Judge Overrules Mayor Soda Jerk




Justice Milton A. Tingling, Jr. of the State Supreme Court in Manhattan struck down Nanny Bloomberg’s ban on large sugary – and milky – drinks yesterday, one day before they were to take effect. 

The lawsuit was backed by a number of unions, restaurant and grocer’s associations.  The court took particular note of Bloomberg’s claim of an “epidemic” of obesity which he intended to wipe out with his ban on beverages over 32 ounces. 

Why or how anyone could drink 32 ounces of any beverage is beyond this blogger.  But that’s their business.  If they can drink it, if they have a super-bladder then they deserve to have their super-size drink and more power to them. Under Bloomberg’s law, any establishment offering 32 ounce cups to their customers could face a fine of $200 per cup. 

The plaintiffs began the case on Oct. 12, 2012.  According to Bloomberg’s attorneys in the case, “There is an obesity epidemic among New York City residents which severely affects the public’s health.” 

Tingling, in his written ruling, writes, “The words ‘epidemic’ and ‘obesity’ are neither examined nor explained as much as they are stated as fact.  While this court is not in the business of mandating or promulgating health edicts, it is nevertheless interested in how obesity is defined and how an event or situation is classified as an “epidemic.” 

He then goes on to challenge Bloomberg’s claim that 57.5 percent of New York City adult residents are overweight or obese and nearly 40 percent of schoolchildren.  But the latest figures from 2011, he notes, show that 23.7 percent of New York City adults are obese.  While both parties acknowledged that this rate had doubled from 1995, consumption of sugary drinks had also decreased in recent years. 

Tingling agrees that obesity and diabetes are serious health issues, and expensive issues, since taxpayer dollars subsidize public health care. 

“However, the issue before this court is whether the Board [of Health] has the authority to mandate which issues come under its jurisdiction as a basis to promulgate regulations. 

“The petitioners in this matter center their main argument on the contention that the Board of the NYC Depart of Health and Mental Hygiene, in promulgating 81.53 of the Health Code, exceeded their authority and impermissibly trespassed on legislative jurisdiction.

The judge notes that the petitioners to the court had similarly exceeded their authority in attempting to impose a smoking ban in public places in the City when the legislature refused to do so.

“The seminal case in the area of modern constitutional separation of powers in New York State…lists four factors to be utilized in analyzing whether an administrative rule may have run afoul of the separation of powers doctrine.  The four factors to be considered are: 

  1.  Whether the challenged regulation is based upon concerns not related to the stated purpose of the regulation [and] is the regulation based on other factors such as economic, political or social concerns?
  2. Was the regulation created on a clean slate, thereby creating its own comprehensive set of rules without the benefit of legislative guidance?
  3. Did the regulation intrude upon ongoing legislative debate?  In other words, did the regulation address a matter the legislature has discussed, debated or tried to address prior to this regulation?
  4. Did the regulation require the exercise of expertise or technical competence on behalf of the body passing the legislation?

Finally, Judge Tingle declares, while acknowledging some merits in the Rule, “The Rule is nevertheless fraught with arbitrary and capricious consequences.  The simple reading of the Rule leads to the earlier acknowledged uneven enforcement even within a particular City block, much less the City as a whole.

“Furthermore, as previously discussed, the loopholes in this Rule effectively defeat the stated purpose of the Rules.  It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.

“For the aforementioned reasons, in the Article 78 branch of this action, The Portion Cap Rule is found to be arbitrary and capricious.

“In conclusion, the Appellate Division in Boreali, in affirming the trail court’s invalidation of the promulgated regulations in Boreali on a different theory, the expressed concern about the administrative agency have virtually limitless authority.  This court agrees that the regulation herein takes the issue to new heights.

“To accept the respondents’ interpretation of the authority granted to the Board by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination.  The fact that respondents interpret the charter precisely to conclude same, tolls the bell on this regulation. 

“The Portion Cap Rule, if upheld, would create an administrative Leviathan and violate the separation of powers doctrine.  The Rule would not only violate the separation of powers doctrine, it would eviscerate it.  Such an evisceration has the potential to be more troubling than sugar-sweetened beverages.”

Let us hope that one day we will see Judge Tingling on the Supreme Court.



Published in: on March 12, 2013 at 12:33 pm  Comments (1)  

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