SWEET WIN: Judge Milton Tingling leaves court yesterday after killing Mayor Bloomberg’s plan to eliminate the sale of large sugary drinks by many city businesses. (Steven Hirsch)
A state judge dealt Mayor Bloomberg a stunning defeat yesterday, stopping the city from banning restaurants, delis and other businesses from selling large sugary drinks — just one day before the controversial law would have gone into effect.
In his surprise ruling, met with jubilation from soda lovers and small-business owners alike, Manhattan Supreme Court Justice Milton Tingling said the ban was discriminatory because it would apply only to businesses regulated by the city and would not treat all sugary drinks equally.
“It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the rule, including but not limited to no limitations on refills, defeat and/or serve to gut the purpose of the rule,” Tingling wrote in a harsh, 37-page decision.
He had been expected to rule only on a request for a temporary restraining order while a beverage industry- and merchant-backed suit against the ban was hashed out in court — but instead, he shot down the mayor’s order altogether.
An angry Bloomberg vowed to appeal and predicted the city would win the battle — a cornerstone of his campaign to fight obesity and improve New Yorkers’ health, whether they like it or not.
“We think the judge is totally in error the way he interpreted the law and are confident we will win on appeal,” Bloomberg said at City Hall. “One of the cases we’ll certainly make in the appeals process is people are dying every day. This is not a joke. This is about real lives.”
But small-business owners like Frank Morano, of Prince Street Pizza in Nolita, were beside themselves with joy over being left free to sell as much soda as they want to their loyal customers.
“I’m happy that people still have the choice,” said Morano, who celebrated by giddily pouring out a 20-ounce bottle of Coke into a cup that overflowed and spilled onto the street outside his store.
“It gives us back our freedom of choice. Customers are going to be happy.”
In his ruling, Tingling also:
* Slapped around both Bloomberg and the Board of Health for overstepping their bounds.
“The rule would not only violate the separation-of-powers doctrine, it would eviscerate it,” Tingling wrote. “Such an evisceration has the potential to be more troubling than sugar-sweetened drinks.”
* Expressed particular dismay that the ban would punish some businesses but not apply to others.
“The simple reading of the rule leads to . . . uneven enforcement even within a particular city block, much less the city as a whole,” wrote Tingling, noting supermarkets and large chain stores don’t fall under city regulations and wouldn’t have been impacted because they are regulated by the state. But mom-and-pop bodegas would have been forced to adhere to the ban because they operate under city rules.
* Ordered that the city “is enjoined and permanently restrained from implementing or enforcing the new regulations.”
Even “Late Show” host David Letterman took a shot a the ban, sparring with the mayor during his appearance on the show last night.
“I believe that it’s the corporate food industry, not the individual, that is at fault here [for the obesity epidemic],” Letterman told the mayor, who taped the segment hours after Tingling’s ruling.
“I think that it is incumbent upon government to tell people what they’re doing to themselves and let people make their own decisions,” Bloomberg shot back, adding: “As long as you don’t ban Cheez-Its. Cheez-Its are OK. That’s my addiction.”
Poking fun at the mayor during his monologue, Letterman joked that the city was so anxious about the proposed ban that “crack dealers were selling Sprite.”
Still licking his wounds after the stinging judicial rebuke, Health Commissioner Thomas Farley issued dire a warning.
“Without a portion cap on sugary drinks, it would be harder to tackle an obesity epidemic that kills more New Yorkers than anything other than smoking and causes misery for many thousands more who suffer from heart disease, diabetes and other debilitating illnesses,” he said in a statement.
Judge Halts Bloomberg Soda Ban by New York Post
Bloomberg, meanwhile, mocked what he repeatedly dismissed as “lower court” rulings.
“If lower-court rulings always stood, Grand Central Terminal would have been knocked down 40 years ago,” he sniped.
Jake Dell, the fifth-generation owner of Katz’s Delicatessen on East Houston Street, was thrilled by the court ruling.
“You make money on soda. It’s a high-profit item,” he said.
Additional reporting by Amber Sutherland, Laurel Babcock and Jennifer Bain