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March 2013

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

Update: 3/11/13 – HOORAY! JUDGE OVERTURNS BLOOMBERG SODA BAN

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!
"Acta non verba" -- actions not words

“Beware of false knowledge; it is more dangerous than ignorance.”-- George Bernard Shaw

“Progressive, liberal, Socialist, Marxist, Democratic Socialist -- they are all COMMUNISTS.”

“The key to fighting the craziness of the progressives is to hold them responsible for their actions, not their intentions.” – OCS

"The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius

“A people that elect corrupt politicians, imposters, thieves, and traitors are not victims... but accomplices” -- George Orwell

“Fere libenter homines id quod volunt credunt." (The people gladly believe what they wish to.) ~Julius Caesar

“Describing the problem is quite different from knowing the solution. Except in politics." ~ OCS

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OPPOSING NEW YORK "STOP AND FRISK" POLICY -- NAACP IS IN THE GRIEVANCE BUSINESS

The head of the NAACP ignores the fact that blacks commit a disproportionate number of crimes …

The head of the NAACP said Sunday that even some members of the New York Police Department oppose the city's policy of street stops, with mostly minorities being questioned.

Benjamin Jealous, president of the National Association for the Advancement of Colored People, told the congregation of the Nazarene Congregational Church in Brooklyn that the civil rights group is hearing from its members who are NYPD officers.

Addressing Mayor Michael Bloomberg, who was not present, "I ask you, before you leave, repair the damage you have done," Jealous said from the pulpit. "Kids in this city are too afraid of the very people who have sworn to respect and protect them." At his State of the City address several days ago, the mayor "felt the need to evangelize what he sees as the value of the stop-and-frisk program," Jealous said.

He said his speech Sunday was intended as a direct response to the mayor's "fear-mongering."

The NYPD's practice of stopping, questioning and sometimes frisking hundreds of thousands of people on city streets each year has received widespread criticism. Officials say the technique deters crime. Critics say the stops intimidate innocent people and raise issues of racial profiling.

There's "no statistical relationship between stop-and-frisk and New York City's steadily dropping crime rate," said Jealous, adding that there's "increasing discomfort among the rank-and-file of the NYPD about this policy." <Source>

The discussion on Saturday’s (02/23/13) Wall Street Journal Report included a segment about whether or not the lower murder rate in New York justified the current police “stop and frisk” policy which is being opposed by the NAACP because blacks are disproportionally stopped.

The best statement during the discussion came from a Black journalist noting that the Black community welcomes lower crime rates.

Jason Riley of the Wall Street Journal, speaking on the Wall Street Journal Report about New York’s “stop and frisk” policy … “But this is all based on behavior. Black behavior. That’s what [NAACP President] Ben Jealous doesn’t want to talk about. Ben Jealous and the NAACP are interested in maintaining the relevance of the NAACP. They’re in the grievance industry. And the fact of the matter is, they want to ignore the Black behavior that is driving these policies. The Blacks are only 13% of the population, Paul [Gigot, the program moderator], but they’re 50% of the people committing homicides and 90% of their victims are other black people.”

Well said Jason!

Bottom line …

We know that President Obama and his cadre of socialist fellow travelers in Congress, notably the members of the Congressional Black Caucus, are demanding the disarming of American citizens rather than acknowledge that most of the murders and crime in the nations is committed in democrat-controlled inner cities, many of which already have the strictest gun control laws in the nation. These are the politically correct people who would rather make law abiding citizens more vulnerable to crazies and criminals than note that minorities (the democrat base) are committing the majority of crime.

Call me a racist, but profiling those who actually commit the crimes is a great policy. Political correctness does not mean we need to make ourselves more vulnerable to criminals and crazies to satisfy the feigned anger of black activists who need racial animosity to increase to personally profit from their outrage.

-- steve