The Council of State in the jurisdiction ruling on the appeal proposed by a gaming company, represented and defended by the lawyer
Cino Benelli (in the photo), against the Municipality of Rubiera (RE), accepts it and for the effect, "in reform of the contested sentence, accepts the first degree appeal (Tar Emilia Romagna Parma) and cancels the determination of 20 August 2018 n. 480, the provisions of 22 August 2018 prot. n. 11732/8-4 and 24 August 2018 prot. n.11832/8-4 of the Head of the 4th Sector - Territory and economic activities of the Municipality of Rubiera and the resolution of 16 December 2017 n.187 of the Municipal Council of Rubiera in the only part in which they consider the games room managed by the appellant ( ...) as located at an unauthorized distance from the sensitive primary school (...) and order its relocation or closure, without prejudice to the rest. Condemns the Municipality of Rubiera to repay the (gaming company) the costs of the judgement, costs which are settled at €5.000 (five thousand/00), plus reimbursement of flat-rate expenses and legal accessories, if due".
FACT and LAW
“The appellant company, which succeeded by incorporation in all legal relationships belonging to (...), the appellant company in the first degree, has for this reason taken over from the latter in the management of a betting shop located in Rubiera, (...) (appeal, pp. 2-3, undisputed facts in the case), and disputes, in extreme summary, the acts referred to in the epigraph, from which it would derive the need to close or relocate the hall itself within a certain period because it is located in distance not permitted from a so-called place. sensitive pursuant to the legislation which is immediately illustrated.
Pursuant to art. 6 paragraph 2 bis of the Emilia Romagna Regional Law no. 4 of 2013 July 5, in that Region the operation of gaming halls and betting shops has been prohibited "in premises which are located at a distance of less than five hundred metres, calculated according to the pedestrian route shorter, from the following sensitive places: schools of all types and levels, places of worship, sports facilities, residential or semi-residential structures operating in the health or social-health sector, accommodation facilities for protected categories, places where young people and
speakers”, thus introducing the CD. distance meter on the subject.
With a specific regulation, approved with resolution no. 12 of 2017 June 831, the Regional Council then implemented this provision and, in short, obliged the Municipalities to carry out a mapping of their territory and to arrange for the relocation or closure of remote businesses irregular.
With the acts referred to in the epigraph, the Municipality therefore intended to comply with the aforementioned law and regional regulation.
4.1 First of all, with resolution no. 16 of the Council dated 2017 December 187 (doc. 4 in the first appellant degree), it approved the mapping of sensitive places; with resolution dated 20 August 2018 n.480 of the competent Manager (doc. 1 in the first appellant degree) then identified the businesses located at an impermissible distance from these sensitive places, and among these the betting room managed by (...), as it was allegedly located just 280 meters from an educational institution, the primary school (...)".
4.2 Consequently, the Municipality, with the provision of 22 August 2018 prot. n. 11732/8-4 of the competent Manager (doc. 2 in the first appellant degree) requested the manager at the time to relocate the room in question to a permitted area or to close it; with the subsequent deed of 24 August 2018 prot. n.11832/8-4 also from the Manager (doc. 3 in the first appellant degree) then requested a self-certification containing the identification data of the various gaming machines held and the expiry date of the related concessions.
With the sentence better indicated in the epigraph, the TAR rejected the appeal brought by the original company managing the hall against the acts of the Municipality just mentioned; in summary and in logical order, it considered the question of constitutional legitimacy of the regional law indicated above to be manifestly unfounded, and consequently considered the provisions of the Municipality in application thereof to be legitimate. In particular, the TAR deemed the municipal council's competence to identify sensitive places to exist and the procedure it followed was correct; also considered the distance of 280 meters indicated above to be correctly calculated and considered that there was no alleged violation of the right of free economic initiative referred to in the art. 41 of the Constitution as the impossibility of relocating the room has not been demonstrated.
The aforementioned incorporating company has lodged an appeal against this ruling, with an appeal containing three reasons, as follows.
6.1 With the first of them, he deduces a false assumption and maintains that the contested sentence would not have recognized the error made by the Municipality in calculating the distance of 280 meters mentioned above, a distance which on the basis of a correct calculation would instead be equal at least 523 meters, and therefore compliant, in the terms now explained.
6.1.1 The regional implementing regulation 831/2017 provides that the "shortest pedestrian route" to be considered according to regional law 5/2013 to calculate the distance must be measured "from the entrance considered as the main one respectively of the games room or the betting or business where the device is installed and that of the sensitive location".
6.1.2 As a further addition, the contested provision 480/2018 (doc. 1 in the first appellant degree, cit.) provides that the calculation is carried out "from the main entrance, specifying that the calculation must be carried out from the center lines of these entrances, which in the case of buildings without a street number (such as churches), the calculation must be carried out from the center line of the central entrance of the main facade and that in the case of sensitive places or play areas equipped with green areas or courtyards, the entrance to be considered is the access door to the building and not the entrance to the appurtenances" as well as "according to the shortest pedestrian path, where the definition of pedestrian path can only be that provided for by the art. 190 of Legislative Decree 285/1992 and subsequent amendments to the New Highway Code”. In other words, according to the appellant party, the path that pedestrians can legitimately follow is considered, respecting the rules established for their circulation.
6.1.3 In turn, art. 190 of the legislative decree. 30 April 1992 n.285 provides for what is of interest here that "Pedestrians must circulate on pavements, platforms, avenues and other spaces provided for them; if these are missing, cluttered, interrupted or insufficient, they must circulate on the edge of the roadway opposite to the direction of travel of the vehicles so as to cause the least possible obstruction to traffic... (paragraph 1)" and that "Pedestrians, in order to cross the roadway , they must use pedestrian crossings, underpasses and overpasses. When these do not exist, or are more than one hundred meters from the crossing point, pedestrians can only cross the roadway in a perpendicular direction, with the necessary attention to avoid dangerous situations for themselves or others (paragraph 2)".
6.1.4 Given the above, according to the appellant party, which in support produced a technical consultancy party, in this case the pedestrian path between its betting shop and the aforementioned school (...), where carried out taking into account the rules of the highway code, would measure in the least favorable hypothesis 523 metres, and therefore more than 500.
6.1.5 The Judge of First Instance rejected this plea, arguing from an explanatory report produced by the Municipality, from which it emerges that "the body, for the purposes of calculating the distance, took into account the shortest route practicable by pedestrians for the reaching the games room starting from the school, a certainly legitimate choice, given that according to the id quod plerumque accidit, given two alternative routes both possible to reach one place starting from another, it is reasonable to expect pedestrians to take the shortest route and so
in the case in question, that they "cut" for the parking lot represented in the municipal appraisal, rather than going all the way around as proposed by the company".
6.1.6 In the opinion of the appellant party, this would not be correct, because the route considered by the Municipality would involve two alleged violations of the highway code, i.e. a crossing of the street (...) at a point without pedestrian crossings, but less than 100 meters away meters from them and crossing a car park to then reach the street (…).
6.2 With the second reason, he alleges violation of the art. 42 of the TU 18 August 2000 n267, and maintains that the competence to identify sensitive places would have been not of the Council, but of the Council, since it is a planning act to be approved with the urban planning procedure, or after adoption and publicity of the resolution adopted to allow you to make comments.
6.3 With the third reason, it raises the question of constitutional legitimacy of the aforementioned regional law provision, on the assumption that it would produce an expulsion effect of activities such as its own, authorized as such, from the territory of the Municipalities where it carries it out, without furthermore provide for any compensation, and that this would violate articles 3, 41, 42 and 117 of the Constitution as it would represent an unreasonable measure, also because it is allegedly retroactive.
The Municipality resisted, with a deed dated 15 March 2022 and a memorandum dated 22 February 2024, and requested that the appeal be rejected.
With a reply dated 4 March 2024, the appellant company reiterated its alleged reasons.
The Institute (...) which administratively includes the school (...) was also established by deed dated 25 March 2024, returning to justice.
At the public hearing on March 27, 2024, the Section retained the appeal for decision.
The first ground of appeal raised is well-founded and absorbing, in the following terms.
11.1 What the appellant party claims is correct, i.e. that the shortest pedestrian route, relevant pursuant to regional legislation to determine whether or not the business in question is within permitted distance, must be calculated in compliance with the rules of the highway code, and in detail of the art. 190 above, concerning the circulation of pedestrians. This derives first of all from logical considerations: the resolution of the Regional Council 831/2017 is not explicit on the point, but it is completely clear that in carrying out the calculation of the route in question it cannot be considered a route that is legitimately not practicable. In the present case, however, there is an express self-constraint of the administration in this sense, because the desire to refer to this criterion is also expressed in the contested provision 480/2018 (doc. 1 in appellant first instance, cit.).
11.2 In the present case, the reconstruction of the state of the places contained in the expert report cited above in particular in § 6.1.6 was not contested. Based on this reconstruction, it must then be concluded that the pedestrian route was calculated by the municipality without respecting the art. 190 cited. This does not apply, as is specified for clarity, for crossing the car park considered by the Municipality, given that no law prohibits the movement of pedestrians in areas of this type, and this is logically done, given that it is necessary to reach, precisely , parked cars. However, it applies to pedestrian crossings, as the measurement carried out by the Municipality assumes that pedestrians cross the road in an unauthorized point, while according to the law they should instead use the pedestrian crossing located nearby at a useful distance.
11.3 Assuming instead compliance with the provisions of the art. 190 on the specific point, the correctly calculated distance is equal to a minimum of 523 metres, as mentioned above in § 6.1.4, i.e. a permitted value.
11.4 The Municipality replied, in the terms set out in the contested sentence, that crossing at the point which is not permitted would be what happens normally, but this order of ideas cannot be shared because it would ultimately lead to charging a innocent party, the appellant party, the consequences of another's tort.
11.5 Acceptance of the reason in question allows the appellant party to achieve the good of life for which he acted, or to keep his business open in the current location; it is therefore absorbing, given that the party itself could not obtain greater benefit from examining the additional reasons put forward.
The first degree appeal must therefore be accepted, with the consequences set out in the dispositive, i.e. with the annulment of the contested acts in the part in which they concern the gaming room of the appellant party. The expenses follow the losing party and are paid as per the provisions, in an amount congruous with respect to the parameters set out in Ministerial Decree 13 August 2022 n.147 for a case of indeterminate value and medium complexity; they can be compensated towards the Institute (...), which has not substantially carried out defensive activity. Nothing however for expenses in the
towards the Ministry, which was not constituted".
