Smokers' rights group challenges NY's smoking ban

A smokers' rights group is objecting to a new rule beginning this year that will prohibit smokers from using New York state's parks, pools areas and beaches and historic sites as ash trays. The anti-smoking rule created in April by the state parks department would result in a disorderly conduct violation for smokers who puff away in banned areas. Smoking will be allowed in some areas. "These bans were imposed by bureaucratic fiat, not legislated law," says Audrey Silk, founder of CLASH, which supports smokers' rights nationwide.

"On that basis alone, they're unconstitutional." She said the rule "in fact went against the Legislature's will." Dan Keefe, a spokesman for the parks department, said the authority to create the measure comes from the Legislature. He said state parks and recreation law allows the agency to take action to protect the welfare and safety of the public. "Creating designated smoke-free zones in state parks will ensure that millions of people who visit these sites each year will be able to enjoy outdoor activities in a safe and healthy environment," state Health Commissioner Nirav Shah said last month.

 Silk had said CLASH will sue if the department doesn't change its position. Smoke-free areas will be around all playgrounds and swimming pools and can include swimming beaches, pavilions and picnic shelters, gardens, outdoor seating areas near food or drink concessions, and anywhere outdoor environmental education programs are provided. The measure also bans smoking in the state's parks in New York City, including Riverbank, Roberto Clemente, East River, Clay Pit Ponds, Gantry Plaza and Bayswater. New York City already bans smoking in parks and at beaches, boardwalks and public plazas and is stepping up enforcement with more than 100 tickets issued so far this year.

The city ban carries a $50 fine. Mayor Michael Bloomberg has introduced legislation in the City Council that would require residential buildings to adopt smoking policies and notify prospective residents. Bills similar to the Cuomo administration's parks rule have died in Senate and Assembly committees for years. That is because of insufficient support from the Assembly's Democratic and the Senate Republican majorities, although the bills were sponsored by majority members. At least one bill remains active. Silk said the April announcement of the rules came ahead of a 45-day comment period, required before state regulations can be adopted. "Aside from the primary legal constitutional question, this course of events furthermore makes a mockery of public participation," Silk said. "Parks have demonstrated that this is already a done deal, public comment period or not." The state has 178 parks and 35 historic sites that draw visitors from throughout the world.