H/T Harley for this story:
On April 9th, 2012, NYS Parks announced it was instituting a new policy — “effective immediately” — that bans smoking within state parks, including beaches, playgrounds and pools. On May 1, 2012, C.L.A.S.H. challenged the legitimacy of Parks’ consensus rule, charging that Parks exceeded its authority in bypassing the state legislature. Acknowledging that it acted without regard for an opposing view in rushing through a smoking ban and forced to adhere to consensus rule law, Parks suspended the ban by the end of that month on that legal technicality. However, in December 2012 Parks reintroduced its plan as a proposed rule and in February of this year published its Notice of Adoption. On April 10, 2013, C.L.A.S.H. commenced an Article 78 proceeding on the grounds that their action was unconstitutional and in violation of the separation of powers doctrine thereby exceeding its authority.
At that time, Audrey Silk, founder of C.L.A.S.H, said, “This ban was imposed by bureaucratic fiat, not legislated law, and on that basis alone, it’s unconstitutional.” C.L.A.S.H. further pointed out that , in fact, the New York State legislature has repeatedly declined to pass this specific law for over a decade, as proposed by both houses. At least nineteen bills have been rejected.
The Parks Office, therefore, not only exceeded its administrative mission, not only assigned itself legislative powers, but in fact went against the legislature’s will.
In not only a victory for adults who choose to smoke but on the more fundamental level that protects the entire citizenry from agencies enacting policy in a rogue fashion the judge couldn’t agree more with C.L.A.S.H.’s contention.
In his decision, Justice Ceresia wrote, “The court finds that the [NY State Office of Parks and its Commissioner] extended their reach beyond interstitial rulemaking and into the realm of legislating.”
In addressing one of Parks’ other contentions that it’s been given the power to play a paternalistic role in the lives of parks-goers, Justice Ceresia appears to take a swipe at that notion, writing, “Nor does the broad language of Parks, Recreation and Historic Preservation Law empower [them] to promulgate rules regulating conduct bearing any tenuous relationship to park patrons’ health or welfare.”
“Sounds to me that he scolded them that they’re nobody’s mother,” says Silk.
Joshpe Law Group LLP, a Manhattan law firm, filed the suit on behalf of C.L.A.S.H. Attorney Brett Joshpe remarks, “This is another example of public officials exceeding their constitutionally defined limits. A government title is not a license to unbridled power.” Co-counselor Edward Paltzik adds, “We are pleased that individual freedoms have been vindicated in the face of governmental overreach.”
C.L.A.S.H.’s expectations in capturing this win reaches beyond the borders of New York state in that this will send a message to non-legislative bodies in jurisdictions across the country that might contemplate doing the same that they cannot violate the rule of law and to step back.
Silk says, “This is putting the prohibitionists on notice that despite their ugly war being waged on adults who choose to smoke they are not entitled to a free-for-all in governing when it comes to this segment of society. We will not abide being stepped on or succumb to shaming as a means to silence us by arrogant activist actors who enact a rule that could only be accomplished by ignoring the rules.”
A bit of good news. More at NYC CLASH