MINNEAPOLIS, April 14, 2008—The Minnesota Department of Health (MDH) has filed a formal complaint against the Bullseye Saloon in Elko, which has been flouting the state's Freedom to Breathe law by holding "theatrical performances" in which bar patrons are allowed to smoke.

Describing the performances as a "sham," the MDH maintains that the bar's claim that putting on a play exempts it from the law is false, and it seeks penalties against the Bullseye Saloon.

The MDH also submitted, as part of the process, a detailed memorandum showing that phony theatrical performances were in clear violation of state law, and that the Department of Health is acting within its authority to file suit against violators of Freedom to Breathe.

The law empowers the MDH to fine violating businesses up to $10,000.

The MDH argument is that Bullseye Saloon’s patrons and employees are not actual actors and actresses in a real theatrical performance, as contemplated by the Freedom to Breathe Act (FTB) and that the bar establishment’s position – that its smoking activity is legal – is not supported by the general principles of statutory interpretation and construction applied by courts in a legal dispute such as this.

Since the tavern's conduct does not constitute a theatrical performance, the narrow statutory exception does not apply.

The Minnesota Attorney General’s Office is representing the department in this request for an injunction, and the department has been informed that a hearing will be held on April 30.

In the formal complaint, Commissioner of Health Sanne Magnan, M.D., asks that the 1st District  Court declare "theater nights" a violation of Freedom to Breathe, and that Bulleye Saloon be immediately enjoined from allowing further smoking indoors.

The tavern has been holding "theater nights" from 8 a.m. to 2 a.m., seven nights a week, selling "I'm an actor" buttons to customers, and providing ashtrays for their use.

Inspectors visiting the tavern on March 18 saw smokers and ashtrays, but no sign of a legitimate theatrical performance.

"We're down to a couple handfuls of establishments that are choosing not to comply with the law despite being given numerous opportunities to," Magnan said.