Area theater companies say the new state smoking ban is sending their constitutional freedoms up in smoke, and they plan to fight it.
The law makes it illegal to light up anything on an indoor stage – whether it’s tobacco or not. Now at least two theater companies and a powerhouse Denver law firm are gearing up for what they consider to be an inevitable showdown in court.
Not even state Rep. Mike May, R-Parker, who wrote the smoking-ban legislation that went into effect July 1, ever intended his law to affect theater performances.
“But I guess no good idea goes unpunished,” said attorney Bruce Jones of Holland & Hart, where fellow partner Steve Choquette also serves as board president of Denver’s Curious Theatre Company. If asked to challenge the law, Jones said, “I am ready to help.”
But will anyone really complain, and if they do, will government officials issue a citation?
“I guarantee you, someone will” complain, said Michael J. Duran, artistic director of Boulder’s Dinner Theatre. “This is Boulder. People complain about smoking in every show we do, even though it is legal and we don’t use real tobacco.”
And state officials say no matter how trivial the violation might seem to some, they have no leeway.
“What the law says is that there is no smoking of any kind in an indoor area unless listed as an exception,” Deb Montgomery of the Colorado Department of Public Health and Environment told The Denver Post last month. “Unless theaters are listed as an exception, my understanding is that the law applies to them. We can’t interpret the law.”
The Boulder theater group and Curious are ready to take on the issue. In 1996, Jones led a successful challenge to a city of Boulder smoking ordinance that drew international attention after it was used to crack down on a Boulder’s Dinner Theatre staging of “Grand Hotel.” After weeks of negative publicity, the city adopted an amendment exempting live performances.
That’s what May intended a few months ago when he voted for an unsuccessful amendment that would have specifically excluded stage performances. “(Now) I would have to agree … that smoking is not permitted for any stage show,” he said.
Actors have not smoked tobacco on area stages for years, not because of any law but out of deference to audience members. They mostly smoke noncarcinogenic herbs, tea or talcum powder. But companies that have sought clarification from county and state officials have been advised to hire a lawyer if they decide to smoke any substance on stage.
Curious Theatre Company artistic director Chip Walton isn’t itching for a court fight, but now that the law is in effect, he believes it is inevitable.
“I’m sure it’s going to have to happen,” he said. “Just because the legislature considered a stage exemption and rejected it, that does not trump the First Amendment.”
Added Jones: “It took a lawsuit 10 years ago for people to settle down and look at things reasonably in Boulder. And it may be necessary here as well.”
Walton believes there are certain plays where smoking is “absolutely central” to a playwright’s artistic vision. There are what he considers to be several non-negotiable smoking scenes in his upcoming production of “tempOdyssey.” It’s the story of a temp worker who flouts the permanent employment world by taking smoke breaks whenever he can.
“Removing the smoking portions of the script would literally involve going back to the playwright and asking him to change his text, and that to me is an infringement on the playwright’s vision,” Walton said.
Duran faces a similar problem with his upcoming staging of Neil Simon’s “Sweet Charity.” In that story, Charity is stuck in a closet and lights up a cigarette. She doesn’t know what to do with the smoke, so she blows it into a garment bag.
“When you sign a contract with a publishing house to perform someone’s work, you are obligated to present the show as written,” Duran said.
Duran may yet go forward with the smoking scene, even though he risks a $200 fine if anyone rats him out. His only alternative would be to have his actor mime the bit – “But how do you mime a puff of smoke?”
Theater critic John Moore can be reached at 303-820-1056 or jmoore@denverpost.com.
What has happened in other states
While strict no-smoking laws have gone into effect in many states, there are few instances where actors smoking onstage have prompted legal action. However, it does appear that no-smoking laws routinely bar on-stage smoking and require theaters to apply for a variance. Some examples:
Chicago: Earlier this year, actors smoked onstage in performances of a Frank Sinatra tribute and at a David Mamet festival. Tim Hadac, a spokesman for the Chicago Department of Public Health in charge of enforcing the Chicago Clean Indoor Air Ordinance, said they were in violation of the law. However, he added, it’s unlikely to be enforced. “This is about like spitting on the sidewalk. It’s just not an issue.”
Nebraska: While the state does not have a statewide smoking ban, Lincoln and Omaha do have city bans. Comedian Ron White, who lit up on stage last year, drew a citation for Lincoln’s Pershing Center.
New York: A production of “Cabaret” in Suffolk County drew a warning to quit smoking on stage in 2003, and a state health department spokesman made it clear that unless a waiver is granted, all theaters must be smoke-free, onstage and off.
Source: Denver Post research by Barry Osborne