The Council of State, on the appeal brought by a company active in the public gaming sector, represented and defended by lawyers Matilde Tariciotti e Luke Jacob (in the photo), against the Municipality of Reggio Emilia, for the annulment or reform subject to caution of the sentence TAR Emilia Romagna, seat of Bologna, section. II, 18 April 2023 n.238, which rejected appeal n. 197/2018 RG integrated by added reasons, has arranged an investigation to verify the expulsive effect.
We read in the sentence: "The appellant appellant managed at the time of the facts two gaming halls dedicated to legal gambling, located in Reggio Emilia, (...) and disputes the acts described in greater detail in the epigraph, from which the need arose to close or relocate the rooms within a certain period of time because they are located at an unauthorized distance from so-called places. sensitive pursuant to the legislation which is immediately illustrated.
Pursuant to art. 6 paragraph 2 bis of the Emilia Romagna Regional Law 4 July 2013 n.5, as inserted by the art. 48 of Regional Law no. 28 of 2016 October 18, in that Region the operation of gaming halls and betting shops was prohibited "in premises which are at a distance of less than five hundred metres, calculated according to the shortest pedestrian route, from the following sensitive places: schools of all levels, places of worship, sports facilities, residential or semi-residential structures operating in the health or socio-health sectors, accommodation facilities for protected categories, places of youth gathering and oratories", introducing the so-called. distance meter on the subject.
Pursuant to art. 48 paragraph 5 of the aforementioned lr 18/2016, “The application of paragraph 2-bis of article 6 of regional law n. 5 of 2013 to gaming halls and betting shops is subject to the approval by the Regional Council, within ninety days of the entry into force of this law, of a specific act which defines the implementation methods".
Consequently, with the regulation approved with resolution no. 12 of 2017 June 831 referred to in the epigraph, the Regional Council has implemented this provision and in short has obliged the Municipalities to carry out a mapping of their territory, to identify in this way the places sensitive areas and the gaming and betting rooms present there and to arrange for the relocation or closure of the establishments at irregular distances.
With the acts referred to in the epigraph, the Municipality therefore intended to comply with the aforementioned law and regional regulation.
5.1 Firstly, with resolution dated 12 December 2017 no. 221 of the Council (doc. 1 in the first instance of the appellant appellant), subsequent resolution dated 20 February 2018 no. 225 of the competent Manager (doc. 3 in the first instance of the appellant appellant) and supplementary resolution 28 June 2018 n.112 of the Council (doc. 2 in XNUMXst degree The additional reasons for the appellant appellant), approved the mapping of sensitive places; and
identified the businesses located at a distance not permitted from these sensitive places, among these the gaming and betting rooms managed by the appellant, as they are located at a non-compliant distance. In particular, the room in via (...) is 210 meters from the nursing home (...) and 400 meters from the parish (...).
5.2 Consequently, the Municipality, with the provision of 30 July 2018 prot. n.97564 of the competent Manager (doc. 1 in XNUMXst degree second additional reasons appellant appellant) requested the company in particular to relocate the gaming room in via (...) in question to a permitted area or to close them.
With a subsequent regulation, approved with resolution no. 21 of 2019 January 68, the Regional Council then introduced further implementing provisions, and as far as this is concerned it extended the terms granted to the owners of businesses located at an irregular distance to relocate them.
Against the aforementioned measures, the company brought the main appeal and the additional first degree reasons, as in the epigraph.
With the non-definitive sentence section. On 25 July 2022 n.601, the TAR declared the appeal and the additional reasons inadmissible in the part in which they concerned the games room in via (...), which the appellant company has in the meantime definitively closed "by its free, independent choice from municipal and regional provisions containing distance prohibitions" (appeal, p. 2 tenth line from the bottom).
With the sentence better indicated in the epigraph, the TAR then rejected the appeal on the merits and the additional reasons in the part which concern the street hall (...). In summary and in logical order, it declared the question of constitutional legitimacy of the regional law provisions indicated above to be manifestly unfounded, and consequently considered the provisions of the regional regulation and the consequential acts of the Municipality to be legitimate.
The company has lodged an appeal against this sentence, with an appeal containing two reasons, re-proposing the corresponding reasons raised in the first instance and criticizing the contested sentence for not having accepted them.
Of particular note is the first of these reasons, which deduces violation of the articles. 3, 41 and 117 of the Constitution, in relation to the principles regarding legal gaming, in theses binding for regional legislation, which would be deduced from a series of rules, or from the art. 1 paragraph 70 of the law. 13 December 2010 n.220, from the art. 24 of Legislative Decree 6 July 2011 n.98, from art.7 paragraph 10 of Legislative Decree 13 September 2012 n.158, from art. 1 paragraph 936 of the law. 28 December 2015 n.208 and by art. 1 paragraph 1049 of the law. 27 December 2017 n.205.
In this regard, the appellant party assumes in particular that the relocation of its business would have been practically impossible and that in any case the possible alternative locations would have been commercially unsuitable. In this regard, it contests the decision of the First Level Judge, who excluded the expulsion effect on the basis of a verification ordered during the trial, a verification which would have reached untrue results, as per a party's own expert report filed subsequently.
In particular, it claims, alongside other arguments, that when the contested provisions were issued, the relocation would also have been legally not permitted on the basis of the urban planning instruments and that this would have been ascertained in a similar judgement, defined with the TAR Emilia Romagna ruling Parma section 22 April 2022 n.102 (appeal, p. 14 § 1.6),
Following the public hearing on 27 March 2024, the Section observes the following.
The TAR Emilia Romagna Parma ruling, pronounced following judgment no. 243/2019 RG of that Court and appealed with appeal no. 9654/2022 RG of this Council, called to today's hearing before this same panel, has the closure order issued by the Municipality of Reggio Emilia itself towards a gaming hall of the same type as the one managed by the party was cancelled
appellant.
In reasoning, he briefly observed that in the relevant period, or in the period in which the appellant in that case could have presented a request for relocation, an urban planning regulation was in force in the Municipality of Reggio Emilia which, together with the desire of that Municipality not to stipulate operational agreements with the companies involved, completely precluded the relocation itself and therefore determined "a peculiar situation in which the expulsive effect is not determined by the so-called "distance meter", i.e. the necessary distance of at least 500 meters of the gaming activity from the places sensitive identified by the Municipality, but by the urban planning situation present in the Municipality itself together with its desire not to stipulate operational agreements" (§ 7.2.2. at the end of the motivation).
In the opinion of the Board, the point is relevant, since the cited legislation, of which the TAR Emilia Romagna Parma ruling does not provide the exact identifying details, would potentially be able to deny the conclusions reached by the first degree judge in the sense to exclude the expulsive effect mentioned above.
The Board therefore deems it necessary to carry out an investigation in this regard, and therefore requires the Municipality of Reggio Emilia, within thirty days from the communication or notification of this ordinance, to present a report in which: a) precisely indicates, attaching a copy, the urban planning acts or provisions from which it would derive the effect referred to above, i.e. the effect of preventing the relocation of the activity in question due to the need to stipulate operational agreements and, conversely, the Municipality's unwillingness to do so; b) specifies the period of time in which this regulation had general legal effect; c) state whether it prevented the acceptance of
any requests for relocation presented by the appellant party; d) say anything else he deems useful for the purposes of justice".
