In the Matter of the Application of the NYC C.L.A.S.H., INC., Petitioner,
The NEW YORK STATE OFFICE OF PARKS, RECREATION & HISTORIC PRESERVATION and Rose Harvey, in her Official Capacity as Commissioner of the New York State Office of Parks, Recreation & Historic Preservation, Respondents. For an Order and Judgment Pursuant to CPLR Article 78 and Other Relief
[975 N.Y.S.2d 594] Joseph Law Group LLP (Edward A. Paltzik, Esq., Of Counsel), New York City, Attorneys for Petitioner.
Eric T. Schneiderman, Attorney General of the State of New York (Douglas J. Goglia, Esq., Of Counsel), Albany, Attorneys for Respondents.
GEORGE B. CERESIA JR., J.
Petitioner New York City Citizens Lobbying Against Smoker Harassment, or NYC C.L.A.S.H. (hereinafter petitioner) is a not-for-profit corporation dedicated to advancing and promoting the interests of smokers, and protecting the legal rights of smokers. In February 2013, respondents New York State Office of Parks, Recreation & Historic Preservation and Rose Harvey, in her official capacity as Commissioner of the New York State Office of Parks, Recreation & Historic Preservation (hereinafter collectively referred to as respondents) adopted a regulation— 9 NYCRR § 386.1— which establishes outdoor no-smoking areas within certain parks, historic sites and recreational facilities.
According to respondents, 9 NYCRR § 386.1 was promulgated to " allow ... our patrons to enjoy the outdoors, breathe fresh air, walk, swim, exercise and experience State Parks' amenities and programs without being exposed to secondhand tobacco smoke and tobacco litter" (Talluto Aff., Ex. A at p. 25). " 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" (9 NYCRR § 386.1[a] ). The challenged regulation also entirely bans outdoor smoking in State parks located within the confines of [975 N.Y.S.2d 595] New York City ( see 9 NYCRR § 386.1[a] ).
In April 2013, petitioner commenced the instant " hybrid" CPLR article 78 proceeding/declaratory judgment action seeking: (1) a declaration that 9 NYCRR § 386.1 is unconstitutional as violative of the separation of powers doctrine; (2) a declaration that 9 NYCRR § 386.1 is arbitrary and capricious; (3) an order enjoining and permanently restraining respondents from implementing or enforcing 9 NYCRR § 386.1; (4) an order enjoining and permanently restraining respondents from implementing or enforcing any policy, rule or regulation in any way prohibiting or restricting outdoor smoking or tobacco use of any kind in state parks, historic sites or any other facility or property under respondents' jurisdiction; and (5) an order enjoining and permanently restraining respondents from installing " No-Smoking," " Smoking is Prohibited" and " Tobacco Use is Prohibited" signs on respondents' property, and further directing respondents to remove any such signage already installed on respondents' property. Respondents answered and oppose the relief sought.
Here, petitioner contends that respondents usurped the role of the Legislature by promulgating a regulation designed to set public policy. In support of its assertion that 9 NYCRR § 386.1 contravenes respondents' administrative rule-making function, petitioner cites Boreali v. Axelrod, 71 N.Y.2d 1, 523 N.Y.S.2d 464, 517 N.E.2d 1350 , the landmark Court of Appeals decision regarding constitutional separation of powers. For their part, respondents rely upon the broad language of Parks, Recreation and Historic Preservation Law and maintain that the subject regulation is consistent with their expressly delegated authority to protect the health, safety and welfare of park patrons, and to manage their facilities ( see Parks, Recreation and Historic Preservation Law § 3.09;  ). To this end, respondents aver that Boreali is not controlling in this matter.
I. The Separation of Powers Doctrine
" [T]he constitutional principle of separation of powers, implied by the separate grants of power to each of the coordinate branches of government, 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, 628 N.Y.S.2d 618, 652 N.E.2d 171  [internal quotation marks and citations omitted]; see Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 821, 766 N.Y.S.2d 654, 798 N.E.2d 1047 ; Ellicott Group, LLC v. State of N.Y. Exec. Dept. Off. of Gen. Servs., 85 A.D.3d 48, 54, 922 N.Y.S.2d 894  ). Although " there need not be a specific and detailed legislative expression authorizing a particular executive act as long as the basic policy decisions underlying the [executive action] have been made and articulated by the Legislature" ' ( Bourquin v. Cuomo, 85 N.Y.2d at 785, 628 N.Y.S.2d 618, 652 N.E.2d 171, quoting Matter of New York State Health Facilities Assn. v. Axelrod, 77 N.Y.2d 340, 348, 568 N.Y.S.2d 1, 569 N.E.2d 860  ), " when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, ... the doctrine of separation is violated" ( Clark v. Cuomo, 66 N.Y.2d 185, 189, 495 N.Y.S.2d 936, 486 N.E.2d 794 ; see Bourquin v. Cuomo, 85 N.Y.2d at 785, 628 N.Y.S.2d 618, 652 N.E.2d 171; Roberts v. Health & Hosps. Corp., 87 A.D.3d 311, 322, 928 N.Y.S.2d 236 , lv. denied 17 N.Y.3d 717, 935 N.Y.S.2d 287, 958 N.E.2d 1202  ).
[975 N.Y.S.2d 596] II. Boreali v. Axelrod Overview
In Boreali, the Court of Appeals held that the Public Health Council (hereinafter PHC) went beyond its lawfully delegated authority when it promulgated regulations prohibiting smoking in a wide variety of indoor areas open to the public ( see Boreali v. Axelrod, 71 N.Y.2d at 14, 523 N.Y.S.2d 464, 517 N.E.2d 1350). The Court reasoned that the regulations were invalid because the PHC " stretched th[e] [Public Health Law] beyond its constitutionally valid reach when it ... draft[ed] a code embodying its own assessment of what public policy ought to be" ( Boreali v. Axelrod, 71 N.Y.2d at 9, 523 N.Y.S.2d 464, 517 N.E.2d 1350).
Four " coalescing circumstances" persuaded the Court that " the difficult-to-define line between administrative rule-making and legislative policy-making ha[d] been transgressed" ( Boreali v. Axelrod, 71 N.Y.2d at 11, 523 N.Y.S.2d 464, 517 N.E.2d 1350). Those circumstances are as follows: (1) whether the regulation is based solely upon economic and social concerns; (2) whether the regulation created a comprehensive set of rules in the absence of legislative guidance; (3) whether the agency was acting in an area in which the Legislature has repeatedly tried, but failed, to reach agreement; and (4) whether the regulation involved issues which required no special expertise or technical competence in the agency's field ( Boreali v. Axelrod, 71 N.Y.2d at 10-14, 523 N.Y.S.2d 464, 517 N.E.2d 1350). " No one factor ... may validate or invalidate a regulation ... the four factors must be viewed in combination" ( New York Statewide Coalition of Hispanic Chambers of Commerce v. New York ...