State taking Garrison bar to court

The state is taking the Bird's Nest in Garrison to court over the bar's use of a theatrical performance as a means to get around the state's smoking ban.

The Minnesota Department of Health announced Tuesday it had served a summons and complaint against Roberta J. "Birdie" Johnson, owner of the Bird's Nest, stating the bar and restaurant has been in violation of the Freedom to Breathe Act by allowing customers to smoke inside while claiming they are actors in a play with a script that calls for smoking. The civil action was to be filed in Crow Wing County District Court.

This is the third time the health department has filed complaints in Minnesota seeking an injunction against a bar that allows smoking as part of a theatrical performance. The others are in Elko and South St. Paul.

Minnesota Department of Health spokesman Doug Schultz said a vast majority of bar owners in Minnesota are in compliance with the smoking ban. He said for those that aren't, legal action is the last course of action the department wants to take.

"Unfortunately there are some circumstances where we need to use it," Schultz said.

"Essentially what we're saying, our overriding concern is protecting the health of Minnesota's workers and citizens from hazardous secondhand smoke. We believe this (summons and complaint) is the right step to take."

Johnson was served with the complaint on Friday. When reached at her Garrison home Tuesday night, Johnson said she had stopped having theater nights at the Bird's Nest two weeks before being served.

Johnson declined to comment further on the health department's summons and complaint.

According to the complaint filed against Johnson, after the health department received four complaints of smoking under the guise of a theatrical performance at the Bird's Nest, a health inspector contacted Johnson, who responded that smoking was allowed during theatrical performances and she intended to continue to allow smoking during the performances.

At the Bird's Nest on March 28, health department officials observed a sign outside the main entrance announcing the presentation of a performance of "Birdie's On Broadway" from 10 a.m.-1 a.m. daily at which smoking would take place and that patrons could be actors and thus smoke indoors.

Inside the Bird's Nest, a bartender wearing an "I'm an Actor" button told health department officials that smoking was allowed in the bar because of the theatrical performance exception in the state's smoking ban and that the entire bar was the stage. The bartender provided health department officials with a playbill that stated anyone who bought an "Act Now" button could smoke indoors.

The health department is asking the court to declare the theater nights being held at the Bird's Nest in violation of the state's Freedom to Breathe Act and to order the Bird's Nest to stop smoking in the bar.

The Freedom to Breathe Act was signed into law by Gov. Tim Pawlenty to protect employees and the public from the health hazards of secondhand smoke. The law went into effect Oct. 1.

Businesses have to post no smoking signs, ask people who are smoking to stop or leave if they refuse, refrain from providing ashtrays and refuse to serve non-compliant people. Businesses will be monitored for compliance by the department of health, and local law enforcement agencies can issue petty misdemeanor citations for businesses or individuals who don't comply.

While the Freedom to Breathe Act includes an exemption allowing smoking by actors and actresses as part of a theatrical performance, after seeking legal advice the health department in March determined theater nights being held in bars do not fall within the theatrical production exemption.

Outdoor smoking is still allowed under the smoking ban, regardless of distance from building openings such as doors or windows.

MATT ERICKSON may be reached at matt.erickson@brainerddispatch.com or 855-5857.