Judge: Office Of Parks, Recreation & Historic Preservation Exceeded Authority

ALBANY, N.Y. (CBSNewYork/AP) — 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 establishing no-smoking areas at various parks, including popular beaches and all nine state parks within New York City, aren’t supported by any policy set by the Legislature, state Supreme Court Justice George Ceresia said.

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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. Officials didn’t immediately reply Friday to requests for comment.

Ceresia wrote that the broad language of the state parks law doesn’t empower the office “to promulgate rules regulating conduct bearing any tenuous relationship to park patrons’ health or welfare.”

He ordered parks officials to take down the no smoking signs related to the outdoor ban.

While acknowledging the state’s position that you don’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 to do so.

The lawsuit was brought by NYC Citizens Lobbying Against Smoker Harassment.

“They so demonized people who smoke that they feel, agencies and governments feel that they can do whatever they want without following the rules themselves,” Audrey Silk, the group’s founder, told WCBS 880’s Marla Diamond.

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“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.

The New York City state parks include Riverbank State Park in Manhattan, East River State Park in Brooklyn, Bayswater and Gantry Plaza state parks in Queens, Roberto Clemente State Park in the Bronx and Clay Pit Ponds Preserve on Staten Island.

The no smoking signs have already come down in Riverbank State Park and not everyone’s happy about it, Diamond reported.

“I will just say I dislike it. I won’t say hate. I think smoking in the park is very offensive. People think because we’re out in the open that we don’t smell the smoke but you can smell it,” a woman said.

“You come to relax and enjoy the fresh air and people just sit beside you, smoking cigarettes or cigars or something,” another woman said.

The New York Attorney General’s Office, which is defending the state park rules, is reviewing the decision along with parks officials, a spokesman said Friday.

The Office of Parks, Recreation and Historic Preservation oversees 179 state parks and 35 historic sites.

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