I suppose NYC’s version of Napoleon is going to fight on but this is the second court in the state to say that he and the Board of Health overstepped their bounds:
New York restaurants can continue selling large sugary drinks after an appeals court sided Tuesday with a lower court ruling that found the city’s restrictions on such beverages to be “arbitrary and capricious.”
The Supreme Court’s Appellate Division found that the city’s Board of Health “failed to act within the bounds of its lawfully delegated authority” when it moved to ban sugary drinks of more than 16 ounces in New York City restaurants, movie theaters, and other food service establishments.
The court declared the regulation to be a violation of the principle of separation of powers doctrine.
The doctrine establishes the boundaries between the legislature and an administrative agency. Since legislative power rests in the legislature, according to the appellate decision, the board members cannot engage in broad-based public policy determinations and “cannot exercise sweeping power to create whatever rule they deem necessary.”
The 11-member Board of Health is empowered to modify the health code only with “respect to all matters to which the power and authority of New York City Department of Mental Health and Hygiene extend,” the appellate court said. This includes Article 81 of the health code, which sets forth rules regulating “food service establishments.”
Bloomy will appeal. He’ll get smacked down by the higher court and those cowards on the city council will actually have stick their necks out and vote on the issue because you know Bloomberg is going to push it. This is legacy.