The NYC Soda Ban From a Legal Perspective

Mayor Michael Bloomberg of New York City has taken both praise and heat for his latest move in his campaign against obesity: a ban on the sale of large (more than 16 oz.) sugary drinks from public venues like restaurants, delis, movie theaters, and food stands.

Mayor Bloomberg

Proponents of Bloomberg’s initiative hail this maneuver as a way to publicize the obesity problem in America. Even if the bill does not pass, it will at least raise awareness that our country needs to take strides toward better health. However, those against the bill – namely, large corporations that rely on soda distribution for income (like Pepsi, Coca-Cola, and McDonald’s), small business owners, and organizations such as the Center for Consumer Freedom – believe that Bloomberg is acting more like a nanny and less like a political leader.

But can anyone actually take Bloomberg to court over this? At this point, it looks like the legal arguments are lacking. According to Michelle Mello, a Harvard professor of law and public health, there are many states that impose standards on consumer products sold within their borders. In light of this precedent, it would appear too difficult to prove that New York had somehow exceeded its powers in this instance. Furthermore, Bloomberg’s prior health initiatives, like the ban on smoking inside bars, the requirement that chain restaurants post calorie counts on their menus, and a restaurant’s obligation to place its health grade in plain sight for patrons and passersby, each survived challenges to their respective legality. This track record does not bode well for a similar legal confrontation against the soda ban.

Even so, legal experts are saying that there are two routes that soda ban challengers can take: they can claim that the new legislation has no rational basis (i.e., that New York has exceeded the powers granted to it), and/or that the legislation violates the Commerce Clause of the United States Constitution.

On the rational basis route, a challenger can say that the legislation has no reasonable connection to a legitimate and constitutionally sound objective. But Bloomberg and Co. can argue that protecting the public health is a legitimate interest and, if they can prove that the ban would lower consumption of soft drinks and consequently reduce obesity among New Yorkers, the opposition would not be left with much room for argument. But there is a loophole: if large sodas can still be purchased at venues like grocery stores, or if the purchase of two 16 oz. sodas at a movie theater or restaurant can still occur, will there really be much change in soda consumption?

If challengers wanted to take the Commerce Clause (see Article I, Section 8, Clause 3 of our Constitution) route, they would have to prove that the ban interferes with U.S. interstate commerce. Interstate commerce is defined as the free exchange of commodities among citizens of different states across state lines, and soda industry representatives could argue that the soda ban unduly harms producers that ship soda syrup and cups from other states into New York.

What do you think about Pennsylvania legislators introducing a law like this in our state? Is there really a way that it can better public health? We have already followed Mayor Bloomberg’s lead concerning smoking bans in restaurants – do you think that a soda ban can garner the same public support?

Trayvon Martin, Stand Your Ground, and the Law of Self-Defense in Pennsylvania

In the past few months, the killing of teenager Trayvon Martin has raised a number of legal issues. One of the most discussed is the value of Stand Your Ground laws. In essence, a Stand Your Ground law allows you to use force in self-defense when there’s a reasonable threat of another using that level of force against you—without you having to retreat first.

Stand Your Ground laws replace the historical “duty to retreat” principle and supplement its exception, the Castle Doctrine. The “duty to retreat” principle requires you to first try to retreat from an attack, but, if retreat proves impossible or dangerous, self-defense becomes a legally justified option. The Castle Doctrine generally holds that, on your own property, there is no legal penalty when you use force against a person whom you reasonably think will inflict serious bodily harm or death to you or others located on that property.

Because of the public uproar over George Zimmerman’s reliance on Florida’s Stand Your Ground law, Governor Rick Scott appointed a task force to examine it and the state’s other gun laws. Florida enacted its Stand Your Ground law in 2005 in response to the NRA-led campaign to put these laws on state statute books. The NRA continued to find success in other states – PA became the 27th state to adopt a version of the law in June 2011. Some key features of our law, found under Title 18, Chapter 5, §505 of the Pennsylvania Consolidated Statutes, are as follows:

• You are allowed to use force against another person when you believe it is immediately necessary in order to protect yourself against the use of force by that other person.
• However, the use of force is not justifiable if:
•           You are resisting arrest by a peace officer, although the arrest is unlawful.
•           You are resisting force by an occupier of property who is using force to protect that property.
• The use of deadly force is not justifiable if:
•           You do not believe that such force is necessary to protect yourself against death, serious bodily injury, kidnapping, or sexual intercourse compelled by force or threat.
•           If you provoke the use of force by another with the intent of causing death or serious bodily injury.
•           You can avoid the use of such force with complete safety by retreating (the “duty to retreat” principle)  unless you are in your dwelling or place of work (the Castle Doctrine).
• And the Stand Your Ground additions: If you are not engaged in a criminal activity, are not in illegal possession of a firearm, and are attacked in any place where you would have a duty to retreat, you have no duty to retreat and the right to stand your ground and use force, including deadly force, if:
•           You have a right to be in the place you were attacked.
•           You believe it is immediately necessary to use force to protect yourself against death, serious bodily injury,  kidnapping, or sexual intercourse by force or threat.
•           The person against whom you use force displays or uses a firearm, a replica of a firearm, or any other weapon  readily or apparently capable of lethal use.

Pennsylvania’s law is similar to the Florida statute. However, last month House Judiciary Committee Counsel David McGlaughlin stated that, in Pennsylvania, a shooter like George Zimmerman would likely have been immediately arrested.

Why? See the second and third bullet points of the Stand Your Ground additions to the statute, relayed above: according to some accounts, Zimmerman pursued Trayvon although told not to by the 911 dispatcher, and Trayvon was unarmed.

But does our stricter law still justify the increased violence it condones?

If you’ve turned on a TV lately, you already know that there’s no shortage of debate that can be had on this point.

In any case, the ongoing criminal proceedings and media analysis may serve not only as a trial for Zimmerman but as a referendum on Florida’s—and perhaps the rest of the country’s—laws regarding self defense.

Eric Davis on Allegheny County’s Property Assessment Appeals

As we make our way out of a very mild winter and into spring, I know most of us probably have things on our minds other than taxes, but I wanted to reach out to you to offer help and guidance for dealing with the recent county-wide property tax assessment.  Below is a picture from happier, less taxing times.

My mind on millage and my millage on my mind

If your recent property tax assessment is higher than you expected, you should consider calling us for a free consultation about how to best appeal your property tax reassessment.  We can explain to you how the process works, help you to determine whether it makes sense to file an appeal and decide whether it makes sense for you to spend money on getting an appraisal or hiring an attorney to represent you through the process.

I was shocked when I received my property tax assessment paperwork in the mail.  I purchased my home in Highland Park for $148,500 in 2002.  My current assessed value is $169,100 ($154,100 with the Homestead Exemption).  The new assessment is $265,900!

Your assessed value directly relates to the amount of property tax that you pay.  Generally speaking, for every $10,000 in assessed value assigned to your property, you pay approximately $300 in annual property taxes.  Even a moderate reduction in your assessed value could result in hundreds or even thousands of dollars in annual property tax savings.

The county has a website to help taxpayers.  http://www.alleghenycounty.us/opa/appeals.aspx.

We recognize that property taxes are necessary and pay for important services such as our schools, parks, roads, etc.  However, there is no reason to pay more than your fair share.  If your new assessed value is in excess of what your house is worth, we recommend requesting a FORMAL HEARING by filing this form http://www.alleghenycounty.us/opa/2013NewAppealForm.pdf before April 2, 2012.

To confirm that your appeal form was received, contact the Office of Property Assessments Public Information Line at 412.350.4600 or visit  http://www2.county.allegheny.pa.us/RealEstate/Default.aspx and search your particular property.  While on the website, it is also a good time to confirm that you are receiving the $15,000 Homestead Exemption.   Everyone should seek this exemption for their primary residence.  If you have any questions about the Homestead Exemption, please feel free to ask us.

You can represent yourself at the formal hearing or have our firm represent you for a fixed cost of $350.  To be best prepared for the hearing, it is important to bring evidence regarding what your property is worth.  We recommend getting an appraisal done by a certified appraisal service.  In my opinion, this is the best evidence as to a home’s value.  We can recommend a few appraisers that have a relationship with our firm.  Most charge approximately $350 for single-family homes and $450 for duplexes and multi-unit properties.

If you are not satisfied with the Board’s decision after the formal hearing, you have the right to file an appeal with the Court of Common Pleas.   You should definitely consider hiring an attorney to assist you with an appeal to the Court of Common Pleas.  Our law firm has significant experience litigating property tax assessment appeals in Allegheny County.    The cost for an appeal is fixed at $500.

I hope you found this blog post helpful.  If you could use some help figuring out what to do about your property tax assessment, do not hesitate to call me at 412.434.4911 ext. 11 for a no cost, no obligation consultation.

Please consider Elliott & Davis for all your legal needs.  For more information about our firm, please visit www.elliott-davis.com.

This land was made for you and me…

Occupy Cincinnati Protestors have filed suit against city and police officials for violating their first amendment rights. The source of the suit is the refusal of the city to issue 24-hr permits to protestors in Cincinnati’s Piatt Park, which has resulted in over $20,000 worth of citations against protestors violating the 10pm park curfew.

The outcome of the suit may very well re-shape the occupy movement’s national strategy.

Unlike most occupy camp sites, Cincinnati’s Piatt Park is city-owned. In New York, Zuccotti Park, the epicenter of the Occupy movement, is privately owned by Brookfield Properties. Here in Pittsburgh, Mellon Green is, not surprisingly, owned by BNY Mellon. Though open to the public, these parks are private property, and, so far, the protestors remain there at the largesse of the parks’ respective owners.

Protest organizers worry that park’s owners could revoke their permission to stay at any time. Any resulting legal battle would, most likely, not go in their favor. That is certainly true here in Pennsylvania, where property laws tend to favor owners.  Most importantly, the first amendment’s state action requirement means that such claims could not be advanced against private entities.  Even if the legal claims of the protestors were successful, it could result in a temporary eviction, or to clashes with law enforcement, both of which protestors are dead set on avoiding.

If Occupy Cincinnati is successful in their claim, it may inspire other protestors to de-camp to city owned land. Alternatively, it could severely undermine confidence in the movement’s staying power. Either way, it looks like protestors may have a new home, albeit temporary, at Occupy Courthouse.