Since the founding of the American republic, there has been a delicate balancing act among the legislative, executive and judicial branches over their respective constitutional powers. Each branch has jealously guarded its own sphere of influence, with the courts frequently serving as the arbiter of disputes between the executive and legislative branches.

The year 2012 marked the 25th anniversary of Boreali v. Axelrod, a major decision by New York’s Court of Appeals that voided an attempt by New York’s Public Health Council1 (PHC) to ban smoking in public places in the face of the Legislature’s enactment of only a limited ban on smoking. The case was not about the manifest health hazards of smoking and secondhand smoke, but about whether an administrative body could act on a matter of public policy when the Legislature had declined to do so. Even after 25 years, the Boreali decision is still an instructive and cautionary reminder of the limits of an administrative agency’s powers.


The PHC at the time had 15 members including the commissioner of the Department of Health. Its members were nominated by the governor and subject to confirmation by the state Senate.2 The PHC’s powers were detailed in Public Health Law (PHL) Section 225. The PHC’s responsibilities included advising the commissioner on matters affecting the public health and “from time to time, [to] amend and repeal sanitary regulations, to be known as the sanitary code of the state of New York, subject to approval by the commissioner.” The Sanitary Code may “deal with any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York, and with any matters as to which the jurisdiction is conferred upon” the PHC.3

In 1975, the Legislature had enacted PHL Article 13-E, titled “Regulation of Smoking Tobacco in Certain Public Areas,” which expressed the Legislature’s intent as to how much New York State would regulate smoking in public.4 The legislation restricted smoking in certain public indoor spaces such as public transportation facilities, libraries, museums and theaters. Subsequently, repeated attempts within the Legislature to expand the areas in which smoking was prohibited failed.

The PHC and the Commissioner of Health, David Axelrod, decided to take action. After holding extensive public hearings and gathering voluminous data, the PHC on Feb. 6, 1987, promulgated comprehensive anti-smoking regulations, 10 NYCRR Part 25, which prohibited “the smoking of or carrying of lighted cigars, cigarettes or pipes in any indoor area open to the public.” Smoking was permitted in certain areas, however, such as private homes and automobiles, motel and hotel rooms, bars and food service establishments that seat fewer than 50 people.

The following month, the United Restaurant, Hotel, Tavern Association of New York State, the Brighton Beach Board of Trade, the Brooklyn Chamber of Commerce, and several individuals including Fred Boreali, a restaurant owner, brought suit in Supreme Court against the PHC and Axelrod claiming that the PHC did not have the power to decide whether smoking in public places should be banned. The plaintiffs argued that the PHC’s regulations “impermissibly contravene[d], and [were] an attempt to expand upon, article 13-E.” Plaintiffs further contended that the decision whether or not to ban smoking in public was a major public policy decision that could only be made by the Legislature, not the appointed members of an administrative agency. They sought a declaration that “the defendants, part of the executive branch, violated the separation of powers doctrine by enacting regulations that ban smoking in public places.”

The Attorney General, representing the PHC and Axelrod, responded that the Legislature delegated specific powers to the PHC, under PHL Section 225, to adopt any regulation the PHC deemed necessary regarding matters affecting the public health of New York’s citizens.

The Supreme Court sided with the plaintiffs.5 Noting that New York’s Constitution gives each branch of government specific functions, and that the Legislature has the function of law-making and setting public policy, Justice Harold Hughes held that the executive branch has the duty to execute the laws, but not the power to create them. While conceding that the Legislature may delegate its law-making power to a commission or agency, the court found that a regulation promulgated by such commission or agency must fail “if it contravenes the will of the Legislature as expressed in the statute.” The court found that the PHC had enacted “a major public policy change,” which “expand[ed] and contravene[d] the policy set by the Legislature in article 13-E of the Public Health Law.” It therefore granted the plaintiffs’ motion for summary judgment and voided the PHC’s anti-smoking regulations in their entirety.

The Appellate Division affirmed the Supreme Court’s decision and order by a vote of 3-2.6 The majority agreed with the plaintiffs’ position that the PHC went beyond its statutory authority and usurped the Legislature’s power in violation of the separation of powers doctrine. It also reiterated the Supreme Court’s position that the case was not about the effects of public tobacco use, finding that the record “provides ample scientific support for the conclusion that environmental tobacco smoke is harmful to non-smokers.”

Justice Leonard Weiss, writing for the majority, explained that New York’s Constitution distributes power among three branches, and was designed to prevent a concentration of too much power in any one branch. He pointed out that Article III §1 of the Constitution prohibits the Legislature from delegating its lawmaking function to an administrative agency, and that while the Legislature may confer authority on an administrative agency to administer the law as enacted by the Legislature, it must limit the field in which the agency’s discretion can operate, and provide standards to govern the agency’s exercise of its delegated authority.

The court noted that PHL Sections 225(4) and 5(a) conferred broad authority on the PHC to “deal with any matters affecting the…public health” but found the broad language to be problematic because it gave the PHC nearly unlimited discretion to regulate public tobacco use as a public health matter without providing standards for the agency’s exercise of that authority. According to the court’s analysis, the anti-smoking regulations affected more than just the public health because they effectively prohibited smoking in public indoor areas, which the court viewed as a profound change in social and economic policy.

Moreover, the regulations exempted certain types of public indoor areas including trade shows, conventions and restaurants seating fewer than 50 people. The court found that the reasons for these exemptions were economic and unrelated to public health concerns, since tobacco smoke is just as dangerous in those locations as in a school or hospital where the regulations did not permit smoking indoors. The court declared that such changes in policy are decisions left to the Legislature, not an administrative agency.

Justice Howard Levine, in dissent, challenged the majority’s conclusion that the regulations violated the separation of powers doctrine:

Under modern administrative law principles…the separation of powers doctrine does not prevent a legislature from adopting a broad, flexible policy approach, setting forth an overall objective in the statute (here, the promulgation of a State-wide health code) and delegating authority to a knowledgeable administrative agency it has created to, in effect, legislate the details necessary to implement the comprehensive statutory purpose, even when such rule-making necessarily entails policy decisions. [emphasis in original]

He argued that when the subject of legislation is broad and complex, like the regulation of public health hazards, and the statutory standard for administrative action is necessarily loose, an administrative agency will be required to make policy decisions that may have significant economic effects.

Court of Appeals Affirms

The case reached the Court of Appeals, which affirmed the decisions below in a 6-1 vote.7 Writing for the majority, Judge Vito Titone agreed with the lower courts that the case did not concern the wisdom of the anti-smoking regulations but only whether the PHC had the authority to promulgate them:

While the Legislature ha[d] 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.

The court stated that while the Legislature may delegate certain powers to an agency or commission, with reasonable safeguards and standards, to administer the laws it has enacted, the Legislature cannot delegate its law-making functions to another body because Article III Section 2 of the Constitution vests the legislative power in the Senate and the Assembly. The court then addressed two more issues: whether Section 225(5)(a), which authorized the PHC to “deal with any matters affecting the…public health” was too broad a grant of authority such that the Legislature had ceded its fundamental policy-making responsibility to an administrative agency; and whether the PHC exceeded the scope of its mandate and engaged in inherently legislative activities. While the court noted that Section 225(5)(a) itself was not an unconstitutional delegation of legislative authority, it found that the PHC overreached when it “used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be.”

The court then detailed the various factors supporting its finding that the PHC had usurped legislative power in promulgating its anti-smoking regulations. It agreed with the lower courts that, while the regulations were intended to protect nonsmokers from second-hand smoke, they included many exceptions that were based solely upon economic and social concerns. The court found that it is a uniquely legislative function to determine the proper balance between and among those concerns. It held that carving out the exemptions for bars, small restaurants and convention centers had no relation to public health, and demonstrated that the PHC had weighed the goal of promoting public health against the economic and social costs of doing so.

The court found that the PHC was never authorized to regulate using a “cost-benefit” model, nor had it received legislative guidelines for how it should weigh the competing concerns of public health and economic costs. The PHC simply created regulations declaring where smoking would be prohibited and where it would not be. The court held that the PHC’s regulations also did not just add details to broad legislation, but created its own comprehensive set of rules without any legislative guidance. As such, the court wrote, by “acting solely on [its] own ideas of sound public policy,” the PHC acted outside of its delegated authority.

Next, the court found that the PHC acted in an area where the Legislature had repeatedly tried but failed to find a solution among competing public interests and lobbying by various groups. Even though the Legislature’s inaction demonstrated that it had not yet been able to agree on how to resolve a societal health problem, Titone wrote, that did not entitle an administrative agency to impose its own solution. He explained 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.” Finally, the court found that the anti-smoking regulations did not involve any special expertise or technical competence requiring the PHC to fill in the gaps of broad legislation.

Judge Joseph Bellacosa, in his dissent, argued that the Legislature is not required to provide administrative agencies with rigid formulas to use in exercising delegated power because the agencies need flexibility to adapt legislative policy to variable conditions. He reasoned that the standards prescribed by the Legislature must be considered in light of the conditions in which they are to be applied. He noted that while the Legislature empowered the PHC to adopt a Sanitary Code to preserve and improve the public health, it specifically did not provide rigid standards for the PHC to follow, leaving leeway for the agency’s expertise in whatever situation might arise that the Legislature could not foresee. Judge Bellacosa argued that this was a sound principle of administrative law that was not violative of the Constitution.


The PHC had considerable powers delegated to it by the Legislature, but when it exceeded those powers and “usurped” the role of the Legislature, the courts did not hesitate to strike down its action. The denouement of the Boreali case came in 1989, when the Legislature enacted and Governor Mario Cuomo signed into law comprehensive anti-smoking legislation that was similar to the regulations that had been struck down by the courts.

Nonetheless, the Boreali decision stands as a landmark of administrative law. Boreali has been cited in a wide variety of court cases challenging actions by administrative agencies in New York and in many other states. Anyone serving as a member of a government agency or commission would do well to read the Boreali decision and understand what it teaches about the limits of executive authority in our constitutional framework.

Francis J. Serbaroli is a shareholder in Greenberg Traurig and the former vice chair of The New York State Public Health Council. Chelsea Silverman, a law clerk at Greenberg, assisted in the preparation of this column.


1. The Public Health Council has since been succeeded by the Public Health and Health Planning Council. See also Francis Serbaroli, “States’ New Council on Public Health and Planning,” NYLJ, July 27, 2010.

2. N.Y. Public Health Law §220 et seq. (PHL).

3. Id. §225(5)(a).

4. Act of July 1, 1975, ch. 80, 1975 N.Y. Sess. Laws 103-04 (McKinney).

5. Boreali v. Axelrod, 1987 WL 14129 at *1 (Supreme Ct. Schoharie Co. April 23, 1987).

6. Boreali v. Axelrod, 130 AD2d 107 (3d Dept. 1987).

7. Boreali v. Axelrod, 71 N.Y.2d 1 (1987).