The Council of State in jurisdiction (Section Fifth) has pronounced a ruling on the appeal brought by an operator against the Municipality of Thiene (VI), of the short sentence of the Veneto TAR rendered between the parties. The operator, represented and defended by lawyers Marcello Cardi, Stefano Candela, Marco Passoni e Pasquale Matteo Di Mino, appealed the sentence which had rejected his appeal for the annulment of the ordinance of the Municipality of Thiene containing the suspension of the operation of entertainment machines with cash prizes for three days.
“The Municipality of Thiene – we read in the sentence – had established the operating hours of the gaming halls with ordinance 4/2015 in addition to the sanctions in case of non-compliance with its contents. The appellant company had been charged with some violations in the months of May and June 2017 for which the closure of the business for three days was imposed with order 41/2017.
The contested sentence, after rejecting the objection of inadmissibility due to the lateness of the appeal regarding order 4/2015, rejected the appeal since police authorizations can be revoked or suspended pursuant to art. 10 rd 773/1931 even where there is a reduced payment of the sanction imposed since the sanction provided for by the art. 7-bis of Legislative Decree 267/2000 is not an alternative, but separate from that of suspension of activity contemplated by the art. 10 TULPS, to which it can therefore be cumulated.
The appeal is based on a single reason which complains about the erroneous assessment of the sanctioning power of the public administration The mayor can regulate, by ordinance, the opening hours of gaming halls, or the operation of machines with cash winnings, without also being given the power to determine which administrative sanctions should be inflicted if the provisions contained in the ordinance are violated. union, being able only to apply the sanction provided for by the art. 7 bis TUEL
The possibility of ordering the suspension belongs to the body that issued the police authorization, i.e. the Vicenza Police Headquarters.
The Municipality of Thiene appeared in court reiterating the objection of lateness in relation to the challenge to ordinance 4/2015; on the merits it concluded that the appeal should be rejected. He also presented a cross-appeal to contest the implicit ruling on the jurisdiction of the administrative judge which, in the opinion of the Municipality, instead belongs to the ordinary judge. First of all, the Municipality's waiver of the cross-appeal must be acknowledged in light of the ruling of the Council of State, section. V, 26 August 2020, n. 5223.
The appeal is well founded.
The Municipality has the right to regulate the opening hours of the premises where entertainment and leisure machines with cash prizes are located, pursuant to art. 110, paragraph 6 letter. b) of the TULPS pursuant to art. 50, paragraph 7, TUEL and this option is even more appropriate to exercise when it comes to fixing the opening hours of businesses that are authorized to keep devices inside them that
they allow winnings and which are particularly sought after by people who are exposed to the effects of gambling addiction.
Failure to comply with the ordinance that establishes time limitations in this sense can well be sanctioned pursuant to art. 7 bis TUEL
However, the sanction of suspension of activity for a certain time cannot be established on the basis of a simple order from the Mayor.
The Court of Cassation with sentence 19696/2022 reiterated that the sanctioning power referred to in art. 1 l. 689/1981 is subject to a relative legal reserve which must predetermine the conditions for its exercise, a predetermination which cannot be contained in an administrative provision. As a consequence of this, it annulled the injunction order with which the Municipality had applied the
accessory sanction of suspension for seven days of the operation of the devices installed in a games room, for the company not having respected the time limits established by ordinance of the municipal council.
This is a case comparable to the one under examination here where the only difference lies in the circumstance that the case examined by the Supreme Court arises from an order-injunction issued pursuant to law. 689/1981, while in the present matter it was chosen to issue an ordinance without reference to the law. 689/1981 The provision cannot be justified even pursuant to art. 10 TULPS since sanctions against police orders pursuant to Royal Decree 773/1931 can only be imposed by the authority that grants such authorizations, in this case the Vicenza Police Headquarters.
Furthermore, the text of ordinance 4/2015 does not refer to the law at all to justify its power to inflict the additional sanction".
