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CLASH Verified Petition

CLASH Verified Petition

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Published by Casey Seiler

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Published by: Casey Seiler on Jul 02, 2012
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 1SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY---------------------------------------------------------------x NYC C.L.A.S.H., INC.,Petitioner, Index No.-against-
VERIFIED PETITION
THE NEW YORK STATE OFFICE OF PARKS,RECREATION & HISTORIC PRESERVATION andROSE HARVEY, IN HER OFFICIAL CAPACITYAS COMMISSIONER OF THE NEW YORK STATEOFFICE OF PARKS, RECREATION & HISTORICPRESERVATION,Respondents.---------------------------------------------------------------xPetitioner, NYC C.LA.S.H., INC., by its attorneys, Joshpe Law Group LLP, respectfullyalleges:
Preliminary Statement
1.
 
This is a proceeding pursuant to Article 78 of the New York Civil Practice Law andRules (C.P.L.R.).2.
 
Petitioner seeks a judgment granting the following relief:(a)
 
Enjoining respondents New York State Office of Parks, Recreation and HistoricPreservation (hereinafter referred to as “OPRHP”) and Rose Harvey, Commissioner of OPRHP(hereinafter referred to as “Commissioner Harvey”) from creating, implementing or enforcing any policy, rule or regulation prohibiting or restricting outdoor smoking or tobacco use of any kind instate parks, historic sites or any other location under OPRHP’s jurisdiction; and(b)
 
Directing OPRHP to immediately remove all “No-Smoking,” “Smokingis Prohibited” and “Tobacco Use is Prohibited” signs, or any other signage indicating that outdoor 
 
 2smoking or tobacco use of any kind is prohibited or restricted in state parks, historic sites or anyother location under OPRHP’s jurisdiction.3.
 
As set forth at length below, OPRHP has acted and continues to act in an arbitrary,capricious and unlawful manner, and without any legislative authorization, thereby causingongoing harm to New York State residents who choose to smoke at outdoor locations in state parks and historic sites.
Jurisdiction and Venue
4.
 
This Court has jurisdiction pursuant to Article 78 of the C.P.L.R. to review theongoing unlawful implementation of an arbitrary and capricious policy by a State agency.5.
 
Venue is proper in Albany County pursuant to C.P.L.R. § 506(b) because this proceeding challenges the policy of a State agency and because the material events at issuetook place and are taking place at least in part in Albany County, and further, because OPRHP hasits principal office in Albany County.
Parties
6.
 
 NYC C.L.A.S.H. (hereinafter referred to as “CLASH”) is an acronym for “New York City Citizens Lobbying Against Smoker Harassment.” CLASH is a non-profit smokers’ rightsorganization dedicated to advancing and promoting the interests of smokers and protecting thelegal rights of smokers.
See
, nycclash.com.7.
 
OPRHP is the State agency responsible for operating and managing state parks, statehistoric sites and various beaches, recreational facilities and campsites in the State of New York,including 178 state parks and 35 historic sites. OPRHP is also responsible for developing andupdating regulations that implement the Parks, Recreation and Historic Preservation Law and the
 
 3 Navigation Law. Those regulations appear in Parts 370 – 378 of Chapter I of Subtitle I of Title 9of the Official Compilation of Codes, Rules and Regulations of the State of New York (9 NYCRR 370 – 378), and have been adopted pursuant to subdivision 8 of Section 309 of the Parks,Recreation and Historic Preservation Law. OPRHP staff drafts a proposed regulation, generallywith input from interested groups and the general public, and then submits a proposed regulationto the Department of State for official publication in the State Register and for formal written public comments.8.
 
OPRHP is headed by Commissioner Harvey.
Factual Background & Allegations
9.
 
By press release posted on the OPRHP website on April 9, 2012, OPRHP announceda new policy (subsequently identified in the State Register as “Smoking at OPRHP Facilities”), pursuant to which OPRHP “will create smoke-free areas in outdoor settings within state parks andhistoric sites where large numbers of people congregate, including around playgrounds and pools”(the policy announced on April 9, 2012 hereinafter referred to as the “Outdoor Smoking Policy”and the press release announcing the Outdoor Smoking Policy hereinafter referred to as the “April9, 2012 Press Release” - a copy of the April 9, 2012 Press Release is attached hereto as Exhibit
A
” and is also available at nysparks.com/newsroom/press-releases/release.aspx?r=928).10.
 
Pursuant to the Outdoor Smoking Policy as detailed in the April 9, 2012 PressRelease, OPRHP announced, without any legislative authority whatsoever, that: (a) OPRHP willcreate “smoke-free areas . . . around all playgrounds and swimming pools, as well as other zonesspecifically designated as no-smoking areas” (including but not limited to beaches, picnic areas,gardens and concession stands); (b) “Riverbank, Roberto Clemente, East River, Clay Pit Ponds,

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