NY Parks Ordered to Halt Outdoor Smoking Ban

New York State parks officials must stop enforcing their recent ban on outdoor smoking, a state judge ordered, agreeing with a smokers’ rights group that the state exceeded its authority.

The February rules strongly pushed by Mayor Michael Bloomberg establishing no-smoking areas at various parks, including popular beaches and all nine state parks in New York City, aren’t supported by any policy set by the Legislature, state Supreme Court Justice George Ceresia said. The city has a separate outdoor smoking ban for its parks and beaches that wasn’t challenged in this lawsuit.

The judge noted that while lawmakers enacted restrictions on indoor smoking, the Assembly and Senate have attempted but failed to target smoking in outdoor parks. “In the court’s view, this is a strong indication that the Legislature is uncertain of how to address the issue,” he wrote.

Officials from the Office of Parks, Recreation and Historic Preservation said they enacted the rules to protect visitors from secondhand smoke. They said they’re considering an appeal and that officials believe they have authority to manage the often conflicting park use of patrons, extending to regulation of outdoor smoking on playgrounds, swimming pools, beaches, and other places children and visitors congregate.

Ceresia wrote that the broad language of the state parks law doesn’t empower the office, and he ordered parks officials to take down the no-smoking signs related to the outdoor ban.

While acknowledging the state’s position that one doesn’t need to be an expert to understand that secondhand smoke is “deleterious to the health of nonsmokers, especially children,” the judge wrote that he was expressing no opinion on the wisdom of outdoor smoking regulations should they be enacted with proper authority.

The lawsuit was brought by NYC Citizens Lobbying Against Smoker Harassment. “This ban was imposed by bureaucratic fiat, not legislated law, and on that basis alone it’s unconstitutional,” said Audrey Silk, the group’s founder.

“It was certainly a vindication of individual rights in the face of government overreach,” said attorney Edward Paltzik.

Brett Joshpe, his co-counsel, said the issue with the parks under New York City jurisdiction is different since those restrictions have City Council backing, but there may be another avenue of legal attack there.

This article appeared in print on page 4 of the October 14th, 2013 edition of Hamodia.