Thursday, January 1, 2015

Smoking Ban In N.Y. State Parks Reinstated

State Wide
A New York appeals court reinstated the ban Wednesday on smoking in New York state parks, including beaches, pools and campgrounds, according to Courthouse News Service. 
 The New Year's Eve ruling comes as a blow to Citizens Lobbying Against Smoker Harassment, or CLASH, which sued the New York Office of Parks, Recreation and Historic Preservation over no-smoking rules that were adopted last year.
 Among the more than 200 state parks, recreational facilities and historic sites where the new rules banned smoking were a handful of places 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, codified at 9 NYCRR 386.1, as usurping the Legislature's role as rulemaker.
 Albany County Supreme Court Justice George Ceresia agreed with the group in October 2013 and invalidated the smoking ban under Boreali v. Axelrod, the landmark separation-of-powers decision in 1987 by the New York Court of Appeals.
 Citing that same decision, the Appellate Division's Third Judicial Department sided with the state on Wednesday.
"Applying the four Boreali considerations, we find no usurpation of the Legislature's prerogative by respondents' promulgation of 9 NYCRR 386.1," Presiding Justice Karen Peters wrote for a three-judge panel.
 "First, we find no indication that OPRHP improperly balanced economic and social concerns against its stated goal in order to act on its own ideas of sound public policy."
 Though CLASH had claimed that the state improperly considered economic concerns in mentioning possible operational savings that the regulation would involve, Peters did not see this as "the kind of improper balancing proscribed under Boreali."
 "Given the nature of OPRHP's facilities, designating the more populated areas as nonsmoking, while still permitting smoking in other areas of the facilities, allows all patrons to enjoy the parks regardless of their smoking preference," Peters wrote. 
"As for the New York City parks, the near-complete ban on smoking there even more strongly supports respondents' goal, by recognizing that these smaller parks are more thoroughly populated and, therefore, leave little space for patrons to avoid tobacco smoke and litter. Meanwhile, these same characteristics allow smokers to easily exit the parks in order to access an area where smoking is permitted."
 The court credited New York's argument that the regulation serves the stated purpose of letting "all patrons to enjoy the fresh air and natural beauty of its outdoor facilities."
 Another purpose that the law serves is "OPRHP's 'legislatively expressed goals' to operate and maintain the parks and to provide for the health, safety and welfare of their patrons," according to the eight-page ruling.
 Peters also cited the "minimal interference with the personal autonomy of those whose health is being protected, and [the] value judgments concerning the underlying ends are widely shared."
 Unlike when the Court of Appeals struck down a smoking regulation in Boreali "over a quarter century ago," the designation of no smoking areas is no longer the "subject of great public debate" that it once was, Peters added.
 The court cited precedent for the agency's action, as well, noting pre-existing bans on smoking at playgrounds, and the instruction that "smoking may not be permitted where prohibited by any other law, rule or regulation of any state agency or any political subdivision of the state."
While there may not exist a specific statutory delegation of authority directing respondents to establish no smoking areas, 'the Legislature is not required in its enactments to supply agencies with rigid marching orders.' 
Moreover, OPRHP has regulated the activity of patrons at its parks and facilities pursuant to its statutory authority for decades without interference from the Legislature," Peters wrote.
 While the doctrine of agency deference helps the state, failed bills in both the Senate and the Assembly, concerning prohibitions against smoking in outdoor areas, did not bring the court to CLASH's side either.
"In developing the challenged regulation, OPRHP considered the nature of the properties under its jurisdiction in order to determine how best to locate the no smoking areas; this is evidenced by the rule's treatment of parks in New York City, which differ in size and setting from the parks elsewhere in the state," Peters wrote.
 The ruling concludes with a rejection of the idea that the regulations treat New York City's state parks differently, compared with state parks in the rest of New York.
 "Inasmuch as the different treatment of parks located in New York City is not unreasonable, arbitrary or capricious, we decline to annul the regulation on that basis," Peters wrote.
 Edward Paltzik of Joshpe Law Group in Manhattan represented CLASH. Attorney General Eric Schneiderman represented the parks agency.
 Though the OPRHP first was announced the smoking ban in 2012, prompting a suit by CLASH, the agency withdrew that ban for technical reasons and resurrected it in 2013. 
The case is NYC C.L.A.S.H. v. New York State Office of Parks, Recreation and Historic Preservation, New York State Supreme Court, Appellate Division, Third Department, No. 519023.
Read More:

Courthouse News Service - December 31, 2014  - By Barbara Leonard

Reuters -  December 31, 2014 - By Daniel Wiessner 

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