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:

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Ban on smoking in N.Y. state parks reinstated

Reuters -  December 31, 2014 - By Daniel Wiessner 

Mayor Signs E-Cigarette Bill - Banning Smoking In Parks and Other Public Places

This afternoon Mayor Bloomberg signed 22 bills into law including a ban on the use of electronic cigarettes in public places reinforcing the Smoke-Free Air Act passed in 2002. That law banned cigarette smoking in bars and later in public parks and beaches.  Last week  the City Council voted 43-8 to approve the bill.   (Photo: Jefferson Siegel/New Yrok Daily News) 

The ban goes into effect on April 30, 2014. 

Last month the Mayor signed legislation raising the minimum age to purchase tobacco products from 18 to 21. 

FOR IMMEDIATE RELEASE

December 30, 2013

No. 443

www.nyc.gov

MAYOR BLOOMBERG SIGNS LEGISLATION PROHIBITING ELECTRONIC CIGARETTES IN AREAS WHERE COMBUSTIBLE CIGARETTES ARE PROHIBITED

Remarks by Mayor Michael R. Bloomberg at a Public Hearing on Local Laws

“The next bill before me is Introductory Number 1210-A, sponsored by Council Members Gennaro, Quinn, Arroyo, Greenfield, Vacca, Koo, Koppell, Richards, and Dromm.  This legislation amends the Smoke Free Air Act to prohibit electronic or e-cigarettes in all areas where combustible cigarettes are currently prohibited. 

“The City has made great strides in limiting the use of tobacco in public areas and thereby improving the health of all New Yorkers.  The United States Food and Drug Administration has stated they intend to regulate e-cigarettes as tobacco products, and states including New Jersey, North Dakota and Utah have taken steps to prohibit their use in bars and restaurants.  Organizations such as the American Lung Association, American Heart Association, American Cancer Society and Campaign for Tobacco-Free Kids support this legislation.

“E-cigarettes heat up a chemical solution and emit vapors to provide its user with nicotine, the same highly addictive ingredient found in combustible cigarettes.  The next generation of potential smokers could gravitate to getting their nicotine fix from these products.

“This legislation will help protect the gains we have made to reduce combustible cigarette use in New York City and will serve as an example for other municipalities to follow.

“I would like to thank the Department of Health and Mental Hygiene Commissioner Dr. Thomas Farley and his staff for their work on this bill, along with my Office of City Legislative Affairs.  I would also like to thank the City Council for approving this legislation.”

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New York Daily News - December 30, 2013 - By Erin Durkin 

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State Suspends Smoking Restrictions In Parks, Pools, Beaches Until Public Comment Peroid Is Concluded

In April 2012, New York State banned smoking in all of its State Parks. The New York State Office of Parks, Recreation & Historic Preservation operates 178 parks and 35 historic sites including 8 parks in NYC.

The State's enforcement suspension does not impact city parks.

State Wide

The Cuomo administration is suspending its restrictions on smoking in parks, pools, beaches and historic sites after a smokers' rights groups objected, according to the Associated Press.

Instead, the administration says Tuesday the measures will be voluntary for at least two months while a full rule-making process including public comment is concluded.

The state parks department issued its order in April after the Legislature failed to approve laws that would restrict smoking to some areas of the public facilities this summer. Failure to obey could have resulted in a disorderly conduct arrest.

Smokers' rights advocate Audrey Silk had threatened to sue the state, saying the administrative action tried to overrule the Legislature and failed to consider opposing views.

Signs prohibiting smoking have already been posted.

Read More:

Cuomo administration eases smoke ban

AP via: WABC News- May 29, 2012

Enforcement Of Smoking Ban In State Parks Put On Hold After "Controversy"

gothamist - May 29, 2012 - By Garth Johnston

Smoking Tickets Rise In City Parks

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Smoking Tickets Rise In City Parks

A couple enjoy more than a smoke in Union Square Park last May. After being criticized last year as being an "absolute joke", the Parks Department has quietly stepped up enforcement of the City's ban on smoking in parks, beaches and other public spaces. So far they have issued more tickets this year than in all of 2011.

84 tickets were issued between the law's May launch in 2011 and the end of year, while 108 summonses have been issued so far in 2012.

Internal Parks Department documents obtained by NYC Park Advocates last May revealed that smokers in parks could be fined up to $ 300 dollars, a figure six times greater than previously made public.

"These documents should be kept internally with Parks, " the memo states, "Please do not circulate to non-parks personnel."

Not Everyone Complies With The Law So Easily. In 2011 a Park Enforcement Patrol officer was assaulted on the main lawn in Union Square Park by a 6'4''- 260 pound park patron after the man was repeatedly asked to put out a cigarette. The man refused to produce ID and became belligerent and began cursing.

"I'm not giving you s**t," he reportedly said according to a source at the scene.

The burly man attempted to walk away, he brushed past the peace officer and failed to stop. A struggle ensued as the man tried to avoid arrest. He began to swing wildly and both men wound up down on the grass struggling. The man was eventually maced and was finally subdued. NYPD arrived and helped cuff him. While being searched the perpetrator was found to have a small plastic bag in his wallet which contained a "white powdery substance," of illegal drugs.

(Photo: Geoffrey Croft/NYC Park Advocates)

City-Wide

New York City has quietly stepped up enforcement of the ban on smoking in parks, beaches and other public spaces, issuing more tickets so far this year than in all of 2011, according to the Wall Street Journal.

Originally billed as a self-enforcing law, the ban has resulted in 108 summonses in 2012, up from 84 between its May launch and the end of last year, according to the city Department of Parks and Recreation. In the ban's first month, only one of the $50 summonses was issued—to a newspaper photographer who goaded agents to write a ticket.

The heightened enforcement comes as Mayor Michael Bloomberg introduced legislation Wednesday in the City Council that would require residential buildings in New York City to adopt a smoking policy and disclose it to prospective tenants and owners. The legislation doesn't dictate whether buildings should allow or disallow smoking.

The proposal was the latest effort in Mr. Bloomberg's global fight against tobacco and drew a round of questions on Wednesday. He defended the plan at a news conference, saying he wasn't planning to ban smoking in private dwellings.

"We're not trying to ban anything," he said. "I've always believed, as you know, that if you want to smoke I think you should have a right to do so. But it kills you."

City Council Speaker Christine Quinn said she hasn't yet reviewed the mayor's new proposal.

Mr. Bloomberg said he hoped more buildings would ban cigarettes on their own.

The city banned smoking in restaurants and bars in 2003. The mayor in 2011 signed into law an extension of that ban to include the city's 1,700 parks, 14 miles of beaches, marinas and pedestrian plazas, including Times Square.

The mayor has said he believes the ban on smoking in parks and beaches should be largely self-policed by New Yorkers. But park advocates and others have complained that the ban didn't have teeth, pointing to the relatively low number of summonses.

Asked whether the city was intentionally stepping up enforcement, parks Commissioner Adrian Benepe said in a statement that most New Yorkers follow the law.

"Summonses are issued as a last resort," he said. "We feel that, in general, the rules are making for a more healthful and pleasant park experience."

He said he has personally asked park-goers to put out cigarettes.

"On all those occasions, the smokers turned out to be visitors to New York City, unfamiliar with the rule, and they were immediately compliant and apologetic," he said.

Council Member Gale Brewer, a Manhattan Democrat who was the chief sponsor of extended ban, said: "I'm not interested in revenue. I'm not interested in people getting summonses."

But she said, "If you warn people and tell them, and they don't listen to the warning, I think they should get a summons."

Geoffrey Croft, a parks advocate, said the increased number of tickets is a "step in the right direction." "They passed a very sensible law," he said. "But obviously a lot of people are still flouting it."

Despite the ban, there are still many smokers in New York's public spaces.

Didier Offe, 56 years old, a tourist from France, was puffing on a cigarette at a Times Square table Wednesday. He wasn't aware of the law. "I think it's a good policy," he said.

Windsor Terrace resident Juliet Cooper said she often sees people lighting up in Prospect Park—and she said she tells them not to. "The park is a place that you come for clean air," she said.

—Alison Fox contributed to this article.

Read More:

Smoking Fines Go Up in Parks

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City amps up park smoking tickets

Metro NY - April 19, 2012 - Alison Bowen

City Steps Up Enforcement Of Parks Smoking Ban

NY1 News - April 19, 2012

Park Smoking Tickets Already Well Ahead Of 2011

gothamist - April 19, 2012 - By Garth Johnston

Tickets up in 2012 for smoking in NYC parks

The Associated Press - April 19, 2012

Smoking Banned In New York State Parks

A Walk In The Park - April 11, 2012

"Absolute Joke" Park Smoking Ban Yields One Ticket In First Month

A Walk In The Park - June 27, 2011

Daily Show Examines Park Smoking Ban Impact In Union Square's Methadone Alley

A Walk In The Park - June 21, 2011

As Expected New Smoking Law Ignored In Coney Island Boardwalk And Beach

A Walk In The Park - MAY 29, 2011

First Smoker Finally Ticketed In Ban - City Lies About Number Of Officers

A Walk In The Park - May 28, 2011

Battery Park City Excluded From City's Smoking Ban

A Walk In The Park - May 26, 2011

Mayor Confused About Parks Cigarette Smoking Enforcement

A Walk In The Park - February 12, 2011

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A Walk In The Park - February 2, 2011

Smoking Banned In New York State Parks

Smoking has been banned in all New York State Parks. The New York State Office of Parks, Recreation & Historic Preservation operates 178 parks and 35 historic sites including 8 parks in NYC.

State -Wide

State parks in the five boroughs are going smoke-free, according to the New York Daily News.

In announcing the ban Monday, state officials said it was done to make state parks consistent with their city-run counterparts, where smoking was outlawed last year.

Smoking will also be banned near pools and playgrounds at all other state parks outside of the city, as officials look to create “fresh-air” zones for parkgoers.

“State parks and historic sites should be healthy and clean places for our visitors, especially our youngest guests,” said Rose Harvey, commissioner of the state Office of Parks, Recreation & Historic Preservation.

Smokers who visit state parks in the city will be able to light one up only in certain designated parking lots.

Smoking is now also banned at food concession and gaming areas of state parks on Long Island, including the tennis, volleyball and shuffleboard courts at Jones Beach and the miniature golf course at Jones. The Jones Beach band shell and theater will also be smoke-free, officials said.

Read More:

Smoking banned in New York State Parks in New York City

Legislation affects parks outside city, too

New York Daily News - April 9, 2012 - By Glenn Blain

"Absolute Joke" Park Smoking Ban Yields One Ticket In First Month

Talya Grimberg of Israel enjoys a cigarette at Times Square. Last month the Parks Department lied about the number of Park Enforcement officers, it had claiming it had 400. (Photo: Natalie Keyssar for The Wall Street Journal)

City-Wide

In the first month of New York City's new smoking ban in 1,700 parks and along 14 miles of beaches, the city has issued a grand total of one ticket, according to the Wall Street Journal.

That single ticket went to a newspaper photographer who had been goading officials to issue a ticket, a spokeswoman for the city's Parks and Recreation Department said. The new ban—spanning parks, beaches, marinas as well as pedestrian plazas such as in Times Square—took effect May 23.

City officials say they always planned lax enforcement of the anti-smoking ban in the early days. They say their focus now is on getting the word out, not on writing tickets.

Still, the dearth of tickets, coupled with the reality that many people are flagrantly violating the law, has left some questioning whether the city is truly committed to keeping these new smoke-free zones actually smoke free.

"The new smoking law is an absolute joke," said Ida Sanoff, 59 years old, who lives in Brighton Beach, Brooklyn, and enjoys spending time at the ocean. "I have asthma and there are days when I've had to move my chair three times because people, sometimes in groups, sat down near me and started smoking like chimneys."

Ms. Sanoff said she's even spotted "vendors" selling cigarettes on the beach since the ban took effect.

"It doesn't make sense to put a law into place without any way of enforcing it. Why bother?" she said.

Since May 23, the Parks & Recreation Department has recorded roughly 700 instances in which officials approached smokers and informed them of the new law; in those cases, the smokers have been compliant, officials said.

Parks Department officials are authorized to enforce the law and may issue fines of $50 per violation.

But the city is hoping the law will largely be self-enforcing. When lawmakers passed the new law, they deliberately prohibited police officers from issuing any tickets related to the smoke ban.

Council Member Gale Brewer, the law's lead sponsor, said this will be the "summer of warnings."

"I don't want people to get tickets and feel like there is somebody doing this for revenue," she said. "I like the fact that there are warnings."

At some point in the future, if people continue to violate the law, Ms. Brewer said she expected the city will step up enforcement.

Adrian Benepe, commissioner of the parks department, and Dr. Thomas Farley, commissioner of the Department of Health and Mental Hygiene, declined requests for comment.

"As with any new law, compliance occurs over time as the public becomes increasingly aware of new rules," the health department said in a statement. "To educate New Yorkers and visitors about the new law, signage has been posted throughout the city's parks and beaches."

Earlier this month, Albert Wyse, a 28-year-old from Manhattan, enjoyed a cigarette while sitting on a bench in Washington Square Park. Mr. Wyse, who gave his cigarette to another park visitor to finish, said he was unaware of the ban in city parks. But knowledge of the law, he said, was unlikely to stop him from continuing to smoke in parks. "I don't think anyone cares because it's not really enforced," Mr. Wyse said. "I really can't see some police officer or park ranger coming up to me and telling me to put it out."

Still, he said, "I would put it out if I were asked politely."

Geoffrey Croft, of NYC Park Advocates, a nonprofit watchdog group, said the notion that the law will be self-enforced is "ridiculous." Smokers "kind of laugh" when told by citizens that they are violating the law," he said.

"They say, 'Well, if it's not going to be enforced, why should we stop smoking?'" he said. "People are going to continue to flout it, if there's no pressure to deal with it."

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As Expected New Smoking Law Ignored In Coney Island Boardwalk And Beach

A Walk In The Park - May 29, 2011

First Smoker Finally Ticketed In Ban - City Lies About Number Of Officers

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Battery Park City Excluded From City's Smoking Ban

A Walk In The Park - May 26, 2011 - By Geoffrey Croft

Mayor Signs Extended Smoking Ban For Parks/Beaches

A Walk In The Park - February 22, 2011

City Council Passes Smoking Ban For Parks and Beaches

A Walk In The Park - February 2, 2011

Mayor Confused About Parks Cigarette Smoking Enforcement

A Walk In The Park - February 12, 2011

Daily Show Examines Park Smoking Ban Impact In Union Square's Methadone Alley

Last night The Daily Show's awesome Samantha Bee reported on the NYC parks smoking ban from Union Square park, where she ironically juxtaposed the health-conscious smoking ban against the rather unhealthy realities of the park's "methadone alley," according to the gothamist.

After shot after shot of stumbling, spaced-out drug addicts upstage her interviews with anti-smoking advocates, Bee finally asks, "You know what else inhibits my enjoyment of the park? This giant undulating pile of human sorrow. I have to go home at the end of being in this park and scrub myself with a metal barbecue brush just to get all the sadness off. Are you fucking kidding me? Smoking?"

On the other hand, Bee is fair and balanced enough to confront a smoking scofflaw and demand to know "how are all those addicts behind you supposed to tweak properly with all of your secondhand smoke blowing in their face?"

View More:

Video: Daily Show Examines Park Smoking Ban Impact In Union Square's Methadone Alley

gothamist - June 21, 2011 - By John Del Signore

Arrests In Union Sq. Park Up 320 %

A Walk In The Park - June 20, 2011 - By Geoffrey Croft

Park Crime Surges - Calls For Increased Security

A Walk In The Park - June 15, 2011 - By Geoffrey Croft

First Smoker Finally Ticketed In Ban - City Lies About Number Of Officers

After flagrantly flouting the law PEP officer Carlton Conheim finally writes the City's first smoking ticket on the High Line. In a front page story, under the banner, CITY"S WACKY OUTDOOR SMOKING BAN, the Daily News spent a total of six hours doing everything they could to get a ticket five days after the ban went into effect. They got a first-hand look at the lax enforcement. The Parks Department falsely claims it has 400 officers patrolling its parks when in fact they have less than 100, and of those the majority are assigned to privately run contract parks (Photo: Kevin Hagen for the NY Daily News)

City Wide

The Daily News landed the city's first smoking ban ticket Friday - and it took all day to do it.

The News sent one staffer to the beach at Coney Island and another to the High Line, spending a total of six hours doing everything they could to get a ticket. They got a first-hand look at the lax enforcement.

Photographer Pearl Gabel, after flagrantly puffing in the presence of a Parks Department officer for a couple hours, finally scored about 6 p.m.

"I warned you before," said Officer Carlton Conheim, a smoldering enforcement agent with a menthol green uniform.

Then he wrote out a $50 summons for ignoring the ban, which began on Monday, that prohibits smoking in parks, pedestrian plazas and beaches.

"Have a nice day," Conheim said.

Then he turned on his heels and headed back down the High Line.

Getting the ticket wasn't easy.

Gabel had to walk a mile with her Camel Lights before she even saw a Parks officer. Standing 4 feet away, the officer refused to even look at the shutterbug, who was smoking like a chimney as he passed.

Newser Joe Jackson headed to Coney Island, lighting up his first American Spirits cigarette just after 2 p.m. An NYPD officer assigned to the 60th Precinct gave Jackson an immediate heads-up.

"Be careful," he said. "Parks Department will give you a ticket."

The NYPD will not enforce the smoking ban after several City Council members feared the new law would be an excuse to question and frisk people. But at the beach yesterday, it didn't appear Parks police were enforcing it either.

Two Parks police officers patrolling the Boardwalk in an SUV didn't give Jackson a second look as he took a drag on a cigarette. Other Parks officers made eye contact, but then zoomed by on four-wheelers.

Nearly four hours bled off the clock. Parks police officers rolled back and forth. Jackson burned through seven cigarettes. And nothing. Not even a warning from the Parks police.

The Parks Department has said that with 400 officers patrolling 1,700 parks and 14 miles of beaches, it doesn't have the manpower to enforce the law. City officials said they were depending on the public to enforce the ban.

Good luck with that.

Michael Mooney, 28, a soul singer from Queens, was enjoying the weather on the High Line yesterday. No one hassled him about his habit.

"I was smoking over by the bench and no one gave me a problem," he said.

Read More:

What a drag! News lands city's first parks smoking ban ticket after hours spent trying to get caught

New York Daily News - May 28, 2011 - By Pearl Gabel, Joe Jackson and Janon Fisher

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New York Daily News - May 24, 2011 - By Kerry Burke, Erin Einhorn and John Lauinger

Battery Park City Excluded From City's Smoking Ban

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