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.BriefN.Y.Feb 10, 2016State of New York Court of Appeals REPLY 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 79 Madison Avenue, Second Floor New York, New York 10016 (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: August 28, 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 ARGUMENT .............................................................................................................2 I. RESPONDENTS HAVE ENGAGED IN IMPERMISSIBLE POLICY-MAKING .........................................................2 II. RESPONDENTS MISCONTRUE PUBLIC HEALTH LAW § 1399-r.3 ..................................................................5 III. THE LENGTHY HISTORY OF LEGISLATIVE INACTION ON THE SUBJECT OF OUTDOOR SMOKING IS A RELEVANT CONSIDERATION ...........................................................................................11 IV. SMOKING IS A PUBLIC HEALTH ISSUE AND NOT A PARKS MANAGEMENT ISSUE.............................................17 CONCLUSION........................................................................................................20 ii TABLE OF AUTHORITIES Cases Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ………………………………………………...... passim Clark v. Cuomo, 66 N.Y.2d 185 (1995)……………………………………………..…….... 12 Dutchess/Putnam Rest. & Tavern Ass’n v. Putnam County Dep’t of Health, 178 F. Supp. 2d 396 (S.D.N.Y. 2001) ……………………………....... 3, 4, 6 Justiana v. Niagara County Dep’t of Health, 45 F. Supp. 2d 236 (W.D.N.Y. 1999) …………………………............. 5, 17 Leonard v. Dutchess County Dep’t of Health, 105 F. Supp. 2d 258 (S.D.N.Y. 2000) …………………………..... 3, 4, 6, 13 Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 243 (1989) ………………………………………………. 14 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) …………………………………............. 6, 11, 12, 17 Matter of Oswald N., 23 N.Y.3d 681 (1995) ……………………………………………………..12 Nassau Bowling Proprietors Ass’n v. County of Nassau, 965 F. Supp. 376 (E.D.N.Y. 1997) …………………………............ 2, 3, 4, 6 Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633 (1990) ……………………………………………................ 13 United States v. Craft, 535 U.S. 274 (2002) ………………………………………………...... 12, 13 Constitutional Provisions iii New York State Constitution (“N.Y. CONST.”) N.Y. CONST. art III, § 1 ……………………………………………………. 1, 2, 6 Laws & Statutes Criminal Procedure Law (“Crim Proc. L.”) Crim. Proc. L. § 330.20............................................................................................12 Parks, Recreation and Historic Preservation Law (“PRHPL”) PRHPL § 3.09 ......................................................................................................2, 11 Public Health Law (“Pub. Health L.”) Pub. Health L. § 347 ..................................................................................................6 Pub. Health L. § 1399-n .........................................................................................5, 9 Pub. Health L. § 1399-o.a ..........................................................................................9 Pub. Health L. § 1399-o.h........................................................................................10 Pub. Health L. § 1399-o.i.........................................................................................10 Pub. Health L. § 1399-o.n..........................................................................................9 Pub. Health L. § 1399-o-1.1...............................................................................16, 18 Pub. Health L. § 1399-o.2.a ...............................................................................11, 16 Pub. Health L. § 1399-o.2.b.................................................................................9, 16 Pub. Health L. § 1399-o.3........................................................................................16 Pub. Health L. § 1399-r.3.......................................................................................5, 6 Rules & Regulations New York Codes, Rules and Regulations (“NYCRR”) 7 NYCRR § 270.2......................................................................................................8 9 NYCRR § 300-3.1(n)..............................................................................................8 9 NYCRR § 375.1(c) ...............................................................................................19 9 NYCRR § 375.1(f)(9) ...........................................................................................19 9 NYCRR § 385.1....................................................................................................20 9 NYCRR § 386.1.............................................................................................passim 9 NYCRR § 4064.5................................................................................................7, 8 12 NYCRR § 36-3.5(a) ..............................................................................................8 iv 12 NYCRR § 36-3.5(q)..............................................................................................9 12 NYCRR § 36-3.8...................................................................................................8 14 NYCRR § 633.23(c) .............................................................................................9 14 NYCRR § 633.23(d) .........................................................................................7, 9 14 NYCRR § 633.23(d)(1)(i)...................................................................................10 18 NYCRR § 413.1..................................................................................................10 18 NYCRR § 413.2..................................................................................................10 18 NYCRR § 414.1..................................................................................................10 18 NYCRR § 414(b)(11) .....................................................................................7, 10 21 NYCRR § 1085.5(o) .......................................................................................7, 10 Other Authorities Javier C. Hernandez, “Smoking Ban for Beaches and Parks Is Approved,” The New York Times (February 8, 2011) .................................................................16 Noah Rosenberg, “Heated Debate at Hearing on Smoking Ban in Parks,” The New York Times (October 14, 2010).................................................................15 1 PRELIMINARY STATEMENT Appellant NYC C.L.A.S.H., INC. (“CLASH”)1 challenges the validity of 9 NYCRR § 386.1 (“Rule 386” or the “Rule”), an administrative rule adopted in 2013 by Respondents New York State Office of Parks, Recreation and Historic Preservation (“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). Rule 386 is a comprehensive anti-smoking regulation crafted without the benefit of legislative authority, and thus violates the separation- of-powers doctrine. N.Y. CONST. art III, § 1. CLASH submits this reply brief in further support of its appeal. 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 ARGUMENT I. RESPONDENTS HAVE ENGAGED IN IMPERMISSIBLE POLICY-MAKING Respondents tout Rule 386 as a permissible effort to “resolve[] competing claims to finite park resources” and “competing patron preferences.” (Respondents’ Br. at 3, 16). They concede that Rule 386 balances competing interests. (Respondents’ Br. at 23). Respondents rely on the management authority bestowed upon OPRHP by the Legislature through PRHPL § 3.09. (Respondents’ Br. at 4-5). However, “enactments conferring authority on administrative agencies in broad or general terms must be interpreted in light of the limitations that the Constitution imposes.” Boreali v. Axelrod, 71 N.Y.2d 1, 9 (1987)(citing N.Y. CONST. art III, § 1). Further, this Court in Boreali stated in its first factor that an agency usurps the legislative function when it engages 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. In Nassau Bowling Proprietors Ass’n v. County of Nassau, 965 F. Supp. 376 (E.D.N.Y. 1997), plaintiffs challenged a Nassau County Board of Health anti- smoking ordinance in federal district court. The Ordinance prohibited smoking in bowling centers except in designated areas. Id. at 377. As the Court observed, 3 “the Board acted independently of any specific legislation or, indeed, guidelines or input from the Nassau County Legislature, which body [had] apparently not addressed the issue.” Id. Applying Boreali, the district court granted summary judgment to plaintiffs and enjoined the County from enforcing the ordinance. Id. at 381. The Board of Health, which as the court observed “had authority to deal only with health issues,” adopted the ordinance “based on non-health related considerations” and this exceeded its authority. Id. at 380. The court deemed improper “the weighing and balancing of other significant concerns not within the ambit of authority delegated to the Board.” Id. Similarly, in Leonard v. Dutchess County Dep’t of Health, 105 F. Supp. 2d 258 [S.D.N.Y. 2000], the district court, applying Boreali, granted summary judgment to plaintiff businesses in their challenge to Dutchess County’s anti- smoking regulations. The district court observed that “the regulations themselves belie a compromise between social, economic, privacy and health concerns.” Id. at 265. Once more, in Dutchess/Putnam Rest. & Tavern Ass’n v. Putnam County Dep’t of Health, 178 F. Supp. 2d 396 [S.D.N.Y. 2001], the district court, applying Boreali, granted summary judgment to plaintiff restaurant owners and trade association in their challenge to the Putnam County Board of Health’s public smoking regulations. As in Nassau Bowling Proprietors, the Putnam Board of 4 Health impermissibly “relied on non-health concerns” in adopting its anti-smoking regulations. Id. at 402. In the case at bar, OPRHP, without legislative guidance, took into account “divergent” concerns unrelated to its statutory mandate to manage the state parks system, just as the Nassau and Putnam Counties’ Boards of Health considered factors unrelated to their missions as health-related bodies. Just as the Boards of Health in Nassau Bowling Proprietors, Leonard and Dutchess/Putnam were confined in their rulemaking to health-related concerns, OPRHP’s rulemaking must remain confined to parks management issues. Respondents concede that OPRHP’s goals included prevention of “exposure to secondhand smoke, a well- documented public health hazard” (Respondents’ Br. at 16) and facilitation of “healthy recreation” (Respondents’ Br. at 3, 8, 16, 18, 31, 39), all while balancing competing patron preferences. (Respondents’ Br. at 16). The record is clear that OPRHP’s goals in connection with Rule 386 were health-related. (Rec. 87, 95). OPRHP’s impermissible public policy goals included “promot[ion] of smoking cessation efforts” and “preventing children from becoming addicted to tobacco.” (R. 87). Since OPRHP is a parks management agency and not a health-related body, the agency has engaged in impermissible social engineering of adult behavior outside of the agency’s purview, similar to that proscribed in 5 Boreali, Nassau Bowling Proprietors, Leonard, Dutchess/Putnam and Justiana v. Niagara County Dep’t of Health, 45 F. Supp. 2d 236 (W.D.N.Y. 1999)(anti- smoking regulations adopted by Niagara County Board of Health invalid under Boreali). II. RESPONDENTS MISCONSTRUE PUBLIC HEALTH LAW § 1399-r.3 Respondents contend that CLASH’s arguments must fail because “the plain language of PHL § 1399-r.3 contemplates that smoking may be prohibited by other state agencies and political subdivisions.” (Respondents’ Br. at 31-32). As Respondents correctly point out, the statute provides that “[s]moking may not be permitted where prohibited by any other law, rule or regulation of any state agency or any political subdivision of the state.” (Respondents’ Br. at 31-32); Pub. Health L. § 1399-r.3. Clearly, the statute permits agencies such as OPRHP to adopt smoking prohibitions with legislative authorization. But no such authorization exists for Rule 386. While local legislative bodies may adopt smoking restrictions if such laws, ordinances or regulations “comply with at least the minimum applicable standards set forth in [Public Health Law Article 13-E, Pub. Health L. §§ 1399-n et seq. 2],” Article 13-E does not permit local or state agencies to adopt 2 On March 26, 2003, New York State Governor George Pataki signed into law Chapter 13 of the Laws of 2003 (Article 13-E of the Public Health Law), which amended certain provisions of the Clean Indoor Air Act. The Chapter 13 amendments prohibit smoking in virtually all indoor places in New York State where people work or socialize. 2003 N.Y. Senate Bill No. S. 3292; 2003 N.Y. Assembly Bill No. A. 7136, codified at Pub. Health L. §§ 1399-n et seq. Pub. Health L. § 1399-o prohibits smoking in places of employment, 6 anti-smoking rules more stringent than those authorized by local legislatures or the State Legislature. Pub. Health L. § 1399-r.3. To that end, 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 v. New York City Dept. of Health & Mental Hygiene, 23 N.Y.3d 681, 692 (2014)(discussing the second factor set forth in Boreali, 71 N.Y.2d at 1). Consistent with the second Boreali factor, the district court in Nassau Bowling Proprietors found that Pub. Health L. § 1399-r.3 did not provide authority to the Nassau County Board of Health to adopt bowling alley smoking restrictions and “plainly does not authorize action inconsistent with . . . the New York State Constitution.” 965 F. Supp. at 381 (citing N.Y. CONST. art III, § 1). Further, Pub. Health L. § 347, the enabling statute for county boards of health, which the district court regarded as “an otherwise permissible enabling statute - - [could] not be construed as broadly as [the County proposed].” Id. at 380; Leonard, 105 F. Supp. 2d at 267-268 (County Board of Health’s smoking regulations were not interstitial in nature since Dutchess County Legislature had failed to enact enabling legislation); Dutchess/Putnam, 178 F. Supp. 2d at 398, 404-405 (County Board of Health’s smoking regulations impermissible where Putnam County Legislature bars, food service establishments, indoor arenas and a wide variety of other indoor locations. 7 refused to take action on the issue of public smoking). Comparison of Rule 386 to other anti-smoking rules is instructive. The parties agree that state agencies other than OPRHP have adopted rules prohibiting outdoor smoking. In its brief, CLASH cites several examples of these rules,3 while Respondents cite some of the same rules, together with additional purportedly relevant rules. (Respondents’ Br. at 32-33). The rules cited by both parties are distinguishable from Rule 386 for various reasons, chiefly because (1) they are not comprehensive, or (2) were promulgated pursuant to legislative guidance. (Appellant’s Br. at 24-25). Moreover, at least one of the rules cited by Respondents merely directs compliance with no-smoking signs, while another apparently does not even involve outdoor smoking. OPRHP is using Rule 386 to comprehensively implement outdoor smoking restrictions in eleven regions at a variety of locations where people congregate. (Rec. 205-213). Indeed, in order to implement Rule 386 in the 330,000 acre state parks system, OPRHP developed a nine-page “Policy on No Smoking Areas at State Parks and Historic Sites for 2013- 2014.” (Rec. 205-213). This detailed nine-page policy statement reflects the comprehensiveness of Rule 386, unlike the succinct rules adopted by other agencies and quoted below. 3 See Appellant’s Br. at 24-25 [citing 9 NYCRR § 4064.5, 14 NYCRR § 633.23(d)[cited in error in Appellant’s brief as 9 NYCRR § 633.23(d)], 18 NYCRR § 414(b)(11), and 21 NYCRR § 1085.5(o)]. 8 A Department of Corrections and Community Supervision rule cited by Respondents provides that “[a]n inmate may only smoke outdoors in designated areas.” 7 NYCRR § 270.2. This non-comprehensive rule applies only to a very limited class of individuals (those who are incarcerated). In contrast, Rule 386 applies comprehensively to all members of the public who visit state parks. An Office of General Services rule cited by Respondents prohibits smoking “in any area, building or portion of a building, structure or portion of a structure on State property where signs are in place advising that smoking is prohibited at such location.” 9 NYCRR § 300-3.1(n). Unlike Rule 386, this rule does not create or designate no-smoking areas. It merely directs individuals to comply with lawfully installed no-smoking signage. A New York State Gaming Commission rule cited by Petitioner and Respondents prohibits “[a]mateur riders and jockeys . . . from smoking while in racing colors.” 9 NYCRR § 4064.5. Unlike Rule 386, this one-sentence regulation is confined to a narrowly defined class of persons smoking in a narrowly defined circumstance. A Department of Labor rule cited by Respondents prohibits smoking “in any summer theatre4 while occupied as a place of public assembly except 4 “[S]ummer theatre” is defined as a theater “operating only during the months of May to October, inclusive, for a period of not more than 12 weeks, and whose capacity does not exceed 600 persons.” 12 NYCRR § 36-3.5(a). The Department of Labor has adopted 9 as incidental to a performance.” 12 NYCRR § 36-3.5(q). Unlike Rule 386, this narrow rule applies only to one type of location and only at certain times. Moreover, to the extent that summer theatres are indoor facilities, smoking therein is regulated by 12 NYCRR § 36-3.5(q), which, unlike Rule 386, is authorized by statute. Pub. Health L. §1399-o.a prohibits smoking at “places of employment,” which include “theaters,” as defined by Pub. Health L. § 1399-n. An Office of People With Developmental Disabilities (“OPWDD”) rule cited by Respondents prohibits smoking inside facilities operated or certified by OPWDD. 14 NYCRR § 633.23(c). A companion rule cited in Petitioner’s brief allows OPWDD or agency operating a certified facility to prohibit outdoor smoking on facility grounds. 14 NYCRR § 633.23(d).5 These rules, unlike Rule 386, are authorized by statute. Indeed, smoking is prohibited at “general hospitals and residential health care facilities . . . .” (Pub. Health L. 1399-o.n) and “on the grounds of general hospitals and residential health care facilities . . . .” (Pub. Health L. § 1399-o.2.b). The statute does allow health care facilities to designate outdoor smoking areas “not within thirty feet of any building structure . . . .” Pub. Health L. § 1399-o.2.b. The rule essentially tracks the statute and provides that separate rules for “[o]pen air places of public assembly.” 12 NYCRR § 36-3.8 5 Cited in error in Appellant’s brief as 9 NYCRR § 633.23(d). 10 “designated outdoor smoking areas must be at least 30 feet from the building which houses a facility that is operated or certified by OPWDD.” 14 NYCRR § 633.23(d)(1)(i). An Office of Children and Family Services (“OCFS”) rule cited by Petitioner and Respondents 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).6 As with the Gaming Commission’s jockey rule, this one-sentence regulation is confined to a narrowly defined class of persons smoking in narrowly defined circumstances. The OCFS smoking prohibition applies to child day care settings. 18 NYCRR § 414.1; 18 NYCRR § 413.1; 18 NYCRR § 413.2. Thus, 18 NYCRR § 414(b)(11), unlike Rule 386, is authorized by statute, since Article 13-E prohibits smoking at “any facility that provides child care services . . . .” (Pub. Health L. § 1399-o.h) and at “child day care centers” (Pub. Health L. § 1399-o.i). Finally, a Metropolitan Transportation Authority rule cited in Appellant’s brief provides that “[n]o person in a terminal, station or train shall: burn a lighted cigarette, cigar, pipe or any other matter or substance which contains tobacco or any tobacco substitute . . . in an outdoor ticketing, 6 Cited in error in Respondents’ brief as 18 NYCRR § 414.11(c). 11 boarding or platform area of a terminal or station.” 21 NYCRR § 1085.5(o). This prohibition, unlike Rule 386, is directly authorized by statute. Pub. Health L. § 1399-o.2.a. III. THE LENGTHY HISTORY OF LEGISLATIVE INACTION ON THE SUBJECT OF OUTDOOR SMOKING IS A RELEVANT CONSIDERATION 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. In Boreali, this Court made clear that legislative inaction despite opportunities to act may serve as a valid consideration in the separation-of-powers context. 71 N.Y.2d at 13. Appellant’s brief sets forth in detail the lengthy history of failed legislative initiatives on the subject of outdoor smoking. (Appellant’s Br. at 27-28). This history consists of 24 bills considered and rejected by the Legislature between the 2001-2002 and 2013-2014 sessions, together with four restrictions that became law. (Appellant’s Br. at 27-28). Respondents attempt to distinguish the case at bar from Boreali in three respects. (Respondents’ Br. At 36-39). First, Respondents speculate that “the Legislature could have declined to act for the simple reason that Parks Law § 3.09 already delegates to [OPRHP] the 12 authority to designate no-smoking areas.” (Respondents’ Br. At 37). In support of this speculation, Respondents cite Matter of Oswald N., 87 N.Y.2d 98, 103 n. 1 (1995)(quoting Clark v. Cuomo, 66 N.Y.2d 185, 190 [1985]). (Respondents’ Br. at 37). Respondents take Oswald out of context. The separation-of-powers doctrine was not at issue in Oswald. Rather, the issue was one of statutory interpretation relating to remand of a criminal defendant acquitted by reason of insanity. See, Crim. Proc. L. § 330.20. The Court took note of a failed 1993 bill7 submitted to the Legislature by the Commissioner of Mental Health to clarify the ambiguity in Crim. Proc. L. § 330.20, but found that the bill was not material to its analysis. Oswald, 87 N.Y. 2d at 103 n.1. The situation in this case is substantially different and more akin to Boreali. Unlike Oswald, in which the legislative inaction consisted of one failed bill, the history of legislative inaction on outdoor smoking is substantial – 24 failed bills over a thirteen-year period. This is an indication that the Legislature has “repeatedly tried - - and failed - - to reach agreement” on the subject of outdoor smoking, similar to the situation in Boreali. 71 N.Y.2d at 13; Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 N.Y.3d at 692. Respondents’ reliance on United States v. Craft, 535 U.S. 274 (2002), is also 7 Assembly Bill 6437 (1993). 13 misplaced. (Respondents’ Br. at 36). In Craft, the Supreme Court indicated that “failed legislative proposals are ‘a particularly dangerous ground on which to rest interpretation of a prior statute . . . .’ ” 535 U.S. at 287 (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 650 [1990]). In the case at bar, the issue is not interpretation of a prior statute. Rather, the issue is whether the Court may consider legislative inaction in a separation-of-powers analysis. In that analysis, Boreali mandates consideration of legislative inaction. 71 N.Y.2d at 13. Second, Respondents argue that the legislative debate about smoking was more vigorous at the time of Boreali than in recent years. (Respondents’ Br. at 37- 38). Assuming, arguendo, that this is true, it is irrelevant. Boreali does not require that legislative debate be vigorous, or that legislative debate occur at all, as Respondents urge, in order for the legislative inaction to become relevant. (Respondents’ Br. at 38). 71 N.Y.2d at 13. For example, in Leonard, supra, the Dutchess County Legislature failed to pass a “Born Free to Breathe Local Law,” which would have excluded minors from any public indoor smoking area in the County. 105 F. Supp. 2d at 267. Despite no record before the district court of “details as to the debate, if any, preceding the County Legislature’s failure to pass the Born Free to Breathe Local Law,” the district court nonetheless considered this legislative failure in striking down the regulation at issue. Id. at 267-268. Boreali 14 requires only that the subject of legislative failure be a topic of “substantial public debate.” 71 N.Y.2d at 13. Third, Respondents argue that issues involving smoking are less controversial today than at the time Boreali was decided. (Respondents’ Br. at 38). According to Respondents, the regulations at issue in Boreali were “issued at a time when the effects of secondhand smoke were still uncertain and the subject was a matter of heated public debate and extensive lobbying by a variety of factions.” (Respondents’ Br. at 20 [citing Boreali, 71 N.Y.2d at 13]). Respondents also contend that “[a] key feature in Boreali was that the Legislature had never articulated any policy regarding indoor smoking.” (Respondents’ Br. at 29 [citing Matter of Campagna v. Shaffer, 73 N.Y.2d 237, 243 (1989)]). These contentions are erroneous. Even in 1987, it was “a medically proven fact that environmental tobacco smoke, especially indoors, is hazardous and even deadly to the health of thousands of innocent bystander nonsmokers.” Boreali, 71 N.Y2d at 18 (Bellacosa, J., dissenting and citing “Health Consequences of Involuntary Smoking, A Report of the Surgeon General [Dec. 1986]”). Further, contrary to Respondents’ assertion, the Legislature had enacted smoking restrictions prior to Boreali. “The growing concern about the deleterious effects of tobacco smoking led our State Legislature to enact a bill in 1975 restricting smoking in certain designated areas, specifically 15 libraries, museums, theaters and public transportation facilities. Boreali, 71 N.Y.2d at 6 (citing L 1975, ch. 80, codified at Pub. Health L. Article 13-E, §§ 1399-o -- 1399-q). Smoking remains widespread today, as evidenced by the 42.1 million smokers nationwide, with New York ranking eighth as recently as 2011 among all states in prevalence of smoking. (Appellant’s Br. at 11-12).8 These statistics show that issues involving smoking are not black and white. Respondents inadvertently acknowledge that smoking is still controversial by arguing that Rule 386 would reduce conflicts between smokers and non-smokers. (Respondents’ Br. at 8, 15, 24, 25, 39). Further evidence of the ongoing controversy involving the use and regulation of tobacco products was the heated public debate leading up to New York City’s ban on smoking in city parks in 2010 and 2011. In October 2010, The New York Times reported that “[a] New York City Council public hearing on a proposed smoking ban in city parks evolved into an hours-long, occasionally raucous showdown . . . touching on issues such as civil liberties, public health, big government and litter.” Noah Rosenberg, “Heated Debate at Hearing on Smoking Ban in Parks,” The New York Times (October 14, 2010).9 In February 2011, The 8 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). Also 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). 16 New York Times also reported that “[a]fter a bitter debate over individual liberties and the role of government, the City Council . . . handily approved a bill to ban smoking in 1,700 city parks . . . . ” Javier C. Hernandez, “Smoking Ban for Beaches and Parks Is Approved,” The New York Times (February 8, 2011).10 If smoking regulations were almost entirely without controversy, as Respondents suggest, then the Legislature would have restricted outdoor smoking to a far greater degree than does the Public Health Law currently. Instead, the Legislature has been able to enact only very limited outdoor smoking prohibitions: Pub. Health L. § 1399-o.2.a (metropolitan transportation authority railroad stations; Pub. Health L. § 1399-o.2.b (hospitals and health care facilities; Pub. Health L. § 1399-o.3 (schools); and Pub. Health L. § 1399-o-1.1 (playgrounds during daytime hours with children present). (Appellant’s Br. at 28). Most importantly, the Legislature has thus far not enacted any laws restricting smoking in state parks. S03760, the “Smoke Free Parks Act of 2015,” which would prohibit smoking in state parks and all other public parks, is presently under consideration in the Legislature, having been referred to the Health Committee.11 S03760 or a similar 9 Available online at: http://cityroom.blogs.nytimes.com/2010/10/14/air-cleared-at-parks- smoking-ban-hearing/?_r=0 10 http://www.nytimes.com/2011/02/03/nyregion/03smoking.html?_r=1 11 See http://assembly.state.ny.us/leg/?default_fld=&bn=S03760&term=2015&Summary=Y&M emo=Y&Text=Y. Also available at http://public.leginfo.state.ny.us/navigate.cgi?NVDTO: (Bill Search: S03760). 17 bill would be the constitutional method of implementing a smoking ban. IV. SMOKING IS A PUBLIC HEALTH ISSUE AND NOT A PARKS MANAGEMENT ISSUE 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. In an attempt to evade the fourth Boreali factor, Respondents argue that Rule 386 does “not purport to regulate public health” but instead “address[es] management and operational issues facing the state park system.” (Respondents’ Br. at 34). However, smoking regulation fundamentally involves health issues rather than park management or operational issues. “Where the regulation of smoking is concerned, the New York Court of Appeals has made clear that health concerns are so intertwined with economic and social concerns that the Board may not override the Legislature, whatever its authority to do so in other instances may be.” Justiana, 45 F. Supp. 2d at 245 (referring to anti-smoking regulations impermissibly adopted by Niagara County Board of Health). As anticipated in Appellant’s brief, Respondents offer several red herrings to support their specious contention that Rule 386 is a “management and operational measure” requiring OPRHP’s management expertise to develop. (Respondents’ Br. at 35). First, Respondents attempt to characterize Rule 386 as a measure “conducive to healthy recreational activities.” (Respondents’ Br. at 16). For example, they 18 emphasize the Rule’s purported benefit in relation to playgrounds by asserting that it “facilitates healthy recreation, especially at the 133 playgrounds where children congregate.” (Respondents’ Br. at 16). Since smoking at playgrounds is already regulated by the Public Health Law (which prohibits smoking at playgrounds during daytime hours when children are present), this purported benefit of Rule 386 is a sham. Pub. Health L. § 1399-o-1.112 Respondents’ emphasis on healthy recreation also belies the fact that Rule 386 is an ill-conceived public health measure masquerading as an operational measure. Indeed, Respondents assert that the Rule promotes “a healthy environment” and limits park visitors’ “exposure to secondhand smoke, a well- documented public health hazard” (Respondents’ Br. at 16). All told, six pages of Respondents’ make reference to “healthy recreation.” (Respondents’ Br. at 3, 8, 16, 18, 31, 39). Moreover, OPRHP’s misappropriated public health goals are set forth in the agency’s stated intentions of “promot[ion] of smoking cessation efforts” and “preventing children from becoming addicted to tobacco.” (R. 87). Second, Respondents attempt to link Rule 386 to OPRHP’s goal of reducing wildfires. (Respondents’ Br. at 17). Respondents argue that Appellant “overlooks that fire prevention is not the only reason for the regulation; it is simply one of several.” (Respondents’ Br. at 19). The fact of the matter is that fire prevention, 12 Bill A04025, signed into law on July 12, 2013 as Pub. Health L. § 1399-o-1. 19 as one of the chief justifications for Rule 386, is relevant in assessing Respondents’ credibility. The fire-prevention justification strains credulity because Rule 386 does not prohibit smoking in the locations where wildfires are most likely to start, including remote areas and campsites. (Rec. 87, 94). Third, Respondents link Rule 386 to the purported goal of reducing operating costs associated with cleaning up cigarette butts. (Respondents’ Br. at 17). Respondents attempt to downplay the importance of this fiscal justification by characterizing it as “an added bonus. (Respondents’ Br. at 17). However, the record is clear that OPRHP clearly considered operational savings as far more than a mere bonus. (Rec. 87, 95). More importantly, Rule 386 is entirely superfluous with regard to litter reduction, and thus provides no reduction in operating costs, because OPRHP already has two other anti-littering rules in place. Indeed, 9 NYCRR § 375.1(c) provides that “[n]o person shall in any manner cause any rubbish, garbage, refuse, organic or inorganic waste . . . to be placed or left in or on any property, except in receptacles provided for that purpose.” Moreover, 9 NYCRR § 375.1(f)(9) provides that “[n]o person shall do any of the following: (9) throw away or discard any lighted match, cigar, cigarette, charcoal or other burning object other than in a receptacle provided for that purpose.” These two rules address OPRHP’s purported littering concerns and fire prevention concerns without need for Rule 386. 20 Fourth, Respondents compare the regulation of smoking under Rule 386 to management rules previously adopted by OPRHP, including “nuisance” rules relating to noise, unleashed pets, alcohol consumption, glass containers and uncontained fires. (Respondents’ Br. at 24-25). As Respondents point out, even nuisance rules implicate questions of personal liberty, albeit on a small scale. (Respondents’ Br. at 27). On the other hand, Rule 386 implicates far more substantial concerns relating to personal liberty. OPRHP adopted an alcohol consumption rule as a means of controlling drinking-related nuisance on their properties, not as a means of combatting social problems caused by drinking or to affect behavioral changes in drinkers themselves. 9 NYCRR § 385.1. In contrast, OPRHP did not adopt Rule 386 merely to address a park management nuisance. Indeed, Respondents’ management justifications are illusory, since OPRHP already had rules in place to combat cigarette butt litter and purported wildfire risk. Rather, OPRHP adopted Rule 386 to achieve broad goals relating to health and social policy, such as promotion of healthy lifestyles, smoking cessation and combatting youth tobacco use. Further, smoking restrictions are and have been a subject of heated public debate, whereas the other subjects raised by Respondents are not. Social engineering is not a prerogative of OPRHP or any other agency. CONCLUSION For the reasons set forth in this reply brief and in Appellant’s brief-in- chief, 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. Dated: New York, NY August 27,2015 21 Respectfully submitted, JOSRPE LAW GROUP LLP Attorneys for Appellant, NYC C.L.A.S.R., INC. 79 Madison Avenue, FL 2 New York, New York 10016 (646) 820-6701 ;() By: ~i. (;/diifu Edward A. Paltzik 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, JESSICA MORENO, certify that the PDF Reply Brief contained herein are identical to the filed original printed materials. _________/S/________________ JESSICA MORENO Dated: August 28, 2015
