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Bloomberg Soda Ban in New York City: Unconstitutional and Illegal Interference with Free Trade of a Legal Substance (Updated)


New York Supreme Court Judge Milton Tingling has permanently stopped the City of New York from enforcing Mayor Bloomberg’s ban on large sugary drinks. The ban would create an administrative nightmare and is arbitrary and capricious.

Excerpts from the ruling …

However, one thing not seen in any of the Board of Health's powers is the authority to limit or ban a legal item under the guise of "controlling chronic disease," as the Board attempts to do herein.

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 Rule. 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.

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.

Accordingly, the petitioners Notice of Verified Petition dated October 11, 2012, for an order enjoining and permanently restraining the respondents The New York City Department of Health and Mental Hygiene, The New York City Board of Health and Dr. Thomas Farley and any of their agents, officers, and employees from implementing or enforcing §81.53 of the New York City Health Code, as purportedly amended by the Department of Health in September 2012, and declaring §81.53 invalid; alternatively declaring that §§556(c)(2) and (c)(9), 558(b)
and© and/or§ 1043 of the N.Y.C. Charter are unconstitutional and in violation of the separation of powers doctrine; or alternatively, enjoining and permanently restraining the defendants and any of their agents, officers and employees from implementing or enforcing § 81.53 of the New York City Health Code, as purportedly amended by the DOH in September 2012, on the basis that it is arbitrary and capricious; and awarding such further relief including attorneys' fees and the costs and disbursements of this proceeding pursuant to CPLR § 81 01 is granted to the following extent:

The respondents and any of their agents, officers, and employees are hereby enjoined and permanently restrained from implementing or enforcing §81.53 of the New York City Health Code, as purportedly amended by the Department of Health in September 2012, and same is hereby declared to be invalid. All other reliefs sought including attorneys' fees are denied.  <Source: Index No. 653584/12>

It is high time that ‘do gooder democrats” such as Billionaire Mayor Bloomberg be taught that their privileged life and the office which they have purchased does not confer any ability to supersede State or Federal Constitutions.

Original Blog Post …

On March 12, 2013, any restaurant or shop that receives a New York Health Department letter grade will be subject to a $200 fine if they sell a sugary beverage larger than 16-ounces. No more pitchers of soda at Chuck E. Cheese’s children’s birthday parties, no more 2-liter bottles of soda to be delivered with a pizza.

This is an unconstitutional, illegal and unwarranted intrusion into the lives of America citizens living in New York by liberals who believe they have some legal right to dictate the terms and conditions for living in their city – even though their power and funding comes directly from the people they are disadvantaging.

Bloomberg, himself, is exempt from the inconvenience of the rules, regulations and administrivia he promulgates. Perhaps someone should demand that the use of private helicopters to ferry any individual to an estate worth over $10 million should be banned in the name of improving air quality and noise abatement – hurting Bloomberg, a helicopter pilot, where he lives.

Bottom line …

Ignorance and apathy is allowing more government officials to take unwarranted liberties with our freedoms. Which, if unchecked, will lead to a form of totalitarianism by legislation.

-- steve 

“Nullius in verba”-- take nobody's word for it!
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