Boreali v. Axelrod

Decision Date25 November 1987
Citation523 N.Y.S.2d 464,71 N.Y.2d 1,517 N. E. 2d 1350
Parties, 517 N.E.2d 1350, 56 USLW 2319, 108 Lab.Cas. P 55,850, 2 IER Cases 1213, 13 O.S.H. Cas. (BNA) 1498, 1988 O.S.H.D. (CCH) P 28,132 Fred BOREALI et al., Respondents, v. David M. AXELROD, as Commissioner of the New York State Department of Health, et al., Appellants.
CourtNew York Court of Appeals Court of Appeals
[517 N.E.2d 1351] Robert Abrams, Atty. Gen. (Peter H. Schiff, O. Peter Sherwood, Nancy A. Spiegel and Denise A. Hartman, Albany, of counsel), for appellants

Bartley J. Costello, III, Eileen M. Kelley and Bruce N. Gyory, Albany, for respondents.

John F. Banzhaf III, Washington, D.C., for Action on Smoking and Health, amicus curiae.

Peter L. Zimroth, Corp. Counsel (Francis F. Caputo and Spencer Fisher, New York City, of counsel), for City of New York, amicus curiae.

Beatrice S. Frank, Robert Eisenstadt, Barry Ensminger, Glenn E. Jenkins and Ellen B. Simon, New York City, for Association of the Bar of the City of New York

Committee on Medicine and Law and others, amici curiae.

Charles J. Engel, Jr., Syracuse, for Pyramid Companies, amicus curiae.

John J. Cavanaugh, Jr., Albany, pro se, and for John J. Cavanaugh, Jr., and others, amici curiae.

William L. Kandel, Charles H. Kaplan, New York City, and Roberta V. Romberg, Washington, D.C., for New York Chamber of Commerce and Industry, Inc., amicus curiae.


TITONE, Judge.

We hold that the Public Health Council overstepped the boundaries of its lawfully delegated authority when it promulgated a comprehensive code to govern tobacco smoking in areas that are open to the public. While the Legislature has given the Council broad authority to promulgate regulations on matters concerning the public health, the scope of the Council's authority under its enabling statute must be deemed limited by its role as an administrative, rather than a legislative, body. In this instance, the Council usurped the latter role and thereby exceeded its legislative mandate, when, following the Legislature's inability to reach an acceptable balance, the Council weighed the concerns of nonsmokers, smokers, affected businesses and the general public and, without any legislative guidance, reached its own conclusions about the proper accommodation among those competing interests. In view of the political, social and economic, rather than technical, focus of the resulting regulatory scheme, we conclude that the Council's actions were ultra vires and that the order and judgment of the courts below, which declared the Council's regulations invalid, should be affirmed.


More than two decades ago, the Surgeon General of the United States began warning the American public that tobacco smoking poses a serious health hazard. Within the past five years, there has been mounting evidence that even nonsmokers face a risk of lung cancer as a result of their exposure to tobacco smoke in the environment. As a consequence, smoking in the workplace and other indoor settings has become a cause for serious concern among health professionals (see, e.g., Collishaw, Tobacco Smoke in the Workplace, an Occupational Health Hazard, 131 Canadian Med. Assocs. J. [Nov. 15, 1984]; Repace, The Problems of Passive Smoking, Bull. of N.Y. Acad. of Med., at 936-946 [Dec. 1981] ).

This growing concern about the deleterious effects of tobacco smoking led our State Legislature to enact a bill in 1975 restricting smoking in certain designated areas, specifically, libraries, museums, theaters and public transportation facilities (L.1975, ch. 80, codified at Public Health Law, art. 13-E, §§ 1399-o--1399-q). Efforts during the same year to adopt more expansive restrictions on smoking in public places were, however, unsuccessful (see, A-4768, introduced Mar. 4, 1975 [Hevesi] [covering school auditoriums, sports arenas, commercial stores and public elevators]; A-5772, introduced Mar. 4, 1975 [Orazio] [covering elevators and school or college classrooms]; A-7796, introduced Mar. 25, 1975 [Orazio] [covering elevators and school or college classrooms]; A-7199, introduced Mar. 25, 1975 [Cooperman] [elevators, public areas of health care institutions, public waiting rooms of designated health care practitioners, school buildings and indoor sports arenas] ). Subsequent attempts to broaden the coverage of the antismoking statute have similarly failed (see, e.g., A-2746, introduced Feb. 1, 1983 [Grannis, Hevesi, Levy and Bennett] [banning smoking in workplace and other indoor areas open to the public, with certain specifically delineated exceptions] ). In fact, it is undisputed that while some 40 bills on the subject have been introduced in the Legislature since 1975, none have passed both houses.

In late 1986 the Public Health Council (PHC) took action of its own. Purportedly acting pursuant to the broad grant of authority contained in its enabling statute (Public Health Law § 225[5][a] ), the PHC published proposed rules, held public hearings and, in February of 1987, promulgated the final set of regulations prohibiting smoking in a wide variety of indoor areas that are open to the public, including schools, hospitals, auditoriums, food markets, stores, banks, taxicabs and limousines. Under these rules, restaurants with seating capacities of more than 50 people are required to provide contiguous nonsmoking areas sufficient to meet customer demand. Further, employers are required to provide smoke-free work areas for nonsmoking employees and to keep common areas free of smoke, with certain limited exceptions for cafeterias and lounges. Affected businesses are permitted to prohibit all smoking on the premises if they so choose. Expressly excluded from the regulations' coverage are restaurants with seating capacities of less than 50, conventions, trade shows, bars, private homes, private automobiles, private social functions, hotel and motel rooms and retail tobacco stores. Additional "waivers" of the regulations' restrictions may be obtained from the Commissioner upon a showing of financial hardship (10 NYCRR part 25). Implementation of these regulations, which were to become effective May 7, 1987, has been suspended during the pendency of this litigation.


Commenced by several parties affected by the PHC's antismoking regulations, the present litigation was initially brought as an article 78 proceeding, but was later converted to an action for declaratory relief. On motions by all sides for summary judgment, the trial court concluded that the challenged regulations were inconsistent with the policies expressed in Public Health Law article 13-E (imposing more limited restrictions on indoor smoking) and were, accordingly, invalid and unenforceable.

The Appellate Division affirmed the judgment, albeit on a somewhat different theory. Although it rejected the analysis of the trial court, the majority at the Appellate Division was troubled by the possibility of the PHC having virtually "limitless" authority and noted the need to conduct a "realistic appraisal of [that agency's] powers * * * to constitutionally 'limit the field' of authority delegated." (130 A.D.2d 107, 114, 518 N.Y.S.2d 440.) Observing that the PHC's antismoking regulations "effectuate[d] a profound change in social and economic policy" and that the agency had obviously based the details of its regulatory scheme as much on concerns about "economic impact" as on considerations of public health, the court held that the PHC must be deemed to have acted in excess of its delegated authority.


Preliminarily, we stress that this case presents no question concerning the wisdom of the challenged regulations, the propriety of the procedures by which they were adopted or the right of government in general to promulgate restrictions on the use of tobacco in public places. The degree of scientific support for the regulations and their unquestionable value in protecting those who choose not to smoke are, likewise, not pertinent except as background information. Finally, there has been no argument made concerning the personal freedoms of smokers or their "right" to pursue in public a habit that may inflict serious harm on others who must breathe the same air. The only dispute is whether the challenged restrictions were properly adopted by an administrative agency acting under a general grant of authority and in the face of the Legislature's apparent inability to establish its own broad policy on the controversial problem of passive smoking. Accordingly, we address no other issue in this appeal.

A. The Delegation/Separation of Powers Issue

Section 225(5)(a) of the Public Health Law authorizes the PHC to "deal However facially broad, a legislative grant of authority must be construed, whenever possible, so that it is no broader than that which the separation of powers doctrine permits (see, Tribe, American Constitutional Law § 5-17, at 288-289). Even under the broadest and most open-ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever societal evils it perceives (see, e.g., Matter of Council for Owner Occupied Hous. v. Abrams, 125 A.D.2d 10, 511 N.Y.S.2d 966). Here, we cannot say that the broad enabling statute in issue is itself an unconstitutional delegation of legislative authority. However, we do conclude that the agency stretched that statute beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be. Our reasons follow.

with any matters affecting the * * * public health". At the heart of the present case is the question whether this broad grant of authority contravened the oft-recited principle that the legislative branch of government cannot cede its fundamental policy-making responsibility to an administrative agency. As a related matter, we must also inquire...

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