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An appeals court hearing in Duluth on Thursday, over the theater nights smoking ban issue.
Last spring, Tom "Tank" Marinaro was cited for allowing smoking in his Babbitt bar. Marinaro was using the theater nights loophole in the statewide smoking ban.
He was convicted of a petty misdemeanor, and appealed his case.
His attorney, Mark Benjamin, said they will not give up.
"If we lose, we'll go to Theater Nights 2.0, and make stages, get scripts, and costumes," he said on the steps of the courthouse on Thursday.
The attorney representing Babbitt did not want to comment on the case.
The appeals court has 90 days to rule.
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