In both instances, courts ruled that the health boards' actions intruded on powers reserved for other administrative bodies.
In the issue before him yesterday, Tingling traced the powers invested in city government under its various charters, beginning with the Dongan Charter of 1686 and concluding with charter revisions in 2012.
He said the charters have all afforded the city's Board of Health "very broad" powers over public health and over what food the public eats. The charters allowed for the destruction of any foods determined by the Board of Health to be unwholesome.
"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 [with the beverage ban]," Tingling wrote. "The Board of Health may supervise and regulate the food supply of the City when it affects public health, but the Charter's history clearly illustrates when such steps may be taken, i.e., when the City is facing imminent danger due to disease. That has not been demonstrated herein."
The restriction on the consumption of soda "is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing interests," Tingling wrote, quoting Boreali.
The legality of the health code is further crippled by the "arbitrary and capricious consequences" that enforcing it would create, the judge wrote.
"The loopholes in this rule effectively defeat the stated purpose of this rule," he said.
The Big Gulp sold by 7-11, for instance, would be exempt under the code because regulation of convenience stores, and that of other establishments, are set under a memorandum of understanding with the state that would bypass the city's code.
In addition, Tingling said that by not extending the portion limit to refills, where offered, could defeat the purpose of the rule entirely at some establishments.
"The simple reading of the Rule leads to the…acknowledged uneven enforcement within a particular City block, much less the City as a whole," Tingling said.
Subscribe to New York Law Journal
-
Publius Gaius Arbiter
[Spelling correction]
Mayor Mike's adamantine obsession with gargantuan sodas exceeds concern over Federal budget cuts ("sequesters"). Bravo to portly Justice Tingling! Now, what legal authority did the Little Flower Fiorello LaGuardia have to ban the sale and possession of baby artichokes in 1935?
--------------Publius Gaius Arbiter
-
Publius Gaius Arbiter
Mayor Mike's adamantine obsession with gargantuan sodas exceeds concern over Federal budget cuts ("sequesters"). Bravo to portly Justice Tingling! Now, what legal authority did the Little Flower Fiorello LaGuardia have to ban the sale and possession or baby artichokes in 1935?
-
Tom
That "sigh of relief" is actually the sound of obese people catching their breath after getting up from their arm chairs.
If we can't keep people from gluttony, we should institute risk based health care premiums. I'm not particularly keen on paying for a teen's diabetes treatment when the disease is completely self inflicted.
-
Michael
Hopefully the appeals process moves very slowly, and Mayor McCheese's illegal third term expires PRIOR to his bribing and paying off either the Appellate Term/Division or the City Council, in his attempt to add yet another tax on the citizenry or add more illegallly obtained treasure to the City's coffers. Until the city criminalizes 'large sodas' there is no way logic, the law or un-common sense would ever agree that the government's function now includes 'portion control'. While his do-nothing NYPD continues to allow illegal handguns into the city and the hands of criminals (some cops are actually selling the guns); while his transportation, sanitation and other city services crumble into public servant fifedoms, Mayor McCheese worries not, as he will fly to Bermuda when a storm is coming; he will go harass LEGAL GUN OWNERS IN OTHER STATES, before he requests Ms. Kelly to explain why the NYPD can't stop the gun violence. Her Honor needs to resign immediately, and do us all a favor by writing a single check to balance the city budget. Then he can continue to steal talent from the City (by hiring the VERY FEW intelligent deputy mayors for his private company) and continue to prove that City Government cares only for the rich and elite, to the detriment of the middle class, working class and the poor. I hope to celebrate by tossing a few thousand three litre bottle onto the lawn @ Gracie Mansion...oh wait, Her Worshipfulness doesn't even live there..........
Comments are not moderated. To report offensive comments, click here.
Reader Comments