By Shannon Fiecke

A giant playbill greets patrons at the door to one of the two neighboring bars dotting Main Street in the former town of Elko.

Inside, the bouncer — excuse me, usher — checks a visitor’s ID and makes sure she is aware of tonight’s performance. 

For just $2, this visitor can also get a badge and become an actor if she cares to smoke as part of the performance at the Bullseye Saloon in Elko New Market.

The production this evening (or rather, early morning)? A theatrical performance and satire called "An Unconstitutional Ban," in which bar patrons typically act as themselves. 

Bullseye, located on a tiny downtown strip in southeastern Scott County, is also center stage to a much bigger drama: The controversial statewide smoking ban.

By using an exemption in state law that permits smoking on stage, Bullseye Saloon has gotten around the state’s new smoking ban and unwittingly become a test case for the

Minnesota State Department of Health’s enforcement of the indoor clean-air act.

The state is seeking a temporary court injunction to stop smoking in Bullseye and verify what it thinks is clear — theatrical performances at bars are not what legislators intended when they carved out the exemption for actors into the state law last year.

As of Oct. 1, 2007, smoking is prohibited in virtually all indoor public places and indoor places of employment, including bars and restaurants. Actors are one of 11 categories the state lists as exempt in a fact sheet on the Freedom to Breathe law.

Bullseye Saloon will hold a smokers right rally on May 3, starting at 4 p.m. For more information, go to www.bullseye-saloon.com/.

What’s a stage?

No one knows exactly how many places are holding theater "performances" to allow smoking. A health department official estimates there is only a handful, while the Tavern League of Minnesota director said it may be between 70 and 220 (apparently some businesses went underground after the injunction was filed).

Bar owners like Robert Ripley of the Bullseye Saloon argue they are obeying the law and legislators never defined what they meant by theater performance.

"They left it broad," Ripley said. "By doing so, they allowed a lot of people to perform."

But John Linc Stine from the Department of Health believes it’s pretty clear bars don’t fit the theater exemption intended by legislators.

"If you read the law and legislative testimony, it’s doesn’t sound that confusing," he said.

While some bars have established specific theater nights, Bullseye considers its stage always open.

Ripley likens Bullseye’s ongoing performance to a Cheers-like skit that happens every day. He considers it improvisational theater, with one skit running right into another. People mostly play themselves, he said, but sometimes dress up or pretend to be somebody else.

Some put their name on actor badges and at the end of the night, leave them at the bar, selecting a different one next time they visit, perhaps then choosing to act as a friend or neighbor, he said.

"It’s an ever-changing performance," he said.

"The way the law was written, I’m an actor right now," said Marcus Pollack, an Elko New Market resident who is a bartender in Shakopee and was hanging out at Bullseye last weekend with a roommate.  Marcus Pollack

"In my act, I want to be a bar patron who drinks and smokes," Pollack said, noting that he doesn’t smoke or drink in his home or workplace.

"All the world is a stage. When I go to the bar, I become a different person," he said.

Another smoking "actor" told a visitor he was a doctor from the Mayo Clinic and showed her "blood" stains on his long-sleeve shirt as proof.

"What kind of doctor?" the visitor asked.

He thought for a moment. "Orthopedic surgeon."

Economic factors

Hands shot proudly into the air last weekend when bartender Sarah Braun asked the crowd if there were any actors in the house.

"We’re going to fight this thing people — we need to," she shouted into a microphone from the karaoke stage.

Like the other employees at Bullseye, Braun is a smoker. Ripley, the owner, is not. 

Ripley opposes the ban because he thinks it violates personal freedom. He also says it’s harming establishments in an already down economic time.

Ripley, who took out a home-equity loan about five years ago to buy Bullseye, said he reviewed the law carefully before turning Bullseye into a theater.

Bar owners like him are just working creatively within the law to try to keep their businesses open, Ripley said, and he doesn’t like the way Bullseye has been portrayed as a renegade establishment.

Recently interviewed on KTLK-FM radio, Ripley told host Jason Lewis the state health department has its heart in the right place.

"[But] you have to balance health mandates with personal liberties," he said. "The smoking ban tips the scale too far in this case."

For Ripley, the financial weight of the ban has been heavy.

Sales dropped drastically when the ban took effect in October and were down an average 20 percent for five months, he said. They came back when theater performances began in March.

"I had employees upset that their tips had gone away and they were really having trouble making ends meet. I said, ‘I’m going to do everything in my power to keep all of your jobs,’ " he said.

Patrons don’t stay as long or drink as much if they have to go outside to smoke.

After hearing Barnacles Resort in Aitkin had successfully tried "theater nights," Ripley contacted his attorney and Barnacles to work out the legalities of starting his own performances

"I realized it was a viable option to keep revenue [up] and employees working," he said. Playbill

Steve Hamilton, a traveling DJ who performs at Bullseye, said he’s witnessed the bleeding of bar customers from border towns like Red Wing. One of his gigs was cancelled because it was too cold to expect smokers to come out, knowing they’d have to go outside if they wanted to light up.

Ripley said the man who delivers frozen pizzas to Bullseye has lost a lot of accounts and is being driven out of business, having laid off all of his workers.

Opponents of the law note that more than 190 establishments have closed since smoking bans started to be enacted in the Twin Cities area.

While not every closure can be directly attributed to the ban, Ken Rockler, director of the Tavern League, said the ban is a big factor, with closures five times what is considered normal.

In two recent meetings in outstate Minnesota with large groups of bar owners, Rockler said two-thirds predicted they will go out of business.

A lot of owners were willing to show their sales tax figures, he said, and many were down by up to 65 percent in gross sales.

"I’d predict by this time next year, if there weren’t some type of relief, there will be over 10,000 jobs lost," he said.

The statute

Given the tough economic times, Ripley said business owners should be commended for their ingenuity in keeping establishments afloat, rather than being prosecuted.

Although Bullseye could be fined up to $10,000 per violation, it isn’t facing a fine right now, Riley said.

Black trench coat-wearing inspectors showed up at Bullseye about 2:30 p.m. one day this spring with clipboards (Ripley thinks they might have watched the movie "Matrix" one too many times), but the inspectors didn’t find anyone smoking in the bar.

However, they spotted an ashtray, which had just been used by the bartender (who was "acting"), Ripley said. They also noted an aroma of smoke, he said. (He points out this would likely be there regardless, seeing as there’s been "smoking in that bar for 100 years."

Given the pending legislation, Linc Stine said he couldn’t comment on what exactly health inspectors found.

Ripley, who wasn’t at the bar at the time, said inspectors asked for him to be called and told he was supposed to come down and sign a paper saying what the bar was doing was illegal. Smoker

"I said, ‘Do what you have to do, we’re not going to sign a piece of paper when we don’t feel we’re doing something wrong [and we’ll] leave it up to the judge,’ " Ripley recounted.

This is the first injunction the state has filed against a bar, although it has issued warnings along with local municipalities, which have taken actions in a couple cases, said Stine.

The health department is seeking court action to clarify the intent of the law, hoping to put the issue to rest for other establishments as well.

"We think it’s important to get the position understood as soon as possible," Stine said.

The vast majority of establishments are complying with the ban, he said, noting that the department has been contacted by business owners who want a level playing field.

"We don’t want to suggest by anything we are doing that there is an egregious abuse of law by all bar owners," he said.

About 45 communities handle the licensing of local bars, restaurants and hotels, whereas the state is responsible for others like Bullseye, Linc Stine said. Businesses must follow the state clean indoor act in order to be licensed.

The department’s main concern with the theatre performances is to stop second-hand exposure to cigarette smoking, Linc Stine said.

Ripley, however, believes if the state was truly concerned about people’s health, legislators wouldn’t have exempted actors, which he thinks places them into a different class of citizens than bar patrons.

"We’ve leveled the playing field (with actors)," he said. "This ban isn’t about health — it’s about politics."

If the matter was really about second-hand smoke, Rockler said, legislators would allow smoking patrons to take their drinks into a warm shelter, which wouldn’t affect bar employees.

Loophole or not?

A recent article in the online newspaper, MinnPost, recounts court cases elsewhere in the United States, in which judges have struck down creative methods employed by establishments to try to skirt smoking bans, such as using candlesticks for ashtrays, enacting membership fees and giving employees shares of the business.

Unless a judge rules differently, Stine said he doesn’t think legislators need to clarify what is meant by the Freedom to Breathe act’s theater exemption.

Andrew Wittenborg, a Minnesota House DFL spokesman, said legislative leaders don’t see a real loophole in the smoking ban requiring fixing.

"If courts find there is a loophole that needs legislative action, then we’d probably do something," he said.

But Rockler, the Tavern League director, believes the real reason legislators haven’t addressed this issue is they don’t want to re-open the matter up for debate.

Now that it’s known how much the ban has hurt businesses, there wouldn’t be enough votes to clarify the language of the bill, Rockler said, and legislators don’t want the economic facts shown.

Ripley doesn’t believe the theater provision issue is even within the purview of the state department of health.

While the department might be good at assessing health risks, it’s not its job to assess what is or isn’t good theater, he said.

"We’re not good," he admitted. "We’re just amateurs, [but] we’re doing our best."

Shannon Fiecke can be reached at (952) 345-6679 or sfiecke@swpub.com.