New York's Soda Ban Thrown Out! Victory! : )

[Darrell Cody]

http://news.yahoo.com/blogs/ticket/judge-throws-nyc-ban-large-sugary-drinks-193247946--politics.html

If you're happy and you know it, clap your hands . . . and comment below!!!!!!

Darrell Cody

[Reidy]

If the ruling stands up on appeal I'll be happy. In the meantime I'm hopeful.

[jts]

The problem with aspartame is getting the ants to eat it. Small as their brains are, they know better than to eat it. But you can get them to eat it by mixing it with sugar.

[Selene]

http://www.nytimes.com/interactive/2013/03/12/nyregion/12soda-decision.html?ref=nyregion

This is the 37 page decision and is as well researced and reasoned as any I have read.

The "portly" Judge has anexcellent reputation for checking intrusive state power. Additionally he appears to have the general respect of most practicing attorneys that have dealt with him.

In this decision he makes two (2) strong points that should be upheld on appeal before the 1st Department.

First, he found this section of the health code issue to be, "...arbitrary and capricious..." because it selectively applies the rule to only a segment of the businesses that serve soda. Also, as is pointed out, the refill aspects defeat the alleged purpose of the law. Finally, on this point, there are many more drinks that are not covered that contain more sugars and caloies, e,g., lattes, pitchers of magharitas, etc.

Second, and more telling, is the part of the ruling that states that this is a clear violation of the separation of powers sections of the NY State Constitution. This act should have come from the legislative powers, rather than, purely from the executive powers. Bloomberg appoints all the mrmbers of the Health Board.

A...

[Selene]

The seminal case in the area of modern constitutional separation of powers in New York State, Boreali 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 purposeof the regulation, 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? And (4) did the regulation require the exercise of expertise or technical competence on behalf of the body passing the legislation? Boreaii, supra.

From page fourteen (14) of the decision. This becomes the precedent case for this ruling...Boreali v. Axelrod, 71, N.Y. 2d 1 [1987].

[PDS]

It is a sad day when the most we have to celebrate is the inherent right of rotund Americans to purchase and hoist soda-pops the size of pumpkins.

Not exactly a rival to the Boston Tea Party.

We have become a Nation of Ninnies. Fat Ninnies.

[Reidy]

Sometimes I wonder why I even try to be a piss-and-moan Randroid. How can I compete with the likes of this?

[PDS]

Sometimes I wonder why I even try to be a piss-and-moan Randroid. How can I compete with the likes of this?

You seem to usually do so rather nicely.

Now go back to building your skyscraper.

[Selene]

Looks like the portly Judge loves his Big Gulps!!

New York
After blocking Bloomberg's soda ban, Justice Milton Tingling finds himself in the spotlight
From cabbie to captain of the courtroom, Tingling's legal career has dealt with some high-profile cases, but he's rarely been the star until now. He knocked down Mayor Bloombergs soda ban with splashy language, calling the ban 'arbitrary and capricious.'

By Dareh Gregorian / NEW YORK DAILY NEWS
Tuesday, March 12, 2013, 1:49 AM

Justice Milton Tingling blocked Mayor Bloomberg's large soda ban, which was to begin on Tuesday, calling it 'arbitrary and capricious.'
Rebecca McAlpin for New York Daily News

Justice Milton Tingling blocked Mayor Bloomberg's large sod ban, which was to begin on Tuesday, calling it 'arbitrary and capricious.'

Before Monday, Justice Milton Tingling was best known for his sharp dressing, not his sharp tongue.

Read more: http://www.nydailynews.com/new-york/soda-judge-milton-tingling-finds-spotlight-article-1.1285835#ixzz2NSbXTdru