Posted by Eugene Volokh:
All The World's A Stage, And All the Men and Women Merely Players":
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247608977
From [1]People v. Marinaro (Minn. Ct. App.) (some paragraph breaks
added):
The Minnesota Clean Indoor Air Act prohibits smoking in numerous
indoor public places, including bars and restaurants. But the act
makes an exception for actors and actresses while they are engaged
in theatrical performances. Thomas Eugene Marinaro, the proprietor
of Tank's Bar in the city of Babbitt, sought to invoke that
exception by organizing an event at which participants smoked
cigarettes in his bar....
On March 14, 2008, the Babbitt Police Department conducted an
investigation of reports of unlawful smoking at Tank�s Bar after
receiving complaints. Police Chief Terrance Switajewski sent
Officer Trevor Lionberger to the bar in plain clothes to
investigate. Officer Lionberger arrived at the bar at approximately
1:00 p.m. He saw a sign on the door stating that a theatrical
performance of Gun SMOKE Monologues
would occur every day, beginning at 3:00 p.m. and continuing until
closing time. The sign described Gun SMOKE Monologues as a
�Theatrical Performance and Satire Regarding the Minnesota
Legislature and the Freedom to Breathe Act� and stated that smoking
would occur during the performances. Officer Lionberger entered the
bar, did not see anyone smoking, and left after a short time.
Officer Lionberger returned to the bar at approximately 2:55 p.m.
After a few minutes, he saw that several customers were smoking
cigarettes and wearing name tags that said, �Actor.� Although the
barroom includes a stage, none of the smokers was on the stage.
Officer Lionberger did not see any indicia of a typical theatrical
performance. Officer Lionberger testified that the customers
wearing �Actor� name tags appeared to behave no differently than
bar customers ordinarily behave except for the fact that they were
smoking cigarettes....
The district court concluded that no �theatrical performance�
occurred on March 14, 2008, notwithstanding the labels attached by
Marinaro to his customers� conduct, and notwithstanding some
superficial similarities between the customers� conduct and a
genuine theatrical performance. The district court�s conclusion is
consistent with common definitions of key words in the act. The
word �performance� is defined as a �presentation before an
audience,� The American Heritage College Dictionary 1034 (4th ed.
2007), or the �execution in a set or formal manner or with
technical or artistic skill,� Webster�s New Int�l Dictionary 1818
(2d ed. 1946). The word �theatrical� is defined as �[of], relating
to, or suitable for dramatic performance or the theater,� The
American Heritage College Dictionary 1428 (4th ed. 2007), or
pertaining to �dramatic representations,� Webster�s New Int�l
Dictionary 2617 (2d ed. 1946). In light of its findings of fact,
the district court did not err in its interpretation of the
theatrical-performance exception to the act�s smoking ban.
The particular facts of this case do not present a close question
because Gun SMOKE Monologues
, in its objective manifestations, had little resemblance to a
genuine theatrical performance....
For more, including the district court's reasoning (which the court of
appeals largely endorses), see the opinion.
References
1. http://www.courts.state.mn.us/opinions/coa/current/opa080972-0714.pdf
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