New York Taxpayers Challenge Public Property Smoking Ban

Published March 18, 2016

A lawsuit filed by a group of New York residents opposed to tobacco bans on government property is being considered by the state’s top court, the New York State Court of Appeals.

NYC Citizens Lobbying Against Smoker Harassment (NYC CLASH), a nonprofit organization founded in 2000 to oppose regulations banning “sin” products such as soda and tobacco, sued the New York State Office of Parks, Recreation, and Historical Preservation (NYS Parks) in 2012, challenging the government agency’s authority to prohibit tobacco use in outdoor public parks.

An Albany County judge sided with NYC CLASH in 2013 and ordered the suspension of the regulation, but the ruling was later reversed on appeal in 2014.

Complex Questions

Aeon Skoble, a professor of philosophy at Bridgewater State University, says the public smoking bans in question have two main areas of vulnerability.

“There are two dimensions: One is the legal matter of whether this should be properly left to the legislature or whether it’s within the purview of the [NYS Parks] officials’ authority,” said Skoble. “The other is the substantive issue of whether the ban is good policy or not.”

Skoble says government-imposed, one-size-fits-all policies are ill-conceived.

“I do think blanket smoking bans in outdoor areas like parks are a bad idea,” Skoble said. “In outdoor areas, smoke dissipates quickly, and the nuisance level to others seems overstated. I’d defer to local park rangers to know where it’s appropriate and where it’s not. But in some 300-square-mile state park, the idea that one person smoking will harm me more than a passing truck is farfetched.”

Hoping to ‘Chill’ Agencies’ Overreach

Audrey Silk, a founder of NYC CLASH, says her organization’s lawsuit is intended to snuff out state agencies’ ability to overstep their authority.

“There will be no effect on legislatively enacted smoking bans as a result of this legal challenge.” Silk said. “But it should, and must, put a chilling effect on any idea to ban smoking unilaterally imposed by an agency.”

Silk says New York State bureaucrats have exceeded their constitutional authority.

“The New York State Office of Parks exceeded its authority, and we have had to resort to the court to rectify that,” Silk said. “Case law that mirrors our challenge exactly has come down on our side.¬†We can only hope the Court of Appeals remains consistent on this question.”

Andrea Dillon ([email protected]) writes from Holly Springs, North Carolina.