By Shannon Fiecke, Staff Writer

Drama over the statewide smoking ban spilled into Judge Jerome Abram’s Shakopee courtroom Tuesday with the first court hearing in Minnesota on the issue.

An Elko New Market bar faced the state in Scott County District Court, where attorneys debated whether "theater performance" smoking at Bullseye Saloon violates the state ban.

With a $2 membership to its actor guild, Bullseye allows patrons to light up, citing an exemption in the state ban, which permits actors to smoke during theatrical performances with proper notice to the audience.

The Minnesota Department of Health is seeking a temporary injunction to stop smoking at the bar, which is located in southeastern Scott County.

Assistant Attorney General Kristen Olsen asked Abrams "to put an end to this charade," arguing that "The Unconstitutional Ban" production at Bullseye isn’t real theater, but merely an attempt to get around the ban.

"The people they are entertaining seem to be themselves," she said.

The Legislature left the definition of theater broad, argued Bullseye’s attorney Patrick O’Neill.

He said Bullseye’s owner researched the law carefully to make sure he complied with the letter of the law by giving advance notice of the production, making performance programs and requiring buttons identifying actors.

"Mr. Ripley gave a lot of thought before he decided to do this," he said. "What part of it is a sham? Who are they to say it’s a sham?"

O’Neill noted that the state sent a letter in March to every bar in the state, saying they were violating the law if they were holding a theater performance.

Abrams questioned whether what is going on at Bullseye is any different than before the smoking ban was enacted. How is the production distinguishable from real life? he asked.

"Don’t performances have a beginning and an end?" he said.

O’Neill said that yes, patrons often play themselves, but he noted that others dress up.

Rather than tell bars what theater isn’t, the department should say what is allowed, O’Neill said, noting this hasn’t happened.

They’re amateurs, he said of the bar patrons. "The standard is Elko New Market."

Abrams quipped back that he personally thinks Elko New Market has high standards.

Olsen said when most people think of theater, they think of conventional acting, places like the Guthrie Theater, and there being a story, with a beginning and an end.

She said actors don’t pay to get in or for their own props, food and beverages, and there isn’t normally smoking in each play or performance

Much of Abrams’ questions to attorneys revolved around whether the smoking might constitute as protected speech.

"Hasn’t theater been a forum of protest?" he asked.

This issue bumps up against the First Amendment, he said, remembering that in law school, even eating was discussed as possible protected speech.

The state attorney argued that smoking in this case wasn’t intended as "expressive conduct" and to the extent it was, the state could regulate it.

Olsen said it’s the department’s job to protect the public, and bar patrons and employees would be harmed if the ban wasn’t enforced.

The bar’s attorney said smoking at Bullseye is "expressive conduct" and a form of protest.

He further argued the ban was political, because if it was truly about public health, the Legislature wouldn’t have carved out several exemptions, include the theater provision, which was added in the late hours of session by a conference committee at the request of the Guthrie.

While Olsen argued that legislators didn’t intend to allow bar smoking with the theater exemption, O’Neill countered that there was laughter in the conference committee as lawmakers talked about the definition of an actor and the possibility that a bar owner might become a play director.

If legislators wanted, they could have narrowed the definition, said O’Neill, pointing out that the full House and Senate never even discussed the provision.

"They left it broad and you can’t narrow it now," O’Neill said.

Olsen said if the theatrical performance exemption is interpreted so broadly, it will "swallow up the statute as a whole."

Abrams said he plans to issue a decision on the temporary injunction soon, but instead of making a summary judgement on a permanent injunction, he prefers to have a jury trial so each side can present testimony.

Abrams said he doesn’t intend for the trial to be a prolonged affair and he’d like for the matter to be decided soon. Both the state and bar said they’d be ready for a jury trial next month.

The state has also now taken action in neighboring Dakota County against Buggs Bar. The South St. Paul bar has been summoned to appear in court, said owner Bill Buggs, who proudly spoke about his case after observing the hearing in Scott County.

Two bars in northern Minnesota also have been fined by local municipalities for allowing smoking as part of theatrical performances.

Attorney Mark Benjamin, who has volunteered to help bar owners, said on May 23 there’ll be a hearing in Virginia, Minn., on a $300 petty misdemeanor fine.

Benjamin noted that the ticket has been laminated and posted at Tank’s Bar in Babbitt. Shannon Fiecke can be reached at (952) 345-6679 or sfiecke@swpub.com.