FOR IMMEDIATE RELEASE - May 13, 2013Contact: Audrey Silk, Founder, NYC C.L.A.S.H.
Phone: (917) 888-9317
Contact Brett Joshpe, Joshpe Law Group LLP
Phone: (917) 828-6237
Contact Edward A. Paltzik, Joshpe Law Group LLP
Phone: (646) 820-6701
SMOKERS' RIGHTS GROUP SAYS "NOT SO FAST" TO NYS PARKS RE SMOKING BAN
In a statement last Friday, Governor Andrew Cuomo, on behalf of the NYS Office of Parks, Recreation and Historic Preservation, announced the enactment of a smoking ban within state parks, beaches and historical sites.
Absent from his and OPRHP Commissioner Rose Harvey's declaration and ignored or misportrayed in the ensuing press coverage was the legal challenge this ban faces by smokers' rights group C.L.A.S.H. that is currently underway.
The following are the events as they have unfolded:
- April 9, 2012 - OPRHP announces the implementation of a smoking ban on its properties, effective immediately.
- April 18, 2012 - OPRHP publishes its Consensus Rule in the NYS Register.
- May 1, 2012 - C.L.A.S.H., by letter to OPRHP, threatens legal action if the policy is not rescinded, charging their action as unconstitutional and in violation of the separation of powers doctrine thereby exceeding its authority.
- May 25, 2012 - Notification by OPRHP to C.L.A.S.H. that the ban would be suspended on the technicality that if any one person objects to a Consensus Rule (applied under the auspices that the policy will be "uncontroversial" and that "no one would object"), it must be suspended by law. However, ignoring C.L.A.S.H.'s objection on its more fundamental grounds, plans to revise the introduction of its policy by going ahead with a Proposed Rule open to public comment.
- July 2, 2012 - C.L.A.S.H. commences an Article 78 Proceeding seeking a judgement enjoining OPRHP from implementing the smoking ban on the above stated grounds (see May 1st) and to remove all "Smoking is Prohibited" signs that have been installed without the benefit of either a Parks policy (as unlawful as we contend it'd be) or a law.
- December 5, 2012 - OPRHP publishes its Proposed Rule in the NYS Register, providing 45 days for public comment.
- January 8, 2013 - Honorable George B. Ceresia, Jr., finds C.L.A.S.H. has standing to bring this suit and that C.L.A.S.H.'s challenge to the installation of no-smoking signage "is ripe for judicial review." However, Justice Ceresia also ruled that C.L.A.S.H.'s challenge to OPRHP's rule-making activity was not ripe for review since there was now no ban to speak of since its suspension and "because further agency action will be forthcoming at the conclusion of the formal rule-making process" (that OPRHP commenced on Dec. 5th).
- February 27, 2013 - OPRHP publishes its Notice of Adoption [of the smoking ban] in the NYS Register.
- April 10, 2013 - C.L.A.S.H. commences a new Article 78 Proceeding on the same grounds as its first, following the recommendation of the Court in its Jan. 8th decision that "[i]n the event a formal rule is ultimately promulgated, [CLASH] may challenge the same by commencing a separate Article 78 proceeding at that time."
Fast forward to Friday, May 10th. In announcing that the smoking ban is now in effect, OPRHP continues to act not only unlawfully but irresponsibly with its utter casualness in its assertion that the issue which originally caused the ban's suspension last year has been fixed.
C.L.A.S.H. stands firm that, in this state agency's unilateral undertaking of the rule-making process in any form, for the purpose of banning smoking beyond what the state legislature has already enacted, OPRHP has fixed nothing.
The landmark decision in Boreali (most recently cited by Justice Tingling in his ruling against Bloomberg's soda ban and relevant to our case) and the separation of powers doctrine are clear that only lawmakers may enact such a ban -- something it's declined to do when multiple bills to do so have arisen every year for over ten years now.
Says Audrey Silk, founder of C.L.A.S.H., "The obstinate posture by NYS Parks Commissioner Rose Harvey and her staff in the celebratory announcment about this ban as if nothing is amiss is abhorrent.
"It also bears repeating that apparently there's no such thing as 'too far' in the war on smokers. The crusade against smokers to date has so emboldened government that there's no second thought to whether or not they're acting above the law by imposing law on citizens who choose to smoke and then fully expecting them to respect it."
Joshpe Law Group LLP, a Manhattan law firm, filed the suit on behalf of C.L.A.S.H. The suit was filed in Albany County.
----------------------------------------------------------------- NYC Citizens Lobbying Against Smoker Harassment (C.L.A.S.H.) is a grassroots organization established in 2000 dedicated to advancing and protecting the interests of adults who choose to smoke cigarettes or enjoy other forms of tobacco. www.nycclash.com ###