PKR-49-12-00011-A Outdoor No-Smoking Areas in Parks, Recreational Facilities and Historic Sites Under ORPHP Jurisdiction

2/27/13 N.Y. St. Reg. PKR-49-12-00011-A

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 09

February 27, 2013

RULE MAKING ACTIVITIES

OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

NOTICE OF ADOPTION

 

I.D No. PKR-49-12-00011-A

Filing No. 180

Filing Date. Feb. 12, 2013

Effective Date. Feb. 27, 2013

Outdoor No-Smoking Areas in Parks, Recreational Facilities and Historic Sites Under ORPHP Jurisdiction

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of Part 386 to Title 9 NYCRR.

Statutory authority:

Parks, Recreation and Historic Preservation Law, section 3.09(2), (5) and (8)

Subject:

Outdoor no-smoking areas in parks, recreational facilities and historic sites under ORPHP jurisdiction.

Purpose:

To allow designation of outdoor no-smoking areas in OPRHP's parks, recreational facilities and historic sites.

Text or summary was published

in the December 5, 2012 issue of the Register, I.D. No. PKR-49-12-00011-P.

Final rule as compared with last published rule:

No changes.

Text of rule and any required statements and analyses may be obtained from:

Kathleen L. Martens, Associate Counsel, Office of Parks, Recreation and Historic Preservation, 625 Broadway, Albany, NY 12207 (physical location); Albany, NY 12238 (USPS postal mail), [phone], email: [e-mail]

Assessment of Public Comment

During the public comment period the Office of Parks, Recreation and Historic Preservation (OPRHP) received 404 written comments regarding its proposed new rule (9 NYCRR Part 386) to allow the Commissioner to designate no-smoking areas outdoors within parks, historic sites and recreational facilities, and to designate the seven state parks located in New York City as smoke free with limited areas for smoking. The large majority of comments favored the creation of no-smoking areas in outdoor park settings: 369 comments (91%) supported the proposed regulation, while 35 comments (9%) opposed the measure. Many comments simply expressed general support or opposition to the proposed rule and most comments raised similar points. Of those in support, many thought the rule should be expanded to ban smoking completely in every part of every park and campground. Conversely, many of those opposed thought the rule was too restrictive. The following summarizes the substantive comments and provides a response where appropriate.

Comment: The Administrative Regulations Review Commission (ARRC) of the New York State Legislature, established in 1978 under Section 87(1) of the Legislative Law, oversees the rulemaking process and examines rules with respect to statutory authority, legislative intent and impact on the economy, government operations and affected parties. Previously it provided support for the Court of Appeals opinion in Boreali v. Axelrod, 71 NY2d 1, 1987 that overturned the Public Health Council’s rule on indoor smoking. In contrast, here ARRC commented that the facts in Boreali and that Court’s decision do not preclude OPRHP from managing facilities used by the public, and delineating where smoking should be permitted and where it should not.

According to ARRC:

It is evident that many members of the public in general – and possibly more who use the playgrounds and recreational facilities in state parks – are interested in a healthy lifestyle and would object to a lax policy allowing indiscriminate smoking in OPRHP facilities. The regulatory impact statement also points out the significant cost of cleaning up after smokers. Beyond the issues of customer service and cost, we also note that New York State experienced a substantial number of wildfires last year due to hot and dry weather. The proposed rules would enhance OPRHP’s ability to protect its parks from fires similar to the one in 2008 that burned 3100 acres in Minnewaska State Park (which was likely started by a discarded cigarette).

We believed that OPRHP has crafted reasonable rules that are in the public’s best interest, and we urge their adoption.

Response: None required.

Comment: The New York State Department of Health (DOH) expressed strong support for the rule and acknowledged OPRHP’s general authority to adopt it under Parks, Recreation and Historic Preservation Law (PRHPL) Section 3.09 and Section 1399-r of the Public Health Law which states, in part, that “[s]moking may not be permitted where prohibited by any other law, rule or regulation of any state agency or political subdivision or political subdivision of the state.”

Additionally, DOH commented on the public health benefits of the rule and stated the scientific evidence is clear, convincing and overwhelming that there is no risk-free level of exposure to secondhand smoke citing the Surgeon General’s 2006 Report “The Health Consequences of Involuntary Exposure to Tobacco Smoke” and other studies. According to DOH, other health benefits from the rule include reducing nicotine poisoning in children (because incidences of ingesting cigarette butts will be reduced) and reducing the perception by young children that tobacco use is a common and desirable adult behavior. More than 300 municipalities in New York State have restricted tobacco use at outdoor recreational areas and more than 60% of New York residents and 30% of smokers favor restrictions like those proposed in the rule. Because DOH’s mission is to protect, improve and promote the health, productivity and well-being of all New Yorkers that agency strongly supports the rule.

Response: None required.

Comment: The American Cancer Society Action Network of New York and New Jersey (ACS) indicated OPRHP was following in the steps of cities including Chicago, Los Angeles, New York City, Santa Monica and Seattle that have established smoke-free parks. ACS also focused on the Surgeon General’s report indicating there is no safe level for secondhand smoke, and further cited the number of toxic and cancer causing chemicals it contains. Non-smoking adults die of lung cancer caused by secondhand smoke and there is a potential causation between secondhand smoke and breast cancer. A Stamford University study showed even brief exposure to secondhand smoke outdoors could be harmful. There is also a cumulative effect from ingestion of secondhand smoke over time. No-smoking policies decrease the prevalence of adult and youth smoking. ACS would like to see the rule broadened to establish smoke-free areas within 25 feet of playgrounds and bathrooms at campgrounds.

Response: OPRHP will review campground usage, after this rule is adopted, to determine whether it should be broadened later in a separate rulemaking to allow designation of no-smoking areas within portions of campgrounds. Otherwise, OPRHP believes the rule takes a reasonable approach to managing user conflicts on this issue.

Comment: The New York State Association of County Health Officials stated the rule continues the successful model of keeping enforcement powers within the entity that owns or operates the park or other outdoor area.

Response: None required.

Comment: The New York State Public Health Association stated secondhand smoke is a Class A carcinogen that is in the same category as asbestos and benzene. Exposure produces cumulative negative effects. According to the Environmental Protection Agency children breathe 50% more pollution per pound of body weight than adults and are more susceptible to the effects of secondhand smoke even outdoors. Smoke-free policies decrease the prevalence of adult and youth smoking. Communities with strong tobacco control policies have lower smoking rates. Cigarette butts take years to decompose and are costly to clean up. The rule should be broadened to include areas adjacent to bathrooms and other adjacent areas at campgrounds so that 80% of these areas would be smoke free.

Response: OPRHP will review campground usage after this rule is adopted, to determine whether it should be broadened later in a separate rulemaking to allow designation of no-smoking areas within portions of campgrounds. Otherwise, OPRHP believes the rule takes a reasonable approach to managing user conflicts on this issue.

Comment: Coalition for a Smoke-Free City is a New York City-based entity that promotes awareness of tobacco control to complement the Clean Indoor Air Act (CIAA) and supports the rule citing to New York City’s example with respect to its facilities.

Response: None required.

Comment: The New York City Department of Health and Mental Hygiene opined that smoking should be banned completely in all parks, recreation areas and historic sites.

Response: OPRHP believes the rule’s focus on establishing no-smoking areas where large numbers of people congregate is rational given the large size of many of its parks outside of New York City (most state parks are larger than 100 acres, and the largest exceed 10,000 acres in size).

Comment: New York City Citizens Lobbying Against Smoker Harassment (CLASH) is a smokers’ rights organization dedicated to advancing and promoting the interests of smokers and protecting legal rights of smokers. It advocates for smokers’ rights by exhausting democratic avenues and the administrative process to achieve results in the best interests of its organization and members, and if it feels its grounds are strong and that the party it has appealed to is acting unlawfully then it turns to the judicial system for relief as a last resort. CLASH states that OPRHP lacks authority to adopt the rule and that authority to designate no-smoking areas must be granted to OPRHP directly by the State Legislature through specific legislation under the holding of Boreali v. Axelrod, 71 NY2d 1, 1987 and Justiana v. Niagara County Dep’t of Health, 45 F.Supp.2d W.D.N.Y 1999.

According to CLASH:

With the proposed rule, OPRHP improperly usurps a legislative function insofar as Section 386.1 contemplates prohibition of outdoor smoking because the State Legislature has repeatedly declined to prohibit or restrict outdoor smoking. The New York State Constitution, Article III, § 1 provides: “The legislative power of this state shall be vested in the senate and assembly.”

***

In amending the CIAA in 2003, the State Legislature had an opportunity to prohibit or restrict outdoor smoking, but specifically declined that opportunity, with the exception of smoking on railroad platforms. Moreover, the railroad platform smoking ban was only a recent addition to the Chapter 13 Amendments, not signed into law until August 5, 2011 and not effective until November 13, 2011.

***

As the Boreali and Justiana Courts realized, smoking bans have historically been legislated – with agency or non-legislative involvement limited to narrow implementation of legislative dictate. Most recently, following the enactment of the Chapter 13 amendments to the CIAA, the Metropolitan Transportation Authority (MTA) conformed its rules of conduct for Long Island Railroad and Metro North Railroad in accordance with N.Y. Pub. Health Law § 1399-o to incorporate the prohibition on smoking at ticketing, boarding or platform areas of railroad stations. N.Y.S. Register, November 30, 2011 at p.14. Similarly, on June 12, 2012, the State University of New York (“SUNY”) board of trustees passed a resolution to support legislation for an outdoor smoking ban on all SUNY campuses, but stopped short of imposing a ban. (See, SUNY Press Release, June 12, 2012, “Board of Trustees, Chancellor Zimpher Call for ‘Tobacco-Free SUNY’” available at suny.edu/sunynews/New.cfm?filname=Tobacco-FreeSUNY2012.htm.).

Clearly, two state agencies, MTA and SUNY, each recognized that it is beyond their authority to create smoking prohibitions unless authorized by the State Legislature. In contrast, OPRHP, a State agency, has incorrectly decided that it has the prerogative to create its own smoking rules even without legislative authorization, and thus without legal basis. There, it is the position of CLASH that OPRHP’s proposed rule-making, insofar as it seeks to add section 386.1 to 9 NYCRR, is impermissible under the New York State Constitution, the CIAA, Boreali and Justiana.

Response: OPRHP and the State Legislature’s Administrative Regulations Review Commission disagree with CLASH. Unlike the MTA and SUNY, OPRHP has independent general authority delegated from the State Legislature under PRHPL § 3.09 to manage its facilities and manage use conflicts at its facilities for the benefit of the public’s health, safety and general welfare. Managing use conflicts from exposure to secondhand smoke at its facilities by designating no-smoking areas where large numbers of people congregate outdoors is authorized by the PRHPL.

Comment: Comments were received from some individuals generally supporting CLASH’s position that OPRHP has exceeded its delegated regulatory authority in proposing the rule without direct and specific authority from the State Legislature. In addition, the following comments were received from individuals opposed to the rule:

• Smokers generally respect others and do not smoke in their vicinity;

• People with lower incomes smoke more than affluent people and depend on parks for free recreation and enjoyment, and this will make visiting parks a less attractive option for them;

• This regulation goes too far and does not recognize that some people need to smoke to relax and want to do that at parks;

• Parks are funded by all taxpayers including smokers who visit them and they should not be excluded;

• Many smokers will stop visiting parks if they are not allowed to smoke and will also stop visiting New York City;

• The science on effects of secondhand smoke is inexact because usually a smoker is at least six feet away from another person (not 18 inches), there is no measurable exposure to secondhand smoke, and no evidence that smoke moves downward or horizontally;

• One study revealed non-smokers whose KRAS-mutant lung adenocarcinomous tumors containing the KRASG12D mutation did not develop the disease from secondhand smoke;

• Better enforcement of no-littering rules would address the problem of cigarette butts which is the same problem you have with coffee cups, water bottles, newspaper and other types of litter;

• It would be reasonable to designate no-smoking areas only at stadiums and playgrounds and other areas during special events but not everywhere else;

• Traditionally, public parks welcomed all people, common courtesy prevailed and few restrictions were imposed; these public places should continue to be managed that way;

• OPRHP is a municipal corporation or an agent of a municipal corporation that does not have authority to legislate;

• This represents intrusive government attempting regulating behavior and imposing ideology;

• This represents bullying and a form of discrimination because it excludes people from parks because they smoke and is similar to excluding homosexuals, people of a certain race or creed, people with a certain nationality;

• The effects from secondhand smoke are similar to the effects from car exhaust, standing near a stove, grilling over a barbecue pit, roasting marshmallows, being exposed to a campfire or burning candles;

• Smokers are engaging in a legal act and people offended should look away;

• State and federal governments benefit from taxes on the sale of tobacco products so people using these products should be able to do so on State property;

• As a youth one person visited Jones Beach with friends and they swam, drank beer, smoked cigarettes, cleaned up litter and did not bother anyone: the ban in parks and beaches will drive residents and tourists from New York State venues;

• It is arbitrary for the State to decide what is right or wrong on this issue;

• There is evidence that children of smokers have not developed diseases related to secondhand smoke; and

• The ban on smoking is similar to the ban on alcohol during Prohibition which did not work and had to be repealed.

Response: The intent of the rule is not to dissuade people from visiting parks, historic sites and recreational facilities. OPRHP strives to welcome all visitors to its parks, historic sites and recreational facilities and attempts to accommodate all of its patrons. Individuals who smoke will continue to have full access and enjoyment of state parks and historic sites. The rule accommodates smoking in a manner that minimizes negative impacts on non-smokers.

With the exception of seven parks located in New York City, OPRHP is not proposing to ban smoking in entire state parks or historic sites. Rather, the rule would allow targeted designation of no-smoking areas in places where and at times when large numbers of people (especially children) congregate. The rule accommodates non-smoking patrons who are affected and/or annoyed by secondhand smoke and cigarette butt litter, but will minimally impact smokers who will continue to have areas available to them for smoking.

While the rule prohibits smoking in all of the seven (relatively small) State Parks in New York City, designated areas for smokers will be established in those parks as well. This provision relating to State-owned parks located in NYC is consistent and compatible with the rule prohibiting smoking in parks there under NYC’s jurisdiction.

Comment: The following comments were received from American Lung Association members or individuals who consider secondhand smoke or cigarette butt litter a nuisance at OPRHP facilities:

• Individuals with asthma are affected when walking through secondhand smoke and may have to visit a hospital Emergency Room or leave to go home to obtain their medication;

• Secondhand smoke was encountered by a group with small children and a pregnant woman and the group had to move to two different places at a beach picnic area;

• If smoking is permitted in parking areas there should also be appropriate signage there so non smokers can avoid exposure to secondhand smoke in those locations as well;

• All OPRHP beaches, parks, historic sites and campgrounds should be smoke-free and there is support for the provision allowing no-smoking areas to be established within 50 feet of public buildings;

• Secondhand smoke is an annoyance similar to being squirted with water from a water gun;

• Dangers from potential forest fires from burning cigarettes supports the rule;

• Secondhand smoke is especially a problem on holiday weekends when facilities are crowded and you can’t get away from it - if you can smell it you are breathing it;

• Runners in parks would appreciate the cleaner air provided by the rule;

• A California native stated a complete ban on smoking is preferable because it would help end the disease, deaths and enormous costs associated with smoking, more than 70% of smokers wish they didn’t smoke, more than 50% of smokers support control measures to help them quit, a ban is simpler, cleaner and consistent with the science, there is no justification for saying it would be difficult to enforce in large parks and there would be cost savings from lower health care costs and more productivity;

• The State of Maine has completely banned smoking in all its parks;

• Secondhand smoke has negatively affected experiences at events held at Jones Beach Bandshell, Jones Beach Theatre and Saratoga Performing Arts Center which should all be designated no-smoking areas;

• Families with children have difficulty avoiding secondhand cigarette and cigar smoke at Robert Moses State Park due to the wind patterns;

• Secondhand smoke required a family with children to move several times to different picnic tables at Midway Park to avoid it, secondhand smoke also got into their vehicle in the parking lot where smokers were congregating and cigarette butts littered the parking lot;

• Children were breathing secondhand smoke at a spray park and there were cigarette butts on the ground;

• Patrons felt harassed from secondhand smoke and cigarette butts at OPRHP facilities; and

• It is difficult to hike and exercise while breathing secondhand smoke.

Response: OPRHP believes that the rule provides a workable middle ground to resolving patron complaints about secondhand smoke and cigarette butt litter by allowing the Commissioner to designate no-smoking areas in places where large numbers of people congregate.