Boreali v. Axelrod

130 A.D.2d 107, 2 I.E.R. Cas. (BNA) 671, 518 N.Y.S.2d 440, 1987 CCH OSHD 28,037, 13 OSHC (BNA) 1477, 1987 N.Y. App. Div. LEXIS 45072

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 23, 1987
• Status: Published

Opinions

OPINION OF THE COURT

Weiss, J.

It is more simple to state what this case is not about. It is not about the harmful effects of tobacco smoke upon the members of society who are nonsmokers. Rather, the issue is whether a subsidiary agency, in this case an advisory council to defendant Commissioner of Health, has the power to enact a regulation having the force of law which sets forth the policy of the State on the highly controversial subject of smoking. Today, we are called upon to determine whether defendant Public Health Council (PHC) can promulgate regulations, under the broad mantle of dealing with "any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York” (Public Health Law § 225 [5] [a]), which have dramatic and far-reaching effects upon social policy and the business environment of this State.

On February 6, 1987, the PHC, with the approval of the Commissioner, promulgated 10 NYCRR part 25 which, with limited exceptions, prohibits the smoking or carrying of lighted cigarettes, cigars, pipes or other smoking devices in indoor areas open to the public. The purport of the regulations is to limit the public’s exposure to environmental tobacco smoke,¹ which recent medical evidence, particularly the report of the United States Surgeon General published in December 1986, identifies as a serious health hazard to otherwise healthy nonsmokers. The indoor areas include, but are not limited to, taxicabs, schools, hospitals, shopping malls, hotel lobbies, auditoriums, courthouses, food markets, stores, banks and other commercial service establishments (10 NYCRR 25.2 [2]-[5]). Employers are required to provide smoke-free work areas for nonsmoking employees, but may set aside areas for smoking provided contiguous nonsmoking areas exist sufficient to meet employee demand. The regulations exempt private homes, residences, automobiles, food service establishments seating fewer than 50 people, conventions and trade shows by private groups, bars, hotel and motel rooms rented to guests, and retail tobacco stores (see, 10 NYCRR 25.2, 25.4). The regulations were to take effect May 7, 1987.

In March 1987, plaintiffs² commenced a CPLR article 78 proceeding, since converted to a declaratory judgment action, seeking to annul 10 NYCRR part 25 in its entirety on the grounds that (1) the enactment was in excess of constitutional, statutory and administrative authority, (2) the Legislature has preempted the area of public smoking by enacting Public Health Law article 13-E, and (3) the classifications and exemptions contained in the regulations are arbitrary. The complaint was deemed a motion for summary judgment and, in their answer and affidavit in opposition, defendants asserted that the regulations were promulgated pursuant to the authority conferred on the PHC by Public Health Law § 225 (4) and (5) (a). Supreme Court granted plaintiffs’ motion, finding that 10 NYCRR part 25 controverted existing State policy as set forth in Public Health Law article 13-E and that the PHC had exceeded its authority in adopting the challenged regulations. This appeal ensued.

Initially, we reiterate Supreme Court’s observation that the deleterious effects of public tobacco use are not at issue in this proceeding. This record provides ample scientific support for the conclusion that environmental tobacco smoke is harmful to nonsmokers. Nor does this case involve the right of the Legislature to promulgate restrictions on the public use of tobacco. Public Health Law article 13-E, entitled "Regulation of Smoking Tobacco in Certain Public Areas”, exemplifies this authority and effectively precludes the smoking of tobacco in any public library, museum or theatre, except in designated smoking areas (Public Health Law §§ 1399-0, 1399-q). This action by the Legislature to restrict the public use of tobacco in limited areas does not, however, substantiate plaintiffs’ assertion that the Legislature has preempted the field of tobacco use (see, Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683). Preemption need not be express, but may be inferred from "a declaration of State policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area” (New York State Club Assn. v City of New York, 69 NY2d 211, 217; see, Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105). There is no express preemption language in Public Health Law article 13-E, nor is any implied intent evident in the legislative history, which indicates that the enactment was principally designed to alleviate the physical discomfort and annoyance suffered by nonsmokers at certain activities (see, sponsor’s mem, 1975 NY Legis Ann, at 257). In effect, Public Health Law article 13-E is of limited scope and purpose, and certainly not a comprehensive scheme to regulate public smoking. Moreover, the Legislature’s rejection of numerous attempts to expand this legislation since its enactment in 1975 is inherently dubious and does not warrant the inference that Public Health Law article 13-E represents a definitive State policy on the regulation of public smoking (see, Clark v Cuomo, 66 NY2d 185, 190-191).³ We further note that the statute and regulations are compatible, for where the regulations apply to areas covered by the statute "the provisions of article 13-E shall supersede the provisions of this Part if inconsistent therewith” (10 NYCRR 25.2 [a] [1]). In short, the Legislature has not preempted the field of public tobacco use.

What is at issue on this appeal is the authority of the PHC to implement regulations comprehensively restricting the use of tobacco in indoor areas used by the public. The PHC is a component of the Department of Health and consists of the Commissioner and 14 members appointed by the Governor (Public Health Law § 220). The PHC is statutorily authorized, at the Commissioner’s request, to "consider any matter relating to the preservation and improvement of public health” (Public Health Law § 225 [1]; emphasis supplied). Subject to the Commissioner’s approval, the PHC is authorized to establish sanitary regulations to be known as the State Sanitary Code (Public Health Law § 225 [4]) pertaining to "any matters affecting the security of life or health or the preservation and improvement of public health * * * and with any matters as to which jurisdiction is conferred upon the public health council” (Public Health Law § 225 [5] [a]; emphasis supplied). Defendants principally rely on Public Health Law § 225 (4) and (5) (a) for the PHC’s authority to enact the challenged regulations (see, 10 NYCRR 25.1 [a], [b]). Pursuant to those provisions, defendants maintain that the Legislature delegated to the PHC broad interstitial authority to regulate matters affecting the public health, including smoking. In response, plaintiffs contend that the PHC acted in excess of its statutory authority and, in so doing, usurped the lawmaking power entrusted to the Legislature in violation of the separation of powers doctrine. We agree with the latter position.

Fundamental to our system of government is the distribution of powers among the three coordinate branches—the executive, legislative and judicial branches (NY Const, art III, § 1; art IV, § 1; art VI). This tripartite system is designed to achieve a delicate balance preventing the excessive concentration of power in any one particular branch or person and to insure a representative form of government (Rapp v Carey, 44 NY2d 157, 162; see, People v Parker, 41 NY2d 21, 28). Pursuant to NY Constitution, article III, § 1, the legislative power of the State is vested in the Senate and Assembly. By virtue of this constitutional mandate, the Legislature may not delegate its lawmaking function to an administrative agency (see, Matter of Nicholas v Kahn, 47 NY2d 24, 31; Matter of Levine v Whalen, 39 NY2d 510, 515; McKinney’s Cons Laws of NY, Book 1, Statutes § 3 [b]). The Legislature may empower an administrative agency to administer the law as enacted by the Legislature (Matter of Nicholas v Kahn, supra, at 31; Matter of Levine v Whalen, supra, at 515). The Legislature may confer such discretionary authority "only if it limits the field in which that discretion is to operate and provides standards to govern its exercise” (Matter of Levine v Whalen, supra, at 515; emphasis supplied; accord, Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164, 168-169). This qualification, however, does not mean that a precise, specific standard must be provided, particularly where the complexity of the regulated area demands a substantial degree of flexibility (supra). In effect, the "standards prescribed by the Legislature are to be read in light of the conditions in which they are to be applied” (Matter of Nicholas v Kahn, supra, at 31).

These principles in mind, a reading of Public Health Law § 225 (4) and (5) (a) confirms that the Legislature has conferred broad authority on the PHC. By its express terms, Public Health Law § 225 (5) (a) authorizes the PHC to "deal with any matters affecting the * * * public health” (emphasis supplied). Contrary to plaintiffs’ argument, the fact that the Legislature has delineated the subject matter of certain regulated areas in Public Health Law § 225 (5) (b)-(t) does not diminish the broad grant of authority set forth in Public Health Law § 225 (5) (a). In Chiropractic Assn. v Hilleboe (12 NY2d 109), the Court of Appeals upheld a provision of the Sanitary Code regulating the use of X rays and a corresponding restriction was not specifically set forth in the statute.⁴ The court determined that the PHC’s authority to enact the regulation derived from the language set forth in Public Health Law § 225 (4) (a), now § 225 (5) (a) (supra, at 119-120).

Plaintiffs further assert that Public Health Law § 225 (5) (a) lacks a constitutionally permissible standard. Again, the Hilleboe decision is on point. Recognizing that the PHC must be accorded considerable flexibility to confront and regulate emerging public health matters, and given the specific context of reducing the harmful effects of ionizing radiation, the Court of Appeals approved the standard set forth in Public Health Law § 225 (4) (a), now § 225 (5) (a), to "deal with any matters affecting the security of life or health or the preservation and improvement of public health”. A similar standard was approved in Matter of Levine v Whalen (39 NY2d 510, supra), a case addressing the impact of Public Health Law § 2800, conferring authority upon the Department of Health to develop and administer the State’s policy on hospital and related services. This delegation of authority was accompanied by a standard " 'to provide for the protection and promotion of the health of the inhabitants of the state’ ” (supra, at 516, quoting Public Health Law § 2800). The Court of Appeals approved this standard giving due regard to the express State policy that " '[h]ospital and related services * * * [be] of the highest quality, efficiently provided and properly utilized at a reasonable cost’ ” and the specific context in which the delegation of authority was being considered (supra, at 516).

The difficulty with the instant case is that the language of Public Health Law § 225 (5) (a), literally construed, confers virtually unfettered discretion upon the PHC to regulate public health matters and this authority is being exercised in the expansive context of public tobacco use. Even defendants concede that this grant of authority is not limitless, for to hold otherwise would work a complete abdication of legislative responsibility in the area of public health. We recognize that in view of the breadth of authority conferred, a precise line of demarcation between what the PHC can and cannot do is not easily delineated. Nonetheless, a realistic appraisal of the PHC’s powers must be made in order to constitutionally "limit the field” of authority delegated (see, Matter of Consolidated Edison Co. v Public Serv. Commn., 47 NY2d 94, 102, revd on other grounds 447 US 530, revd sub nom. Central Hudson Gas & Elec. v Public Serv. Commn., 447 US 557; Matter of Levine v Whalen, supra, at 515). In effect, 10 NYCRR part 25 serves to eliminate the smoking of tobacco in public indoor areas, with only limited exceptions. A realistic assessment of 10 NYCRR part 25 compels us to conclude that it is more than just a public health measure, for it effectuates a profound change in social and economic policy, that, as Supreme Court aptly observed, "will affect how millions of New Yorkers live their lives”. Such dramatic changes in public policy, however meritorious in terms of the public health, are the function of the Legislature, not an administrative agency (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 2, at 13; 2 NY Jur 2d, Administrative Law, § 36, at 56). In our view, the PHC has not merely implemented the legislative directive set forth in Public Health Law § 225 (5) (a), but has effectively usurped the prerogative of the Legislature to establish State policy in direct contravention of the separation of powers doctrine (see, Rapp v Carey, 44 NY2d 157, supra; cf., Clark v Cuomo, 66 NY2d 185, supra). The PHC, solely responsible to the Commissioner and not the electorate, does not have the authority to unilaterally assume the lawmaking function of the Legislature, nor may the Legislature confer such authority upon the PHC.

This conclusion becomes particularly persuasive when consideration is given to the regulatory exemptions adopted (see, 10 NYCRR 25.2, 25.4). By statute, the provisions of the Sanitary Code are accorded the force and effect of law (Public Health Law § 229). Unless the regulations are so lacking in reason as to be essentially arbitrary, the courts will not interfere (Molina v Games Mgt. Servs., 58 NY2d 523, 529; Aerated Prods. Co. v Godfrey, 290 NY 92, 99). In our examination of the specific areas of exemption, we first observe that it is highly doubtful that the PHC could have prohibited the use of tobacco in private homes even had it elected to do so. The remaining exemptions relate to certain commercial areas where the PHC has deemed it necessary to avoid any undue economic impact. For example, defendants exempted trade shows and conventions in recognition of the interstate competition in this area (see, 10 NYCRR 25.2 [a] [5] [i], [ii]). Significantly, the Attorney-General has conceded in his reply brief that the limited exemptions provided are "unrelated to the public health concerns animating the regulations”. Given the public health motivation underlying the regulations in question, it is difficult to perceive any rational basis for the exemptions provided. Tobacco smoke has to be as dangerous, even lethal, in a restaurant seating less than 50 persons, or in a bar, as it is in a school, hospital or courthouse. Similarly, being subjected to smoke in a convention or trade show cannot be less harmful than exposure to the same kind of smoke in a shopping mall or supermarket. In our view, the exemptions were promulgated on an arbitrary basis, notwithstanding defendants’ attempt to provide an economic justification. Since the PHC has specifically provided for the severability of any part of 10 NYCRR part 25 found to be invalid (10 NYCRR 25.7), the effect of striking the exemptions is to create an outright ban on smoking in indoor areas open to the public. This actual result exemplifies the fact that the PHC has acted in excess of its delegated authority.

Accordingly, we conclude that Supreme Court properly granted plaintiffs’ motion for summary judgment declaring 10 NYCRR part 25 null and void. In so deciding, we in no way minimize the health hazard posed by environmental tobacco smoke. Efforts to regulate the public use of tobacco are better addressed to the Legislature.

1 . Environmental tobacco smoke results from the combination of side-stream smoke, which is unfiltered smoke released into the air from the burning end of a cigarette when the smoker is not inhaling, and the fraction of mainstream smoke (that inhaled through the cigarette and filter) not retained by the smoker.

2 . Plaintiffs are comprised of a restaurant owner, trade and business associations, a State Senator and an Assemblyman.

3 . Perhaps the best confirmation of the ambiguity of such legislative history is provided in the divergent conclusions reached by the members of the Administrative Regulations Review Commission. In February 1987, four members of the Commission signed a resolution condemning the PHC for adopting the regulations in question. In contrast, defendants submitted an affidavit and report by Assemblyman Gary Proud, cochairman of the Commission, condemning the aforementioned resolution as invalid, and opining that the PHC was authorized to enact 10 NYCRR part 25.

4 . Subsequent to the promulgation of the regulation pertaining to ionizing radiation, and while Hilleboe was pending, the Legislature enacted Public Health Law § 225 (4) (p), now § 225 (5) (p), which expressly identified ionizing radiation as an area for regulation under the Sanitary Code. The Court of Appeals, however, made no reference to this amendment.