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NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined the NYS Office of Parks, Recreation and Historic Preservation (OPRHP) did not exceed its authority when it prohibited smoking in seven small parks in New York City and in less than five percent of the 330,000-acre state park system. The court went through the factors outlined in Boreali v Axelrod, 71 NY2d 1, which were described as follows:

… [Under Boreali] the circumstances to be considered are whether (1) “the agency did more than balanc[e] costs and benefits according to preexisting guidelines,' but instead made value judgments entail[ing] difficult and complex choices between broad policy goals' to resolve social problems” … ; (2) “the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance' ” …; (3) “the legislature has unsuccessfully tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve” …; and (4) “the agency used special expertise or competence in the field to develop the challenged regulation[]” … .

Our statement of the relevant principles of law does not end with the articulation of the Boreali factors. Those considerations, we have observed, are not to be applied rigidly … . In fact, they “are not mandatory, need not be weighed evenly, and are essentially guidelines for conducting an analysis of an agency's exercise of power” … . Indeed, “we treat the circumstances as overlapping, closely related factors that, taken together, support the conclusion that an agency has crossed th[e] line [into legislative territory]” … . We also “center [any Boreali analysis] on the theme that it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends' “… . Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 2016 NY Slip Op 02479, CtApp 3-31-16

ADMINSITRATIVE LAW (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)/STATE PARKS (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)/SMOKING PROHIBITION (NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION DID NOT EXCEED ITS AUTHORITY WHEN IT PROHIBITED SMOKING IN SOME SMALL PARKS WITHIN NEW YORK CITY AND ON A SMALL PERCENTAGE OF THE 330,000-ACRE PARK SYSTEM)

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FAILURE TO DEMONSTRATE WHEN AREA WAS LAST CLEANED OR INSPECTED REQUIRED DENIAL... FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE.