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NASSAU BOWLING PROPRIETORS ASS'N v. COUNTY OF NASS

May 29, 1997

NASSAU BOWLING PROPRIETORS ASSOCIATION, et al., Plaintiffs, against THE COUNTY OF NASSAU, et al., Defendants.


The opinion of the court was delivered by: HURLEY

 HURLEY, District Judge

 Presently pending before the Court in the above-captioned case are the motion of Plaintiffs for summary judgment and the cross-motion of Defendants for summary judgment. As set forth more fully below, Plaintiffs' motion is granted, and Defendants' motion is denied. Defendants are permanently enjoined from enforcing the Ordinance at issue.

 BACKGROUND

 Plaintiffs, the Nassau Bowling Proprietors Association and the owners of numerous bowling centers located in Nassau County, challenge the legality of Article VIII of the Nassau County Public Health Ordinance, Regulation of Smoking, promulgated by Defendant Nassau County Board of Health (the "Board"). The Ordinance prohibits, inter alia, smoking in bowling centers except in designated enclosed and separately ventilated areas. It also allows the Commissioner of Health, or a person designated by the Commissioner, to grant a waiver of the no-smoking provision under certain circumstances.

 The Board first passed a no-smoking ordinance in 1987; that ordinance was substantially amended on January 22, 1996 (the "January Ordinance"), prompting the present litigation. The Court was first called upon to address the sufficiency of the revised enactment on June 27, 1996, at which time oral arguments were heard from Plaintiffs and Defendants on Plaintiffs' application for a temporary restraining order to prevent implementation of the January Ordinance. Thereafter, Defendants agreed to stay the effective date of the January Ordinance pending a hearing on the application for a preliminary injunction. That hearing was not held, however, because the Board repealed the January Ordinance and enacted in its stead, on July 16, 1996, an ordinance (the "July Ordinance") which, for present purposes, is virtually identical to its predecessor. By action taken on September 17, 1996, the Board suspended the effective date of the July Ordinance until such time as this Court renders a decision on the pending motions for summary judgment.

 It is the current ordinance, i.e., the July Ordinance (the "Ordinance"), which is the subject of this decision. However, since the January Ordinance and the July Ordinance share a common administrative history, events preceding the January enactment require discussion.

 The Board, as explained by its Chair, took action in 1996 because:

 
Since our last ordinance was adopted there has been additional information developed on the effects of second hand smoke and so the Board of Health felt it was time to review the situation again, especially since our neighbors to the West, New York City, and to the East, Suffolk, have revised their ordinances as well.

 (Novikoff Aff., Ex. M at 4.)

 The Preamble to the Ordinance identifies that concern, i.e. about second-hand smoke, as the purpose underlying the enactment. (Ordinance, §§ 1 and 2.)

 In pursuing its goal, the Board acted independent of any specific legislation or, indeed, guidelines or input from the Nassau County Legislature, which body apparently has not addressed the issue. Rather, the Board acted under general authority delegated to it under state law (see N.Y. Pub. Health Law § 347(McKinney 1990)), and under the Nassau County Charter (Article IX, §§ 902 and 903, establishing the Board of Health) and related Administrative Code provisions (Chapter IX, Title C, § 9-20.0, empowering the Board to enact rules and regulations protecting the health of County residents).

 The question before the Court, however, is not whether the Board has the authority to regulate smoking in public places based on considerations of health, but whether in passing this Ordinance -- with significant exceptions based on non-health related concerns -- it exceeded its administrative powers.

 On May 16, 1997, the Court heard oral argument on the instant summary ...


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