One up for smokers’ rights group

Acknowledging that it acted without regard for an opposing view in rushing through a smoking ban in state parks, pools, beaches and historic sites, the Office of Parks, Recreation and Historic Preservation has suspended the ban it announced in early April, its Associate Counsel Kathleen Martens telling NYC C.L.A.S.H. founder Audrey Silk that now “this season, nonsmoking will be on a voluntary basis.”

In other words, New Yorkers and other visitors to state park facilities can volunteer to not-smoke but cannot be stopped from smoking and cannot be fined or hassled by any law enforcement officer.

So far, the Parks Department is still hoping to intimidate would-be smokers with signage that’s already been posted at many spots that reads “Smoking Is Prohibited.” Silk says the statement on the signs is now false and that leaving the signs in place, as Ms. Martens indicated they would be, would be intentionally misleading.

“There is only one way for the public to interpret this language,” Silk says, “as meaning that smoking is prohibited by law. There’s nothing to imply that the ‘prohibition” is unenforceable, which it now clearly is. The Office of Parks’ behavior goes from bad to worse — from at least the facade of official policy-making to settling for simply fooling people with unofficial signs.”

Silk’s group is now pressing for the signs to be removed.

NYC C.L.A.S.H. had officially challenged the Parks Department policy in a letter of May 1, which pointed out that not only had it acted badly in putting the cart before the horse by announcing the ban to be in effect nine days prior to the state prescribed submission of a notice of proposed rule, but that the Parks Department exceeded its authority anyway in bypassing the legislature.

Since writing to the Office of Parks, NYC C.L.A.S.H. has uncovered more instances of arguably inappropriate behavior:

– The consensus rule notice eventually published in the State Register failed to include required statements as per NY Law Chapter 210: “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.”

(Consensus rule making is also only allowed when it’s “otherwise noncontroversial.” Is the revocation of civil liberties now considered “noncontroversial?”)

– Office of Parks publication, “Policy on Smoking in State Parks & Historic Sites,” dated November 29, 2011, stating, “This policy is effective immediately.” The language is identical to the policy laid out by the agency on April 9, 2012, with an effective date of “April, 2012” (though the rule was not filed until 9 days later). Which is it? Ms. Martens volunteered that there was “already” a policy in place prior to the April 9th announcement. Was there a required rule notice submitted in November 2011?

“Apparently,” Silk says, “the crusade against smokers to date has so emboldened government that the rule of law no longer need be practiced when it comes to its citizens that choose to smoke. So far this free-for-all indicates that the Office of Parks is acting as a surrogate for activists’ anti-smoker experiment. The signage alone, should it remain in place, is now ideological in its coercion for compliance with a moral, rather than a legal, dictate.

“Possibly they figure that no one else will care since it’s ‘only’ about smokers. But when government bureaucracies are allowed to get away with breaking the law, it’s the law itself that suffers and, next thing you know, it will ‘only’ be about some activity you enjoy or some group you belong to.”

According to Ms. Martens another stab at a rule banning smoking could be forthcoming. But before they proceed, in addition to C.L.A.S.H.’s previously stated grounds for a legal challenge, perhaps they should review Section 1399-x of the NYS Clean Indoor Air Act that states, “The commissioner shall not promulgate any rules or regulations that create, limit or enlarge any smoking restrictions.” Neither parks, playgrounds, nor beaches are listed under “Smoking restrictions” in Section 1399-o.

NYC C.L.A.S.H. has retained Manhattan law firm Joshpe Law Group LLP. Silk says she is ready to move forward with litigation if and when the Parks Department eventually tries to implement its policy without benefit of legislation. Attorney Brett Joshpe said, “This is another example of government run amok in our society. Unelected officials simply cannot create substantive laws and restrict peoples’ freedom without appropriate legislative authority. Democracy is as much about process as it is about results, and this is a flagrant abuse of process that we will not allow to go unchecked.” (MMD Newswire)

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.

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