Saturday, May 30, 2009

No Deposits, No Returns!

David Paterson's having flash backs to the old Flip Wilson refrain; "Here comes the judge, here comes the judge!" That's because federal Judge Thomas Griesa has canned the governor's pet bottle bill expansion with an injunction that runs, get this, until April of next year. As the NYACS website reports: "In a breathtaking development, the same federal judge who on Wednesday May 27 put the bottle bill UPC code and effective date on hold, today (May 29) issued a broader injunction barring enforcement of the entire expanded bottle bill statute until next April."

Yes, the entire measure-which means that we're all not left doing the limbo, but must go back to the drawing board; this time without any NY only UPC regulation: "Judge Griesa’s preliminary injunction on Wednesday applied only to a few specific sections of the bottle bill expansion law, leaving the remaining parts such as signage and handling fees to take effect on June 1st as scheduled. But today's follow-up injunction was all-encompassing, freezing everything that was in the new law."

So now the ball's is back in the legislative court; but this time any bottle law changes must go through more normal-not budget cloaked-channels. Which means that the outcome here is less than certain. At the same time, however, the judge's ruling leaves the state with a more than $200 million budget shortfall, since the delay impacts more than one budget cycle.

Now, just how's the state going to make up the shortfall? Well, we might have a good alternative for the newly impoverished-the Morelle Wine Revitalization Act. As the Times Union tells us: "It helps the wineries, helps the wine business in New York state," Morelle said. The initiative is expected to raise more than $100 million the first year by selling supermarkets licenses." Or, perhaps even more than that.

So with one revenue source poured out down the drain, doesn't it make sense to lift a glass to a good alternative? It sure does to us.

Friday, May 29, 2009

Law in Limbo

We finally got a hold of Judge Griesa's decision in the bottle bill litigation-and it appears that only certain segments of the law have been put on hold; but one thing is totally clear, the UPC only rule is history: "Regardless of the purpose of the legislature in enacting this provision, the provision is a violation of the commerce clause. It prohibits the sale of a commodity on the basis of the state borders. This is a violation of the commerce clause."

Not much wiggle room there. And if you were still unclear, Griesa went on to say: "In the view of the Court, on the present record the plaintiffs not only have a likelihood of success, they are sure of success as a matter of law." Whew!

It thus appears that the judge has actually, through his ruling here, essentially passed the Kruger amendments in their entirety; since the senator had proposed eliminating the UPC clause and postponing the implementation date until October-a likely result of the judge granting the restraining order.

All of which means that the legislature and the governor have some defects to cure; and the status of the equal protection argument over sugared vs. non-sugared water is still up in the air, since the judge was silent on this issue. Still, there isn't much time for amendment action, since the legislature will adjourn on June 23rd. Chaos, however, continues to reign in Albany; a condition that we relish for all sorts of self serving reasons.

The Immaculate Deception

As we have posted, the proposal to develop the Kingsbridge Armory includes a 60,000sq. ft. supermarket that, according to the developer, "...will not hurt any of the existing markets...It is expected that a grocery use at that the project site would attract sales largely from the under served portion of the Primary Trade Area...A grocery store use at the project site also could capture substantial sales from portions of the Bronx outside of the Primary Trade Area, most notably residents east of Baychester Road/Interstate 678 where there is currently consumer outflow to Southern Westchester County."

So the Associated Supermarket across the street will be unharmed by the tax subsidized competitor? Only in Related World could this be said with anything approaching a straight face. But there is one thing that must be highlighted in this effort to deceive: the fact that the original RFP for the site had insisted that, "Proposed commercial and retail uses must expand and enhance the current mix of retail offerings in the area, and endeavor to not duplicate or compete with the existing retail uses." (p.6)

One thing that can be said in Related's defense-they go about doing things effortlessly, so their disregard for the parameters of the RFP shouldn't be a shock to anyone's sensibility (And no one would sit J. Masyr next to the "Pushka"). But the supermarket designation insures that there will be a battle royal over this application; and Morty and Billy Sloan are prepared to aggressively make their case.

The Sloans are particularly aggrieved considering the fact that Related is getting around $13 million in tax subsidies-while the Sloans have operated in their location without any public funds for over fifty years. In addition, the Sloan's company is a huge economic engine to the entire Kingsbridge community, generating a weekly $390,000 payroll for the area. This is in addition to the $375,000 that the company pays in city and state corporation taxes-a sum that has been consistent for decades (Not to mention the $350,000-$400,000 in real estate taxes they pay for the two contiguous markets).

So a tax subsidized competitor is asking for a special dispensation-along with amnesia over the RFP-in order to put local stores at risk. And it's not only the Sloans. The Perez family has also been operating a C-Town supermarket in the neighborhood for years; and there are at least six other, mostly minority, store owners in the line of fire as well.

All of which means that we will be in for a battle royal; and we haven't even touched on the RWDSU led effort to insure that a living wage accompanies any development that is lavishly supported by the city's strapped tax payers-an effort that is encompassed in pending legislation up in Albany. As the TU reports: "A measure currently under consideration in the Legislature would require companies receiving taxpayer-funded subsidies to provide greater detail about their plans to pay prevailing wages, consult with regional labor organizations, and whenever possible hire local workers."

So the Armory becomes ground zero in, not only a neighborhood store fight, but a major union battle as well; which doesn't bode well for Related's effort to get approval for its project. But perhaps the company, and its president Jeff Blau, feel they have an ace up their sleeve. Recently, as the Observer reported, Mike Bloomberg took time out from his busy schedule-at least when he isn't golfing in Bermuda-to make a call for the beleaguered Blau who wasn't getting any love from the co-op board where he wanted to domicile. How many of us could get the mayor to make such a call-especially one who claims that he isn't beholden to any special interests?

But, ace in the hole or not, Related's in for a bruising here-much like the one they faced over on Brush Avenue when they sought to put a BJ's on the site (now a gorgeous Home Depot occupies the land). The electeds are lining up here, and Bloomberg's favorite real estate company may have to scale things back or, alternatively, simply take a beating.

How Dare You!

Someone has dared to question the message of Our Saviour. As Daily Politics pointed out, His Holiness has accused our buddy Azi of the sin of lèse majestés: "To the annals of Mayor Bloomberg's mistreatment of the press add his testy exchange today with The Observer's Azi Paybarah, who dared to ask Hizzoner a question about term limits. The mayor, having just finished explaining to the DN's Celeste Katz that he happens to be "very optimistic" about the city's economy and giving anecdotal examples of how things are turning around, did not take kindly to Azi's inquiry about how this might undercut Bloomberg's own rationale for extending term limits - not to mention running for re-election."

Well, this was just too much for our epitome of Papal infallibility. After dismissing the question as beneath his dignity, he turned on the intrepid reporter: "And then, as the mayor walks away from the podium, he looks at Azi and says, almost under his breath: "You're a disgrace."

Azi's a disgrace? In our view, the shoe is on the wrong foot; and the mayoral exchange reminds us of the apocryphal story of the two Germans passing by the Jewish ghetto in Nazi Germany. One of the men turns to the other saying, "Boy, Don't these Jews smell?" To which his companion replies, "No, my friend, it's not the Jews that smell, the odor is from Nazism."

What is truly disgraceful is the specter of a democratically elected leader who believes that answering spontaneous questions from the press is outside of his realm of responsibility; and that the airing of millions of dollars of infomercials can be fobbed off on a gullible public as some kind of true democratic dialogue.

It is, however, instructive to discover that the mayor was forced to apologize for his uncalled for outburst: "Bloomberg spokesman Stu Loeser e-mailed Katz to say: "The Mayor asked me to pass along his apologies to Azi for the comment after the press conference, which I did." However appropriate the apology may be, the entire episode reveals what lies behind the constructed image; and underscores why Bloomberg avoids spontaneous exchanges with a free press.

Which is underscored by the following from the NY Times: "Since announcing his third term bid, he has publicly scolded a blogger in a wheelchair for accidentally turning on a tape recorder during a news conference. He called a question about his spending “ridiculous.” And he labeled an inquiry about a political rival a “waste” of a question."

What New Yorkers need now is more of the kind of bold inquisitiveness that Azi Paybarah demonstrated yesterday. The press corps must be direct and confrontational-because the editorial pages are in muted lock step with the mayor and his message. What needs to be stopped at all costs-the true disgrace-is the continued display of mayoral arrogance that feels that Papal bulls can adequately replace honest, spontaneous and candid give and take.

Thursday, May 28, 2009

Ask Not What You Can Do For My Company

Bobby Kennedy Jr. is gifted with a Times Op-ed today on the inequities of the expanded bottle bill-and, not surprisingly, the self described environmentalist makes it all about himself-and the water company that he heads: "A good new deposit bill could encourage recycling of new classes of beverage bottles and also provide financing for curbside programs that capture other kinds of recyclable waste...Unfortunately, the New York Legislature passed a bottle law last month that not only fails to accomplish these goals but will actually harm the recycling programs New York has. It is an ugly sausage that was cooked up by lobbyists for makers of sugared drinks and their allies in the Legislature."

Really? This would be news to all of those food and beverage lobbyists that were ignored-shunted aside for all of RFK's cohort of environmental purists-when the governor and the legislative leaders crafted this bill under the cover of budget. So, the idea that this "ugly sausage" was cooked up by lobbyists for sugared drinks indicates that Bobby Jr. must be suffering from sugar shock.

But let's get to his real objections to a bill that was struck down by an injunction from a federal judge yesterday: "Instead of requiring deposits for all the new beverage categories, as Gov. David Paterson originally proposed, New York’s new bottle law covers bottled water only — unless that water contains added sugar."

And it just so happens that Bobby owns a water company-but not just any water company: "I am both a water bottler and an environmental activist. My water company, Keeper Springs, donates all its profits to the protection of rivers and public water supplies. I am also committed to achieving zero waste through recycling." So RFK isn't really one of those exploitive capitalists just in it for the money-and, as, "an environmental activist," and not a company owner, he objects to having been treated inequitably by the expanded law.

And then there are the children: "The Legislature, which began the year promising to lead national efforts against obesity and diabetes, exempted from the deposit law all noncarbonated beverages that contain added sugar. That means consumers are expected to pay more for zero-calorie choices than they will for sugar-filled options like teas and sports and juice drinks. The markup will encourage millions of New Yorkers, and especially price-sensitive populations like the poor and children, to consume sugar-spiked beverages instead of water."

No objections to the fact that the entire bill-along with the state's grabbing of the unredeemed deposits-is a huge tax on all beverage consumers; including those deluded souls that like to drink soda. And it was Governor Paterson, not the legislature, that lead the effort to tax soda.

But the RFK's of the world, supported by lavish trust funds that allow them to act as quixotically as they please, remain hostile to the economics of all of their well meaning meddling. So imbued are they by the visions of environmental purity that they lose sight of the fact that the food and beverage industry is a vital economic cog in the state's economic well-being. In the case of the expanded bottle bill, however, Judge Griesa kicked them all to the curbside.

Weiner to the Egress

So, a funny thing happened on the way to our cornucopia of electoral choices-or, in the more persuasive vernacular, another one bites the dust; with the combative Anthony Weiner taking a page out of Kubla Ross's book on death and dying, you know the Stage Five part where the terminally ill patient gets over her anger and accepts the inevitability of death. As the NY Times tells us: "In an Op-Ed page article to be published on Wednesday in The New York Times, Mr. Weiner suggests that his — or anyone’s — chances of beating Mayor Michael R. Bloomberg, who has already spent $19 million on his re-election campaign, are slim. “As a native of Brooklyn, I’d be lying if I said I didn’t savor a good scrap,” Mr. Weiner wrote. “But I’m disappointed because I’m increasingly convinced a substantive debate isn’t likely right now.”

There can, of course, be little debate when the principle opponent is spending money hand over fist as if there's no recession in the country. What has happened here, and the Weiner withdrawal epitomizes the situation, is that Mike Bloomberg's obscene level of over spending has sucked all of the marrow out of even the possibility of a genuine democratic debate. And when this arrogant, ostentatious spending orgy is combined with the active collusion of the plutocrats-both on and off the editorial boards-the end result is that the democratic process is left thoroughly dessicated-with nothing put a procedural carcass left to examine.

As Weiner comments in the Daily Politics: "In the end, though, no matter how pretty a picture Weiner might seek to paint, the reality is this:

It comes down to money. "The mayor is expected to spend $80 million of his own money in the race, more than 10 times what candidates who have not opted out of the city’s public campaign finance program, as Mr. Bloomberg has, can spend in a primary," Weiner writes. "With spending like that, regular debates about real issues will probably take a back seat to advertising. As a native of Brooklyn, I’d be lying if I said I didn’t savor a good scrap. But I’m disappointed because I’m increasingly convinced a substantive debate simply isn’t likely right now. The sad truth for a political candidate without deep pockets is that while money isn’t the only thing, it does matter. Campaign finance laws are vital, not just to keep special interests from dominating campaigns, but also because in this case they could help prevent vast disparities in spending."

Just how all of this is good for the democratic life of the city is really beyond our tax bracket-it's left to Mike Bloomberg to explain with his little Cheshire Cat grin and supercilious demeanor. But what do the special pleaders from the Bloomberg cohort have to say? Here's Morticia with his snide avoidance of the elephant in the room: "Explaining himself in a New York Times op-ed, Weiner cited an expectation that Bloomberg will spend $80 million in a reelection fight. He predicted that "debates about real issues will probably take a back seat to advertising." What he left out is that while money is important, so, too, is message. What was his? What is Thompson's? More broadly, what does the Democratic Party, the city's dominant political organization, offer New Yorkers as it closes in on 16 years on the outs of running City Hall?"

So the swamping and subornation of democracy isn't the issue-but the lack of a Democratic message is? Please, Mort, let's not get all hypocritical on us now. Your classmate and fellow billionaire will outspend his opponent by ten to one-flooding the airwaves with his own bogus, self serving message; but Weiner, Thompson and the Democrats will lose because of a lack of message? Nothing in the editorial about the way in which obscene spending by Bloomberg limits democratic choices? Well done Mort!

And the Post isn't much better-covering its class biases with the following: "Let's be clear: Mike Bloomberg came by his money honestly, and it's his to spend any way he sees fit. Still, it's a pity that the cash has dried up what might well have been a compelling -- and, frankly, necessary -- conversation about the city's future."

Yes, it is a pity; but it's much more than that-and the way the mayor made his money is, quite frankly, simply a non sequitor here. Where's the outrage about the manner in which debate is being stifled-not to mention the way in which the Post continues to present a one sided, persistent drum beat for Bloomberg causes without even bothering to cover the alternative views? So the Post's own culpability here is elided-underscoring the need for a version of Radio Free New York for this supposedly liberal city.

And frankly, we can't wait for the NY Tmes to weigh in on the Weiner exit-and we're breathless with anticipation for Punchless Sulzberger's explanation of his expected endorsement of the Grinch that stole democracy (we'll apologize if we're wrong). Even with $15 billion dollars to your name, it's good to have toadies as friends.

But the Post is right about one thing. There are so many issues where debate is not only healthy but vital to the future of the city. Unfortunately, we will not be privy to any of that now-just the endless crawl of the kind of Bloomberg vision statements that, because of their fatuous self regard, do tremendous violence to the city's harsher realities. In particular, the real nature of the five boro economic plan charade that the Bloombergistas are parading before us nightly.; doing so, while neighborhood businesses are being forced out in record numbers-thanks in part to the mayor's anti-small business policies.

And what about the nature of governance itself? Here, the Bloomberg lack of understanding of the role that government plays as a stimulator of economic activity could be front and center in a genuine level playing field debate. This would mean confronting the Bloomberg paternalistic approach that sees expansive government as a positive force, but is blind to the way in which this expansion-built as it is on the tax paying and over regulated businesses of the city-acts as economic saltpetre.

Of course, in a real debate we would here two sides of the issue of the role of government in promoting the health of its citizens. Is it appropriate for the city to act in loco parentis, taxing and regulating our behaviors in order to mandate healthier life styles? Should government educate or regulate? All of this potential dialogue is lost in the oppositional silence that Bloomberg purchases-sucking the democratic oxygen out of the town square as he spends beyond all previous measure.

Missing, as well, is the debate over the purchase of an extension of the Mike Bloomberg tenure-a store bought bauble that was supposed to be needed to comfort us through an extraordinary crisis. This crisis-the recession is now predicted to end sometime this year-is, like all such events, a convenient cover for the usurpation of power; a familiar socio-political phenomenon used by anti democratic forces throughout history to quell popular rule. Enter the Reign of Mike the First.

On and on we could go; but the rest of this election cycle is inevitably, and regrettably, going to be dominated by the self server in chief-someone for whom Narcissus is a poor man's Bloomberg. The only silver lining? That the Chinese proverb of, be careful what you wish for, becomes prophetic to the point where events reveal the shortcomings of our hubristic leader. As for Anthony Weiner, we understand his reticence, but will miss the acerbic vitriol that would be anodyne to the arrogant display of wealth that is being mischaracterized as an election campaign.

Deposit This!

As Capitol Confidential is reporting, the state's expanded bottle has been thrown for a loss by Federal Judge Griesa-and on the issue we had spotlighted: "A federal judge has just issued an injunction putting the scheduled June 1 implementation of New York’s new expanded bottle law on hold. U.S. District Court Judge Thomas Griesa ruled from the bench in New York City early this afternoon during a hearing on the lawsuit against the state filed last week by a coalition of bottled water companies. Brian Flaherty, director of public affairs for Connecticut-based Nestle Waters North America Inc., said the judge cited objections raised by the bottlers and distributors to the new law’s requirement that all returnable bottles carry a New York-specific UPC bar code."

What this means from a practical standpoint, is that the expansion may well be put off indefinitely since the plaintiffs have no reason to settle prematurely even if the state crafts compromise legislation; why not try to get the entire package of goodies by going to trial if you're almost guaranteed a win on the UPC issue? Whatever your position, this ruling puts the industry opponents of the expansion in the proverbial cat bird's seat. As Nestle's told the TU: “The court today highlighted the Constitutional and due process problems with New York’s new bottle bill,” he said. “The opportunity that we see today is, first, stopping an unconstitutional law. But more importantly, in the pause that will take place, we now can reinforce that this needs to be a better bill and can be, environmentally.”

And if the state decides it wants to litigate this, well, apparently Judge Griesa had wanted all parties to stipulate to the UPC being eliminated from the law-right in court-but the state's lawyers demurred; not a smart move if you are in federal court. So the state is now between a Rolling Rock and a hard place here. This is underscored by City Room: "In granting a preliminary injunction on Wednesday, Judge Griesa said he agreed with the bottlers that the June 1 deadline was simply too early for the companies to have realistically met, given that Mr. Paterson signed the law in April. But he also said that the plaintiffs were almost certain to be successful in overturning the prohibition on sales outside of New York."

It appears to us that, because of hubris and intransigence-particularly from the governor's office-the expanded bottle bill may have been forced into a six to nine month hiatus; and new legislation will likely have to be drafted and negotiated, with all parties having assumed hardened positions from the manner in which the law was midwifed in the first place. As a result, this becomes another example of the failure of competency at the highest levels of government.

Wednesday, May 27, 2009

A Good Start

As City Room blog reported, the workers at H&M are going to have the protection and security of union representation: "More than 1,000 employees at nine H&M stores in Manhattan will receive wage increases and other benefits in their first-ever union contract. The Retail, Wholesale and Department Store Union, which represents the workers, announced on Tuesday that the contract was ratified last Friday. The union organized clerks, cashiers and other workers at the Manhattan outlets of the Swedish clothing retailer in November 2007."

This is especially heartening considering the bleak economic that we're in. As Local 1102's president told City Room: “At a time when retail workers are taking it on the chin it’s great to win an agreement that’s going to mean higher wages and an even better working environment for H&M workers and their families,” said Frank Bail, president of Local 1102 of the union. The three-year contract provides a 3 percent wage increase in the first year, with wage re-openers in the second and third years An additional merit-based increase is included in each year of the contract."

Let's hope this is a sign of things to come; and, hopefully, new retail developments in the city will only come through with the assurance that retail workers won't be shafted by subsidy taking friends of the mayor. The jury's out on that front.

Food Fight at the Armory

It looks as if there will be a major battle over the development of the Kingsbridge Armory. According to the EIS submitted by the Related Companies, the project will include a 60,000 sq. ft supermarket that will not, according to this breathtakingly insightful document, hurt any of the existing markets; "It is expected that a grocery use at that the project site would attract sales largely from the under served portion of the Primary Trade Area...A grocery store use at the project site also could capture substantial sales from portions of the Bronx outside of the Primary Trade Area, most notably residents east of Baychester Road/Interstate 678 where there is currently consumer outflow to Southern Westchester County."

How convenient! So the two immediate supermarkets owned by Morton and Billy Sloan-one directly across from the Armory, and one just down the road, will be spared any negative impact because most of its customers will not move across the street because a new subsidized market is in town. Nostradamus on crack must have crafted this EIS.

All of which underscores the fact that this shapes up to be a mega battle; particularly because of all of the opposition that is lining up against Related-not only the local coalition called KARA, but most of the elected officials and CB# 7 as well. And it could also spill into the upcoming mayoral race, since Bill Thompson has become a Related critic.

What's ironic here, is that Related is using the recently certified supermarket zoning/incentive initiative as a rationale: "The Study titled "Going to Market; New York City's Neighborhood Grocery Store and Supermarket Shortage," assessed the need for new neighborhood grocery stores across the City..." (p. 3-29) And. using the DCP research on store density-population ratios, the EIS tells us that: "The ratios for the community district in which the proposed project site is located, as well as each of the adjacent community districts, are less than the citywide average, and substantially less than the DCP planning goal. This is one indication that the Primary Trade Area could support additional grocery store retail."

Well, we know that through some quirk in the city's zoning laws, Home Depot has been labeled a neighborhood hardware store, but to claim that a 60,000 sq. ft. supermarket would be a "new neighborhood grocery store" is absurd-it's certainly not Mr. Roger's neighborhood; and it underscores the fact that the city's new incentive program can be seen as problematic because of the manner in which it might threaten the viability of existing stores. It also needs to be pointed out, that the city's plan for new food stores limits them to half the size (30,000 sq. ft) of the supermarket proposed by Related.

Related's sanguine attitude about collateral damage also needs to be put into perspective as a result of the city subsidies that it has garnered. If, as we believe, the Armory development will put local stores at risk, than the granting of tax incentives to this favored development company can be seen in an even less favorable light. The Sloans have invested millions in their two stores, and have paid hundreds of thousands of tax dollars to the city; without a penny in city aid coming to support their investment-the first major supermarket in the Bronx.

And what about the workers at the two supermarkets-members of Local 338 of the RWDSU? Is there any guarantees that the new market will offer the same level of wages and benefits? Or will this retailer be the same bottom feeder that is going into the new mall on the Deegan? Guaranteed that the RW will be in this fight with all hands on deck.

So the battle lines have been drawn here. And it's not only the Armory that's in the cross hairs-but the mayor's entire supermarket proposal as well. And, perhaps, the mayor himself; last seen making calls on behalf of Related's president in the latter's effort to get past a Fifth Avenue co-op board-as if he wasn't busy enough. So much for the Bloomberg's vaunted "above special interests" mantra.

However, if our analysis of the opposition is correct, Related is facing a considerable uphill battle in this fight. But it must be a sense of déjà vu for Jesse James and company. This time we advise a well thought out Plan B; or else the Kingsbridge Armory will prove to be one bridge too far.

Tuesday, May 26, 2009

Embottled Legislation

The legal case against the recently expanded bottle law, will be heard in Federal District Court in New York tomorrow-and the compelling need for injunctive relief is obvious to anyone with even a smidgen of knowledge of the beverage industry. Put simply, if no relief is given, not a single bottler or franchised beer wholesaler will be in compliance with the obligation to have a "NY Only" UPC code and label on each and every container when the law is supposed to go into effect on June 1st.

As the Politicker pointed out last week: "In a complaint filed in United States District Court in Manhattan, the water companies argued that the labeling requirement violates the Constitution’s equal protection clause because the language of the bill excludes any drink to which sugar has been added, like sports drinks. The complaint also charges that the requirement violates the Constitution’s interstate commerce protections because the wording of the law also seems to ban companies from selling the New York-labeled bottles in other states."

So if no court action is taken, by next Monday we will likely have no legal container of beer, soda or water on the shelves of New York's retail outlets. Which is why Senator Kruger has introduced his bill that would eliminate this UPC requirement-and delay implementation until October. Unfortunately, the Assembly has a contradictory measure that would preserve the UPC mandate, and the governor has also weighed in with a proposal to trim the handling fee requirement; further complicating an already murky situation.

So with the clock running, it looks as if it may be up to the court to put a delay in place so that all of these issues can be hashed out in a reasonable time frame. Otherwise, we may see empty beverage aisles at the beginning of next week.

Thanks for the shout out from the Observer; and from Liz as well.

Wine Tasting

As the legislature prepares to introduce an expanded wine bill-one that will begin to allow liquor store operators to enter the new century-those who want to preserve the untenable status quo are still acting as if a state sponsored monopoly is good for both retailers and consumers. We'll now see if the majority of state law makers disagree with this antediluvian view: "A new proposal to sell wine in New York supermarkets is surfacing in Albany after liquor store interests helped kill an earlier bill. Democratic Assemblyman Joseph Morelle of Monroe County is proposing additional elements to the bill that would address long-standing concerns of liquor store owners worried that selling wine in supermarkets would kill their businesses."

James Odato of the Ties Union outlines the details: "Assemblyman Joseph Morelle, who is still seeking a law to allow wine sales in grocery stores, has drafted a bill he hopes will sell the idea before the session ends. His measure allows liquor stores to have multiple locations. It creates a medallion system to make a liquor license more liquid. It allows cooperative buying groups for package stores, and longer store hours; wine tastings would be easier to set up; and restrictions on selling to bodegas and restaurants would be lifted. And everyone buying alcohol would have to be proofed."

In other words. a win for all; but not everyone sees things this way. As one liquor store owner told CBS TV in NYC: "But liquor store owners fear the measure would drive out one of the state's last vestiges of mom-and-pop retail. "I just want to point out to you if this bill passes, to my right is a Food Emporium, to my left is another small kosher market, both of whom would be eager to start selling wines," said liquor store owner Gary Wartels of Skyview Wines in Riverdale. Wartels also said it could put many of the state's more than 2,700 liquor stores out of business."

But why would it do so? In over thirty other states liquor stores and supermarkets sell wine-often occupying the same shopping center without the feared cannibalization; and in those states the number of liquor stores often increases as wine sales go up. In other words. it's not the zero sum game that opponents of the Morelle bill allege.

In addition, as we have pointed out, this could be really good for struggling local supermarkets: "Allowing supermarkets, and food stores to sell wine would net the state nearly $160 million in licensing revenues in the first two years and help these retailers in a tough economy. "It would be good for supermarkets, particularly in New York city, because we have been losing supermarkets, 300 in the last five years," said Richard Lipsky of Gristedes."

Which, if it were to happen, would be a boon for Mom and Pop retailers-contrary to the self serving spin of opponents afraid of any changes in the outdated state laws on liquor selling. As Odato points out, it will also help the New York wineries; another small business niche that has been somehow forgotten in the propaganda blitz from the liquor lobby: ""It helps the wineries, helps the wine business in New York state," Morelle said. The initiative is expected to raise more than $100 million the first year by selling supermarkets licenses."

So with state revenues plummeting, and compromise in the air, it's up to the governor and the legislative leaders to take the Morelle bill and run with it. And in the case of the state treasury, it will be running straight to the bank!

Thursday, May 21, 2009

Low Friends in High Places

The common man has been pretty busy lately. As the NY Times reports, Mike Bloomberg held a private meeting a couple of weeks ago with a few of his lessers-folks who happen to have a greater net worth than most countries: "There are fewer billionaires in these tough economic times, so one might imagine that the remaining ones would attract more attention when they moved en masse. Yet when some of America’s most prominent capitalists met earlier this month at Rockefeller University, it took weeks before anyone noticed."

But why the secrecy? And what's up with Mike's surly response to reporters questions? "Mayor Michael R. Bloomberg, who was there, revealed little in a brusque response to a question on Wednesday afternoon. “Anytime I have a meeting that’s not on the public schedule, it’s not going to be on the public schedule,” he said." Perhaps it is because the meeting clashes with his electoral reinvention as the proverbial face in the crowd.

But, as Wayne Barret points out, the mayor stepped on his patrician tongue in describing the gathering: "All my friends are philanthropic, or they probably wouldn't be my friends," he said...If "all" of Bloomberg's friends are big-time donors, then all of them must be rich, right? It's possible, of course, that the mayor meant to say all of his rich friends are philanthropic. But to Mike, that's one and the same thing..."

Which underscores many of our observations about the Bloomberg worldview. Isolated from the concerns of most folks-and not beholden, as he tells us,to the special interests (telling us that he's only beholden to himself)-Bloomberg's decision making calculus is determined by the rarefied air that only he, and a few privileged others, breathe on a regular basis.

It's time for the special interests to reassert themselves. In the context of the mayoral spending orgy, and in recognition of Bloomberg's out of touch elite billionaire laden cocoon, we need to have decision making return to the interplay of the mortals-you know, small businesses, retailers, labor unions, seniors, etc.

So, with respects to Garth Brooks, here's what Bill Thompson might have sung exiting that select little enlarged tête-à-tête-after stumbling in uninvited:

"I guess I was wrong I just don't belong
but then I've been there before, everythings alright
I'll just say goodnight and I'll show myself to the door
Hey I didn't mean to cause a big scene just wait 'til I finish this glass
Then, sweet little mogul I'll head back to the bar (haha) and you can kiss my ass"

Starving for Reason

We've been quite outspoken about the efforts of the various city and state health commissioners to enforce what they consider healthy eating through targeted taxes and regulations; and Governor Paterson's fat tax-now being unfortunately resurrected by some legislators-is another example of the public sector's intrusion into the lives and choices of New Yorkers.

But is it possible that all of this meddling is a non sequitor? That the causes of the dreaded obesity epidemic lies elsewhere? A recent study cited by Reason magazine's Hit and Run blog tells the tale: "This Just In: U.S. Obesity "Epidemic" Due Solely to Overeating!

That's right, Americans are getting fatter because they're consuming more food: "The amount of food Americans eat has been increasing since the 1970s, and that alone is the cause of the obesity epidemic in the US today. Physical activity—or the lack thereof—has played virtually no role in the rising number of expanding American waistlines, according to research presented at the 2009 European Congress on Obesity in Amsterdam last week."

Which means that soda and Twinkie taxes are besides the point; but that doesn't mean the food industry is off the hook: "The food industry has done such a great job of marketing their products, making the food so tasty that it's almost irresistible, pricing their products just right, and placing them everywhere, that it is very hard for the average person to resist temptation. Food is virtually everywhere, probably even in churches and funeral parlors."

So what's the answer? Reason has it: "So the implied solution seems to be that food industry must be forced to make their products tasteless and unattractive." Which, of course, is silly; so we're back to the dreaded need to actually convince folks to be a bit less gluttonous, and control what they eat.

One opponent of the sin tax movement has it just right; and he gets the last word: "There's a sin tax movement underway for legal activities, too. Rev. Robert Sirico ("Hate the Sin, Tax the Sinner?") looks at the recent proposals to find revenues through federal taxes on sodas and fatty foods, finding this not just economically objectionable but morally suspect as well. Whatever economic or social benefits one can dream up from the sin tax, we must also realize that the decision to tax must be weighed against the social benefits for reducing the behavior by slow and deliberate persuasion and voluntary action. When it comes to public policy, the preferred method of discouraging sin should fall under the category of alternative, mediating institutions, notably family, church, and school."


Five Boro Economic Ingenuity

Hats off to the ingenious Clyde Haberman for uncovering the real essence of Mike Bloomberg's "five borough" economic development plan: "The mayor’s re-election campaign, which has more money at its disposal than some governments do, announced the other day that it had opened six new offices. That brought the total in the five boroughs to 11, “part of the ongoing effort,” the campaign said, “to reach voters in every neighborhood across the city.” Bravo! We need as many of these offices as possible."

Why? Well because of all of the vacant storefronts that are blighting the aesthetics of neighborhoods all over the city: "If your neighborhood is anything like mine, the streets are dotted with empty stores, victims in many cases of rapacious landlords who, with City Hall’s tacit blessing, jacked up rents to unsustainable levels. Only the bottom fell out of the economy. Those vacant storefronts, with their sad “space available” signs in the windows, are a dispiriting blight. Think of how much cheerier they would be if only they were filled with Mayor Mike campaign offices."

So, if Bloomberg can just promise to continue to open-and operate-these satellite offices, then we can see some real economic stimulus for the local neighborhood economies that are experiencing record store closings-thanks, in part, to the mayor's first 2005 five borough plan that didn't really pan out; but who can really hold him accountable for election year narrischkeit?

Just think, if the mayor can staff these offices on a year round basis, then all of the young and eager workers could buy their lunches, office supplies, and Starbucks lattes locally, thus pumping money into the neighborhood stores that are hurting. In this manner, and only through this kind of effort, Bloomberg's five borough would be given some semblance of substance. Otherwise, there's little there to stimulate much of anything.

And things are only going to get worse-as the NY Post reports today: "A fiscal hurricane is headed toward the city next year and the tough decisions needed to deal with it "are unlikely to be addressed" until after the mayoral election in November, a budget monitor warned yesterday." Sure they will, but whatever is done-and in all likelihood, Bloomberg will be in charge of the actions-will it make up for eight years of lethargy and unimaginative governing? Will the fact that Bloomberg made the city's business climate worse, causing revenues to head south, be remembered as the draconian cuts needed send advocates screaming?

Mike Bloomberg has bought two electorates, and will be another one this fall. If these upcoming events cause New Yorkers distress, they have only themselves to blame. In politics, you do get what you've been paid for.

Wednesday, May 20, 2009

Budget Wining

Two issues may be coming together-as the Coke commercial used to say-"in perfect harmony." They are the revival of the wine in grocery stores-this time with an added incentive to the liquor stores-and the state's continued budget free fall. Crain's Insider reports on the wine/budget confluence (subscription): "Food retailers are making another attempt for the right to sell wine. They would let liquor stores sell food and open up to five stores, rather than one...Supermarkets’ cause got a boost yesterday when plunging tax revenues opened a $239 million hole in the state budget. Their plan could generate $100 million, supporters claim."

The liquor lobby, however, isn't buying: "Mike McKeon, calls it “the same phony compromise” that the Legislature rejected in March." Well, not quite; but since when does McKeon adhere to any standard of veracity? The measure rejected in March was simply a budget initiative, and didn't include any holistic approach to the liquor store problems. But to the dead enders, anything that gives wine to the markets-and tens of millions of dollars to the state-is "phony."

Reality in this case, is simply-and exclusively-the status quo that has seen liquor stores decline in recent years from a high of around 5,000 in New York, to around 2700 today. So McKeon is pitching for a dying group of entrepreneurs who would benefit greatly from change that would allow them to be, well, entrepreneurs, rather than simply nay saying protectionists.

And the budgetary mess is getting worse by the day: "Less than two months into the state’s fiscal year, revenue collections are about half of what they were last year, according to a report issued by the state comptroller on Tuesday. The findings reinforced what seemed to be a foregone conclusion almost as soon as Gov. David A. Paterson and legislative leaders agreed last month to the state’s $131 billion budget: Lawmakers will need to return to Albany at some point this year to make further cuts. The comptroller’s report said the state collected $4.8 billion in revenue in April, compared with $8.6 billion collected in April 2008, a 44 percent decline."

There's certainly nothing phony about the revenues the state would accrue from wine licensing fees; something that would make Robin Schimminger's comments on wine in grocery stores to Crain's appear short sighted in the extreme: "But a key lawmaker has no appetite for it. “The issue has been settled,” says Robin Schimminger, chairman of the Assembly committee with jurisdiction over the matter." However, the state's dire fiscal condition may well unsettle things pretty soon.

The Supermarkets Are Coming

The city did certify the zoning and tax initiative that seeks to make it easier for new supermarkets to go into areas that have been classified as under served. As City Room reported yesterday: "In an effort to combat obesity and poor nutrition, the Bloomberg administration has announced a proposal to encourage the development of grocery stores in low-income, poor-nutrition neighborhoods. Across the city, supermarkets and grocery stores have been driven out by slim margins, restrictive zoning requirements and high rents in recent years. But the new program — called Fresh, for Food Retail Expansion to Support Health — will use a novel combination of zoning changes and financial breaks to bring neighborhood grocery stores to 45 neighborhoods largely in northern Manhattan; the Bronx; Jamaica, Queens; and central Brooklyn."

But the one underlying cause that is left unstated is, of course, the very variable that the city has most control over: the high cost of doing business; and nothing in the current proposal really addresses that key issue. Then there's the issue of the kinds of jobs that the city may be promoting in this initiative. Or rather, what is left out of the equation-the need to insure that the new store development doesn't encourage wage levels that are below those of unionized stores already doing business in the targeted areas.

Which leads to the other obvious fallacy here: the impact that new store development will have on existing stores and their employees. Without reducing the over all cost of doing business, and with less subsidies for the stores who have been in the neighborhoods for years, we have what amounts to an unlevel playing field for both operators and workers-and this needs to be addressed in the ULURP process.

After all, if this policy is designed to "combat obesity and poor nutrition," than insuring that existing stores aren't forced out should be equally compelling-aside from issues of basic fairness. As City Room points out: "A 2006 study published in the American Journal of Preventative Medicine found that supermarkets and grocery stores reduced the incidence of obese and overweight residents in a neighborhood." But, as we always say on these health related measures, the health of the neighborhood economy is just as important-which means viable stores with good jobs, family wages and benefits.

So we expect that the current plan will be modified as the process winds its way towards final resolution at the city council. It is, however, high time that this crucial supermarket disappearance problem was addressed; as long as we all maintain the proper focus.

Expansion All Wet

The NY Times reports on Nestle's lawsuit against the expansion of the state's bottle law (and the Politicker provides a link): "A coalition of bottled water companies filed suit on Tuesday to block an expanded bottle deposit law scheduled to take effect next month, arguing that the law, which imposes a deposit fee on bottled water sold in New York State, is unconstitutional.
The coalition includes Nestlé Waters North America; the International Bottled Water Association, an industry trade group; and Keeper Springs, a small bottler owned by Robert F. Kennedy Jr., an environmental advocate."

Robert Kennedy? Turns out-on information and belief, as the lawyers say-that RFK Jr. has a stake in a water company; kinda reminiscent of his uncle Ted suing against windmills on Cape Cod. But we digress. What this all means is that the entire expansion may be put on hold for a while, since the companies suing simply couldn't wait for the legislature to get its act together to repair defects in the law: "In a statement, Kim Jeffery, the president of Nestlé Waters, said that the company supported recycling programs but argued that New York’s new law was overly burdensome to companies and consumers. “We would prefer that the Legislature fix these problems, but the deadline is fast approaching and we need to ensure that we will still be able to provide bottled water to our customers,” Mr. Jeffery said."

And it's the attempt to alter the UPC code that is at the heart of the lawsuit: "In a complaint filed in United States District Court in Manhattan, the water companies argued that the labeling requirement violates the Constitution’s equal protection clause because the language of the bill excludes any drink to which sugar has been added, like sports drinks. The complaint also charges that the requirement violates the Constitution’s interstate commerce protections because the wording of the law also seems to ban companies from selling the New York-labeled bottles in other states."

And since these federal actions prohibit severability, any restraining order would have to apply to the entire bill. The suit also raises equal protection issues because of the way in which the law exempts sugared water and sports drinks. As the Politicker points out: "In a complaint filed in United States District Court in Manhattan, the water companies argued that the labeling requirement violates the Constitution’s equal protection clause because the language of the bill excludes any drink to which sugar has been added, like sports drinks. The complaint also charges that the requirement violates the Constitution’s interstate commerce protections because the wording of the law also seems to ban companies from selling the New York-labeled bottles in other states."

So off we go into the federal courts-unless the legislature is now goaded into some remedial action on its own; and the Kruger bill is slated to move next week, but it doesn't address these equal protection claims. All of which leaves NYPIRG's Laura Haight in high dudgeon, according to the Times: "But Laura Haight, a senior environmental associate at the New York Public Interest Research Group, which advocated for the bottle legislation, dismissed the legal action.
“It’s ludicrous that the bottled water companies are claiming to support recycling but suing to derail this law,” Ms. Haight said."

Not a dismissal as much as a derisive commentary about her pet concept-one that didn't take some serious business impacts into full consideration. Now, it appears, the courts will-and delay may take us long past the summer months that Laura and her cohort wanted to have beach bottle free.

Paterson's High Caloric

There's more on the governor's cockamamie idea for menu labeling in yesterday's Times Union (via Liz B.): "Enjoy that slice of carrot cake guilt-free while you can. Gov. Paterson thinks you ought to know that it contains 1,500 calories, and wants a law requiring chain supermarkets and restaurants to tell you about it."

Paterson believes that this info will spur better choices at the state's fast food outlets-even though two decades or more of packaged food labeling is coincident with the current epidemic of obesity; so much for the knowledge is power crowd. As it happens, the folks who are health conscious read the labels; while those in most need of the information ignore it for the most part. So why does the governor think this labeling scheme will work?

Here's TU's account: "The legislation will help New Yorkers make better decisions about what they eat," Paterson said. "When people know what their choices are, they seem to make better choices." The governor's office cited a study showing that fast-food customers who saw calorie information displayed purchased an average of 52 fewer calories than customers who did not see the count. The New York City initiative is expected to prevent at least 30,000 new cases of diabetes over the next five years. "

What study is he talking about? Could it have been the NYC DOH's in-house evaluation-the one we poked holes in a few years ago? In fact it was the DOH's own survey, one of the most unscientific and self serving studies imaginable, that Paterson must be referring to; and the chain surveyed was the health conscious Subways: "A health department survey this spring found that only 3 percent of customers at Domino’s, Papa John’s, Taco Bell and other popular restaurants saw the calorie information provided by those chains on their Web sites or other locations before ordering. By contrast, about 31 percent of Subway customers reported seeing the calorie information, which was posted prominently next to the cash register at the time of the survey. Those who said they did consumed about 634 calories, about 50 calories less than those who did not, the study found."

Reading this, we believe that the researchers at the DOH should now turn to either astrology or alchemy; cause by doing so they'll have a better scientific perspective than this ideologically driven drivel. To wit: Aside from the fact that the Subway postings were not done in total conformance to the DOH formula, it is impossible to draw any conclusions from a comparison between Subway customers and, let's say McDonald's customers, without having a little bit of a priori knowledge of what the disparate customer bases are bringing with them in the form of nutritional information.

Subway, which has always emphasized its nutritional appeal, and markets its restaurants on this basis, may well be attracting customers with both the knowledge and inclination to utilize calorie information-wherever it's posted. And the fact that those who claimed that they saw the calorie info supposedly consumed "50 calories less" than those who didn't, proves, well, absolutely nothing, because we simply have no idea whether this result, although correlated, has any degree of causal relationship. The less consuming calorie customer may only have been predetermined by the prior inclination and knowledge we've mentioned.

And when the city regulation finally went into effect, confusion reigned. As we pointed out at the time: "And one customer that Crain's talked to really gets it: "“It's such a wide range,” says Kelli Garcia, a Chipotle customer. “It seems silly to put it there.” The restaurants say that because their meals are made to order and come in varying sizes, calorie counts can't be boiled down to a single number. Serious calorie-counters, like Ms. Garcia, say that they will have to continue to rely on nutrition-related Web sites to calculate the caloric content of restaurant meals."

So we are now relying on the unverified, and politically motivated musings of the anti-business folks at the Center for Science in the Public Interest-the brain surgeons who have been advocating this kind of health dictation for years. Except Paterson wants to go even further than Mother Tom in NYC: "The bill would apply to restaurants, supermarkets and convenience stores that are part of chains with 15 or more locations. Paterson said he hoped smaller mom-and-pop businesses would voluntarily post the calorie data, as well."

Can't wait to see how supermarkets will be forced to disclose this info-and where. Will the deli have to post all of the calorie information on its meat, cheeses and salads? Where will the postings go, and will we add salt and fat contents while we're at it? Of course, in NYC this would mean a new rich area of regulation for the DCA to fine beleaguered store owners over. As if the city's markets weren't already an endangered species.

And the idea that all of this comes at no cost to consumers is, at best, naive-and the TU reporter should stay away from any editorializing: "Unlike Paterson's more controversial proposals from last year's plan to cap property taxes to the more recent push for the legalization of same-sex marriage menu labeling is unlikely to provoke a ferocious debate. It also could be viewed as a prudent, health-oriented move. And it would come with little apparent cost to consumers, unlike a tax on sugared drinks the governor proposed earlier this year but then dropped in light of heavy opposition."

High taxes and over regulating is at the root of business loss in New York State. The governor's quixotic effort to lower the obesity rate will fatten the coffers of the bureaucrats, but do little to trim the waist lines of the state's overweight residents.

Tuesday, May 19, 2009

Fatuous Thinking

It now appears that the ghost of Tom Frieden is roaming the halls of the state capitol; and the good doctor's healthy meddling is being replicated in the form of a statewide menu labeling bill that appears at first glance to be even more comprehensive than the city's version. As the Politicker points out: "David Paterson will introduce a bill to require chain restaurants to post calorie counts on their menus, taking a New York City law and extending it statewide.

The bill would, according to a press release, require all "restaurants, mobile vendors, grocery stores, convenience stores and other retail stores belonging to chains that do business nationally and offer standardized menus" to post calorie counts on their menus." If it does, it would go beyond A2620 and S5003; both of which merely replicate the city's effort on menu labeling-restricting the ordinance to chain restaurants. And the Senate bill has only Senator Duane as a sponsor.

Everyone got that? At first blush, it looks as if the governor is going beyond the city's fast food parameters; at least if the release holds up and food vendors and supermarkets are included in the mix. None of this, of course makes good sense-or is an effective public policy; and we're waiting for Dr. Lynn Silver's evaluation of the city's foray into this area. Might be a good idea, after all, to see if the local experiment had any positive impacts before expanding it to the whole state.

Of course, that would mean that the city's menu labeling initiative was actually being subject to an independent audit-and not an in-house review of its efficacy. There is zero scientific evidence to support the efficacy of doing this-and certainly none of the cost-benefit analysis that the FDA does when it looks to impose these kinds of regulations; but, hey, why not experiment by increasing the regulatory burdens on restaurants with mandates that tell owners how to conduct their business?

Still, this means that we will have to re-establish our coalition of local retail and restaurant folks on a statewide level in order to counteract the feel good efforts of those who fail to understand that a healthy state and city must be predicated on a healthy business climate-and not just on how much fruits and vegetables we consume. All while our basic freedom of choice is continuing to narrow.

Mayoral Control Freaking Out

It now appears that there will be a major donnybrook in the state senate over the Bloomberg effort to retain total control over the city's educational edifice. According to the omnipresent Liz Benjamin: "Just when he had put one epic legislative battle to rest, Senate Majority Leader Malcolm Smith appears to have another on his hands. If Smith has decided what he’s going to do about reauthorizing mayoral control of the public schools, it’s coming as news to his own members, the DN's Glenn Blain reports. Several senators expressed surprise that Smith decided to hold a press conference on the issue this evening, insisting the 32-member conference is not close to a consensus."

But Liz feels that Smith may have an easier time with this issue than he did with the MTA-even though our amigos are at it again; sowing dissension in the ranks: "Fortunately for Smith, Kruger and the amigos - or any other coalition-of-opportunity that might happen to spring up - won't likely have nearly as much clout in this case as they did with the MTA. Yes, Smith still needs 32 votes to pass anything, but in this case, he can likely count on the Senate Republicans, who are very pro-Bloomberg, for support. Unlike with the MTA bailout, where the mayor declined to get too involved in lobbying the Republicans, this is a signature issue for Bloomberg."

Perhaps so, but the amigos aren't exactly isolated on this issue-not if the comments of Bill Perking are any indication of the sentiment in the Black and Latino Caucus (and we're hearing that there was a stampede out of conference last night; presaging wholesale Democratic opposition. Even Eric Schneiderman is opposed, we're told).

And we're guessing that this time, despite what Liz tells us, Kruger's ideas will be right in the mainstream: "Diaz's fellow amigo, Sen. Carl Kruger, called mayoral control “DOA” in the Senate and said he will soon introduce his own legislation that would re-shape the Panel on Education Policy, giving the mayor only five appointees. Board members would serve serve fixed, staggered terms. (Recall that Kruger did something similar regarding the MTA bailout, proposing a plan that was widely panned by editorial boards and columnists, including the DN's own Bill Hammond)."

Which, if true, means that Mike Bloomberg may be getting an Albany hair shirt as a present for his coronation. Something that Kruger's comments to the NY Post indicates might be right on the horizon: "I don't know what's in Senator Smith's mind, but [our] proposal is not going to be in lockstep with the mayor," said Brooklyn Sen. Carl Kruger, co-chairman of the Finance Committee." And nothing would suit us more than four years of stringent oversight for a mayoral control scheme that holds Mike fully responsible for his actions-along with an accurate measure of the accomplishments of the student body.

Monday, May 18, 2009

Nestle's Files Suit

As we speculated earlier, Nestle's has pulled the trigger and has filed a lawsuit to stop the implementation of the expanded bottle bill. We're not sure of the details, but this could shelve the entire measure until the courts sort through the constitutional issues involved. As we said earlier: "The demand that all deposit containers have a "NY" only label and UPC code is the heart of the threatened lawsuit.The complaint, drafted by Kilpatrick Stockton, LLP, states flat ot that the requirement for this type of labeling is a direct violation of the constitution's Commerce Clause: "The most obvious constitutional defect with the amended Bottle Bill is its flatly unconstitutional regulation of commerce occurring in other states. It is well settled that the "dormant" Commerce Clause "precludes the application of a state statute to commerce that takes place wholly outside the State's borders, whether or not the commerce has effects within the State." Healy v. Beer Institute, 491 U.S. 324, 336 (1989)."

So now we wait and see what happens-wondering whether this stimulates quicker legislative action, or slows it down as lawmakers await the decision of the courts. It is one giant clustershtup, though.

Golisano Goes

Tom Golisano is taking his leave of New York State and his departure, while failing to conjure up any real feelings of loss and regret, does make an important statement: "New York billionaire Tom Golisano is taking his big bucks elsewhere. Furious over a new "millionaire's tax" that could cost him an extra $1 million this year, the Rochester-area resident and three-time gubernatorial candidate says he's fleeing the state for Florida's Gulf Coast."

You see, when you continue to raise taxes on the wealthy-not to mention all of the businesses taxes and fees-it is bound to eventually create the kind of blowback that Golisano's departure represents. You can gnash your teeth all you want about this, but it doesn't change a thing. These kinds of policies are counterproductive-no matter how self righteous their proponents are. And, speaking of self righteousness, how about the reaction to the Golisano going from the WFP's Dan Cantor: "Working Families Party Executive Director Dan Cantor, who championed the tax hike, called Golisano's move "selfish." "It's a disgrace that this is how he pays back the state where he was presumably educated and that's been so good to him," Cantor said. "Taxes are the price you pay for civilization. He's moving to a space where there's a little bit less civilization."

How sour are the grapes here? Golisano has been a major philanthropist in New York; and he's repaid by the confiscators for his generosity with additional levies needed to compensate for their public profligacy. As the Business Council's Ken Adams tells the Post: "What kind of message does it send when a self-made entrepreneur, incredibly successful billionaire, throws in the towel on New York state?" said state Business Council President Kenneth Adams. "He's a bold-faced name making a bold move, but he follows hundreds of thousands of people who have already done the same thing."

Yes, we're driving the wealthy and business out of the state. And we have a politics that is driven by the WFP folks who, if allowed to get their way, will soon have us repeating the debacle of the 1970s; trying to run a socialist government in a capitalist economy. It appears that those sober lessons haven't really been learned.