The Emilia Romagna TAR, with a ruling published today, accepted the joint appeals of a company, slot operator, represented and defended by the lawyer Gianfranco Fiorentini (in the photo), canceling the measures adopted by the City Council of Riccione (RN) in 2018, concerning the mapping of the municipal territory and the identification of sensitive places pursuant to Regional Council Resolution ER n. 831/17 (distance meter) and established the expulsive effect of public gaming in the Municipality of Riccione, as a result of these measures, with objective and absolute impossibility for the appellant company to relocate the games room in operation in 2019 to another site of the municipal territory.
The ruling reads:
“1.-The legitimacy of the measures taken by the Municipality of Riccione with which the collection of legal gaming carried out by the appellant was inhibited (...) through the use of devices referred to in art. 110 paragraph 6 letter b), t.u.l.p.s., or New slot and VLT (Video Lottery Terminal).
The appellant complains in the three appeals brought together under examination of the expulsion effect determined by the affected municipal acts, which would prevent the exercise in the municipal territory of Riccione of the activity of collection of legitimate gambling, with essentially ablating effects and without the provision of any compensation, in violation of the art. 41 of the Constitution as well as the First Additional Protocol to the ECHR Convention as interpreted by the Court of Strasbourg. The appellant's defense specifies that the expulsion effect in this case would not be directly linked to the provisions of the regional law regarding the so-called distance meter and the regional implementing resolutions, but rather to the municipal resolutions for the mapping of sensitive places which, together with the provisions of the RUE, would have eliminated the possibility of establishing VLT arcades corresponding to the intended use d5.
2.- Before proceeding with the examination of the exceptions raised in all the proceedings, it is useful to start with a brief reconstruction of the regional legislation of reference regarding the fight against, prevention and reduction of the risk of addiction to pathological gambling.
The regional law of 28 October 2016 n. 18 introduced paragraphs 2 and 2-bis to the art. 6 of L.R 5/2013 in the exercise of its concurrent powers in the field of "health protection" (Const. Court no. 108/2017), and has dictated distance limits for all gaming and betting rooms including the so-called corners from sensitive places, i.e. educational institutions of all levels, places of worship, sports facilities, residential or semi-residential structures operating in the healthcare or socio-health sectors, accommodation facilities for protected categories, places of aggregation
youth and speakers.
Pursuant to the resolution of the Regional Council n. 831 of 12 June 2017, municipalities are obliged to map the collection points that do not respect the aforementioned distance limits, as carried out by the Municipality of Riccione with the approval of the G.C. resolutions. n.n. 87/2018 and 200/2018.
With these deliberative acts the municipal administration approved pursuant to the aforementioned d.G.R n. 831/2017 the mapping of sensitive places present in the municipal territory indicating with del. G.C. 87/2018, as regards the appellant's business, the proximity (within 500 m) to a parish (which can be counted without hesitation among sensitive places), attaching the relevant plan for this purpose.
This is a general administrative act which does not "contain abstract decisions with a harmful effect only at the time of the adoption of the implementing acts" but rather an act which can be divided into distinct and autonomous decisions, independently harmful to the positions of each owner of gaming or betting halls where "icto" emerges oculi” the violation of the aforementioned distance limits, which according to the aforementioned regional legislation precludes the exercise of the activity except in the face of the foreseen possibility of relocation (see T.A.R. Emilia-Romagna Bologna section I, 2
November 2020 n. 704, Id. 23 December 2020, n. 856).
In the procedural structure outlined by the art. 6 of regional law no. 5/2013, in fact, the damage to the interest of the owners of the legitimate betting collection points in the continuation of the activity already occurs during the concrete implementation of the mapping of the specific distances by the municipalities, resulting the subsequent closure measures of the activities are completely constrained, consequential and without
no new weighing of interests, indeed already carried out upstream in all respects by the regional legislator (see again T.A.R. Emilia-Romagna Bologna section I, 2 November 2020, n. 704).
3.- Given the above, the objection of inadmissibility raised by the municipal defense for failure to timely challenge the G.C. resolution must be rejected. n. 87/2018.
Since publication in the municipal noticeboard (T.A.R. Emilia-Romagna Bologna section I, 8 November 2021, n. 915; Id. 21 December 2021, n. 1072) was not sufficient for full knowledge, the appellant party ritually imposed the provision of directly harmful content once known on 16 July 2019 (through communication from the SUAP) so that the annulment action (appeal notified on 8 October 2019) is timely taking into account the weekday suspension of the deadlines.
4.-The objections raised in reference to the other two appeals are equally devoid of merit.
In reference to the appeal rg. n. 33/2020, there is no objectionable acquiescence since the closure of the games room took place for the sole purpose of complying with the provisions contained in the contested act, therefore without any voluntariness (ex multis Consiglio di Stato section V, 5 December 2022, n.10635).
As for the appeal Rg. 96/2020, the permanence of interest in the decision must be established in consideration of the undoubtedly harmful nature of the contested provision with which the management body of the Administration ordered the prohibition on the continuation of the activity.
5.- Coming to the merits, the Board believes that it should examine Rg appeals nos. with priority. 780/2019 and 96/2020 where the complaints relating to the alleged zeroing are concentrated as a result of the municipal resolutions burdened by the exercise of the legal gaming collection activity carried out by the appellant in the hall of (...).
6.- In fact, the decisive issue for the decision of the joint appeals must be identified in the factual assessment of the expulsion effect complained of by the appellant, according to which as a result of the municipal resolutions for mapping sensitive places pursuant to art. 6 co. 2-bis L.R. 5/2013 and the urban-building limitations resulting from the approval of the RUE, the collection activity of legal gaming and in particular of VLT halls would be completely eliminated, as relocation is not concretely feasible even though it is foreseen by regional legislation.
It should be noted that the territory to be taken into reference according to the jurisprudence of the Court in question can only be the municipal one (ex multis T.A.R. Emilia - Romagna Bologna section I, 2 November 2020, n. 703) in terms of guarantee for the right of free economic initiative and having to exclude areas in rural or sparsely inhabited areas penalized from the point of view of commercial activity or in any case incompatible (due to the absence of parking, traffic reasons, etc.). The distance limitations, although fully lawful as they are aimed at protecting public health (Const. Court no. 108/2017), must comply with the parameters of necessity, adequacy and proportionality, otherwise presenting a substantially ablatory content in violation of the articles. 41 and 42 of the Constitution and art. 1 First Prot. Add. ECHR (T.A.R. Emilia – Romagna, Bologna, section I, 23 December 2020, n. 856; in terms Council of State section V, 28 February 2022, n. 11426).
As highlighted, the Board ordered a verification for this purpose, appointing the architect. Blacksmiths.
For the purpose of the decision, the Board also examined the verification ordered by the prof. Vitillo of the Polytechnic of Milan in the judgment pending before the Council of State (Rg. 6450/2021) both for the need for greater completeness and for the express reference to it made by the architect Fabbri himself, the judge being able to use it to form his own conviction however also evidence collected elsewhere
judgment between the same parties including the c.t.u. (ex multis Civil Cassation Sec. un., 8 April 2008, n.9040) or as in this case a verification.
The verification of the architect. Fabbri, in short, categorically excluded the existence of areas suitable for the use of d5 (recreational, sporting and entertainment activities with high impact) while in relation to the destination d2 (game rooms with a capacity of less than 100 people) and d4 ( gaming rooms admitted only in existing delight units) affirmed in the abstract the existence of areas (albeit in peripheral areas) despite being
they are incompatible in concrete terms with the bingo hall activity managed by the appellant, concluding that they have an expulsion effect.
The verification of the engineer. Vitillo also excluded the existence of areas suitable for the d5 destination while he affirmed the existence of potentially suitable areas with d2 and d4 destination equal to 1,7% of the urbanized territory, affirming only a marginalization of the activity (limited in peripheral areas) but excluding, unlike the arch. Fabbri, the expulsive effect in the territory
municipal.
Both checks therefore agree in excluding in the Riccione area the presence of areas with a d5 destination potentially suitable for hosting the gaming room (...) which is peacefully included in the 500 m buffer. from a sensitive place pursuant to art. 6 co. 2-bis l.R. 5/2013 or by the parish (…).
Therefore, if the appellant's assumption of the compatibility of the exercise of its gaming hall activity with VLT devices with the sole destination of d5 was well founded, the complaints raised with the second complaint would be well founded.
The Board believes that it shares this assumption.
6.1.- The games room (...) is a VLT room authorized pursuant to art. 110 co. 6 letter b) t.u.l.p.s., as can be seen from the same authorization document filed with the appeal (...), incompatible with uses d2 and d4.
The gaming room through the operation of devices referred to in art. 110 paragraph 6, t.u.l.p.s., or New slot and VLT differs both from the "public establishment" and from the common "public gaming hall" since the VLT halls are characterized by a multiple gaming offer and by the possibility of higher winnings of a higher cost per game (T.A.R. Trentino-Alto Adige, Bolzano, 5 December 2012, n. 358).
The Urban Building Regulations of the Municipality of Riccione have provided for three different subcategories of use of the municipal territory within the Management Functions (Category d) or d2, d4 and d5. The use “d5. Recreational, sporting and entertainment activities" includes high-impact activities that do not fall within the requirements of use d4, such as large multiplex cinemas and also Bingo Hall activities. It also includes recreational activities carried out in establishments dedicated exclusively to gaming with devices referred to in the art. 110 paragraph 6 of the T.u.l.p.s. referred to in the R.D. n. 773/1931 and s. m. and i. (see also paragraph 2, art. 1 and paragraph 1, art. 6, of Regional Law no. 5/2013 and subsequent amendments and additions); in order
to pursue the purposes referred to in paragraph 2 of article 6 of Regional Law no. 5/2013 and s. m. and i., and in application of the provisions of the same paragraph 2, as far as municipal competence is concerned, this RUE prescribes that such activities cannot be carried out within a radius of 300 metres, measured by the shortest pedestrian distance, from primary and secondary education institutions, youth centres, sports facilities or other socio-recreational centers frequented mainly by young people, neighborhood markets, places of worship, hospital and residential facilities or those operating in the healthcare sector, accommodation facilities for protected categories, other games rooms . (…)”.
As for the use of d2 “Cultural activities; training and social activities; recreational, sporting and entertainment activities, without significant disturbing effects on the urban context" the RUE allows public gaming rooms of limited size and capacity of less than 100 people.
Finally, as regards the use of d4 "recreational, sporting and entertainment activities with limited disturbing effects on the urban context", the activities of public gaming halls of a size and capacity of less than 400 people are permitted but limited to building units already legitimately in existence at the time. date of adoption of the RUE.
The same professor. Vitillo in the conclusions expressed clearly highlights that the activities included in use d5 such as the appellant's VLT room cannot be established in the Municipality of Riccione "...as they are permitted exclusively within some areas specifically identified by the Urban Plan (ACT8_Schede, art .3.3.13), site dedicated to Aquafan identified as a meeting place already in the first resolution (G.C. n. 87/2018) hosting the functions of legal gambling (art.4.4.7 Functional hubs: Parks hub recreational themes)".
Unlike what was initially evident in the architect's verification report. Fabbri, the Aquafan area cannot be used for the relocation of the hall of (...) as it is defined as a place of youth aggregation and therefore sensitive in accordance with regional legislation and affected municipal resolutions.
6.2.- As recently noted by the Council of State, the expulsion effect manifests itself not only in the case of total unavailability of areas but also where the relocation of the games rooms is impossible due to urban building limitations and/or due to their quantitative insufficiency (Council of State section V, 28 February 2022, n. 11426) as the distances from sensitive places falling within the regional competence in terms of health protection must respect the limits of proportionality, strict necessity and adequacy.
In fact, it is a question of reconciling the needs of combating gambling addiction as a real pathology (Const. Court 108/2017) with the fundamental right of free economic activity, since as repeatedly noted by the Court in question (T.A.R. Emilia - Romagna , Bologna, section I, 23 December 2020, n. 856) it is not possible to eliminate the possibility provided for by the regional legislation of relocating the activity located within the distance limit from sensitive places, as a regulatory measure specifically aimed at reconciling the opposing interests
of constitutional importance, as it is not possible with the so-called distance meter prevent the exercise of an economic activity which is already in existence and completely lawful, even though it may be a harbinger of possible harm to the health of the population.
This reconciliation can only be carried out during municipal planning which must guarantee the balanced distribution of businesses across the municipal territory taking into account relocation needs (T.A.R. Emilia - Romagna Bologna section I, 2 November 2020, n. 703).
6.3. – In the present case the expulsion effect – as agreed upon by the appellant – does not derive only from the municipal resolutions for the mapping of sensitive places but also from the conforming provisions contained in the RUE, the combined provisions of which, although aimed at the protection of public health (or by imperative reasons of general interest) does not comply with the required parameters of necessity, adequacy and proportionality, so as to cause a substantially ablatory effect to the detriment of the appellant in the same way as the broad concept developed by the Court of Strasbourg pursuant to art. 1 of the First Protocol Add. ECHR (ex multis European Court of Human Rights section I, 30 June 2022, n. 55617).
6.4.- In light of the above arguments, the complaints contained in the second reason of the appeal (...), of absorbing importance, deserve positive appreciation.
6.5. – Ultimately, the appeals (...) must be accepted with the effect of annulment of the contested provisions, within the limits of interest
operated.
7.- The appeal (...) also deserves acceptance.
In rejecting the request for extension, the municipal administration did not take into account the objective difficulty "rectius" of the impossibility for the appellant to relocate the business to a premises located in the municipal territory, so as to have to present a request for relocation to another municipality (Misano) then without concrete follow-up".
