A state Supreme Court judge sided with a smokers rights organization in its claim that the state Office of Parks, Recreation and Historical Preservation had exceeded its authority by forbidding anyone to light up at beaches, playgrounds and pools and other areas in public parks across New York – including nine located in New York City.

Justice George B. Ceresia, Jr. noted that agency had effectively done an end run around the Legislature by putting the ban in place, because lawmakers have declined to pass bills that would have established this policy. The Parks Department and its commissioner, Rose Harvey, “extended their reach beyond interstitial rulemaking and into the realm of legislating,” Ceresia wrote in his decision.

“This is putting the prohibitionists on notice that despite their ugly war being waged on adults who choose to smoke they are not entitled to a free-for-all in governing when it comes to this segment of society,” Audrey Silk, founder of Citizens Lobbying Against Smoker Harassment, or C.L.A.S.H., which brought the lawsuit.

“We will not abide being stepped on or succumb to shaming as a means to silence us by arrogant activist actors who enact a rule that could only be accomplished by ignoring the rules.”

The Parks Department announced the new policy would be put in place, “effective immediately”, back in April 2012. Shortly thereafter, the smorkers rights group C.L.A.S.H. challenged the move, and the state suspended the ban on a legal technicality.

However, the ban was reintroduced in December 2012, and then went into effect two months later. However, in December 2012 Parks reintroduced its plan as a proposed rule and in February of this year published its Notice of Adoption. This past April, C.L.A.S.H. commenced an Article 78 proceeding on the grounds that the action was unconstitutional and in violation of the separation of powers doctrine.

Parks officials said the intent of the ban was to protect visitors from secondhand smoke, but Ceresia said the agency does not have the power “to promulgate rules regulating conduct bearing any tenuous relationship to park patrons’ health or welfare.” He ordered parks officials to take down the “no smoking signs” ASAP.

The judge did acknowledge that secondhand smoke is “deleterious to the health of nonsmokers, especially children,” and also expressed no opinion as to the wisdom of a future ban should be enacted via the proper channels.

According to the AP, the state attorney general’s office, which defended the smoking ban, is reviewing this decision along with parks officials.

UPDATE: The state Parks Department says it has “legislative authority to manage a wide variety of activities within state parks to balance often conflicting uses of our patrons,” which extends to the regulation of smoking.  As such, it is considering an appeal of this decision.

Smoking in state parks lawsuit decided in favor of smokers rights organization. by liz_benjamin6490