NY Statewide Coalition of Hispanic Chambers of Commerce, et. al. v. NYC Dept. of Health

Analysis: NYC "Nanny State" Soda Ban Enjoined

by Gene Berardelli
Contact

Even the best laid plans of "nanny state" policy must pass constitutional muster.

Hon. Milton Tingling enjoined New York City from instituting the now-famous sugar sweetened beverage ban that Mayor Bloomberg has touted for close to a year.

Here's how the Court did it: It read and enforced the State Constitution and City Charter.

The court took issues - whether the Rule was illegally promulgated and whether the City acted arbitrarily and capricious.

First, the court framed the issue as "whether the Board has the authority to mandate which issues come under its jurisdiction as a basis to promulgate regulations." This led the Court to an analysis of Boreali v. Axelrod, 71 N.Y.2d 1(1987), which held that agencies that stretch the statute granting its authority beyond its constitutionally valid reach "when it uses the statute as a basis for embodying its own assessment of what public policy ought to be."

The Boreali analysis is a four-pronged test - all of which must exist in order to pass constitutional muster:

1) Is the challenged regulation based upon concerns not related to the stated purpose of the regulation? The Court found that the City FAILED this prong of the test because the regulation was "laden with exceptions" based on economic and political concerns, which rendered it impermissible.

2) Was the regulation created on a clean slate thereby creating its own comprehensive set of rules without the benefit of legislative guidance? Again, the Court found that the City FAILED this prong. After recounting a lengthy history of the evolution of the City Charter, the Court found that nothing in the history of authority granted to the Board of Health granted it the power to ban a legal item under the "guise of controlling chronic disease".

3) Did the regulation intrude upon ongoing legislative debate and/or did the legislature have an opportunity to debate / address prior to the regulation? In ruling on the second prong, the Court found that the power to promulgate such a rule lies with the City Council, which has the power to legislate the issue. Obesity has been "subject to past and ongoing debate with the City and State legislatures", said the Court - so it's a no-brainer that the regulation intrudes on those debates. Thus the City FAILS the third prong.

4) Did the regulation require the exercise of expertise or technical competence on behalf of the body passing the legislation? Finally, the City gets a break, as the Court held that the hearings and drafts of legislation discussed was sufficient to pass this test.

So, the City was enjoined from enforcement because it was illegally promulgated. But Hon. Milton Tingling wasn't done with his analysis.

The Court then turned to whether the Board of Health acted in an "arbitrary and capricious" manner in adopting this new rule. This kind of challenge to administrative decision-making is governed by Article 78 of the CPLR and has its own two-pronged test.

1) Is the action reasonable? The Court concludes that yes, preventing obesity and the health problems that follow is a reasonable action to take by the Board of Health, citing the parties' agreement that it is indeed an issue facing the people in New York and nationwide.

2) Is the rule arbitrary and capricious? That is, is the rule without foundation in fact. and this is where the Court had a field day with the government. Hon. Milton Tingling found that since the rule applies to some, not all food establishments, excludes other beverages that has significantly higher concentrations of sugar sweeteners / calories on "suspect grounds" and was fraught with loopholes that the defective construction of the rule defeats the purpose.

Therefore, the rule was defeated on a separate ground.

The Court's analysis is also rooted in fundamental constitutional principles - an agency's reach can be "no broader than that which the separation of powers doctrine permits" and there is no agency "license to correct whatever social evils it perceives". Such a stretch of administrative power would "create an administrative Leviathan and violate the separation of powers doctrine". In fact, the Court said it would "eviscerate" the doctrine with the "potential to be more troubling that sugar sweetened beverages"

Score one for common sense and protection of individual rights.

LOADING PDF: If there are any problems, click here to download the file.

Reference Info: Decision | State, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Gene Berardelli, Gene R Berardelli, PLLC | Attorney Advertising

Written by:

Gene Berardelli
Contact
more
less

Gene R Berardelli, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.