (Id., p. 34, ln. 17-21). He immediately called Mr. Kearney and told him that “we had to do something” (Id., p. 33, ln. 3-13). At 10:00 a.m., he drove over to Tank’s Bar and met with Mr. Marinaro and his partner Marie Rinta and told them that he had received “complaints from citizens that smoking was taking place in the bar with no theatrical production going on.” (Id., p. 23, ln. 25 to p. 24, ln. 6). Mr. Marinaro replied that he believed he was not violating the law (Id., p. 24, ln. 7-12). Chief Switajewski warned Mr. Marinaro that he might receive a citation (Id., p. 24, ln. 13-15).

Chief Switajewski then called Officer Trevor Lionberger at 12:00 noon to come in early (Id., p.6, ln. 16-to19) – four hours early (Id., p. 14, ln. 3-9) – and get out to Tank’s Bar in plain clothes to investigate if smoking was occurring indoors (Id., p. 7, ln. 1-2). Chief Switajewski – who admits he has had no formal training in the performing arts (Id., p.29, ln. 3-5) – did not instruct Officer Lionberger to look for evidence of a theatrical performance.

Officer Lionberger testified that “the main thing was to see if there was actually smoking going on inside the bar.” (Id., p. 14, ln. 14 to p. 15, ln. 2). He was not instructed to look for posters or playbills (Id., p. 15, ln. 3-23) and with regard to a theatrical performance, he admitted that his chief did not give him any standards by which to determine such (Id., p. 15, ln. 24 to p. 16, ln. 8). On cross-examination, Chief Switajewski also admitted that he did not instruct Officer Lionberger to investigate the content of Mr. Marinaro’s production (Id., p. 36, ln. 20 to p. 37, ln. 3). Nor did the chief himself investigate for such content (Id., p. 4-5).

Indeed, even if he had conducted such an investigation, by Chief Switajewski’s standards “The Gunsmoke Monologues” would not have satisfied his definition of a theatrical production. He testified that he “saw no performance” as he entered the bar (Id., p. 37, ln. 9); that he would have expected any performance to take place on the bar’s stage because “most plays are on a stage” (Id., p. 37, ln. 12-19); and that there were no scripts and “any logical person would make an assumption there would be scripts” (Id., p. 37, ln. 20 to p. 38, ln. 3).

Officer Lionberger arrived at Tank’s Bar by 12:30 p.m. (Id., p.13, ln. 1-6). As he walked through the front door, he noticed a sign attached to the window that said the theatrical production would not start until 3:00 p.m. (Id., p. 7, ln. 10-15). Nevertheless, he went in, sat for 45 minutes, did not observe any smoking during that time, asked the bartender what time the smoking would begin and was told 3:00 p.m. (Id., p. 13, ln. 7-22). Officer Lionberger called his chief at 1:15 p.m. on the cell phone and the two met outside the bar. He told Chief Switajewski that the production did not start until 3:00 p.m. and so he went back to the office. (Id., p. 23, ln. 2-13).

Officer Lionberger returned to Tank’s Bar at 2:55 p.m. (Id., p. 8, ln. 4-7) and saw “about 20 people in the bar” (Id., p. 16, ln. 9-13). At 3:01 p.m., Officer Lionberger smelled cigarette smoke, turned around and saw “four to five people” smoking cigarettes, all of whom were wearing stickers identifying them as actors. (Id., p. 16, ln. 17 to p. 17, ln. 10).

Officer Lionberger did not take the time to observe the nature of the production (Id., p 17, ln. 19 to p. 18, ln. 5). He admitted he was “just asked to look for smoke and then call Chief Switajewski” (Id., p. 18, ln. 6-9). Indeed, he testified that he did this “almost immediately” after seeing people smoking cigarettes. (Id., p. 17, ln. 11-18).

Officer Lionberger went outside to call his chief on the cell phone (Id., p. 18, ln. 10) and Chief Switajewski arrived on scene in 20 seconds (Id., p. 10, ln. 23 to p. 11, ln. 1). In fact, Chief Switajewski admitted on cross-examination that he was sitting in his patrol car in front of the city garage and waiting for Officer Lionberger’s call (Id., p. 35, ln. 17-23).

Officer Lionberger testified that Chief Switajewski did not ask him any questions about the production; the two of them just went into the bar and “took care of what we took care of.” (Id., p. 18, ln. 19-22). Chief Switajewski approached the first person, Troy Haski, who he saw smoking, took him into a back room and had Officer Lionberger issue him a citation for “unlawful smoking” (Id., p. 11, ln. 21 to p. 12, ln. 6). Officer Lionberger did not ask Mr. Haski any questions “about what he was doing with regard to the smoking” but did confirm that Mr. Haski was “wearing a sticker” (Id., p. 19, ln. 6-11). Chief Switajewski also confirmed this (Id., p. 25, ln. 22 to p. 26, ln. 2).

But Chief Switajewski did not believe a theatrical production was going on. He did not see anyone on the stage, he “did not hear anything that looked like some type of theatrical production was going on”, he did not hear “lines or verses” and everyone was “sitting other than the bartender.” (Id., p. 26, ln. 13 to p. 27, ln. 4).

He directed the bartender to contact Mr. Marinaro to come to the bar (Id., p. 27, ln. 5-12). When Mr. Marinaro arrived, Chief Switajewski did not ask him any questions regarding his production of “The Gunsmoke Monologues” but instead immediately issued him a citation (Id., p. 27, ln. 24 to p. 28, ln. 14). The only information Chief Switajewski gathered was what Mr. Marinaro volunteered, namely, that “The Gunsmoke Monologues” was named after an old television series (Id., p. 38, ln. 4-19). Other than that, Chief Switajewski failed to ask Mr. Marinaro any questions about his production (Id., p. 22-24).

Had he done so, he would have discovered that participants like Mr. Huovinen in Mr. Marinaro’s production were often talking about their rights being taken away by the government and about freedom (Id., p. 42, ln. 16-24). Mr. Marinaro would have told him that participants in his production were often talking about “human rights” and the legislature (Id., p. 59, ln. 17-18). Mr. Marinaro would have told him that he himself participated in his own production and wandered throughout the bar interacting with the patrons, informing them about the adverse economic impact the smoking ban was having on his business and his employees (Id., p. 60, ln. 12 to p. 62, ln. 62). And, as with all art forms, his patrons had an emotional response to his stories (Id., p. 62, ln. 6-11).

If the court had allowed her testimony, Marie Rinta could have provided a wealth of information to the court regarding the information she shared with patrons during these productions because she is a certified public accountant and runs the books for the bar (Id., p. 44, ln. 17-23). But she was not present during the five to ten minutes that Chief Switajewski and Officer Lionberger were in the bar (Id., p. 28, ln. 14-22) and so the court ruled that she had no foundation to testify about the production that occurred while the officers were there (Id., p. 18-22). Ms. Rinta testified that, after the officers left, the production continued unabated until 11:00 p.m. or 12:00 midnight (Id., p. 49, ln. 2-16).

But when Ms. Rinta attempted to testify about the content of the production after the officers had left, the prosecution objected on relevancy grounds. (Id., p. 49, ln. 17-19). The court sustained the objection and declared, “the issue is whether there was a theatrical production taking place at the time the officers issued the citations”. (Id., p. 49, ln.17-23). This, despite the court’s earlier ruling that Ms. Rinta could testify “if she was in the bar on March 14^th what the production as you have called it was dealing with on that day.” (Id., p. 47, ln. 3-17, emphasis added). Several minutes later, the court restricted Ms. Rinta’s testimony to all of the five minutes the officers were present at the bar – from 3:00 to 3:05 p.m. (Id., p. 49, ln. 19).

ARGUMENT

THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF VIOLATING MINN. STAT. 144.417, SUBD. 2(A) BECAUSE HIS BAR AVAILED ITSELF OF THE “THEATRICAL PRODUCTIONS” EXCEPTION UNDER MINN. STAT. 144.4167, SUBD. 9.

1. Smoking During Theatrical Performances is Permitted Under the Plain and Unambiguous Language of the Exception.

The Freedom to Breathe Act (hereinafter “Act”) generally prohibits smoking in public places, places of employment, public transportation and public meetings. See, Minn. Stat. 144.414. It is undisputed that Appellant’s bar is a public place and a place of employment under the Act. However, the Act carves out nine exceptions to the general prohibition against smoking in these locations, one of which pertains to “theatrical productions”. Minn. Stat. 144.4167, subd. 9 states:

Subd. 9. Theatrical Productions. Section 144.414 to 417 do not prohibit smoking by actors and actresses as part of a theatrical performance conducted in compliance with section 366.01. Notice of smoking in a performance shall be given to theater patrons in advance and shall be included in performance programs.

Id. (emphasis added).

The court ruled that Appellant’s production of “The Gunsmoke Monologues” at his bar was, baldly stated, just not good enough to meet the requirements for the theatrical production exception.

2. The Court Cannot Add Language to the Exception.

The court’s reasoning is necessarily subjective, imposing its definition on what constitutes legitimate theater upon Appellant. Indeed, the court implies that Appellant’s production is absurd and that the legislature could not have intended bars to put on any kind of theatrical production – good or bad.

However, the “theatrical productions” exception does not restrict the venue in which such performances can take place. Nor does it provide any standards (stage, scripts or costumes) by which ordinary citizens like Mr. Marinaro can figure out just what kind of performance would satisfy the state. Appellant, and others like him, can only find out what will satisfy the state after the fact and at their peril.

The “theatrical productions” exception refers to theatrical performances involving actors and actresses with no other requirements. The court’s attempt to legislate from the bench, that is, to require Appellant’s production to take place on a stage, that his actors and actresses don costumes and memorize scripts can simply not be found in the plain language of the statue. Impliedly adding new words to an already-enacted statute is an improper exercise of judicial power and smacks of judicial arrogance.

It is well-settled that when a statutory question involves the failure of expression rather than the ambiguity of expression, a court is not free to substitute amendment for construction and thereby supply the omissions of the legislature. State v. Tracy, 667 N.W.2d 141 (Minn. Ct. App. 2003) (citations omitted). The court is prohibited from adding words to a statute and cannot supply what the legislature either purposely omitted or inadvertently overlooked. Ullom v. Independent Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn. Ct. App. 1994); Phelps v. Commonwealth Land Title Ins., 537 N.W.2d 271, 274 (Minn. 1995) (same holding); Hutchinson Tech., Inc. v. Comm'r of Revenue, 698 N.W.2d 1, 12 (Minn. 2005) (reiterating that courts may not write into a statute what the legislature did not); Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating that "[i]f there is to be a change in the statute, it must come from the legislature, for the courts cannot supply that which the legislature purposefully omits or inadvertently overlooks"); In re Welfare of S.J.T., 736 N.W.2d 341, 355 (Minn. App. 2007) ("it is not the province of this court to create law, but rather to interpret legislation"), review denied (Minn. Oct. 24, 2007); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating that "the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court"), review denied (Minn. Dec. 18, 1987).

When drafting the “theatrical productions” exception, the legislature declined to add any language that would define a theatrical performance, limit the location of such performances, require that the performance occur on a stage, or address the content or length of the performance. The legislature chose not to add any language about sets, scenes, scripts or intermissions, costumes, characters or lines. As such, the task of adding language to the exception falls to the legislature, not to the courts.

3. The Legislature Did Not Specify That it Intended to Protect Only a Narrow and Limited Category of Professionally-Produced Plays.

In construing a statute, the Court must first determine whether the statutory language is on its face ambiguous. Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 540 (Minn. 2007). When the words of a statute in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit. Granville v. Minneapolis Public Schools, Special School Dist. No. 1, 732 N.W.2d 201 (Minn. 2007). If the meaning of a statute is unambiguous, then the Court must interpret the statute's text according to its plain language. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn. 2004).

The Act does not define the term “theatrical performance”. Since the legislature did not incorporate any qualifiers to the term "theatrical performance" it can only mean any theatrical performance, whether subjectively considered “legitimate”, “absurd” or whatever. A general rule of statutory construction is that the undefined words should be construed consistent with their commonly understood meaning. See, Minn. Stat. 645.08(1). See also, Rasmussen v. Glass, 498 N.W.2d 508 (Minn. Ct. App. 1993). It should be noted that this issue is one of first impression for Minnesota courts, and there is no legislative guidance on determining the meaning of the words “theatrical performance.”

Accordingly, just as the court attempted to define “theatrical production” in its memorandum, the analysis should begin by considering the common meaning of the terms “theatrical” and “performance”, as set out in various dictionaries:

Theatrical. adj. 1. Of, relating to, or suitable for the theater or dramatic performance. 2. Marked by exaggerated self-display and unnatural behavior; affectedly dramatic. –n. Often theatricals. Stage performances, esp. by amateurs.

Performance. n. 1. The act of performing, or the state of being performed. 2. The act or style of performing a work or role before an audience. 3. The way in which someone or something functions: rated the machine’s performance. 4. A presentation, esp. a theatrical one, before an audience. 5. Something performed, an accomplishment.

The American Heritage Dictionary, Second College Ed.

Theatrical. adj. 1. Having to do with the theater, the drama, a play, actors, etc. 2. Characteristic of the theater; dramatic; histrionic; especially (in disparagement), melodramatic; pompous; affected.

Performance. n. 1. The act of performing; execution; accomplishment. 2. Operation or functioning, usually with regard to effectiveness, as of an airplane. 3. Something done or performed; deed or feat. 4. A formal exhibition of skill or talent, as a play, musical program, etc.; a show.

Webster’s New Universal Unabridged Dictionary, Deluxe Second Ed.

Such definitions are necessarily broad and defy any futile attempt to restrict or contain such an art form. In Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555 (1970), the U.S. Supreme Court considered whether a street performance in protest of the Vietnam War constituted a theatrical production falling within an exception to a statute prohibiting non-military personnel from wearing military uniforms or insignia. The defendant, who was not in the military, performed in a skit at an antiwar rally while wearing an official U.S. Army shirt with a shoulder patch and a military hat with the then current official insignia of Army officers. The defendant claimed that he was authorized to wear the uniform under a separate provision which permitted an "actor in a theatrical or motion picture production" to wear the uniform "[w]hile portraying" a member of the armed forces. Id. at 59 60, 90 S.Ct. 1555 (quoting 10 U.S.C. 772(f) (1964)). The Court addressed the question of what constituted a theatrical production as follows:

The Government's argument in this case seems to imply that somehow what these amateur actors did in Houston should not be treated as a ‘theatrical production' within the meaning of [section] 772(f). We are unable to follow such a suggestion. Certainly theatrical productions need not always be performed in buildings or even on a defined area such as a conventional stage. Nor need they be performed by professional actors or be heavily financed or elaborately produced. Since time immemorial, outdoor theatrical performances, often performed by amateurs, have played an important part in the entertainment and the education of the people of the world. Here, the record shows without dispute the preparation and repeated presentation by amateur actors of a short play designed to create in the audience an understanding of and opposition to our participation in the Vietnam War.

It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays. Of course, we need not decide here all the questions concerning what is and what is not within the scope of [section] 772(f). We need only find, as we emphatically do, that the street skit in which Schacht participated was a ‘theatrical production' within the meaning of that section.

Schacht at 61 62 (emphasis added).

Like the street skit at issue in Schacht, Appellant’s production in his bar may be crude and amateurish, and even unappealing to some, but the Minnesota Legislature did not add any conditions on the quality of the performances under the “theatrical productions” exception, and neither should the courts. Both the “common meaning” rule in Minn. Stat. 645.08, and the case law support a ruling that the term “theatrical performance” is not and should not be limited by the subjective standards of a court.

4. The Rule of Construction That the Legislature Does Not Intend a Result That is Absurd Only Operates When the Words are Ambiguous.

In its memorandum, the court cited Minn. Stat. 645.17 for the proposition that the legislature does not intend a result that is absurd and any attempt to construe the “theatrical productions” exception to apply to Appellant’s production would do just that.

But this rule of statutory construction only operates where the words of a statute are ambiguous, and application of this rule cannot be used to override the plain language of a statute. Weston v. McWilliams & Associates, Inc., 716 N.W.2d 634 (Minn. 2006). As the Weston court stated, “If the words of the statute are clear and free from all ambiguity further construction is neither necessary or permitted.” Id. at 638. Since the statute is not ambiguous, this Court need not look any further than the plain language of the statute.

In the event the Court endeavors to look outside the plain language, there is virtually no evidence that a narrow definition was the legislature’s intent when they drafted the exception. In fact, it is sad to say that the members of the conference committee (perhaps giddy from lack of sleep during the closing days of the 2007 legislative session) laughed at the idea that bars might use the “theatrical productions” exception to stage their own plays and allow their patrons to smoke:

See, Appendix, pp. 25-27.

Obviously, the legislature was aware of just how broad the “theatrical productions” exception could be interpreted. They chose to laugh rather than address the issue and confine the language of the exception. That is why the matter has been dropped into the lap of our court system. The legislature shirked its responsibilities, created this mess and now implores the judiciary to clean it up for them.

In any event, the legislature clearly intended for smoking as part of a theatrical performance to be exempted from the Act. That the phrase “theatrical performance” was left broad and undefined does not, in and of itself, render the statute ambiguous. What was omitted from the language of the statute is as much a part of the statute as what is distinctly expressed therein. The exception was intentionally framed in broad language, because what constitutes a “theatrical performance” as an art form is necessarily a matter of subjective interpretation.

The Act also does not define the term “theater”. In the common definition of the term, a theater is a house for the exhibition of dramatic performances. Gould v. State, 66 Tex. Crim. 122, 146 S.W. 172 (1912). In another sense, the word "theater" has been held to refer to the amusement or exhibition afforded rather than to the building itself. State v. Penny, 42 Mont. 118, 111 P. 727 (1910).

Many other states with smoking bans have included exceptions for theatrical performances. Unlike those other states, however, Minnesota’s “theatrical productions” exception does not attempt to limit smoking during performances to that which is “on the stage” or is “an integral part of the story” or if “permission is first granted by the appropriate local authorities”. See, Ariz. Rev. Stat. 36 601.01(B)(7) (2007) (ban not applicable to "[a] theatrical performance upon a stage or in the course of a film or television production if the smoking is part of the performance or production"); Cal. Lab. Code 6404.5(d)(9) (2007) (ban does not apply to "[t]heatrical production sites, if smoking is an integral part of the story in the theatrical production"); D.C. Code 7 1708(3) (2007) (does not prohibit smoking "[u]pon the stage by performers during the course of any theatrical performance if smoking is part of the theatrical production"); Idaho Code Ann. 39 5503(1)(e) (2007) (ban does not apply to "[t]heatrical production sites, if smoking is an integral part of the story in the theatrical production"); Me. Rev. Stat. Ann. tit. 22, 1542(2)(B) (2007) ("Smoking is not prohibited in theaters…if the smoking is solely by a performer and the smoking is part of the performance."); Mass. Gen. Laws ch. 270, 22(c)(6) (2007) (theatrical performer may smoke during a performance if permission first granted by appropriate local authorities); N.M. Stat. 24 16 4(N) (as amended by H.B. 283) (smoking is permitted on a "theatrical stage...when it is necessary for performers to smoke as part of the production"); R.I. Gen. Laws 23 20.10 6(b) (2007) ("this chapter shall not apply to any stage performance provided that smoking is part of a theatrical production"); N.Y.C. Admin. Code 17 503(a)(8) (2007) ("except that smoking may be part of a theatrical production"); cf. Haw. Rev. Stat. 328J 7(6) (2007) (exception only covers areas where "smoking is part of a production being filmed").

If the legislature had intended to exclude theatrical performances in bars, they would have done so. If, in the future, the legislature decides to amend the “theatrical productions” exception to that end, it can and will do so, as the aforementioned other states have done. But for now, the plain and unambiguous language of the “theatrical productions” exception allows for theatrical performances to take place in any venue, not just in the revered and reputed playhouses of the Twin Cities.

“The Smoking Monologues” is necessarily an improvisational theatrical production. No two performances are ever the same. The actors and actresses change from day to day, as do the unscripted lines and the pathos of each individual’s performance.

Improvisational theater (also known as improv) is a recognized and legitimate form of theater in which actors perform without a script. See, www.improv.org. There are several types of improvisation, including short form improvisation, which consists of short, unrelated scenes, and long form improvisation, in which the scenes are interrelated in such a way as to form a long narrative.

In all forms of improvisation, the dialogue and action are invented as the play goes along. There are no scripts or stage direction. Costumes are not required. The play may be good or bad, stimulating or boring, funny or disturbing. Improvisational theater is inherently unpredictable. “The Gunsmoke Monologues” is an improvisational theatrical performance that covers all of these touchstones.

Numerous examples exist of theatrical performances about the daily mundane lives of people whether in a bar, a café or an apartment; such as in “Cheers”, “Friends” and “Seinfeld” – which often defined itself as being a “show about nothing”.

Nevertheless, if we agree that the court can declare what is and what is not a theatrical production, with no standards upon which to guide lawyers or laypersons, then Minnesota courts will necessarily have to wrestle with this issue on a case-by-case basis. The judiciary should not be duped into shouldering such an arduous task.

For instance, consider the subjective modifier created by the district court which was then thrust upon Appellant, impliedly declaring his production to be absurd. What is absurd? Such a modifier is itself ambiguous, especially when applied to an art form.

Besides the courts, should law enforcement have the power, the right or responsibility to make subjective determinations of what constitutes a theatrical performance? Such an assignment of power would be fraught with arbitrary and selective prosecution – as history has taught us:

Insofar as good taste may be relevant at all, it is worth recalling that the last public official who held the undisputed title of “Arbiter Elegantiae” (supreme judge of taste) was Gaius Petronius. He worked for the Emperor Nero. Both came to a bad end.

Matter of Hawkeye Distilling Co. v. New York State Liquor Auth., 118 Misc.2d 505, 460 N.Y.S.2d 696 (N.Y. Sup. 1983).

It is not the function of judges to serve as arbiters of taste. See, Attorney General v. Book Named 'Tropic of Cancer, 344 Mass. 11, 184 N.E.2d 328 (Mass. 1962). Nor is it the proper role of law enforcement to be arbiters of taste. There were no standards available to guide Mr. Marinaro when he was setting up Theater Night in his bar. What standards then are available for law enforcement? Or the courts? Only the legislature can provide these standards. Law enforcement and the courts should not have to make it up as we go along.

5. Even if the Court Construes the Statute as the District Court Did, Such a Construction Would Likely Violate the State and Federal Constitutions Regarding Equal Protection and Freedom of Expression.

Minn. Stat. 645.17(2) states that the legislature does not intend any statute to violate the Constitution. The Minnesota Department of Health in its press release of March 5, 2008 stated that any theatrical production held in a bar would violate the Act. Such an interpretation would likely violate the United States and Minnesota Constitutions in several respects.

First, the equal protection clauses of the Federal and State Constitution require that all similarly situated persons be treated equally under the law. See, U.S.C.A.Const. Amend. XIV; Minn. Stat. Ann. Const. Art. 1, sec.2. Here, Tank’s Bar is a public place just like any theater playhouse. The Department of Health believes, however, that smoking in a bar during a theatrical production violates the Act, but that the same theatrical production performed at, say, the Guthrie Theater does not. If Tank’s Bar is treated differently, then such disparate treatment arguably violates the Constitution.

Second, prosecution and threats of prosecution of bars hosting Theater Nights is arguably tantamount to censorship. Theatrical productions, like movies and books, are presumptively entitled to constitutional protection as free speech. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). Furthermore, smoking by an actor in the course of a theatrical performance is expressive conduct for the purposes of the First Amendment, and may also violate the freedom to associate. Constitutional freedom of association protects the right of an individual to associate with others for the purpose of expressing and advancing ideas and beliefs. U.S.C.A. Const. Amend. 1. See also, In re GlaxoSmithKline, 713 N.W.2d 48 (Minn. Ct. App. 2006). Plays and theatrical productions receive substantial and necessary constitutional protection because of their important communicative content:

Long before the advent of printing and motion pictures, the theater constituted "a significant medium for the communication of ideas" which affected "public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.”

Barrows v. Mun. Court, 1 Cal.3d 821, 824, 83 Cal. Rptr. 819, 464 P.2d 483, 485 (1970) (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 96 L.Ed. 1098 (1952)).

In Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876 (Va. 1988), the Court stated as follows:

At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. “[T]he freedom to speak one’s mind is not only an aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-504, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502 (1984). We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a “false” idea. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). As Justice Holmes wrote, “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market… .” Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (dissenting opinion).

Id. at 879-880.

Smoking by actors during a theatrical performance can be used to give insight into a character's personality, set the mood, or evoke an era. A play can use smoking to communicate specific plot twists, and smoking can be used to make political statements about smoking itself. E.g., David Cornue, Sam Holtzapple, Warren Loy, & Chris Todd, Smoking Bloomberg (2006) (Broadway play).

Indeed, there are a number of plays that require smoking as critical elements of their performance, including such classics as Edward Albee's Who's Afraid of Virginia Wolf?, Tennessee Williams's Vieux Carre, Eugene O'Neill's A Moon for the Misbegotten, and Calder Willingham's The Graduate. The act of smoking in the course of a play, especially a protest play designed to heighten the awareness of the public regarding governmental overreaching and thereby stimulate impassioned debate, is worthy of consideration for the protections of the First Amendment.

As to the presumption that the legislature intends to favor the public interest as against any private interest, the record clearly shows that the legislature intended to benefit a select few playhouses and exempt them from the prohibitions of the Act. Arguably, the legislature did this because it also understood the intellectual and emotional stimulation the performing arts provide to the public. So too do the performances in lonely little bars in Greater Minnesota. Those performances provide a forum for the free exchange of ideas through artistic expression. They stimulate critical thought, discussion and debate, and allow for peaceful protest. Surely, the public interest is promoted by encouraging rather than curtailing artistic expression.

CONCLUSION

The Defendant has not violated the Act. The plain language of the “theatrical productions” exception clearly allows bar owners to host theatrical productions so long as they comply with the notice requirements of the Act. The Department of Health believes a bar cannot legally host a theatrical production because it takes place in a bar. The district court believed that Appellant’s production simply wasn’t good enough to fit within the “theatrical productions” exception, thereby inviting the courts and law enforcement to become after-the-fact theater critics and arbiters of taste. But that should not be the role of the courts or law enforcement. It is incumbent upon the legislature – not the courts, not law enforcement – to take a second look at the Act and clarify and circumscribe the statutory language of the “theatrical productions” exception.

Until that day, however, the plain and unambiguous language of the “theatrical productions” exception to the state-wide smoking ban offers struggling bar owners an opportunity to engage in peaceful protest through the performing arts. Appellant’s conviction should be reversed.

Respectfully submitted,

MARK W. BENJAMIN

Criminal Defense, P.A.

237 Second Ave. SW, Suite 111

Cambridge, MN 55008

Attorney for Appellant

Attorney Lic. No. 135665

APPENDIX AND INDEX