Il Regional Administrative Court for Sicily, detached section of Catania, confirmed the provision of suspension of the betting and gaming license for 30 days arranged by Enna Police Headquarters towards a public establishment where the presence of a totem through which it was possible to gamble.
On 8 July 2020, the staff of the Enna Police Headquarters noted the presence of a personal computer gaming point on the premises which would have allowed customers free and uncontrolled access to the internet; at the time of access, the device was used by a customer to play online poker, via access to an electronic platform by entering access keys, user code and password. The owner of the premises was therefore accused of using a device intended, even indirectly, for gaming, in violation of the art. 110, paragraph 9, letter f-quater, of the T.U.L.P.S.; the Police Headquarters staff also took steps to seize the device pursuant to art. 13, second paragraph, of law no. 689/1981. On 21 September 2020, the Police Commissioner of Enna adopted the contested decree, ordering the suspension of the public safety license for thirty days.
An appeal was lodged against said provision - considering it illegitimate - for the following findings.
According to the appellant, from the regulatory framework outlined by the articles. 8-13 of the T.U.L.P.S., it is clear that police authorizations are discretionary measures, issued intuitu personae; the Administration stated in the contested act that the provision was adopted to protect the public interest, however no balancing was carried out and no specific assessment was offered by the Administration regarding the need to suspend the license for the purpose of protecting the public interest . According to the reconstruction of the deductor, the latter is not in any of the conditions contemplated by the articles. 9, 10 and 11 of the T.U.L.P.S., not having abused the police title, nor having violated the legal provisions regarding gaming or the provisions contained in the license. For the moment, the Administration cannot exercise its powers in an arbitrary way, failing to consider the concrete case, the legislative provisions, the interest that it is called and pretermining the necessary balance between private interests and the protection of security and public order. The contested provision, according to the appellant, contains assessments expressed in a generic form, without any specification regarding the requirements that the interested party was required to observe and the content of the expression "abuse of title". For the interested party, the Administration limited itself to transposing the content of the assessment carried out by the inspectors and did not consider the declarations made by the interested party. It was noted that the violation referred to in the art. was also deemed to exist. 110, paragraph 9, letter f-quater, without considering that, as declared by the appellant and confirmed by other operators, the customer had arbitrarily unlocked the personal computer, connecting to the online platform on their own initiative. According to the appellant's view, there is also a violation of the art. 3, first paragraph, of law no. 689/1981, as the appellant cannot be accused of any negligence or imprudence. In conclusion, the contested decision was therefore taken following an incomplete investigation; it was finally noted that the art. 110, paragraph 9, letter f-quater, presupposes that devices not corresponding to the characteristics referred to in paragraphs 6 and 7 have been installed or made available, while the interested party had limited himself to installing a simple personal computer-booker which had been tampered with by the customer.
The TAR, with sentence dated 3 January 2023, rejected the operator's appeal claiming that "the manager must guarantee the immutability and safety of the device, also with reference to the processing system to which the device is connected. The appellant did not do so and is, therefore, at fault. The responsibility is to be attributed to the appellant given that, pursuant to art. 110, paragraph 9, letter f-quater, should have guaranteed the immutability of the appliance (guarantee position provided for by law).
