United States

A non-profit corporation challenged a state regulation establishing outdoor no-smoking areas within certain parks, historic sites, and recreational facilities.  The association challenged the regulation on several grounds, including that the agency which issued the regulation, the New York State Office of Parks, Recreation & Historic Preservation, usurped the role of the legislature by issuing a regulation designed to set public policy.  The Court agreed, holding that the regulation violated the separation of powers doctrine and was, therefore, unconstitutional.  The Court pointed to several factors in its decision – (1) the absence of an outdoor tobacco use policy established by the legislature; (2) the fact that the state legislature had considered, but failed to pass, laws governing smoking in public parks; and (3) that the regulation did not require any special expertise or technical competence in the agency’s field.  Together, these factors indicate that the agency exceeded its statutory authority in issuing the regulation.