The Regional Administrative Court for Lazio (Second Section) accepted - through a sentence - the appeal presented by the owner of a commercial business against Roma Capitale, in which she requested the annulment, subject to suspension of effectiveness, of the Managerial Determination of Municipality of Rome Capital concerning the ban on the continuation of the installation of automatic, semi-automatic and electronic devices and devices, started with communication prot. CO14806 dated 31.01.2023 pursuant to art. 19 paragraph 3 of law 241/1990 and subsequent amendments.
Below is the text of the sentence: "With this procedural initiative, the appellant opposes the determination with which the respondent Administration expressed refusal to continue the installation activities of devices functional to the practice of slot machines and other lawful games, which the appellant had started in the meantime with a specific notice presented on 31.1.2023, as part of the commercial business for the supply of food and drinks, including the aforementioned activities of slot machines and legal games, purchased by means of a notarial deed dated 17.11.2022.
The refusal opposed by Roma Capitale is based on the application of the gaming hall regulations adopted by Roma Capitale with resolution no. 31/2017, amended with subsequent resolution no. 92 of 5.12.2019, as regards the combined provisions of articles 6 , co.1 and 7, co.1, in relation to the factual circumstance noted whereby the business acquired by the appellant would be located, compared to an educational institution (as better identified in the provision and in the narrative of the appeal) at a distance (265 meters ) lower than the limit established by the aforementioned art.6, co.1 (500 metres).
3. The burden was entrusted to 3 grounds of appeal, which, in summary, criticized the illegitimacy of the provision:
– derivatively with respect to the provision contained in art.7, co.1 of resolution no.31/2017, to the extent that it requires compliance with the minimum distance not only in the case of the opening of new gaming halls, but also in the case of change of ownership of the business, in direct contrast with art.4 of the Lazio regional law n.5/2013, which reserves to the Municipalities the right to introduce more restrictive provisions only in the case of opening of new gaming rooms. The regulation adopted by Roma Capitale, on this point, should therefore be disapplied as it is contra legem;
– to the extent that it does not correctly ascertain the distance from the school. In truth, with the support of biased technical expertise, it is argued that the effective distance would be approximately 602 metres;
– to the extent that it applies the prohibition imposed by the regional legislation (as well as by the regulation adopted by Roma Capitale) also in the case in question, without explaining why the students attending the Institute (infancy, primary and lower secondary schools) would actually be subject to the risk of gambling addiction due to the proximity to the gaming room managed by the appellant.
4. Roma Capitale appeared in court on 27.6.2023, to resist the appeal, on the basis of the defense arguments subsequently filed in the documents.
5. With order no. 4232/2023, published on 21.7.2023, this Court, in order to decide on the precautionary application, ordered a verification, in order to ascertain the actual distance between the appellant's practice and the educational institution in question.
The verification report was filed on 13.10.2023.
6. At the public hearing on 25 October 2023, the case was therefore held for decision, following the ritual notice of adoption of a simplified sentence pursuant to art. 60 of the criminal code.
7. The appeal is manifestly well founded, pursuant to which below, and in light of the principle of law identified, on a similar case, by the Council of State in the very recent sentence of 18.10.2023, n. 9071, as explained below.
In particular, in the opinion of the Board the first ground of appeal is well founded, where the conflict with art.7, co.1 of municipal resolution no.31/2017, as amended with subsequent resolution no.92/2019, containing “Regulation of gaming halls and lawful games”, with art.4 of the Lazio regional law n.5/2013.
The last-mentioned provision, as first amended with Regional Law No. 16/2022 and then with Regional Law 19/2022, in paragraph 1 establishes, among other things, that the opening of new gaming halls is permitted on the condition that (letter a ) are located at a distance of no less than 250 meters from schools of any level. Co.1 bis authorizes the Municipalities to introduce "further limitations" and, in case of conflict with regional legislation, the more restrictive law prevails, pursuant to the subsequent co.1 ter.
Now, the regulation adopted by Roma Capitale not only provides for more restrictive provisions at present, where (in art.6, co.1) it maintains the condition of a distance of no less than 500 meters (when instead the rule of the regional law amended in 2022 , reduces it to 250, but (above all) in art.7, co.1, expands (compared to the regional law) the scope of application of the restriction, also introducing it in the different hypothesis of "change of ownership of the activity" (circumstance relevant to the case in question).
This direction is in fact objectionable, in direct contrast with art.4, co.1 of Lazio regional law n.5/2013, which limits the conditions only to the case of "opening of new gaming halls".
On the topic in question, the Council of State, in the preceding ruling, highlighted that the legislation which introduces restrictive provisions regarding the minimum distance to be observed in the event of the opening of new gaming halls, "being a provision which determines a serious and insurmountable limitation to general principle (with constitutional and Euro-unitary coverage) of the freedom of private economic initiative, it must necessarily be recognized as exceptional in nature, and therefore incapable of extending to cases not strictly attributable to the literal tenor of the law".
Given, therefore, that the regional regulation referred to in art.4, co.1 introduces limitations for the sole hypothesis of "opening of new gaming halls", the provision referred to in art.7, co.1 of the resolution Roma Capitale n.31/2017, as amended by resolution n.92/2019, is illegitimate, and therefore subject to disapplication, due to conflict with the higher regulatory source (regional law n.5/2013, art.4, co.1), in the part in which it extends the limitations also to existing gaming halls (i.e. in the event of a change of ownership of the business).
Furthermore, according to the principle identified by the Council of State, the extension of the application of the conditional provisions referred to in art.6, co.1 of resolution no.31/2017 to the different case of the transfer of ownership of the business, in addition to not finding support in the aforementioned regional source, it objectively determines an excessive restriction on the free economic initiative of the private individual, intervening (outside the legal provisions) also with regard to financial years in progress and compressing the possibilities of carrying out economic activity (it is clear that the owner of the gaming hall in operation would lose a significant part of the commercial value of the business, if, by selling the business, the legal gaming activity, previously regularly carried out, could no longer be practiced by the new buyer).
And then, the possibility that art.4, co.1 bis lrn5/2013 prefigures, for the Municipalities, to "identify further limitations" must be interpreted, in a logic of balanced balancing between opposing interests (the fight against gambling addiction by on the one hand, the protection of freedom of economic initiative on the other), in the sense that the "further restrictions" represent "further conditions" susceptible to introduction by municipal regulation, in the (only) case prefigured by the regional law (the opening of new game rooms).
Having clarified the validity of the first ground of appeal, for the sake of completeness we highlight, however, the unfoundedness of the further complaints proposed by the appellant.
As for the actual distance (second reason), the verification report clarified that the effective distance between the commercial establishment and the school is 273 metres.
With regard to the motivational complaint (third reason), in light of the provisions contained in art.6, co.1 of resolution no.31/2013 (as well as art.4, co.1 lrn5/2013), the public administration is precluded any concrete evaluation on the suitability of the distance to cause a potential vulnerability to the mental health of the students and, conversely, to increase or not the risk of gambling addiction.
8. For the foregoing, the appeal must be accepted in accordance with the motivation and, as a result, it is necessary to order the annulment of the Roma Capitale provision referred to in protocol CO/61194/2023 of 24.04.2023.
The legal costs may nevertheless be compensated, also with reference to the verification (to be paid by separate decree, upon request of the verifier), taking into account the particularity of the matter, the occurrence of the aforementioned ruling of the Council of State and, with particular regard to the verification, of the unfoundedness of the ground of appeal proposed by the appellant with regard to the determination of the actual distance from the school.
PQM
The Regional Administrative Court for Lazio (Second Section), definitively ruling on the appeal, as in the proposed epigraph, accepts it pursuant to the motivation and, as a result, cancels the provision of Roma Capitale referred to in the CO protocol /61194/2023 dated 24.04.2023″.
