In the Matter of NYC C.L.A.S.H., Inc., Appellant,v.New York State Office of Parks, Recreation and Historic Preservation et al., Respondents.

Brief

N.Y.February 10, 2016

State of New York Court of Appeals BRIEF OF APPELLANT DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division, Third Department, Case No. 519023 Supreme Court, Albany County, Index No. 2218/13 In the Matter of the Application of NYC C.L.A.S.H., INC., Appellant, v. THE NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION and ROSE HARVEY, in her official capacity as Commissioner of THE NEW YORK STATE OFFICE OF PARKS, RECREATION & HISTORIC PRESERVATION, Respondents. TO BE ARGUED BY: EDWARD A. PALTZIK, ESQ. COURT OF APPEALS NO. 2015-00033 TIME REQUESTED: 15 MINUTES JOSHPE LAW GROUP LLP EDWARD A. PALTZIK, ESQ. Attorneys for Appellant 1040 Avenue of the Americas, Suite 1101 New York, New York 10018 (646) 820-6701 LAW OFFICES OF YAN MARGOLIN YAN MARGOLIN, ESQ. Attorneys for Appellant 225 Broadway, Suite 620 New York, New York 10007 (212) 964-6200 Date Completed: May 18, 2015 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 500.1(f) of the Rules of Practice for the Court of Appeals of the State of New York, Appellant, NYC C.L.A.S.H., INC., states that it is a New York domestic not-for-profit corporation with no parents, subsidiaries or affiliates. i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT .............................................................................. 1 QUESTIONS PRESENTED ..................................................................................... 3 STATEMENT OF THE CASE ................................................................................. 3 JURISDICTIONAL STATEMENT ......................................................................... 5 ARGUMENT ............................................................................................................. 6 I. 9 NYCRR § 386.1 VIOLATES THE SEPARATION-OF-POWERS DOCTRINE ....................................................... 6 A. The Separation-of-Powers Doctrine ................................................................. 6 B. The First Boreali Factor ..................................................................................... 9 C. The Second Boreali Factor ............................................................................... 17 i. 9 NYCRR § 386.1 is a comprehensive antismoking regulation ..................... 18 ii. Respondents wrote 9 NYCRR § 386.1 on a clean slate ................................ 20 iii. Respondents lack inherent authority to adopt 9 NYCRR § 386.1 ............... 24 D. The Third Boreali Factor ................................................................................. 27 E. The Fourth Boreali Factor ................................................................................ 30 CONCLUSION ........................................................................................................ 34 ii TABLE OF AUTHORITIES Cases Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 543-548 (1981) ……………………………………………. 16 Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ………………………………………………….. passim Bourquin v. Cuomo, 85 N.Y.2d 781 (1995) …………………………………………………. 7, 22 Campagna v. Shaffer, 73 N.Y.2d 237 (1989) ……………………………………………………... 7 Clarke v. Cuomo, 66 N.Y.2d 185 (1985) ……………………………………………………... 6 Fullilove v. Beame, 48 N.Y.2d 376 (1979) ……………………………………………............... 6 Hardenburgh v. State, 52 N.Y.2d 536 (1981) ………………………………………………........... 5 Justiana v. Niagara County Dep’t of Health , 45 F. Supp. 2d 236 (W.D.N.Y. 1999)…………………….................... 17, 18 Levine v. Whalen, 39 N.Y.2d 510 (1976)…………………….................................................... 7 Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 23 N.Y.3d 681 (2014) ……………………………………………….. passim Matter of Picone v. Comr. of Licenses, 241 N.Y. 157 (1925) ………………………………............................... 9, 13 N.Y. State Health Facilities Ass’n v. Axelrod, 77 N.Y.2d 340 (1991) ………………………………................................. 22 iii Rapp v. Carey, 44 N.Y.2d 157 (1978) ………………………………………………........... 6 Saratoga Cnty. Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) ……………………………………………............. 6 Subcontractors Trade Ass’n v. Koch, 62 N.Y.2d 422 (1984) ………………………………………………........... 6 Under 21, Catholic Home Bureau for Dependent Children v. City of New York, 65 N.Y.2d 344 (1985) ………………………………………………....... 6, 7 Constitutional Provisions New York State Constitution (“N.Y. CONST.”) N.Y. CONST. art III, § 1 ……………………………………………………. 1, 6, 7 N.Y. CONST. art IV, § 1 …………………………………………………………. 6 N.Y. CONST. art VI ……………………………………………………………… 6 New York City Charter (“N.Y.C. Charter”) N.Y.C Charter § 558(b) ........................................................................................... 25 N.Y.C Charter § 558(c) ............................................................................................ 25 N.Y.C Charter § 558(c)(2) ....................................................................................... 25 N.Y.C Charter § 1043 .............................................................................................. 26 Laws & Statutes Civil Practice Law and Rules (“CPLR”) CPLR § 5601[b][1] .................................................................................................... 5 CPLR § 5611 .............................................................................................................. 5 Parks, Recreation and Historic Preservation Law (“PRHPL”) PRHPL § 3.09(2) ................................................................................................ 13, 24 PRHPL § 3.09(5) ...................................................................................................... 24 iv PRHPL § 3.09(8) ...................................................................................................... 24 Public Health Law (“Pub. Health L.”) Pub. Health L. § 1399-o-1.1 ................................................................... 12, 21, 22, 28 Pub. Health L. § 1399-o-1.2 ..................................................................................... 22 Pub. Health L. § 1399-o.2.a ................................................................... 12, 20, 24, 28 Pub. Health L. § 1399-o.2.b ................................................................... 12, 20, 23, 28 Pub. Health L. § 1399-o.3 ...................................................................... 12, 20, 21, 28 Rules & Regulations New York Codes, Rules and Regulations (“NYCRR”) 9 NYCRR § 386.1 .............................................................................................passim 9 NYCRR § 633.23(d) ............................................................................................. 23 9 NYCRR § 4064.5 .................................................................................................. 23 18 NYCRR § 414(b)(11) ......................................................................................... 23 21 NYCRR § 1085.5(o) ........................................................................................... 24 1 PRELIMINARY STATEMENT The separation-of-powers doctrine is enshrined in the New York State Constitution, which mandates that “[t]he legislative power of this state shall be vested in the senate and the assembly.” N.Y. CONST. art III, § 1. This Court’s seminal decision in Boreali v. Axelrod guides separation-of-powers analysis in the context of rulemaking by “an administrative agency which exists as part of the coequal executive branch” of New York’s government. 71 N.Y.2d 1, 15 (1987). Boreali established a comprehensive framework for evaluating whether an administrative agency has exceeded its powers by usurping legislative authority. Just last year, this Court utilized the Boreali framework to invalidate the New York City Board of Health’s “Sugary Drinks Portion Cap Rule.” Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 23 N.Y.3d 681 (2014). In this case, Appellant NYC C.L.A.S.H., INC. (“CLASH”)1 invokes the separation-of-powers doctrine to challenge the validity of 9 NYCRR § 386.1 (“Rule 386” or the “Rule”), an administrative regulation adopted in 2013 by Respondents New York State Office of Parks, Recreation and Historic Preservation 1 NYC C.L.A.S.H. is an acronym for “New York City Citizens Lobbying Against Smoker Harassment.” As indicated on CLASH’s website (http://www.nycclash.com), CLASH 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 or use electronic cigarettes.” 2 (“OPRHP”) and its Commissioner, Rose Harvey. Pursuant to Rule 386, OPRHP may prohibit outdoor smoking in “any No Smoking Area designated by the commissioner” and with the exception of “limited areas,” completely prohibits outdoor smoking in “each State Park in New York City.” 9 NYCRR § 386.1; (Rec. 86-87, 93). OPRHP’s jurisdiction includes 179 State parks, 35 historic sites and other facilities encompassing 330,000 acres and visited by more than 58 million people each year. (Rec. 87, 94). This vast parks system is a resource of statewide significance that provides life-enriching recreational opportunities for New York residents. Although OPRHP is vested with a statutory mandate to manage this system, its authority is not limitless. While the Rule may be well-intentioned, it violates the separation-of-powers doctrine. The Rule also defies this Court’s tradition of enforcing the doctrine and resisting administrative overreach. Separation of powers has long stood as a bulwark protecting New York’s citizens against rule by administrative fiat. If this bulwark is eroded, the result will be irreparable harm to sound democratic process, core constitutional values, and sensible regulatory policy. Instances such as this, in which an administrative agency treats separation of powers as a malleable obstacle rather than a firm boundary, will become more frequent. Accordingly, this Court should strike down Rule 386. 3 QUESTIONS PRESENTED The following questions are preserved for review in the Opinion and Order of the Appellate Division, Third Department decided and entered December 31, 2014: 1. Does Rule 386 violate the separation-of-powers doctrine? The Albany County Supreme Court ruled in the affirmative on this question; the Third Department ruled in the negative on this question; and in this Brief, Appellant argues that the Third Department’s ruling was erroneous on this question. 2. Is Rule 386 arbitrary and capricious? The Albany County Supreme Court did not reach this question; the Third Department ruled in the negative on this question; and in this Brief, Appellant does not argue this question. STATEMENT OF THE CASE In the December 5, 2012 New York State Register, Respondents announced a proposed rule entitled “No-Smoking Areas at OPRHP Parks, Recreational Facilities and Historic Sites.” The proposed rule became Rule 386 when it was formally adopted on February 27, 2013 (Rec. 110-112) and codified at 9 NYCRR § 386.1. The Rule reads as follows: 4 § 386.1 No Smoking Areas (a) Smoking of tobacco or any other product is prohibited in the following outdoor locations under the jurisdiction of the office: (1) any No Smoking Area designated by the commissioner. Examples of areas that may be designated as No Smoking Areas include: playgrounds, swimming pool decks, beaches, sport or athletic fields and courts, recreational facilities, picnic shelters, fishing piers, marinas, historic sites, group camps, park preserves, gardens, concessions, educational programming, or other areas where visitors congregate, including within fifty feet of entrances to buildings; and (2) each State Park in New York City, with the exception that the commissioner may allow smoking in limited areas within each park. (b) The commissioner shall approve and periodically update a statewide list of designated No Smoking Areas that shall be published on the office’s public website. (c) The office shall install signage at each designated No Smoking Area, informing the public that smoking is prohibited in such areas. 9 NYCRR § 386.1; (Rec. 86-87, 93). By notice of petition dated April 9, 2013, CLASH commenced a combined CPLR article 78/declaratory judgment proceeding seeking to invalidate Rule 386.2 (Rec. 28-30). By Order dated October 8, 2013, the Albany County Supreme Court (Hon. George B. Ceresia, Jr.) granted CLASH’s petition, declaring that Rule 386 “is invalid as violative of the separation of powers doctrine,” enjoining Respondents from enforcing or implementing the Rule, and ordering Respondents to remove “No Smoking” signs. (Rec. 15-23). By Opinion and Order dated December 31, 2014, the Appellate Division, Third Department reversed the 2 The notice of petition sought a judicial declaration that (1) Rule 386 is unconstitutional and in violation of the separation of powers doctrine; (2) Rule 386 is arbitrary and capricious; and (3) enjoining Respondents from implementing and enforcing Rule 386 (Rec. 28-29). 5 Supreme Court and dismissed CLASH’s petition in its entirety, holding that Rule 386 “has not been shown to be unconstitutional.” (Rec. 4-11). By notice of appeal dated January 28, 2015, CLASH appealed the Third Department’s Order to the Court of Appeals. (Rec. 2-3). Also on January 28, 2015, CLASH moved for leave to appeal the Third Department’s Opinion and Order to the Court of Appeals. JURISDICTIONAL STATEMENT This Court has jurisdiction over CLASH’s appeal from the December 31, 2014 Opinion and Order of the Appellate Division, Third Department, pursuant to CPLR § 5601(b)(1), which provides that “[a]n appeal may be taken to the court of appeals as of right: 1. from an order of the appellate division which finally determines an action where there is directly involved the construction of the constitution of the state .... ” The Third Department’s Order and Opinion constitutes a final order within the meaning of CPLR § 5601(b)(1), as CLASH’s petition was dismissed in its entirety. “If the appellate division disposes of all the issues in the action its order shall be considered a final one ....” CPLR § 5611. Additionally, in order for an appeal to be taken under CPLR § 5601(b)(1), a “substantial constitutional question” must be preserved for review. Hardenburgh v. State, 52 N.Y.2d 536, 540 (1981). On April 2, 2015, this Court denied CLASH’s motion for leave to appeal as unnecessary and determined that the appeal would proceed in the normal course of briefing and argument. 6 ARGUMENT I. 9 NYCRR § 386.1 VIOLATES THE SEPARATION-OF-POWERS DOCTRINE A. The Separation-of-Powers Doctrine New York’s representative system of government consists of three branches – the executive, legislative and judicial. N.Y. CONST. art III, § 1; art IV, § 1; art VI. The “central feature of [New York’s system of government] is distribution of powers” among the branches of government. Fullilove v. Beame, 48 N.Y.2d 376, 378 (1979). These “separate grants of power to each of the coordinate branches of government” give rise to the separation-of-powers doctrine. Clarke v. Cuomo, 66 N.Y.2d 185, 189 (1985). The doctrine bars any branch from “arrogat[ing] unto itself powers residing entirely in another branch.” Under 21, Catholic Home Bureau for Dependent Children v. City of New York, 65 N.Y.2d 344, 356 (1985). “Respect for this structure and the system of checks and balances requires that none of these branches be allowed to usurp powers residing entirely in another branch.” Subcontractors Trade Ass’n v. Koch, 62 N.Y.2d 422, 427 (1984). “The legislative power of this state shall be vested in the senate and assembly.” N.Y. CONST. art III, § 1. The legislative power is the power to set policy. Rapp v. Carey, 44 N.Y.2d 157, 160 (1978); Saratoga Cnty. Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 822 (2003)(executive branch improperly engaged in policymaking); Fullilove, 48 N.Y.2d at 379 (explaining that mandating 7 policy is the Legislature’s prerogative). Accordingly, separation of powers “requires that the Legislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies.” Bourquin v. Cuomo, 85 N.Y.2d 781, 784 (1995). “Because of the constitutional provision that ‘[t]he legislative power of this State shall be vested in the Senate and the Assembly’ (N.Y. CONST. art III, § 1), the Legislature cannot pass on its law- making functions to other bodies.” Levine v. Whalen, 39 N.Y.2d 510, 515 (1976). Executive agencies are limited to the interstitial and practical task of implementation; “an agency cannot by its regulations effect its vision of societal policy choices.” Campagna v. Shaffer, 73 N.Y.2d 237, 242 (1989); Under 21, 65 N.Y.2d at 359 (“[A]n executive may not usurp the legislative function by enacting social policies not adopted by the Legislature.”). In Boreali, this Court held that New York State Public Health Council overstepped the bounds of its regulatory authority and attempted to exercise legislative power when it adopted regulations prohibiting smoking in a broad array of indoor public locations that had been considered, but not adopted, by the Legislature. The Boreali Court identified four “coalescing circumstances,” or factors, that determine if an administrative agency “has usurped the Legislature’s prerogative” and thus violated the constitutional principle of separation of powers. 71 N.Y.2d at 11. In the case at bar, all four of these factors are relevant in 8 assessing OPRHP’s adoption of Rule 386. These factors “paint a portrait of an agency that has improperly assumed for itself ‘[t]he open-ended discretion to choose ends,’ which characterizes the elected Legislature’s role in our system of government.” Id. (internal citations omitted). In Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, this Court addressed the relationship among the Boreali factors: “As the term ‘coalescing circumstances’ suggests, we do not regard the four circumstances as discrete, necessary conditions that define improper policy-making by an agency, nor as criteria that should be rigidly applied in every case in which an agency is accused of crossing the line into legislative territory. Rather, we treat the circumstances as overlapping, closely related factors that, taken together, support the conclusion that an agency has crossed that line.” 23 N.Y.3d at 696-697. Consequently, OPRHP may not defend its adoption of Rule 386 by showing that one Boreali factor does not apply. Id. at 697. One key constitutional principle permeates all four factors: “it is the province of the people’s elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends.” Id. at 697 (quoting Boreali, 71 N.Y.2d at 13). Therefore, “[t]he focus must be on whether the challenged regulation attempts to resolve difficult social problems” by engaging in “policy- making, [which] is reserved to the legislative branch.” Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 697. OPRHP’s function, on the other hand, is “rule-making.” Id. at 699. 9 B. The First Boreali Factor The first Boreali factor considers whether the agency engaged in its “own effort to weigh the goal of promoting health against its social cost and to reach a suitable compromise.” Boreali, 71 N.Y.2d at 12. “Striking the proper balance among health concerns, cost and privacy interests … is a uniquely legislative function.” Id. This factor is an especially strong indicator of administrative overreach where an agency “was ‘acting solely on [its] own ideas of sound public policy’ and was therefore operating outside of its proper sphere of authority.” Id. [quoting Matter of Picone v. Comr. of Licenses, 241 N.Y. 157, 162 (1925)]. An administrative agency may not adopt rules based solely on its own public policy ideas, “however excellent such ideas may be.” Matter of Picone, 241 N.Y. at 162. An agency improperly legislates when it carves out “exemptions,” makes “exceptions based solely on economic and social concerns,” weighs these “competing concerns,” and attempts to balance policy “trade-offs.” Boreali, 71 N.Y.2d at 12. Rule-making activity of this type “demonstrate[s] the agency’s own effort to weigh the goal of promoting health against its social cost and to reach a suitable compromise.” Id. Impermissible policy-making doomed the regulations at issue in Boreali, where “the Public Health Council overstepped the boundaries of its lawfully 10 delegated authority when it promulgated a comprehensive code to govern tobacco smoking” in public areas. Id. at 6. In so doing, the Public Health Council improperly weighed the concerns of various groups, including the general public, nonsmokers and smokers, in order to find “the proper accommodation among those competing interests.” Id. The resulting regulatory scheme lacked technical focus and was instead based on political, social and economic considerations. Id. This was also the case last year in Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, wherein this Court invalidated the New York City Board of Health’s “Sugary Drinks Portion Cap Rule,” which “restrict[ed] the size of cups and containers used by food service establishments for the provision of sugary beverages” in order to combat obesity. 23 N.Y.3d at 690. The Board of Health made it difficult for consumers to purchase large sugary drinks while rejecting alternative solutions such as warning labels or an outright ban. Id. at 698. This choice, a preference for one method of modifying citizens’ behavior over others, “was itself a policy choice.” Id. “By choosing between public policy ends in these ways, the Board of Health engaged in law-making beyond its regulatory authority, under the first Boreali factor.” Id. at 699. In order to further refine the distinction between policy-making and rule-making in Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, this Court “differentiate[d] between levels of difficulty and complexity 11 in the agency’s task of weighing competing values.” Id. at 699. In situations where an agency faces simple choices, it may weigh competing ends: “For example, when an agency regulates the purity of drinking water, or prohibits the use of interior lead paint, or requires guards in the windows of high-rise apartments housing children, it chooses among ends (e.g. a landowner’s convenience and short-term profit versus the safety, health and well-being of tenants), but the choices are not very difficult or complex. This is because the connection of the regulation with the preservation of health and safety is very direct, there is minimal interference with the personal autonomy of those whose health is being protected, and value judgments concerning the underlying ends are widely shared.” Id. On the other hand, the choices presented by the attempted regulation of sugary drink consumption involved “difficult, intricate and controversial issues of social policy.” Id. This difficulty arose because “the number of people who over- indulge in sugary drinks, at risk to their health, [was] clearly significant.” Id. By venturing into such a difficult area, the Board of Health had to “necessarily wrestle with complex value judgments concerning personal autonomy and economics …. [this was] policy-making, not rule-making.” Id. In this case, there is no question that the balance between the interests of smokers and nonsmokers has long been a contentious and complex political issue, and remains so today. In the case of smoking, the number of adults who choose to smoke remains significant at 42.1 million nationwide,3 with New York ranking 3 According to the Centers for Disease Control and Prevention (“CDC”), an estimated 42.1 million adults in the United States currently smoke cigarettes (http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6347a4.htm?s_cid=mm6347a4_w). 12 eighth as recently as 2011 among all states in prevalence of adult smoking.4 Consequently, the task of finding balance in this area had, until the adoption of Rule 386, been exclusively assumed by the legislative branch. As evidence of this complexity and of the fact that smoking policy is the exclusive province of the legislative branch, one need look no further than the Legislature’s clockwork annual struggle to find the proper balance on the issue of outdoor smoking. This policy struggle (which also relates to the third Boreali factor, discussed later in this Brief) is reflected in the Legislature’s consideration and rejection from 2001 to 2014 of 24 bills relating to outdoor smoking restrictions.5 (Rec. 21, 70). Meanwhile, the Legislature has produced only four narrowly applicable enactments relating to outdoor smoking prohibitions (which are also germane to the second Boreali factor, discussed later in this Brief), none of which relate to state parks except in the narrow area of playgrounds.6 In OPRHP’s own documentation relating to Rule 386, the agency inadvertently acknowledged that smoking is a complex issue of health and public 4 According to the CDC, New York ranked eighth among the states in prevalence of adult cigarette smoking in 2011 (http://www.cdc.gov/tobacco/data_statistics/state_data/state_highlights/2012/states/new_ york/index.htm). 5 Source: New York State Assembly Website: New York State Bill Search (http://assembly.state.ny.us/leg/). 6 These four enactments are Pub. Health L. §§1399-o.2.a (relating to metropolitan transportation authority railroad stations), 1399-o.2.b (relating to hospitals and health care facilities), 1399-o.3 (relating to schools), and 1399-o-1.1 (relating to playgrounds). 13 policy. For example, in the December 5, 2012 Rule proposal notice and in the regulatory impact statement, OPRHP, touting the Rule’s purported public benefits, wrote: “3. Healthy Lifestyles. State parks provide a vital setting to promote healthy lifestyles for the more than 58 million people who visit them each year. Adoption of the rule would promote smoking cessation efforts, and assist in preventing children from becoming addicted to tobacco because they would be viewing smoking less frequently in outdoor recreational settings.” (Rec. 87, 95). This excerpt evidences OPRHP’s sweeping policy-making goals in adopting Rule 386. OPRHP’s purview is to operate and maintain state parks and historic sites under its jurisdiction. PRHPL § 3.09(2). Promotion of healthy lifestyles is not within that purview, “however excellent such ideas may be.” Matter of Picone, 241 N.Y. at 162. Much like the invalidated regulatory scheme in Boreali, Rule 386 is a political and social measure that does not flow from OPRHP’s technical expertise (which also relates to the fourth Boreali factor, discussed later in this Brief). OPRHP’s consideration of “Healthy Lifestyles” also shows that OPRHP weighed certain purported health concerns (such as smoking cessation and youth tobacco addiction) against the interest of adults who smoke, then took it upon itself to make a policy choice in favor of those health concerns. This weighing “evidenced a policy choice relating to the question of the extent to which government may legitimately influence citizens’ decision-making.” Matter of New 14 York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 698. By weighing these competing considerations, OPRHP improperly influenced citizens’ decision-making by discouraging certain adult behavior, just as the Board of Health did when it adopted the “Sugary Drinks Portion Cap Rule”: “[W]hen an agency in our present time either prohibits the consumption of sugary beverages altogether or discourages it by regulating the size of the containers in which the drinks are served, its choices raise difficult, intricate and controversial issues of social policy.” Id. at 699. Similarly, Rule 386 discourages smoking, either by prohibiting it altogether at some state parks or by substantially curtailing it elsewhere. In this way, OPRHP “[made] it inconvenient, but not impossible” to smoke outdoors at state parks, while rejecting various alternative approaches, the sort of regulation of citizens’ behavioral choices that this Court rejected in relation to the “Sugary Drinks Portion Cap Rule.” Id. at 698. Indeed, in the Rule proposal notice and the regulatory impact statement, OPRHP rejected certain methods of restricting outdoor smoking in lieu of preference for other methods: “State Parks has considered three alternatives. The first alternative would have continued the practice of voluntary compliance with State Parks’ no-smoking guidelines. Voluntary compliance is currently achieved through the posting of “no smoking” signs without any enforcement mechanism …. The second alternative would have adopted an outright ban on smoking in all State Parks facilities, similar to the approach that the New York City and other local governments have adopted. Given that State Parks are typically much larger than these municipal parks …, the agency concluded that a system-wide ban is not practical. Under the third alternative the Commissioner would have designated and enforced no-smoking areas 15 through signage and staff directions only …. However, State Parks decided that it would be fairer and clearer to the public to formally adopt a specific narrowly-drawn regulation authorizing the designation of no-smoking areas through publication and signage.” (Rec. 87-88, 97). This process of considering and rejecting various alternatives is exactly what the Board of Health did in Matter of New York Statewide Coalition of Hispanic Chambers of Commerce when it rejected alternative solutions such as warning labels or an outright ban on sugary drinks. 23 N.Y.3d at 698. Here, as with the “Sugary Drinks Portion Cap Rule,” the expression of preference among various options for regulating the behavior of park users is a strong indicator that OPRHP made impermissible policy choices when it adopted Rule 386. OPRHP’s impermissible policy-making is also apparent in its statewide patchwork scheme instituted to implement Rule 386. Pursuant to the Rule, OPRHP established virtually complete smoking bans at all New York City state parks in order to regulate those parks “in a manner consistent with other public parks in New York City, where smoking is prohibited in all city-run parks.” (Rec. 87, 94-95). Several state parks outside of New York City were also subjected to near-total bans after the Rule was adopted. This scheme is reflected in OPRHP’s “Policy On No Smoking Areas At State Parks and Historic Sites for 2013-2014,” effective May 8, 2013, which implemented Rule 386. (Rec. 205-213). 16 At other parks, OPRHP has relied on an ad hoc approach, focusing its smoking prohibitions “in settings primarily where people congregate.” (Rec. 87, 94). The agency claimed that “visitors who choose to smoke will have access to other areas where smoking is not prohibited.” (Rec. 87, 96). The creation of this ad hoc system is the embodiment of forbidden policy-making. Even assuming, arguendo, that all of this administrative picking and choosing had merit, the wisdom of OPRHP’s policy-making is irrelevant in the context of a Boreali inquiry, so long as the issue of outdoor smoking involves even minimal value judgment. Instead, these carve-outs show that OPRHP engaged in the sort of balancing act that is only within the purview of the Legislature. By carving out exemptions and exceptions to Rule 386 prohibitions in order to protect non-smokers while giving smokers alternative sites to smoke, OPRHP created a “ ‘cost benefit’ model” upon which it has not been authorized to structure its rule-making. Boreali, 71 N.Y.2d at 12 (quoting Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 543-548 (1981)[Rehnquist, J., dissenting]). These “administratively created exemptions … cannot be justified as simple implementations of legislative values.” Boreali, 71 N.Y.2d at 12. Seeking to reconcile the health desires of non-smokers with the need to provide smokers with token concessions, OPRHP has attempted to balance social interests in a manner inconsistent with the separation-of-powers doctrine. This constitutionally 17 impermissible balancing effort was documented in the February 27, 2013 rule adoption, wherein OPRHP wrote: “OPRHP believes that the rule provides a workable middle ground to resolving patron complaints about secondhand smoke and cigarette butt litter by allowing the Commissioner to designate no-smoking areas in places where large numbers of people congregate.” (Rec. 112). OPRHP’s efforts to find middle ground between park patrons who smoke and who don’t smoke evidences policy-making designed to strike a balance between competing considerations. The agency’s detailed analysis of opposing interests further evidences a complex balancing act. This sort of administrative behavior, in which an agency “attempts to resolve difficult social problems” is the hallmark of the improper agency policy-making identified in Boreali and thus the first Boreali factor weighs heavily against OPRHP. C. The Second Boreali Factor The second Boreali factor focuses on “whether the agency created its own comprehensive set of rules without benefit of legislative guidance….” Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 692. When an agency adopts a regulation that is “substantially more restrictive than existing legislation, [an agency goes] beyond interstitial rule-making and into the realm of legislating.” Justiana v. Niagara County Dep’t of Health, 45 F. Supp. 18 2d 236 (W.D.N.Y. 1999). Invalidating the Public Health Council’s antismoking regulations in Boreali, this Court stated the following: “The second, and related, consideration is that in adopting the antismoking regulations challenged here the PHC did not merely fill in the details of the broad legislation describing the over-all policies to be implemented. Instead, the PHC wrote on a clean slate, creating its own comprehensive set of rules without legislative guidance. Viewed in that light, the agency’s actions were a far cry from the ‘interstitial’ rule making that typifies administrative regulatory activity.” 71 N.Y.2d at 13. The second Boreali factor presents three closely related issues in this case: First, whether Rule 386 is a comprehensive antismoking regulation; second, whether OPRHP wrote the Rule on a clean slate, with no legislative guidance in the area of outdoor smoking at state parks; and third, whether the Parks, Recreation and Historic Preservation Law (the “PRHPL”) grants OPRHP inherent legislative authority to adopt the Rule even in the absence of appropriate legislative guidance. i. Rule 386 is a comprehensive antismoking regulation In the December 5, 2012 Rule proposal notice and in the regulatory impact statement, OPRHP predicted that its Commissioner would designate only “limited outdoor spaces” as “no-smoking.” (Rec. 87, 94). The agency claimed that these spaces “would be limited to less than five percent of the total 330,000 acre state- park system, and smoking would continue to be allowed in most campsites, open air picnic areas, parking areas and throughout undeveloped areas.” (Rec. 87, 94). 19 This claim of limited impact is disingenuous because it is based on an irrelevant statistical consideration, the total acreage of the state-park system. In assessing the comprehensiveness of Rule 386, the salient consideration should be that the Rule vests OPRHP’s Commissioner with unlimited system-wide discretion to prohibit smoking in “any No Smoking Area designated by the commissioner.” (Rec. 86)(italics in original). Additionally, the Rule prohibits smoking almost entirely within “each State Park in New York City.” (Rec. 86)(italics in original). The Commissioner’s unlimited discretion is reflected in OPRHP’s “Policy On No Smoking Areas At State Parks and Historic Sites for 2013-2014,” effective May 8, 2013, which implements Rule 386 and sets forth the system-wide designated outdoor “no-smoking” areas broken down into eleven regions. (Rec. 205-213). The “no-smoking” areas include most beaches, pools and swimming areas throughout the state-park system, and many pavilions, shelters, picnic areas, and sporting venues. (Rec. 206-213). The Policy list also reflects total or near-total smoking prohibitions at all six state parks in New York City,7 four parks in the Central Region,8 four parks in the Taconic Region,9 two parks in the Long Island 7 The New York City Region includes Bayswater State Park, Clay Pit Ponds Preserve, East River State Park, Gantry Plaza State Park, Riverbank State Park and Roberto Clemente State Park. (Rec. 209-210). 8 In the Central Region, smoking is prohibited almost entirely at Lorenzo State Historic Park, Oriskany Battlefield and Steuben Memorial, which are all designated as “[n]o smoking throughout the facility except specifically designated areas,” and Herkimer Home, designated as no-smoking “[t]hroughout the entire facility except main parking lot and picnic area.” (Rec. 206-207). 20 Region,10 one park in the Niagara Region,11 one park in the Palisades Region,12 and one park in the Thousand Islands Region.13 (Rec. 206-213). Moreover, the Rule is not simply territorially comprehensive. OPRHP has also branched out into regulating smoking in a temporally comprehensive way, designating certain “special events” as “no-smoking.”14 (Rec. 206-213). ii. Respondents wrote Rule 386 on a clean slate To date, the Legislature has enacted only four laws prohibiting outdoor smoking: (1) Pub. Health L. § 1399-o.2.a (“ticketing, boarding or platform areas of railroad stations operated by the metropolitan transportation authority or its subsidiaries.”); (2) Pub. Health L. § 1399-o.2.b (“on the grounds of general hospitals and residential health care facilities …, within fifteen feet of a building entrance or exit or within fifteen feet of the entrance to or exit from the grounds of any such general hospital or residential health care facility.”); (3) Pub. Health L. § 9 In the Taconic Region, smoking is prohibited entirely or almost entirely at the following locations: Norrie Environmental Center (smoking prohibited in “[a]ll areas except parking lot”); Norrie Point Marina Docks (“[a]ll docks within the marina”); Rockefeller State Park Preserve (“[t]he entire facility”); Taconic Outdoor Education Center (“[t]he entire facility”). (Rec. 212-213). 10 In the Long Island Region, smoking is prohibited at Bayard Cutting Arboretum and Planting Fields Arboretum in “[a]ll areas except parking lots.” (Rec. 209). 11 In the Niagara Region, smoking is prohibited at Artpark State Park in “[a]ll areas except parking lot.” (Rec. 210). 12 In the Palisades Region, smoking is prohibited at Bear Mountain Zoo in “[t]he entire facility.” (Rec. 211). 13 In the Thousand Islands Region, smoking is prohibited on “[t]he entire island” at Rock Island Lighthouse State Park. (Rec. 213). 14 For example, in all regions outside of the New York City region, “[r]egional directors are delegated authority to identify certain ‘public events’ as ‘No Smoking’ events.” (Rec. 206-213). 21 1399-o.3 (“Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or private elementary or secondary schools….”; and (4) Pub. Health L. § 1399-o-1.1 (“Smoking shall not be permitted and no person shall smoke during the hours between sunrise and sunset, when one or more persons under the age of twelve are present at any playground.”). None of these laws relate to state parks except in the limited location of playgrounds. Rule 386 is the epitome of “clean slate” administrative rulemaking because it is substantially more restrictive than existing legislation in the realm of outdoor smoking. The Legislature’s decisions to prohibit outdoor smoking only at the specific locations covered by Pub. Health L. § 1399 clearly indicate an intent to maintain the status quo at all other outdoor locations regarding smoking prohibitions, or at minimum, an unwillingness or inability to address additional prohibitions. One might characterize this as a legislative “vacuum,” into which OPRHP has inserted itself. Boreali, 71 N.Y.2d at 13. None of the four statutory smoking prohibitions in Pub. Health L. § 1399 provide any guidance for a comprehensive outdoor smoking prohibition such as Rule 386, and indeed provide no basis for any outdoor smoking prohibition in state parks (other than at playgrounds, as authorized by § 1399-o-1.1). OPRHP has “[devised] an entirely new rule” that “reflects a new policy choice.” Matter of New York Statewide 22 Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 700. Therefore, this is not a case in which “the basic policy decisions underlying [Rule 386] have been made and articulated by the Legislature.” Bourquin, 85 N.Y.2d at 785 [quoting N.Y. State Health Facilities Ass’n v. Axelrod, 77 N.Y.2d 340, 348 (1991)]. OPRHP and the Legislature also differ significantly in their respective policy choices relating to enforcement of antismoking measures and interactions with smokers. According to the Rule proposal notice and the regulatory impact statement, “[a] person who fails to comply with [Rule 386] could be issued a ticket for a violation that usually includes a fine up to $250 …. ” (Rec. 87, 96). In contrast, Pub. Health L. § 1399-o-1.2, which relates to the enforcement of the playground smoking prohibition in § 1399-o-1.1, provides that “[n]o police officer, peace officer, regulatory officer or law enforcement official may arrest, ticket, stop or question any person based solely or in part on an alleged violation of [§ 1399-o-1.1] …. ” Evidently, OPRHP has articulated a no-smoking enforcement policy considerably less restrained than the approach articulated by the Legislature. This is yet another example of the agency crafting policy at odds with existing legislation. Respondents may argue that other New York administrative agencies have adopted outdoor smoking regulations. Those regulations are either not comprehensive or were promulgated pursuant to legislative guidance and are thus 23 distinguishable from Rule 386. In the former category, the New York State Gaming Commission15 prohibits “[a]mateur riders and jockeys…from smoking while in racing colors.” 9 NYCRR § 4064.5. Also, the Department of Social Services prohibits staff and volunteers from “[s]moking in indoor or outdoor areas in use by children and in vehicles when children are occupying the vehicles ….” 18 NYCRR § 414(b)(11). These one-sentence regulations do not violate the separation-of-powers doctrine because they are confined to one narrowly defined class of persons smoking in one narrowly defined situation, whereas Rule 386 is a comprehensive antismoking regulation covering all park visitors, many park locations, and some park events. In the latter category, the regulations of the Office for People with Developmental Disabilities16 (a branch of the Department of Mental Hygiene) provide that “[a]n agency may prohibit smoking on the grounds of any or all of its certified facilities ….” 9 NYCRR § 633.23(d). This prohibition is directly authorized by Pub. Health L. § 1399-o.2.b. The regulations of the Metropolitan Transportation Authority provide that “[n]o person in a terminal, station or train 15 According to the Gaming Commission website (http://gaming.ny.gov/about/), the Commission “regulates all aspect of gaming and gambling activity in the state, including horse racing and pari-mutuel wagering, Class III Indian gaming, the state lottery…and charitable gaming.” 16 According to the OPWDD website (http://www.opwdd.ny.gov/opwdd_about/overview_of_agency), the agency “is responsible for coordinating services for more than 128,000 New Yorkers with developmental disabilities, including intellectual disabilities, cerebral palsy, Down syndrome, autism spectrum disorders, and other neurological impairments.” 24 shall: burn a lighted cigarette, cigar, pipe or any other matter or substance which contains tobacco or any tobacco substitute … in an outdoor ticketing, boarding or platform area of a terminal or station…” 21 NYCRR § 1085.5(o). This prohibition is directly authorized by Pub. Health L. § 1399-o.2.a. iii. Respondents lack inherent authority to adopt Rule 386 In the December 5, 2012 Rule proposal notice, OPRHP asserted that certain provisions of its enabling statute, PRHPL §§ 3.09(2), 3.09(5) and 3.09(8), provided inherent authority to support the adoption of Rule 386: “[t]he rule would implement the Legislature’s broad grant of authority to State Parks to manage and operate its facilities and to protect public health, safety and welfare.” (Rec. 87). The preamble to PRHPL § 3.09 sets forth the “[g]eneral functions, powers and duties” of the agency. OPRHP shall “[o]perate and maintain … such historic sites and objects, parks, parkways and recreational facilities.” PRHPL § 3.09(2). OPRHP shall also “[p]rovide for the health, safety and welfare of the public using facilities under its jurisdiction.” PRHPL § 3.09(5). Further, OPRHP shall “[a]dopt, amend or rescind such rules, regulations and orders as may be necessary or convenient for the performance or exercise of the functions, powers and duties of the office.” PRHPL § 3.09(8). In Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, the New York City Board of Health, which is an administrative 25 body within the City’s Department of Health and Mental Hygiene, similarly argued that it was “a unique body that has inherent legislative authority.” 23 N.Y.3d at 694. Pursuant to the New York City Charter, the Board of Health is broadly empowered to regulate health, safety and welfare, just as OPRHP is given a similar prerogative pursuant to the PRHPL. Id. The Board of Health’s powers include the authority to “add to and alter, amend or repeal any part of the health code, … [to] publish additional provisions for security of life and health in the city and [to] confer additional powers on the [Department of Health and Mental Hygiene] not inconsistent with the constitution, laws of this state or this charter.” Id. [quoting N.Y.C Charter § 558(b)]. Additionally, the Board of Health “may embrace in the health code all matters and subjects to which the power and authority of the [Department of Health and Mental Hygiene] extends.” Id. [quoting N.Y.C Charter § 558(c)]. Further, “the Charter refers to the Board’s supervision over ‘the reporting and control of communicable and chronic diseases and conditions hazardous to life and health’ and ‘abatement of nuisances affecting or likely to affect public health.’ ” Id. [quoting N.Y.C Charter § 558(c)(2)]. Despite the Board of Health’s apparently sweeping authority to regulate public health, safety and welfare, this Court invalidated the “Sugary Drinks Portion Cap Rule,” in part because “the [New York City] Charter contains no suggestion that the [Board] has the authority to create laws.” Id. at 695. Adoption of laws to 26 protect public health, safety and welfare is the exclusive prerogative of the New York City Council. Id. “[T]he Board’s authority, like that of any other administrative agency, is restricted to promulgating ‘rules necessary to carry out the powers and duties delegated to it by or pursuant to federal, state or local law.’ ” Id. (quoting N.Y.C. Charter § 1043). Administrative agencies implement, but do not create, law or policy. Id. at 695. In this case, OPRHP’s broad state-parks management authority endowed by the PRHPL is no greater than the Board of Health’s far-reaching public health authority endowed by the New York City Charter. Both OPRHP and the Board of Health undoubtedly have extensive rule-making prerogative within their areas of expertise. But, as Matter of New York Statewide Coalition of Hispanic Chambers of Commerce conclusively confirmed, even the most powerful agencies are not “co-equal” to the legislative branch and must yield to the separation-of-powers doctrine. Id. at 695. “Even under the broadest and most open-ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever societal evils it perceives.” Boreali, 71 N.Y.2d at 9. Therefore, the notion that an administrative agency can venture into the policy-making realm based on “broad” or “inherent” authority is a legal fiction spun from whole cloth. 27 D. The Third Boreali Factor The third Boreali factor focuses on “whether the challenged rule governs an area in which the Legislature has repeatedly tried to reach agreement in the face of substantial public debate and vigorous lobbying by interested factions.” Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 692. Courts should consider legislative inaction despite opportunities to the contrary as evidence that the Legislature has been unable to agree on “the goals and methods” to resolve a particular societal problem. Boreali, 71 N.Y.2d at 13; Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 700. “[R]epeated failures by the Legislature to arrive at such an agreement do not automatically entitle an administrative agency to take it upon itself to fill the vacuum and impose a solution of its own.” Boreali, 71 N.Y.2d at 13. It is the exclusive province of the Legislature “to resolve difficult social problems by making choices among competing ends.” Id. Between the 2001-2002 and 2013-2014 sessions,17 the Legislature considered and rejected 24 bills relating to outdoor smoking restrictions, three of which passed through one house. Those 24 bills are as follows: 2001-2002 Bills: A08675 (“Prohibits smoking on public beaches and in public parks; excludes Adirondack park and the Catskill park; permits the state entity or municipality which operates a public beach, 17 Source: New York State Assembly Website: New York State Bill Search (http://assembly.state.ny.us/leg/). 28 park or golf course to designate smoking areas.”); S06245 (“Prohibits smoking and discarding of tobacco related waste on public and private playgrounds or athletic fields.”). 2003-2004 Bills: A00738 (same as 2001-2002 A08675) 2005-2006 Bills: A00306 (same as 2001-2002 A08675); A11466 and S07153 (“Prohibits any person from smoking at a playground.”). 2007-2008 Bills: A01402 and A07325 (same as 2001-2002 A08675); A07469 and S0068418 (same as 2005-2006 A11466 and S07153). 2009-2010 Bills: A01137,19 S03242 and S05005 (same as 2005-2006 A11466 and S07153); A01837 (same as 2001-2002 A08675). 2011-2012 Bills: A01532 (same as 2001-2002 A08675); A06156 and S06564 (“Prohibits smoking in public parks and pedestrian plazas.”); A0645120 and A06543 (“Relates to smoking restrictions on playgrounds and enforcement by park police.”); S04401 (same as 2005-2006 A11466 and S07153). 2013-2014 Bills: A00450 and S00464 (same as 2011-2012 A06156 and S06564); A00553 (same as 2001-2002 A08675); A03663 (same as 2011- 2012 A06451 and A06543); S01449 (same as 2005-2006 A11466 and S07153). New York State Assembly Website; (Rec. 21, 70). Despite the high number of outdoor smoking bills considered by the Legislature in recent years, it has enacted only four outdoor smoking prohibitions: (1) Pub. Health L. § 1399-o.2.a (metropolitan transportation authority railroad stations); (2) Pub. Health L. § 1399-o.2.b (hospitals and health care facilities); (3) Pub. Health L. § 1399-o.3 (schools); and (4) Pub. Health L. § 1399-o-1.121 (playgrounds during daytime hours with children present). Beyond these four enactments, the Legislature has been unable to agree on a comprehensive solution 18 Passed senate on June 20, 2007 and May 12, 2008, died in assembly on January 9, 2008. 19 Passed assembly on June 18, 2009 and February 2, 2010, died in senate on January 6, 2010. 20 Died in senate on January 4, 2012, passed assembly on June 18, 2012. 21 Bill A04025, signed into law on July 12, 2013 as Pub. Health L. § 1399-o-1. 29 to address outdoor smoking despite repeated opportunities. For example, after the Legislature considered bill 2001-2002 A08675, it considered identical bills on six subsequent occasions. Moreover, twelve of the aforementioned failed legislative proposals related to smoking at public parks, eight related to smoking at public beaches, and three related to smoking enforcement by park police. Each of those subjects is now covered by Rule 386, which prohibits smoking at beaches and parks. Therefore, when OPRHP adopted Rule 386, it improperly “[took] it upon itself to fill the vacuum” left by this legislative inaction. The same circumstance was present in relation to the “Sugary Drinks Portion Cap Rule”: “Here, inaction on the part of the State Legislature and the City Council, in the face of plentiful opportunity to act if so desired, simply constitutes additional evidence that the Board’s adoption of the Portion Cap Rule amounted to making new policy, rather than carrying out preexisting legislative policy.” Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 700. The vacuum left by legislative inaction can be filled only by the Legislature, which is presently considering S03760, a bill that would enact the “Smoke Free Parks Act of 2015” and result in a complete smoking prohibition at state parks.22 22 S03760, the “Smoke Free Parks Act of 2015” would add a new subdivision 3 to Pub. Health L. 1399-0-1 as follows: “3. SMOKING SHALL NOT BE PERMITTED AND NO PERSON SHALL SMOKE IN ANY PUBLIC PARK IN THIS STATE. THE GOVERNING BODY OF A MUNICIPALITY OR POLITICAL SUBDIVISION WHICH OPERATES OR MAINTAINS A PUBLIC PARK OR THE STATE AGENCY OR OTHER ENTITY WHICH OPERATES OR MAINTAINS A STATE PARK MUST DISPLAY A SIGN AT THE ENTRANCE OF SUCH PUBLIC PARK STATING “ALL NEW YORK STATE PARKS ARE NEW SMOKE-FREE PARKS”. ANY PERSON WHO VIOLATES THE PROVISIONS OF THIS SUBDIVISION SHALL BE SUBJECT 30 The fact that the Legislature is even considering S03760 is ample evidence that the Legislature deemed its imprimatur necessary to enact a state parks smoking ban that does not lawfully exist at the present time. E. The Fourth Boreali Factor The fourth Boreali factor scrutinizes whether “special expertise or technical competence was involved in the development of the rule.” Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 701. This factor weighs against the agency unless its “technical competence was necessary to flesh out details of the broadly stated legislative policies embodied [in the applicable law].” Boreali, 71 N.Y.2d at 14. “A court might be alerted to the broad, policy-making intent of a regulation, and the absence of any perceived need for agency expertise, by the fact that the rule was adopted with very little technical discussion.” Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 701. The PRHPL clearly sets forth OPRHP’s administrative mandate: parks management. PRHPL § 3.09(2). In this case, adoption of Rule 386 required no technical competence or expertise associated with this mandate. As Justice Ceresia observed in granting CLASH’s petition in the Supreme Court, the PRHPL does not TO A FINE OF NOT MORE THAN FIVE HUNDRED DOLLARS.” (http://assembly.state.ny.us/leg/?default_fld=&bn=S03760&term=2015&Summary=Y& Memo=Y&Text=Y)(capitalization in original). 31 “empower respondents to promulgate rules regulating conduct bearing any tenuous relationship to park patrons’ health or welfare.” (Rec. 20). He further observed that “respondents concede that special expertise or technical competence is no longer required to understand that secondhand tobacco smoke is deleterious to the health of nonsmokers, especially children.” (Rec. 21). Moreover, Respondents’ own documentation confirms that no parks management expertise was necessary to adopt the Rule because the deleterious health effects associated with smoking are widely known and were long ago established by health authorities. Writing about the anticipated benefits of the Rule in the December 5, 2012 rule proposal and also the regulatory impact statement, Respondents observed: “1. Public Health. There is a broad body of scientific evidence documenting the public health hazards of exposure to second hand tobacco smoke [citation to Surgeon General’s website]. By allowing the Commissioner to establish and enforce smoke-free areas, the proposed regulation would reduce exposure to second hand tobacco smoke for patrons and staff in facility locations where large numbers of people congregate.” (Rec. 87, 95). Here, OPRHP conceded that the hazards of smoking are a well-known matter of science and health. Nowhere in the record does OPRHP credibly assert that parks management expertise affected the adoption of Rule 386. Since the hazards of smoking are widely understood, and OPRHP’s mandate is neither scientific nor health-related, it had no authority to adopt Rule 386. 32 Nonetheless, Respondents attempted to link Rule 386 to parks management by offering several red herrings. First, OPRHP contended that the Rule would realize “operational savings” by eliminating the need to clean up “cigarette butt litter.” (Rec. 87, 95). This argument misses the mark for three reasons. One, OPRHP’s claim of operational savings is vague. Two, OPRHP grossly overstates the management impact of removing cigarette butts from park litter while food wrappers, plastic bottles, and myriad other types of detritus remain. Three, if reduction of litter were truly one of the agency’s goals, it could have utilized less restrictive approaches, such as maintaining additional trash bins, posting “no littering” signs, and properly enforcing littering regulations within the heavily trafficked areas targeted by Rule 386. These measures would address OPRHP’s stated goal of operational savings in a manner consistent with the agency’s parks management expertise. Another red herring that OPRHP used to link Rule 386 to management expertise is the agency’s stated goal of reducing wildfires, as set forth in the February 27, 2013 rule adoption notice: “[W]e also note that New York State experienced a substantial number of wildfires last year due to hot and dry weather. The proposed rules would enhance OPRHP’s ability to protect its parks from fires similar to the one in 2008 that burned 3100 acres in Minnewaska State Park (which was likely started by a discarded cigarette).” (Rec. 110). 33 OPRHP’s fire prevention argument strains credulity because the Rule proposal notice and the regulatory impact statement predicted that designated no-smoking areas “would be limited to less than five percent of the total 330,000-acre state park system, and smoking would continue to be allowed in most campsites, open air picnic areas, parking areas and throughout undeveloped areas.” (Rec. 87, 94). If the agency’s goal were reduction of wildfires, continuing to allow smoking in the locations where wildfires are most likely to start (campsites and undeveloped areas) would be counterproductive. A third red herring used by OPRHP to create the illusion of management expertise is the agency’s argument in the Rule proposal notice and regulatory impact statement that the Rule would be no different from many of the agency’s other regulations, including: “[P]rohibiting loud playing of music, enforcing quiet hours in campgrounds after 10:00 p.m., keeping pets on leashes, prohibiting consumption of alcoholic beverages …. prohibiting glass containers on swimming beaches and pool decks, allowing fires only in grills and fireplaces, and so forth.” (Rec. 87, 96). Smoking is distinguishable from these other subjects of regulation in two respects that link the fourth Boreali factor to the first and third Boreali factors, further affirming the analytical links in this Boreali analysis. With respect to the first Boreali factor, relating to the balancing of competing considerations, smoking regulation compels an agency to “wrestle with complex value judgments.” Matter 34 of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 699. On the other hand, subjects such as campground noise are more analogous to the installation of window guards in high-rise buildings, and thus the “value judgments concerning the underlying ends are widely shared.” Id. There are no questions of personal liberty associated with window guards in high-rises or noise in public spaces. Smoking, on the other hand, despite any deleterious health effects that may be associated with the choice, remains for many an exercise in personal liberty and a question of doing what one likes with their body. With respect to the third Boreali factor, relating to Legislative failure to reach agreement, outdoor smoking has been the subject of annual legislative debate and inaction, evidenced by the 24 bills relating to outdoor smoking restrictions between the 2001-2002 and 2013-2014 sessions. In contrast, subjects such as campground noise typically do not garner significant legislative attention. CONCLUSION The Boreali analysis in this case confirms that Rule 386 is a transparent piece of policy-making designed to resolve a difficult social problem. Therefore, this Court should reverse the Opinion and Order of the Appellate Division, Third Department dated December 31, 2014, and reinstate the ruling of the Supreme Court dated October 8, 2013 that Rule 386 is invalid in violation of the separation-of-powers doctrine. 35 Dated: New York, NY May 18, 2015 Respectfully submitted, JOSHPE LAW GROUP LLP Attorneys for Appellant, NYC C.L.A.S.H., INC. 1040 Avenue of the Americas Suite 1101 New York, New York 10018 (646) 820-6701 By:__________________________ Edward A. Paltzik LAW OFFICES OF YAN MARGOLIN Attorneys for Appellant, NYC C.L.A.S.H., INC. 225 Broadway, Suite 620 New York, New York 10007 (212) 964-6200 By:__________________________ Yan Margolin CERTIFICATION FORM See State of New York, Court of Appeals Rules of Practice 500.2 CASE NAME: In the Matter of the Application of NYC C.L.A.S.H., INC. v. The New York State Office of Parks, Recreation and Historic Preservation, et al. Court of Appeals Case No.: 2015-00033 Appellate Division, Third Department, Case No. 519023 Supreme Court, Albany County, Index No. 2218/13 I, Zoya Peralta, certify that the PDF Brief and Record contained herein are identical to the filed original printed materials. _________/S/________________ ZOYA PERALTA Dated: May 18, 2015