The smoking ban prohibits smoking in bars and restaurants, but allows it indoors for theatrical productions.
Bar owners have recently gotten around the ban by printing playbills and declaring the bar a theatre and customers actors, even though they don't have to wear costumes.
Bar owners maintain they can do this, because the smoking ban doesn't clearly define what a theatrical production is.
But Health Commissioner Sanne Magnan announced Wednesday that bar theatre nights are not exempt from the ban.
Magnan said the exemption was never intended to fill up a whole room full of people smoking in a public place. She said bars that continue holding theatre nights are opening themselves up to fines of up to $10,000.
Theatre night was the brainchild of Cambridge, Minn., attorney Mark Benjamin, who used his moment in the spotlight to issue a dramatic challenge.
"The Minnesota Department of Health is not on the right side of the law, we are," said Benjamin. "So I am putting out a public challenge to the Minnesota Department of Health as of today that I will drive down in my little Geo Metro to St. Paul or wherever they want to have this, and we will both participate in a live, unscripted television debate. And we will hash this out once and for all as to whether or not this is legal."
Benjamin said that until the law is rewritten or he hears directly from the state attorney general on whether it is legal, he will continue helping bar owners organize their own theatre nights.
But State Sen. Kathy Sheran, DFL-Mankato, who helped write the Freedom to Breathe Act, said the language of the law is already clear enough.
"The discussion about changing the law is, in this environment, only suggests that the problem is the law. The problem is not the law. The problem is the theatrical performances that are in violation of the law, and it is a law that is about protecting the public's health," said Sheran.
Sheran said bar owners who violate the law could lose their licenses, which she said, carry obligations to protect the public health.
Health officials are refusing to release the legal advice they received on the ban from the Attorney General. The Attorney General's office will only say the department's actions are not inconsistent with that advice.
Barnacles Resort in Aitkin was the first bar in the state to hold theatre night.
Co-owner Sheila Kromer called the health department's recent announcement a scare tactic, and said she does not plan to stop now. She said she is still convinced theatre night is legal.
"You know, we are working within the guidelines of the law. I've never done anything illegal in my entire life and I'm not going to start now," Kromer said.
Kromer said she was inspired to hold theatre night after doing the bar's taxes. That's when she saw in black and white how much business she's lost since October, when the smoking ban went into effect.
She said sales were down more than 26 percent in January.
Kromer said just holding theatre night twice a week has been a big help to her family, and she's hoping that all the attention generated by theatre night will convince the state to rewrite the law.
"There is a compromise that could get made here," Kromer said. "We are just asking the legislature to please, open up the law. Let us have a smoke room. Non-smokers wouldn't go in there. Is it so hard to do something like that, so we could be warm and not freeze?"
Kromer said even her non-smoking customers are happy about theatre night, because they feel the state has overstepped its bounds.
But health department officials say bars have an obligation to protect the health of customers and employees.
The ban allows the department to levy fines, but officials said they first plan to educate bar owners about the law before imposing penalties.
Ultimately, it appears the last scene of this drama may be played out in a courtroom.