July 11, 2012 —
The New York State Office of Parks, Recreation and Historic Preservation announced with some fanfare in April that it was going to create smoke-free zones in some state parks, especially where large numbers of people congregate, such as pools and playgrounds.
Parks commissioner Rose Harvey said at the time, “State parks and historic sites should be healthy and clean places for our visitors, especially our youngest guests. It makes sense to ensure all visitors have a place to go in our parks to enjoy fresh air, while also protecting children playing at our pools and playgrounds from the dangers of second-hand smoke and reducing litter from discarded cigarette butts.”
Not so fast, said Audrey Silk, founder of Citizens Lobbying Against Smoker Harassment (CLASH). She objected to the agency’s implementation of the smoking bans without what she said was “any legislative authority.” The agency had created the restrictions without going through the normal rule-making process, which requires, among other things, that the proposed regulations go through a public comment period.
Instead, the agency created a so-called consensus rule, which is typically used when there is no controversy attached to the new rule. The parks office responded to the complaint by saying it would back off on enforcement of the no-smoking rules until it could arrange to hear public comment. Harvey said, “This season, nonsmoking will be on a voluntary basis.”
However, the agency, which manages 178 parks and 35 historic sites in the state, refused to take down the no-smoking signs that it had already placed in many areas. That’s what prompted Silk to file a lawsuit on July 2. In a press release related to the suit, she said, “The intentional use of signage to fool park visitors into thinking that an unofficial policy has the force of law as a coercive tactic to induce compliance with a moral, rather than a legal, dictate cannot be tolerated. Government is taking its war on smokers to the new, contemptible level when it determines the rule of law is expendable when it comes ‘to those people.’ Rogue governance is a threat to all.”
Joshpe Law Group LLP, a Manhattan law firm, filed the suit on behalf of CLASH. Attorney Brett Joshpe said, “Regardless of your view on public smoking, one thing is clear: it is wildly inappropriate for unelected personnel to be declaring behavior prohibited, giving the public the false impression of the force of law, when that very behavior is completely legal.” Joshpe also said that, if the Office of Parks proceeds to implement the new restrictions without the legislature passing a law first, his client would sue on that basis as well. The suit was filed in Albany County.