New York's Smoking Ban Is Improper, Judge Finds

     TROY, N.Y. (CN) - New York's parks agency wandered into legislative territory when it banned smoking at the beaches, pools and campgrounds it oversees, a judge ruled.
     The Albany County Supreme Court found that agency officials "exceeded their statutory authority, thereby violating the separation-of-powers doctrine." All "No Smoking" signs must now be removed statewide, and the agency cannot enforce the ban, Justice George Ceresia Jr. ordered.
     The agency released a statement Friday saying it may appeal.
     A New York City smokers' rights group, Citizens Lobbying Against Smoker Harassment, or CLASH, had sued the state Office of Parks, Recreation and Historic Preservation over the no-smoking rules, which were adopted in February.
     CLASH sued the agency last year, too, when a smoking ban first was announced. The agency later withdrew the ban for technical reasons, then resurrected it this year.
     Its rules banned outdoor smoking at more than 200 parks, recreational facilities and historic sites under the agency's jurisdiction, including a handful of state parks in New York City.
     The agency said that the state Legislature had given a "broad grant of authority to State Parks to manage and operate its facilities to protect public health, safety and welfare," according to the plan for the rules published in the State Register.
     CLASH, though, saw the regulations as usurping the Legislature's role as rulemaker and cited the landmark 1987 Court of Appeals decision in Boreali v. Axelrod on the constitutional separation of powers.
     Ceresia, in a nine-page decision dated Oct. 8, agreed.
     The separation-of-powers doctrine puts responsibility for making critical policy decisions with the Legislature, while the executive branch must then carry that policy out, he wrote. But while every executive act need not be specifically outlined by the Legislature, "the basic policy decisions underlying" them should link back to the Legislature, Ceresia noted, quoting precedent.
     In Boreali, he said, the Court of Appeals held that the state Public Health Council exceeded its delegated authority when it banned indoor smoking in public places. The high court said the council stretched public health law "beyond its constitutionally valid reach" to create rules "embodying its own assessment of what public policy ought to be," Ceresia noted.
     The Court of Appeals outlined four "coalescing circumstances" for judging when the line between agency rule-making and legislative policy-making was breached, he wrote.
     CLASH focused on two of the Boreali principles: whether the rulemaking occurred in the absence of legislative guidance, and whether the agency was taking action on something the Legislature had unsuccessfully attempted to address.
     On the former, Ceresia pointed out that state lawmakers had never established policies on outdoor tobacco use though they did eventually pass legislation to address the indoor-smoking issues raised in the Public Health Council. Nor does the broad language of state parks law empower the agency to write rules to protect park-users' health, according to the ruling.
     "Accordingly," the agency officials "extended their reach beyond interstitial rule-making and into the realm of legislating," Ceresia wrote.
     On the other Boreali principle CLASH cited, the judge listed numerous unsuccessful attempts by state lawmakers over the past decade to target smoking in public parks.
     "This is a strong indication that the Legislature is uncertain of how to address the issue," he wrote. "As the Court of Appeals aptly stated, 'repeated failures by the Legislature ... do not automatically entitle an administrative agency to take it upon itself to fill the vacuum and impose a solution of its own.'"
     Altogether, "the court finds that the Boreali factors strongly weigh in favor of invalidating" the parks agency ban, the judge concluded.
     Ceresia added that nothing in his decision was meant to limit the agency's "legitimate powers," or to express an opinion one way or the other on outdoor-smoking regulations - "provided that they are enacted by the government body with the authority to do so."
     On Friday afternoon, Gannett's Albany bureau posted online a statement from the parks agency in which it claimed "legislative authority ... to balance often-conflicting uses of our patrons."
     "We believe this authority extends to the regulation of outdoor smoking on playgrounds, swimming pools, beaches and other locations where children and visitors congregate," the parks agency said. "We are considering an appeal of the court's decision."
     CLASH called the decision "a victory for adults who choose to smoke."
     "We will not abide being stepped on or succumb to shaming as a means to silence us by arrogant activist actors who enact a rule that could only be accomplished by ignoring the rules," CLASH founder Audrey Silk said in a statement.
     Arguing the case for CLASH was Edward Paltzik of Joshpe Law Group in Manhattan. Assistant Attorney General Douglas Goglia represented the parks agency.