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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
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Stub Out Those Smokes|in State-Run NYC Parks

(CN) - Bad news, smokers. Any outdoor location under the jurisdiction of the state parks department is off limits, New York's highest court ruled today.

When the New York Office of Parks, Recreation and Historic Preservation adopted its ban in 2013, a modified version of one put forward the year before, New York City was celebrating its 10th smoke-free year under the health initiative from the early days of the Bloomberg administration.

Among those not celebrating, however, was CLASH, short for Citizens Lobbying Against Smoker Harassment.

With the state ban poised to affect seven New York-run parks across the city, CLASH had the ban invalidated by a judge in Albany.

The trial court slammed the parks department for usurping legislative powers, but an appeals court reinstated the ban in 2014.

That ruling said protecting park-goers from second-hand smoke aligned with the parks department's health and safety responsibilities.

New York's highest court, the Court of Appeals, affirmed today.

"The exercise of an individual right is not limitless," Judge Eugene Fahey wrote for the seven-member court in Albany. "We may measure its limits against the damage it does to our neighbors."

CLASH's lawsuit had pointed to New York City Mayor Michael Bloomberg's failed attempt at regulating sugary drinks in New York City, but Fahey found the sugary-drinks regulation "easily distinguishable" from the smoking ban.

The former sought only to restrict portions by reducing consumption size, but the smoking ban sought to an outright prohibition, the ruling emphasizes.

Fahey also cited legislative intent in prohibiting second-hand smoke in public areas, including railroad stations, hospitals, and within 100 feet of an after-school program. "The legislature made the policy decision to limit smoking in certain areas of the state, and left it to state agencies to act within the confines of that determination," Fahey wrote.

CLASH's attorny, Edward Paltzik with the Joshpe Law Group in Manhattan, called the decision "bad for personal liberty and inconsistent with New York's constitution."

The smoking ban "should have been made by our elected representatives, not by appointed bureaucrats," Paltzik added.

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