Exceeding Power by Enacting a Smoking Code

In Boreali v. Axelrod (71 NY2d 1) the Court of Appeals ruled that the Commissioner, the New York State Department of Health (DOH) and the Council acted ultra vires when they enacted a "comprehensive code" governing smoking. The Court of Appeals concluded that while the Legislature had given a broad delegation of powers to DOH, the Commissioner and the Council, because of four coalescing circumstances, the defendants exceeded the powers that were delegated to them. One of the primary circumstances that led the Court of Appeals to its holding was that the Legislature never articulated a policy regarding the public smoking controversy ( Matter of New York State Health Facilities Assn. v. Axelrod, 77 NY2d 340, 346).