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

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.

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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

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Gene Berardelli

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