71 N.Y.2d 1 (1987)

Fred Boreali et al., Respondents, v. David M. Axelrod, as Commissioner of the New York State Department of Health, et al., Appellants.

Court of Appeals of the State of New York.

Decided November 25, 1987.

Attorney(s) appearing for the Case

Robert Abrams, Attorney-General (Peter H. Schiff, O. Peter Sherwood, Nancy A. Spiegel and Denise A. Hartman of counsel), for appellants.

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

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

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

Beatrice S. Frank, Robert Eisenstadt, Barry Ensminger, Glenn E. Jenkins and Ellen B. Simon for Association of the Bar of the City of New York Committee on Medicine and Law and others, amici curiae.

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

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

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

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER and HANCOCK, JR., concur with Judge TITONE; Judge BELLACOSA dissents and votes to reverse in a separate opinion.


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...

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