November 2018 - Parks & Recreation - 41

Enforcement Discretion
As characterized by the court, JPCA
had also demanded that the Parks
Department be compelled to " enforce the rule prohibiting off-leash
activity during periods other than
the courtesy hours " ; i.e., 9 a.m. to
9 p.m. To support the alleged failure
to enforce Leash Laws, JPCA had
submitted sworn statements, letters
and newspaper articles to show
" various attacks upon park users by
unleashed dogs. "
In the opinion of the court, JPCA's " non-evidentiary anecdotal "
information did not prove the Parks
Department was not enforcing the
Parks Rules or the Health Code
from 9 a.m. to 9 p.m. While expressing sympathy for the victims of
these dog attacks, the court found
reports of these incidents did not
" constitute legally sufficient proof "
that the Parks Department was
" blanketly not enforcing the applicable rules through the issuance of
summonses or custodial arrests. "
In response to JPCA's anecdotal
information and belief that Parks
Department Rules were not being
enforced, the Parks Department
offered a sworn statement that its
officers " may and do " cite owners for unleashed dogs outside the
" courtesy hours, " as well as citing

" owners who are unable to control
their dogs " any time of the day.
On this issue of alleged non-enforcement, or non-enforcement in
general, the court acknowledged it
was " without power to intervene. "
As a general legal principle, the
court noted " the decision whether
and in what instances police power should be exercised is peculiarly
and unquestionably a discretionary function, " not subject to second-guessing by the courts. According to the court, it could not issue
an order to compel a general course
of official conduct; i.e., directing
the Parks Department to enforce
the Parks Department Rules from
9 a.m. to 9 p.m., because it would
be " impossible for a court to oversee
the performance of such duties. "

Formalize Off-Leash Policy
While the court was " keenly
aware " that it could " dispose of
the legal issue presented, " it acknowledged, " the broad emotional effect of the issues raised will
remain. " Accordingly, considering
" the angst and vitriol exhibited " in
this case by JPCA and NYCDOG,
the court found " common sense
would dictate that something more
than an 'unwritten policy' governing the off-leash use of parkland
by dogs which is known by few
and misunderstood by many, is required in this instance. "
The court, therefore, recommended that the Parks Department follow
through on its oral and written statements to the court that the Parks
Department would " formalize the
details of the current off-leash policy
within the Park Rules. " In so doing,
the court expressed its hope that the
Parks Department statements were
" more than mere puffery. " In the

PHOTO COURTESY OF LISA MAURER

Commissioner was indeed authorized to implement " courtesy
hours " for off-leash dog activity in
city parks, based on the " language
of the Parks Rules, which expressly
allow the Commissioner to permit
such activity. " Further, the court
found the New York City Charter
had expressly delegated authority
and powers to the Commissioner
" to determine whether to permit
off-leash activity within City parks. "

absence of a formal and clearly understood off-leash policy within the
Parks Rules, the court envisioned an
unacceptable alternative: " simply
more endless litigation over what
is, inherently, an administrative and
political problem. "

Conclusion
As a result, the court denied JPCA's
petition for the court to issue an order compelling the Parks Department to " enforce section 165.05 of
the New York City Health Code and
section 1-04 of the Rules of the New
York City Department of Parks and
Recreation " in a manner that would
eliminate " courtesy hours " and require dogs to be leashed at all times
in NYC public parks.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.edu). Webpage with
link to law review articles archive (1982 to present):
http://mason.gmu.edu/~jkozlows.

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November 2018 - Parks & Recreation

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