New York Sued Over Outdoor Smoking

     ALBANY, N.Y. (CN) – A smokers’ rights group asked a state judge to throw out a ban on outdoor smoking at state-owned pools and playgrounds, claiming the state parks department overstepped its bounds.
     New York City-based Citizens Lobbying Against Smoker Harassment, or CLASH, sued the New York State Office of Parks, Recreation & Historic Preservation in Albany County Supreme Court. It claims the parks department “has acted and continues to act in an arbitrary, capricious and unlawful manner, and without any legislative authorization, thereby causing ongoing harm to New York state residents who choose to smoke at outdoor locations in state parks and historic sites.”
     CLASH states on its website: “Our goal is to end the discrimination against smokers by exposing the anti-smoking lies.”
     In its lawsuit, it claims the parks department announced the new restrictions in April without first sending them through normal rule-making channels. That process requires publication of proposed regulations in the State Register and a public-comment period.
     Instead, a week after its announcement, the parks department submitted a so-called “consensus rule” – a fast-track method to move along regulatory tweaks or new rules that are not controversial. But the agency failed to meet the requirement of clearly explaining why no one was likely to object to the new measures as written, according to CLASH.
     In an April press release that outlined the new policy, the agency said smoke-free zones would be created around playgrounds and swimming pools and in other specially designated areas of sites under its jurisdiction, such as public gardens, some beaches, picnic shelters and outdoor seating near food concessions.
     Six state parks in New York City also would become smoke-free, consistent with the policy in effect for parks that are run by the city.
     The agency, which manages 178 parks and 35 historic sites in New York, attached to its press release an extensive list of affected outdoor locations.
     CLASH says the April announcement wasn’t the first example of the agency’s “overreaching attempt at legislating.”
     In November 2011, a policy statement was posted “surreptitiously” on the agency’s website, outlining nearly identical restrictions on smoking at parks and historic sites, according to CLASH.
     The statement was signed by defendant Commissioner Rose Harvey.
     CLASH objected to the smoking restrictions in a May letter, calling them “a clear case of a rule imposed by bureaucratic fiat, not legislated law,” and threatened legal action if they were not rescinded.
     The agency responded that it would suspend enforcement pending a public comment period, telling CLASH, “this season, nonsmoking will be on a voluntary basis.”
     The agency indicated it would withdraw its “consensus rule” submission and subject the regulations to the normal rule-making protocol of State Register publication and public comment, according to the complaint.
     CLASH claims the agency is out of touch in thinking the public would see the ban on outdoor smoking as modest, “unfathomably believing that more restrictions on citizens who smoke would be ‘non-controversial’ and that not one person would object, despite CLASH’s well-publicized 12-year history of fighting smoking bans in New York.”
     Suspension of the policy “is an admission that [the agency] had no authority to institute the policy in the first place and that OPRHP’s unilateral and surreptitious creation of the policy was a flagrant disregard for the normal rule-making process,” the complaint states.
     Despite its backpedaling, the agency said the no-smoking signs erected soon after the April announcement would remain. CLASH wants them taken down.
     “The signs serve only to fool park visitors into thinking that an unofficial policy has the force of law that must be followed,” the complaint states. “The signs will also cause smokers to be subjected to hostile confrontations by non-smoking park visitors who will criticize, reprimand and ridicule them, and report them to the [agency] staff and/or law enforcement personnel, because the non-smoking park visitors mistakenly believe that smoking is prohibited in outdoor areas.”
     “In fact,” CLASH claims, the agency “is counting on public participation in enforcing the ban.”
     “The continued presence of the signs on [agency] property constitutes arbitrary, capricious and unlawful bad faith on OPRHP’s part and serves as a coercive tactic to induce compliance with a moral, rather than a legal, dictate,” the complaint states.
     CLASH claims the agency “lacks any authority” to implement the policy, keep the signs in place, or urge park visitors “to comply with imaginary smoking restrictions.”
     CLASH asks the court to order the agency to remove the no-smoking signs immediately, and to bar enforcement of any regulation prohibiting or restricting outdoor smoking or tobacco use at any site overseen by the agency.
     CLASH is represented by Brett Joshpe, of New York City.

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