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(Jamma) The Liguria Regional Administrative Court has rejected the appeal presented by the owner of a tobacconist's against the refusal of the Municipality of Genoa to issue an authorization for the installation of four slots (paragraph 6a devices), confirming the legitimacy of the regional rule which imposes minimum distances from churches and other sensitive places. "An articulated decision where the Tar refers to the need to protect safety, health and safety - explained the councilor for safety of the Municipality of Genoa Elena Fiorini– and we are satisfied because it means that we are moving in the right direction”. A result that arrived just a few days after the approval of the new municipal regulation for the opening of gaming halls in the city. "It is a new piece that is added to the regional law to stem the phenomenon of mini casinos precisely in support of citizens and in support of the many requests that have been made by citizens not to see the people involved and ruined by the game", clarified the commissioner. "It's fundamental but we hope that many municipalities will follow us on this path because I believe that the Genoese administration is showing that it can be done", concluded councilor Fiorini.
The pronunciation
" In confirmation of the orientation recently expressed with sentence no. 158/2013, the appeal is unfounded and must be rejected and this renders the examination of the exceptions variously formulated by the respondent Administration without interest” write the judges of the Liguria Regional Administrative Court.
"The first defensive deduction, which complains about the incompetence of the municipal manager in adopting the measure of denial of installation of machines for collection of lawful "video poker" type games in relation to the aspects governing the relative location pursuant to Regional Law no. . 17/2012, must be rejected with a simple reference to sentence no. 158/2013 which has already clarified how this jurisdiction exists pursuant to art. 107 TUEL, applicable to the present case since it is an amplifying act of the pre-existing commercial authorization for the resale of some monopoly goods and attributable to the genus referred to in art. 86 of RD 773/1931.
The second defensive deduction, according to which the discipline referred to in Regional Law no. 17/2012 would not apply to tobacco shops, is unfounded, given the circumstance amply highlighted in the defense writings of the Municipality of Genoa, according to which the same LR expressly distinguishes between "arcades" and "lawful gaming in places open to the public" (cf. art. 1, paragraph 2, which governs the scope of application) and proposes, among its objectives, to regulate the distribution of equipment for lawful gaming in the area, within the scope of the powers pertaining to the Region in order to protect health and social policies, in order to prevent the vice of gambling even if lawful, conditions, these, to which a uniform discipline is wholly rationally preordained which it would not make sense to limit it exclusively to arcades only because tobacco shops already have, in their assets, the possibility of reselling other kinds of games and bets (which are not homogeneous to those for which it is the cause, considering the structural differences also in terms of individual psychological impact on users).
These last arguments lead the Panel to consider the manifest groundlessness of the various profiles of unconstitutionality of the provision which have been proposed by the appellant and which the latter reproposes assuming that they would not have been dealt with in the sentence of the Constitutional Court no. 300 of 10 November 2011.
In particular, the first ground of illegitimacy referred to in item no. 4 of the appeal, which disputes the rationality of the legislative provision in the part in which it would unjustifiably hit tobacco shops that already operate in gaming sectors (such as lotteries, scratch cards, etc.) to the detriment of other premises, and which also disputes that the limitation of 300 meters from places of worship would imply religious discrimination: clearly, the spatial limitation does not affect some resales to the detriment of others, and is inspired by the protection of certain places only because of the normal users who refer to them, with obvious implications of a social order that do not assume the protection of religious sentiments or other discriminating assumptions as their object of protection.
Furthermore, the fact that the use of machines is prohibited for minors under the age of 18, as the appellant claims, has no bearing on the regulation of distances from places such as schools, since the latter pertains to a different profile concerning factual safeguard profiles the interests that the legislator wants to protect.
Analogous considerations must therefore be made for the further aspect of irrationality of the law which according to the appellant (in point 4.2 of the appeal) should be recognized in the unproven impact of distances on the need to protect urban safety, traffic, noise pollution and public peace: the The installation of gaming machines, already in thesis, is aimed at increasing the services aimed at the customers of the retail outlets such as that of the appellant, and therefore abstractly suitable for affecting the number of customers, with the consequent non-manifest irrationality of the regional legislation.
What has been indicated above regarding the correspondence between the discipline of distances and the purposes of social prevention that the law explicitly depicts then allows us to reject the last argument with which the appellant would like to highlight its constitutional illegitimacy, because there is no interference in profiles of state legislation, which instead fulfills other requisites of a subjective nature and the protection of public order.
Lastly, the objection of complaint according to which the discipline of distances referred to in the LR in question is inherent to the subject of the technical discipline of Community importance must be addressed.
Also TThis censure argument must be rejected, since the technical discipline pertains to the ontological dimension of the product and its characteristics on offer, not to its location which is an external and merely territorial issue, therefore extraneous to the matters indicated.
For all these reasons, therefore, the appeal is unfounded and must be dismissed.
Expenses follow the unsuccessful outcome and are settled as in the device.
The Regional Administrative Court for Liguria definitively pronouncing on the appeal, as proposed in the epigraph, rejects it.
Condemns the appellant to pay the costs of the litigation which he settles at 2.000,00 euros".
