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THE NEW YORK STATE OFFICE OF PARKS, RECREATION & HISTORIC PRESERVATION and ROSE HARVEY, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE OFFICE OF PARKS, RECREATION & HISTORIC PRESERVATION, Respondents. ---------------------------------------------------------------x Petitioner, NYC C.LA.S.H., INC., by its attorneys, Joshpe Law Group LLP, respectfully alleges: Preliminary Statement 1. This is a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (C.P.L.R.). 2. Petitioner seeks a judgment granting the following relief:
(a) Enjoining respondents New York State Office of Parks, Recreation and Historic Preservation (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 in state parks, historic sites or any other location under OPRHP’s jurisdiction; and (b) Directing OPRHP to immediately remove all “No-Smoking,” “Smoking is Prohibited” and “Tobacco Use is Prohibited” signs, or any other signage indicating that outdoor 1
smoking or tobacco use of any kind is prohibited or restricted in state parks, historic sites or any other 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 causing ongoing 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 the
ongoing 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 issue took place and are taking place at least in part in Albany County, and further, because OPRHP has its 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’ rights organization dedicated to advancing and promoting the interests of smokers and protecting the legal rights of smokers. See, nycclash.com. 7. OPRHP is the State agency responsible for operating and managing state parks, state
historic 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 and updating regulations that implement the Parks, Recreation and Historic Preservation Law and the 2
Navigation Law. Those regulations appear in Parts 370 – 378 of Chapter I of Subtitle I of Title 9 of 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, generally with input from interested groups and the general public, and then submits a proposed regulation to 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 announced a 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 and historic 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 “April 9, 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 Press
Release, OPRHP announced, without any legislative authority whatsoever, that: (a) OPRHP will create “smoke-free areas . . . around all playgrounds and swimming pools, as well as other zones specifically 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,
Gantry Plaza and Bayswater State Parks in New York City will become smoke-free parks”; (c) “Beginning this Spring, [OPRHP] will install and maintain signage at each outdoor location where smoking is prohibited”; (d) “State Park staff will inform any violators of the prohibition”; and (e) Individuals who refuse to comply with the Outdoor Smoking Policy “could be cited for disorderly conduct by State Park Police and other law enforcement agencies.” 11. Simultaneously with the April 9, 2012 Press Release, OPRHP released a
comprehensive list of “Outdoor Locations Where Smoking is Prohibited” (a copy of OPRHP’s list of No-Smoking locations is attached hereto as Exhibit “B” and is also available at nysparks.com/newsroom/press-releases/attachments/DesignatedNoSmokingAreas.pdf). 12. The list of “Outdoor Locations Where Smoking is Prohibited” announces that the
Outdoor Smoking Policy is “Effective April, 2012” and states that “No Smoking Signage Will Be Installed in Each Designated Area” at the same time. The list also confirms OPRHP’s ban on smoking in state parks in New York City. 13. Also simultaneously with the April 9, 2012 Press Release, OPRHP made available on its website an example “No-Smoking” sign (a copy of the example sign is attached hereto as Exhibit “C” and is also available at nysparks.com/newsroom/press-releases/ attachments/NoSmokingSignexample.pdf). 14. The example sign, Exhibit “C”, reads: “Smoking is Prohibited on the Pool Deck.” OPRHP has also installed other types of anti-smoking signs in connection with the Outdoor Smoking Policy, including but not limited to signs that read “Tobacco Use is Prohibited” (a picture of an OPRHP sign that reads “Tobacco Use is Prohibited in Beach & Pool Areas” with photographer’s caption is attached hereto as Exhibit “D”).
Pursuant to the Outdoor Smoking Policy, since April 9, 2012, OPRHP staff have
installed extensive “No-Smoking,” “Smoking is Prohibited” and “Tobacco Use is Prohibited” signage at outdoor locations in state parks, historic sites and other OPRHP facilities. 16. To date, the extensive “No Smoking,” “Smoking is Prohibited” and “Tobacco Use is Prohibited” signage has not been removed and remains fully visible to all state park and historic site visitors. 17. The April 9, 2012 Press Release was misleading in that it implied that the
Outdoor Smoking Policy was a fait accompli, despite the fact that OPRHP’s rule proposal notice was not published in the New York State Register until April 18, 2012 (as required by the provisions of the State Administrative Procedure Act). Upon information and belief, OPRHP did not even file the rule proposal notice for publication with the Division of Administrative Rules any earlier than two weeks prior to April 18, 2012. See, “Rule Making in New York Manual,” New York Department of State Division of Administrative Rules – Revised May, 2012, available at: dos.ny.gov/info/pdfs/RuleMakingManual5-12.pdf (hereinafter referred to as the “Rule Making Manual”). According to the Rule Making Manual, the time from submission of a rule proposal notice to the time of publication is two weeks. See, “What is the State Register publication schedule,” available at dos.ny.gov/info/rulemakingmanual.html#chap1. 18. Indeed, the April 9, 2012 Press Release announced the Outdoor Smoking Policy as effective prior to the publication of any rule proposal notice in the State Register, an indication that OPRHP does not respect the rulemaking process, nor does it value public input. 19. The rule proposal notice published in the State Register on April 18, 2012, presented as a “consensus rule,” reads: A new subdivision (p) is added to Section 377.1 of Title 9 NYCRR as follows: 5
377.1 Regulated Activities. “The following activities are prohibited on property under the jurisdiction, custody and control of the office, except in areas specifically designated therefor, during such hours or seasonal periods specifically authorized and subject to such conditions as may be contained herein: (p) Smoking. (N.Y.S. Register, April 18, 2012 at p. 14, a copy of which is attached hereto as Exhibit “E”). 20. The April 9, 2012 Press Release was all the more misleading because the “rule-making process is constructed around the fundamental belief that the people of this state have a right to participate in the development of its laws . . . . [a]s a participatory democracy, New York State provides the public the opportunity to comment on proposed rules.” See, Rule Making Manual at p. 10. 21. It should be noted that the April 9, 2012 Press Release was not the first example of
OPRHP’s flagrant disregard for the rule-making process and public comment. On or about November 29, 2011, OPRHP released its “Policy on Smoking in State Parks & Historic Sites,” a policy statement signed by Commissioner Harvey and “effective immediately,” and which announced “Restrictions on Smoking in Outdoor Settings” almost identical to those contained in the Outdoor Smoking Policy (A copy of the November 29, 2011 policy statement [hereinafter referred to as the “Smoking Policy Statement”] is attached hereto as Exhibit “F”). 22. Notably, OPRHP released the Smoking Policy Statement quietly, hoping that no one would notice the agency’s overreaching attempt at legislating. Indeed, the document was not publicly announced, rather, it was surreptitiously placed on the OPRHP website, under the “Inside Our Agency” tab, then under “Publications,” and then under a section entitled “Guidance and Policy Document” – “OPRHP Smoking Policy” (available at parks.ny.gov/inside-ouragency/documents/OPRHPSmoking Policy.pdf/ 23. By letter dated May 1, 2012 and addressed to Kathleen Martens, OPRHP 6
Associate Counsel (hereinafter referred to as “Martens”), CLASH’s founder, Audrey Silk (hereinafter referred to as “Silk”), writing on behalf of CLASH, threatened legal action if OPRHP didn’t rescind the Outdoor Smoking Policy within 30 days of receipt of Silk’s letter (a copy of Silk’s May 1, 2012 letter is attached hereto as Exhibit “G” and discussed further in the accompanying Affidavit of Silk). 24. In a CLASH press release dated May 1, 2012, Silk correctly observed that
the Outdoor Smoking Policy is a clear case of a rule “imposed by bureaucratic fiat, not legislated law” (a copy of the May 1, 2012 press release is attached hereto as Exhibit “H”). 25. On May 25, 2012, Martens called Silk to inform her that OPRHP had decided to
suspend enforcement of the Outdoor Smoking Policy pending a public comment period. Martens informed Silk that “this season, nonsmoking will be on a voluntary basis.” Martens further advised Silk that OPRHP would “need to repeal” and “will revoke” the consensus rule, and will “resubmit” a proposed rule, although Martens made no mention of following the formal rule-making process. Indeed, the formal withdrawal by official publication in the State Register, as prescribed by the Rule Making Manual, has not yet occurred. 26. Martens, revealing OPRHP’s disconnect with the public and with the rule-making
process, also told Silk that OPRHP proceeded with the Outdoor Smoking Policy because the agency “thought the public would be on board due to the modest basis” of the ban, unfathomably believing that more restrictions on citizens who smoke would be “non-controversial” and that not one person would object, despite CLASH’s well-publicized twelve-year history of fighting smoking bans in New York. Martens further expressed surprise that OPRHP even bothered to belatedly publish a rule proposal notice in the State Register and stated that the publication of the rule proposal notice “was in error.” 7
Yet, even in belatedly publishing a consensus rule proposal, OPRHP failed to adhere
to legal procedure as required by N.Y.S. Law Chapter 210: “. . . that such notice shall include a statement setting forth a clear and concise explanation of the basis for the agency’s determination that no person is likely to object to the adoption of the rule as written.” N.Y.S. Law Chapter 210 (1998), available at dos.nys.gov/cnsl/chap210.html; see also dos.ny.gov/cnsl/rulemake.html. 28. OPRHP spokesman Dan Keefe (hereinafter referred to as “Keefe”), quoted in an article posted on legislativegazette.com on June 4, 2012, also acknowledged suspension of the Outdoor Smoking Policy, stating: “We won’t be issuing tickets. Right now it’s a policy based in common sense and common courtesy.” Despite his acknowledgment that OPRHP was backtracking, Keefe added: “The signs are staying up” (a copy of the legislativegazette.com article is attached hereto as Exhibit “I” and is also available at legislativegazette.com/ArticlesTop-Stories-c-2012-06-04-81779.113122-Parks-dept-reverses-smoking-restrictions-fornow.html). 29. On May 29, 2012, OPRHP issued another misleading press release (hereinafter referred to as the “May 29, 2012 Press Release”) in which it announced “its plan to designate smoke-free areas in limited outdoor settings” while glossing over the agency’s backtrack in response to Silk’s letter (a copy of the May 29, 2012 Press Release is attached hereto as Exhibit “J” and is also available at nysparks.com/newsroom/press-releases/ release.aspx?r=928). 30. The May 29, 2012 Press Release also announced that OPRHP will proceed with the rulemaking process to formalize the Outdoor Smoking Policy by publishing a Regulatory Impact Statement in the State Register and holding a 45-day public comment period. 31. Although OPRHP grudgingly conceded in the May 29, 2012 Press Release that 8
pending the formal rulemaking process “State Park Police officers will defer issuing tickets to people who smoke in designated non-smoking areas,” the agency stubbornly noted that “[s]ignage at each outdoor location where smoking is prohibited will remain in place” and “State Parks will ask visitors who smoke to comply with the non-smoking designations out of courtesy to non-smoking patrons.” 32. Despite the OPRHP’s concession that tickets will not be issued pending the formal
rulemaking process, the proposed addition of smoking under the broad umbrella of “disorderly conduct” is a deeply troubling display of excessive, unauthorized rulemaking by the agency in the absence of any statute specifically providing penalties for violation of an outdoor smoking prohibition. 33. OPRHP’s suspension of the Outdoor Smoking Policy is an admission that OPRHP had no authority to institute the Policy in the first place and that OPRHP’s unilateral and surreptitious creation of the Policy was a flagrant disregard for the normal rulemaking process. 34. The arbitrary, capricious and unlawful implementation of the Outdoor Smoking
Policy occurred without any rulemaking process and in the absence of any legislative authorization that would permit the promulgation of the Policy. 35. Despite OPRHP’s recent (and obviously temporary) retreat on the Outdoor Smoking Policy, OPRHP continues to maintain “No Smoking,” “Smoking is Prohibited” and “Tobacco Use is Prohibited” signs throughout state parks and historic sites. 36. Since smoking is in fact not prohibited in outdoor locations on OPRHP
property, the statements on the signs are false and intentionally misleading. The signs serve only to fool park visitors into thinking that an unofficial policy has the force of law that must be followed. The signs will also cause smokers to be subjected to hostile confrontations 9
by non-smoking park visitors who will criticize, reprimand and ridicule them, and report them to the OPRHP staff and/or law enforcement personnel, because the non-smoking park visitors mistakenly believe that smoking is prohibited in outdoor areas. In fact, OPRHP is counting on public participation in enforcing the ban, as confirmed by Keefe’s quote in an article published by the Associated Press on May 29, 2012: “The sign will stay up. The ticket isn’t what to worry about. It’s the other parents on the playground” (a copy of the Associated Press article is attached hereto as Exhibit “K”). The continued presence of the signs on OPRHP property constitutes arbitrary, capricious and unlawful bad faith on OPRHP’s part and serves as a coercive tactic to induce compliance with a moral, rather than a legal, dictate. 37. OPRHP’s insistence that its staff and law enforcement personnel will ask smokers to comply with the fictitious Outdoor Smoking Policy is also an arbitrary, capricious and unlawful act of bad faith. Just as OPRHP’s no-smoking signs act as a form of visual coercion that should not be tolerated, OPRHP personnel should not be allowed to verbally coerce smokers into compliance with a policy that is nothing more than a legal fiction. 38. OPRHP’s lacks any authority to implement the Outdoor Smoking Policy, to maintain no-smoking signage and to urge park visitors to comply with imaginary smoking restrictions , as addressed in points of law in the accompanying Memorandum of Law. 39. No prior application for the relief requested in this action has been made in this or any other court. Prayer for Relief WHEREFORE, Petitioner prays for an order granting the following relief pursuant to N.Y. C.P.L.R. Article 78: 10
Enjoining respondents OPRHP and Commissioner Harvey from creating,
implementing or enforcing any policy, rule or regulation prohibiting or restricting outdoor smoking or tobacco use of any kind in state parks, historic sites or any other location under OPRHP’s jurisdiction; and (b) Directing OPRHP to immediately remove all “No-Smoking,” “Smoking
is Prohibited” and “Tobacco Use is Prohibited” signs, or any other signage indicating that outdoor smoking or tobacco use of any kind is prohibited or restricted in state parks, historic sites or any other location under OPRHP’s jurisdiction.
New York, New York June 28, 2012 JOSHPE LAW GROUP LLP
______________________ By: Brett Joshpe, Esq. Attorneys for Petitioner 1040 Avenue of the Americas, Suite 1101 New York, New York 10018 Phone: (917) 828-6237 Fax: (212) 313-9478
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