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by runamok
on Sat Mar 08, 2008 11:32 am |
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runamok
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by runamok
on Tue Mar 11, 2008 9:47 am |
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Anybody else keeping up with this story?
This Mark Benjamin is creating a friggin' firestorm up here! I've never seen anything quite like it. |
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runamok
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by jcleitz
on Tue Mar 11, 2008 11:28 am |
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Any other states has loopholes like this? I love to see loopholes exploited. The whole point is there are actually people that will go and search out a place to smoke, and people that odnt like will go to their nice little non smoking places.... There can be comprimise.. why dont these antis see that...
I hope they all go down in flames like spitzer... which by the way, made my week.. He is such a prick.. He actually told a room full of people that sit on the board of a local hospital that half of them will be in jail by the time he is done with him... Last time he was invited to speak in front of them...
Jerk
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jcleitz
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by smallbird
on Wed Mar 12, 2008 11:36 pm |
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I think the term is "arrogant a$$hole jerk" jc!  |
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by runamok
on Thu Mar 13, 2008 8:41 am |
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Things are just getting crazier up here. The following is a letter by attorney Mark Benjamin in response to, what was apparently, a threatening letter sent to bar owners across the state concerning "theater nights".
AN OPEN LETTER TO MR. JOHN STINE, DIRECTOR, ENVIRONMENTAL HEALTH DIVISION, MINNESOTA DEPARTMENT OF HEALTH
Dear Mr. Stine,
A number of Minnesota bars have recently received your letter concerning Theater Night. You clearly state the opinion of the Minnesota Department of Health (MDH), namely that “’theater nights’ in bars do not fall within the theatrical production exemption of the MCIAA.” Your letter goes on to say:
Establishments that allow patrons and employees to smoke using the theatrical production exemption are violating the MCIAA regulations. Establishments electing to continue allowing patrons and employees to smoke indoors will be subject to formal enforcement procedures. The MCIAA regulations allow for both criminal and civil enforcement actions, including but not limited to, civil administrative penalties of up to $10,000 per violation. Establishments found in violation may also be subject to license suspension or revocation.
The Theater Night phenomenon has swept the state for more than four weeks now without a single ticket issued by a city police officer or a county sheriff.
Meanwhile, MDH fended off inquiries from the press for three weeks claiming that it was “conferring”, “consulting” and “studying the issue” with the Attorney General. And when the time came for release of the much-anticipated legal opinion, it came from MDH and not the Attorney General. We have learned that the “legal advice” upon which MDH relied did not come from the Attorney General. And MDH refuses to release a copy of the written legal opinion (if it even exists) upon which it relies.
Your letter makes reference to “formal enforcement procedures” that MDH will initiate (finally!) if establishments do not come into compliance. Since you have not informed the public about these procedures, I will.
Minnesota Statute 144.989 is known as the “Health Enforcement Consolidation Act”. Minnesota Statute 144.99 is titled “Enforcement”. Its subdivisions give your agency all of the legal tools it needs to enforce compliance with the smoking ban. To date, you have used none of them.
Like Subdivision 3 – “Correction orders” – that allows your commissioner to issue correction orders requiring a person to “correct a violation of the statutes, rules, and other actions listed in subdivision 1. The correction order must state the deficiencies that constitute the violation; the specific statute, rule, or other action; and the time by which the violation must be corrected.” Your letter doesn’t do that Mr. Stine.
Or Subdivision 4 – “Administrative penalty orders” – that allows your commissioner to “issue an order requiring violations to be corrected and administratively assessing monetary penalties for violations of the statutes, rules, and other actions listed in subdivision 1. The procedures in section 144.991 must be followed when issuing administrative penalty orders.” Your letter doesn’t do that either, Mr. Stine.
But let’s look at Minnesota Statute 144.991 so we can see what procedural process MDH has refused to invoke.
Subdivision 2 of that statute says the contents of an administrative penalty order “must include”:
(1) a concise statement of the facts alleged to constitute a violation;
(2) a reference to the section of the statute, rule, variance, order, stipulation agreement, or term or condition of a permit that has been violated; a statement of the amount of the administrative penalty to be imposed and the factors
upon which the penalty is based; and
(3) a statement of the person's right to review of the order.
If the bar doesn’t agree with the allegations contained in the administrative penalty order, the bar is entitled to an expedited administrative hearing under Subdivision 5. At such a hearing, MDH would be required to prove that “theatrical productions” in bars is not in compliance with the MCIAA and is an illegal activity.
Assuming that the administrative law judge was to rule against the bar and in favor of MDH, the bar can appeal his/her decision under Minnesota Statute 14.63 which states:
Any person aggrieved by a final decision in a contested case is entitled to judicial review of the decision under the provisions of sections 14.63 to 14.68, but nothing in sections 14.63 to 14.68 shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo provided by law. A petition for a writ of certiorari by an aggrieved person for judicial review under sections 14.63 to 14.68 must be filed with the Court of Appeals and served on the agency not more than 30 days after the party receives the final decision and order of the agency.
Given the constitutional issues involved here (a public health agency determining what constitutes a theatrical production), I think that it is highly likely that we would all end up at the Court of Appeals.
Mr. Stine, I am writing this to you as an “open letter” because I have found that the best way to confront bullying tactics is to do so openly. And there is little doubt in my mind that your letter is a bullying tactic.
Please have your agency avail itself of the law and enforce it as it sees fit. It is time to put up or shut up. Until then, the show must go on.
Sincerely yours,
Mark W. Benjamin
Attorney at Law
Criminal Defense, P.A.
237 Second Avenue SW, Suite 111
Cambridge, MN 55008
763-691-0900 (office)
763-670-9664 (mobile)
We got us a full-fledged rebellion going on! |
Last edited by runamok on Thu Mar 13, 2008 2:39 pm; edited 1 time in total |
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runamok
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by gilster
on Thu Mar 13, 2008 2:04 pm |
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| I've read the MN law and theater exemption is written very loosely, they can't fine these bars and restaurants the way the law is written now. |
Last edited by gilster on Thu Mar 13, 2008 4:08 pm; edited 1 time in total |
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gilster
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by runamok
on Thu Mar 13, 2008 2:40 pm |
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| I edited my previous post and filled in the gap. |
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runamok
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by gilster
on Thu Mar 13, 2008 4:07 pm |
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Thanks Runamok - Damn, that guy is good.
That letter was a "I triple-dog-dare-you"  |
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gilster
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by runamok
on Fri Mar 14, 2008 12:33 pm |
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Theater Night update.
This is a partial quote from somebody else...not me (I expect this will be put on http://freedomtoact.com/ in its entirety soon):
I have been told by my senator that the ban proponents are scurrying around the floor like chickens with their heads cut off. He's apparently finding the whole situation highly amusing from the tone of the email I got from him. They're afraid to simply open the FTBA (Freedom to Breathe Act) to amend it because they don't think that they have the votes to amend it and pass it, quite the opposite, they're afraid there are enough votes to repeal the ban should they move to open it. As a result, the proponents are trying to get the MDH (MN Dept. of Health) and the cities to do their dirty work for them in the form of threats and intimidation.
They don't want to open the ban and they don't want one of these cases in court too quickly. They're waiting for the election to see if they fill more seats with ban supporters before they try to open the ban. They're hoping that the "heavy-handed enforcement" will be enough of a deterent that they may not need to re-open the FTBA when it all comes down to it. |
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runamok
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by runamok
on Sat Mar 15, 2008 2:39 am |
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Update:
Mark W. Benjamin
Criminal Defense, P.A.
237 Second Avenue SW, Suite 111
Cambridge, MN 55008
763-691-0900 (office)
763-670-9664 (mobile)
Press Release
Finally! A ticket is issued to a brave Minnesota bar owner hosting Theater Night – and Mark Benjamin will request a court trial at the earliest possible date to test the legality of the “theatrical productions” exception to the state-wide smoking ban.
Friday, March 14, 2008. This afternoon Chief of Police Terry Switajewski drove out to Tank’s Bar located at 14 Alder Road in the City of Babbitt and issued a ticket to the owner, Thomas Marinaro. The crime? Smoking in violation of Minnesota’s state-wide smoking ban. Mr. Marinaro’s reaction? He lit up another cigarette, put his ticket in a frame and proudly hung it on the wall.
Independent and free Iron Ranger that he is, Mr. Marinaro said he will continue hosting Theater Night in his bar even if tickets rain down like confetti. He contacted Mark Benjamin this afternoon and an agreement was made for Mr. Benjamin to represent him free of charge.
The first court appearance is set for Friday, April 4, 2008 at 8:30 a.m. However, Mr. Benjamin will waive that hearing and request a court trial at the earliest possible date. He will bring a motion to dismiss prior to trial, arguing that the “theatrical productions” exception is unconstitutionally vague. “It is time for the rest of the state to find out what the Department of Health already knows, namely, that Minnesota’s smoking ban is unenforceable,” said Benjamin.
The City Attorney representing Babbitt is Michael K. Kearney of Colosimo, Patchin, Kearney, Brunfelt, Ltd. located at Law Center Building, 301 Chestnut Street, Virginia, MN 55792. He can be reached at (218) 741-4500.
The Babbitt Village Police Department is located at 71 South Drive, Babbitt, MN 55706. Police Chief Switajewski can be reached at (218) 827-2441. |
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runamok
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