Yesterday Judge Milton Tingling gave me a Chrissy Matthews up my leg when he pronounced Mayor Michael Bloomberg’s anti-some-large-sugary-drink diktat too arbitrary and capricious to be enforced: Per Tingling’s decision, “The loopholes in this rule effectively defeat the stated purpose of the rule.”
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Presumably, while some arbitrary and capricious content is allowed in a law, Hizzoner’s rule simply had too much of it. Bloomberg’s ban on some businesses serving some large sugary drinks was thus caught up by the judicial rejection of laws consisting of a Super Big Gulp sized portion of “arbitrary and capricious.”
Primary among the arbitrary and capricious features of the Big Gulp Ban was that it did not ban the Big Gulp. The ban applied to large sugary drinks that were served by restaurants, hot dog carts, movie theaters, and sports venues. But it didn’t apply if there was at least half milk in the sugary drink, or to grocery stores, or to 7-11 where the Big Gulp is sold. And it didn’t apply if there was liquor in the drink. So you could get a 45 ounce Super Big Gulp at 7-11, 32 ounce milkshake, and a 32 ounce Hurricane from any bar that wants to serve it, but you couldn’t get a 20 ounce Coca-Cola from McDonalds to wash down your Double Quarter Pounder with Cheese and large french fries.
You weren’t even allowed to purchase 20 ounce bottles of soda from the regulated businesses, or get a two-liter bottle of soda with your carry-out pizza.
But you could always get a Big Gulp under sugar h8r Bloomberg’s diktat. And you could get the hipster grail vente half caf half decaf macchiato with raw cane sugar and extra half-and-half, or an 800 calorie smoothie that is supposedly health food. But that two liter bottle of Pepsi from the pizzeria was beyond the pale.
So, those poor suffering souls in New York can relax and drink their 20 ounce Mountain Dew in peace now while they chew on the Nathan’s with relish and mustard they got from a street vendor. Right? Not so fast, cowboy!
Bloomberg has vowed to appeal the decision, stating that he “would have gotten away with it too if not for you nosy kids!” Jinkys! I made that quote up, but it should be true, just like there should be an abandoned theme park in the background whenever Bloomberg is photographed, rubbing his hands together like a preying mantis and chortling at all the good he can do for people if he is simply left free to constrain their freedoms a little bit more.
Bloomberg is right about one thing though: Like the Terminator, he will be back. And he will have his eye on more freedoms he can regulate and tax away.