Judge Rules State Parks Can't Enforce Smoking Ban Because it Lacks Authority to Make Laws

Judge George B. Ceresia Jr.

The New York State Office of Parks, Recreation & Historic Preservation (State Parks) does not have the authority to make laws, a State Supreme Court justice ruled earlier this month.

The ruling came out of a lawsuit over State Parks’ recent regulation giving them the right to ban outdoor smoking in parks.

State Supreme Court Justice George B. Ceresia Jr., of Troy, ruled, on Oct. 8, that State Parks cannot implement or enforce an outdoor smoking ban inside the parks, and must take down all no smoking signs in outdoor areas that were put up to publicize the ban.

Last February, State Parks bureaucrats adopted a formal regulation permitting the agency to determine where outdoor smoking is prohibited in the 179 state parks and 35 historic sites owned by the people of New York. State Parks officials determined the ban would be primarily around pools, playgrounds, and within 50 feet of buildings, but could be expanded everywhere inside any state park.

They put up signs and said it would be a criminal offense. Non-compliance was to be punishable with a ticket for disorderly conduct and a fine of up to $250.

A smokers’ rights group, whose source of funding may be the tobacco industry, and known as the New York City Citizens Lobbying Against Smoker Harassment (NYC CLASH), sued last April to block the State Parks' plan.

"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.

In his ruling, the judge noted that the State Assembly and State Senate attempted, but failed to make a law banning smoking in outdoor parks.

"This is a strong indication that the legislature is uncertain of how to address the issue," Judge Ceresia wrote.

State Parks cannot overrule the elected representatives of the people and make its own laws.

State Parks disagreed with the judge, and argued their authority "extends to the regulation of outdoor smoking."

A new state law prohibiting smoking at playgrounds during daylight hours when children under the age of 12 are present took effect recently.

More than 300 municipalities in New York State have passed regulations restricting tobacco use in parks and outdoor recreational areas, the governor's office said. But these laws were all made by elected officials.

State Parks is not a municipality and has no elected officials. The judge ruled Parks cannot make its own laws, nor can a bureaucracy regulate the behavior of people and punish them for made up crimes not found on the law books.