A policy instituted April 9 by the state parks agency created smoke-free zones around all areas where children congregate, like swimming areas at Jones Beach pictured above. After a New York City smokers’ rights group challenged the ban’s constitutionality, the policy will undergo a procedural review. For the time being, the state Office of Parks is asking smokers to refrain on a voluntary basis. Photo by AP.
June 04, 2012The New York State Office of Parks, Recreation and Historic Preservation has temporarily decided against pursuing a policy to ban smoking in public places where children congregate — such as parks, pools and playgrounds — yielding to a challenge from a smokers' rights group.
On April 9, the state parks agency announced a new policy creating smoke-free areas around all playgrounds, swimming pools, beaches, pavilions and outdoor seating areas near concession stands.
With the very first paragraph of the announcement boasting the agency unilaterally 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."
According to parks department spokesman Dan Keefe, the rule was implemented through "consensus rule, that anticipated no controversy or comments." Agencies are entitled under law to make non-controversial rules without public comment, but once an objection is raised, the full regulatory rule making process must be allowed to proceed.
In a May 1 letter to Harvey, a smoker's rights group, NYC Citizens Lobbying Against Smoker Harassment (CLASH), threatened to sue the state if the agency didn't rescind the "unilaterally decreed" ban within 30 days of receiving the letter.
Audrey Silk, founder of CLASH, said in the letter, "The smoking ban … likely exceeds your authority and is ripe for legal action." The letter also quotes the non-delegation doctrine of the state Constitution, Article II, Section 1, which states "the legislative power of this state shall be vested in the Senate and Assembly."
"These bans were imposed by bureaucratic fiat, not legislated law and on that basis alone, they're unconstitutional," Silk said in a May 3 press release about the potential lawsuit.
Silk said by phone last week she was told the suspension of the consensus-rule smoking ban is a direct result of her letter. She said officials "didn't expect anyone to object," and because she did, they had to suspend enforcement and allow public comment.
"Acknowledging that it acted without regard for an opposing view in rushing through a smoking ban," said Silk, "the Office of Parks, Recreation and Historic Preservation has suspended the ban."
Silk said the parks department's Associate Counsel Kathleen Martens told her on May 25, days before Silk's self-expressed 30-day litigation-free period, "this season, nonsmoking will be on a voluntary basis."
"We won't be issuing tickets. Right now, it's a policy based in common sense and common courtesy," said Keefe, who added the process for making the rule will take a couple of months.
After saying Martens told her the parks department would be taking "another stab" at a smoking ban, Silk gave some free legal advice to the agency, instructing them to "review Section 1399X of the New York State Clean Indoor Air Act."
The section of legislation Silk points to reads "The commissioner shall not promulgate any rules or regulations that create, limit or enlarge any smoking restrictions."
"Possibly they figure that no one else will care since it's only about smokers. But when government bureaucracies are allowed to get away with breaking the law, it's the law itself that suffers and, next thing you know, it will only be about some activity you enjoy or some group you belong to," said Silk.
Last week, Gov. Andrew Cuomo said "there's been a challenge to the regulation, because you can't put out a regulation [on your own]. There has to be a process and the process for regulations has to allow for a comment period. There is a theory that the comment period was not sufficiently conducted, so the parks department has re-opened the comment period."
Cuomo reiterated the idea there would be another attempt on the regulation. "Once the comment period is closed, the state will be issuing a regulation. It is a procedural issue," said Cuomo.
On a related note, Silk and NYC CLASH are pressing the agency to remove signage that reads "smoking is prohibited," currently posted in parks and at pools following the initial April 9 announcement of the smoking ban.
"The statement on the signs is now false and leaving the signs in place, as Ms. Martens indicated they would be, would be intentionally misleading," said Silk. "The Office of Parks' behavior goes from bad to worse — from at least the facade of official policy-making to settling for simply fooling people with unofficial signs. The signage alone, should it remain in place, is now ideological in its coercion for compliance with a moral, rather than a legal, dictate."
"The signs are staying up," said Keefe.
Silk said her group has retained a law firm and is "ready to move forward with litigation if and when the Parks Department eventually tries to implement its policy without benefit of legislation."
CLASH's attorney Brett Joshpe said, "Democracy is as much about process as it is about results and this is a flagrant abuse of process that we will not allow to go unchecked."