State Parks smoking ban headed for court fight

[Thomas3.20.2010]

A policy to ban smoking in public places such as parks, pools and playgrounds — enacted by the New York State Office of Parks, Recreation and Historic Preservation last month — has come under fire from a smoker's rights group, which is threatening to sue the state.

On April 9, the state parks agency announced the new policy would create smoke-free areas around all playgrounds, swimming pools, beaches, pavilions and outdoor seating areas that are nearby concession stands.

Violators will be informed by state park staff of the smoking prohibition, with those refusing to comply being cited by State Park Police for disorderly conduct.

With the very first paragraph of the announcement boasting the agency autonomously created the ban, State Parks Commissioner Rose Harvey said at the time, "it makes sense to ensure all visitors have a place to go in our parks to enjoy fresh air, while also protecting children from the dangers of second-hand smoke and litter from discarded cigarette butts."

The fact that the rule was enacted by an agency instead of by the state Legislature is at the heart of the issue though, according to Audrey Silk, founder of NYC Citizens Lobbying Against Smoker Harassment.

Calling the ban unconstitutional, Silk writes in a letter to Harvey, dated May 1, "the smoking ban … likely exceeds your authority and is ripe for legal action."

In the letter, Silk quotes the non-delegation doctrine of the state Constitution, article III section 1, which states "the legislative power of this state shall be vested in the Senate and Assembly."

Silk notes in the letter that, despite the power of passing legislation being given solely to the Legislature by the constitution, the ban was "unilaterally decreed" by the Parks Department.

"As an administrative office, [the Parks Department] can only enforce an existing piece of law or act, through rule-making, to fulfill the Legislature's wishes. In this case, no such wishes exist. In fact, the Legislature has repeatedly declined to pass this specific law for over a decade. The Parks Office, therefore, not only exceeded its administrative mission, not only assigned itself legislative powers, but in fact went against the Legislatures will," Silk wrote in the letter.

In asking for the department to rescind the "wrongly imposed ban," Silk requests action be taken in 30 days upon receiving the letter, or legal action will be taken.

"These bans were imposed by bureaucratic fiat, not legislated law and on that basis alone, they're unconstitutional," she said in a press release for the potential lawsuit.

The agency hasn't responded to the letters and a spokesman confirmed state Parks has proceeded with placing signs on state park property, warning visitors of the smoking ban.

In explaining the strength of her impending case, Silk points to two previously decided cases in New York state, each of which ruled that state agencies cannot make any such law, because the law would be unconstitutional.

The decision in Justiana vs. Niagara County reads, "even where the state Legislature has provided some guidance for the restriction of smoking, the enactment of further restrictions is a task properly left to the legislative arm of government. By adopting regulations that are substantially more restrictive than existing legislation, the [agency] went beyond interstitial rule-making and into the realm of legislating."

Dan Keefe, spokesman for the Parks Department, argues that nothing the agency did was unconstitutional. "The parks and recreation law allows for us to take action to protect the welfare and safety of the public. We think we are well within our right," said Keefe.

Saying the rule will only apply to "areas that people congregate," Keefe continued, saying the rule simply "protects people, particularly children, from the health risks of second hand smoke."

Asked if he was worried about the lawsuit, or if they would change their mind on the rules implementation, Keefe said, "No, we don't think people should smoke near children in playgrounds."

David Sutton, spokesman for the tobacco company Phillip Morris, agreed with Keefe, saying the company's stance on the issue is "that there are places where smoking should not be permitted at all."

"We maintain, however, that complete bans go too far [in outdoor areas,] except in very particular circumstances, such as outdoor areas primarily designed for children," said Sutton.

While Silk doesn't attempt to argue against the intent of protecting children, she remains steadfast in her stance that the way the law was created by a state agency is the issue, not necessarily the law itself.

"If these conditions are allowed to persist among our state agencies, we might as well render the election of lawmakers, the Legislature and its process, obsolete. It's contemptible when the bedrock of our system is being tossed away," concluded Silk.