The Council of State accepted the appeal of the Municipality of Chiavari (GE) against the ruling of the Liguria Regional Administrative Court. The matter began on 1 June 2017 when the Manager of Sector II - General Staff Services communicated to the owner of an amusement arcade the start of the procedure for terminating the activity on the basis of the opinion expressed by Sector V - Planning and implementation of Urban Planning Policies, with which it was noted that "the activity in question appears in any case to be in conflict with the art. 2 of LR n. 17 of 30/04/2012 as the distance between the civ. 17 -17 A of Corso Lavagna and the Urban Cemetery is less than 300 m. Minimum requirements required by the aforementioned standard (…)”.
Subsequently, Sector V, with an act dated 10 August 2017, confirmed what had already been expressed in its opinion, highlighting not only that the property in which the collection activity was carried out did not respect the minimum distance required by the art. 2 of LR n. 17/2012, but not even the minimum distance required by paragraph 6.01.3 – Cf III – (Tertiary Activities) of paragraph 6.01 of the art. 6 of the NTA of the current PRG introduced with DCC n. 137 of 16 December 2013, as it is located less than 300 meters from both the urban cemetery and the municipal stadium.
With specific regard to the lack of explicit indication of cemeteries in the list of sensitive places contained in the art. 2 of LR n. 17/2012, the Administration stated that this omission was overcome by the fact that the current PRG legislation, introduced with DCC n. 137/2013, expressly included cemeteries among the places to be considered for the purposes of the minimum distance to be respected.
With the provision of September 2017, the One Stop Shop for Productive Activities of the Municipality of Chiavari, reasoning on the lack of urban planning requirements to grant authorization to carry out the activity in question, ordered the company to close the betting activity .
The company challenged the aforementioned measures before the Regional Administrative Court for Liguria, deducing their illegitimacy from various points of view. The appellant complained, inter alia, that the art. 2 of the LR applied only to gaming rooms and to legal gaming in places open to the public and not to betting rooms; therefore, the activity in dispute was not included among those referred to in the art. 110 and 86 of the TULPS, being governed by art. 88. Furthermore, the One-Stop Shop for Productive Activities had no competence in issuing the order to close the business, with the Mayor having the power to issue such a provision. According to the company, the regional law, in sanctioning the violation of respect for distances from sensitive places, provided for the application of only the pecuniary administrative sanction, therefore the application of the injunction sanction was not even justifiable by the reference that the regional law made to the laws general rules regarding administrative sanctions, bound to the principle of peremptoriness. Finally, the Municipality, having deduced the violation of urban planning regulations in the contested provision, should have issued an ordinance pursuant to art. 31 Presidential Decree n. 380/2001 of restoration to pristine condition and not the atypical sanction of closing the business. As for the distance from the sports field and the cemetery, he complained that it had not been correctly calculated, in addition to the fact that the cemetery could not be considered a sensitive place according to regional provisions.
The Regional Administrative Court accepted the appeal, considering that, on the basis of the legislation in force, the complaints raised by the appellant were founded in the part in which they denounced the violation of the distances connected with the installation of the betting room less than three hundred meters from the city cemetery and from the stadium, given that the distinction made by regional law 2012/17 did not enable the Administration to also apply to betting rooms the distance limits that had to be observed by gaming rooms.
The Board, therefore, accepted the first ground of appeal, absorbing part of the complaints due to lack of interest, and rejecting them for the rest.
The Municipality of Chiavari has appealed the ruling, requesting its complete reform, on the basis of the following reasons: "1. Incorrectness of the sentence of the TAR Liguria n. 646/2018. Violation and/or false application of LR no. 17/2012. Excess power. Misdirection. Misrepresentation of facts. Lack of motivation. Intrinsic and extrinsic contradiction. Unequal treatment. Manifest illogicality; 2. Incorrectness of the contested sentence from another point of view. Violation and/or false application of the art. 6, paragraph 6.01, paragraph 6.01.3 – cF. III (Tertiary activities) of the NTA of the PRG of the Municipality of Chiavari. Incorrect assumptions. Lack of motivation. Misrepresentation. Misdirection.
The Municipality deduces that the regional legislation does not refer only to entertainment and leisure activities practiced through the use of devices suitable for legal gaming indicated by the art. 100, paragraph 6, of the TULPS, but also to betting collection points, as the aim of the legislation is to limit the social consequences that such recreational activities can cause and, in any case, betting rooms would fall within the definition of 'public gaming hall'. game'. According to the appellant, the regional law must be interpreted as including in the prohibition referred to in art. 2, paragraph 2, also the collection of bets, with consequent applicability of the regime of minimum distances from sensitive places to this latter activity as well.
The assumption, for the CDS, must be shared, in light of the recent direction expressed by this Council of State, with sentence no. 1382 of 2023, according to which: “ On the assimilation, for the purposes relevant here, of betting collection activities compared to those of gaming halls, the Section, with arguments from which the Board sees no reason to depart, established that this Council of State, with sentence no. . 5327 of 16 December 2016, reiterated that at a national level, and in particular for the purposes of health protection (art. 32 of the Constitution), the management of legitimate bets, provided for by art. 88 of RD n. 773 of 1931, is equal to the gaming halls regulated by the previous art. 86. The implementing rules of the individual regional law, therefore, must be interpreted according to a logical and systematic interpretation and, despite the literal expressions used, can only refer 'to both activities, both sources of risks of spreading gambling addiction'.
According to this interpretative orientation, the measures aimed at preventing and combating forms of gambling addiction, such as the imposition of a minimum distance of gaming and betting rooms from so-called sensitive places, i.e. those places in which the presence of of subjects belonging to the most vulnerable categories, fall within the field of health protection (State Council, no. 2592 of 2021; State Council no. 6714 of 2018; State Council, no. 5327 of 2016) and are referable to both gaming activities.
