Corina Andreea Ciobanu

Public working hours of operators licensed in the field of traditional gambling in the context of “relaxing” the restrictions applicable during the alert period

By Corina Ciobanu,
Lawyer with Luca Mihai Cătălin Law Office

In this issue of the magazine we intend to make an analysis of the legal provisions regarding the public operating program, starting with 15.05.2021, of the locations of operators licensed and authorized to carry out traditional gambling activities in Romania, having in Given that, we found difficulties in applying the relaxation measures adopted by the Government of Romania by Decision no. 550/14.05.2021 for the amendment and completion of Annexes no. 2 and 3 to the Government Decision no. 531/2021 on the extension of the alert status on the Romanian territory starting with May 13, 2021, as well as the establishment of the measures applied during it to prevent and combat the effects of the COVID-19 pandemic (hereinafter referred to as “GD no. 550/2021”), Through which amendments were made to Annex no. 3 “MEASURES to reduce the impact of the type of risk” (hereinafter referred to as “Annex no. 3”) to Government Decision no. 531/2021 on the extension of the alert status on the Romanian territory starting with May 13, 2021, as well as the establishment of the measures applied during it to prevent and combat the effects of the COVID-19 pandemic (hereinafter referred to as “GD no. 531/2021”).
Although the amendments brought, starting with 15.05.2021, to the provisions of Annex no. 3 of GD no. 531/2021 consisting in the total elimination of the restriction to carry out the activity with the public exclusively between 05:00 – 21:00, are a breath of fresh air for gambling operators, in practice there have been and still are situations (fortunately, limited) in which the operators are sanctioned for minor offenses by the competent state bodies on the grounds that they do not respect the operating hours 05:00 – 24:00.
The legal basis invoked for finding the contraventions is represented by art. 6 point 3 of Annex no. 3 to GD no. 531/2021, as amended and supplemented by GD no. 550/2021, which establishes that: “the measures provided for in points 1, 2, 2¹ and 2² shall also apply to economic operators operating in enclosed public spaces which have a roof, ceiling or ceiling and which are delimited by at least 2 walls, regardless of their nature or of a temporary or permanent nature.”
Considering that by points 1, 2, 2¹ and 2² of art. 6 to which point 3 of art. 6 of Annex no. 3 to GD no. 531/2021, it is provided that the activity with the public of economic operators carrying out activities of preparation, marketing and consumption of food and / or alcoholic and non-alcoholic beverages, such as restaurants and cafes is allowed between 5:00 and 24:00 , the finding agents tend to extend the scope of this operating restriction, making an unfounded interpretation of the legal provisions, considering that any economic operator that has locations that have a roof, ceiling or ceiling and are delimited by at least 2 walls must to carry out its activity with the public only in the time interval 05:00 – 24:00.
However, the interpretation that some ascertaining agents understand to give to the provisions of point 3 of art. 6 of Annex no. 3 of GD no. 531/2021 has no legal support and contradicts both the intention of the legislator at the time of enacting the rule, and other provisions of the decision.
First of all, the provisions of art. 6 point 3 of Annex no. 3 of GD no. 531/2021, also existed in the initial form of the decision and have in view the definition of the notion of “closed space” in order to clarify the dilemma that arose last year in practice of “covered terraces”, respectively if they are interior or exterior spaces of restaurants and cafes, not with the aim of extending the operating schedule restriction to all economic operators.
This argument is also strengthened by point 6 of art. 6 of Annex no. 3 of GD no. 531/2021, which stipulates, both in its current form and in the one prior to 15.05.2021 that “the preparation, marketing and consumption of food and alcoholic and non-alcoholic beverages are allowed in specially designed spaces located outside buildings, in the air free, except for those provided for in point 3, (…)”, which are included in the category of enclosed spaces.
Secondly, starting with 15.05.2021, by GD no. 550/2021, the Romanian Government ordered the elimination of some restrictions from those provided by Annex no. 3 to GD no. 531/2021 and established new measures applicable during the alert period, and among the restrictions removed from the application was the elimination of the ban on conducting business with the public of economic operators carrying out trade / service activities, including licensed economic operators in the field of gambling, between 21:00 and 05:00.

Public working hours of operators licensed in the field of traditional gambling in the context of “relaxing” the restrictions applicable during the alert period
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Thus, through art. 1, point 11 of GD no. 550/2021 THE provisions of art. 7 point 1 of Annex no. 3 to GD no. 531/2021, according to which “Under the conditions of art. 5 para. (3) lit. f) of Law no. 55/2020, as subsequently amended and supplemented, establishes the obligation for economic operators carrying out trade / service activities in closed and / or open spaces, public and / or private, to organize and carry out their activity within the time slot. 5.00-21.00”, without establishing new measures to replace the repealed ones.
Therefore, currently, according to art. 10 point 4 of Annex no. 3 to GD no. 531/2021, as amended by art. 1 point 16 of GD no. 550/2021 „the activity with the public of the economic operators licensed in the field of gambling is allowed without exceeding 50% of the maximum space capacity in the counties / localities where the cumulative incidence at 14 days is less than or equal to 3 / 1,000 inhabitants and it is forbidden to exceed the incidence of 3 / 1,000 inhabitants;” there are no restrictions on the opening hours of gambling-specific locations.
Thirdly, the restriction regarding the activity with the public in the time interval 05:00 – 24:00, regulated by the provisions of art. 6 point 1 of Annex no. 3 to GD no. 531/2021, as amended by art. 1 point 8 of GD no. 550/2021, applies ONLY to economic operators such as restaurants and cafes, not to all economic operators that carry out trade / service activities, the activity with the public of the latter being limited before 15.05.2021 based on the provisions of art. 7 of Annex no. 3 to GD no. 531/2021 currently repealed by GD no. 550/2021, and not of the provisions of art. 6 point 1 of Annex no. 3 to GD no. 531/2021.
We consider that if the intention of the legislator was only to extend until 24:00 the time interval within which the economic operators carrying out trade / service activities, other than restaurants and cafes, to carry out the activity with the public, and not to to completely eliminate the operating restriction, would NOT have repealed the provisions of art. 7 para. 1 of Annex no. 3 to GD 531/2021, so that this restriction is applied by analogy through art. 6 point 3 of Annex no. 3, but would have modified the time interval established in art. 7 para. 1, respectively from 05:00 to 21:00, from 05:00 to 24:00.
Also, the intention of the legislator to remove the restrictions on the operating schedule of economic operators carrying out economic activities of trade / provision of services to the public, including licensed operators in the field of gambling, also emerges from the Decision of the National Committee for Emergency Situations no. 29 of 14.05.2021 regarding the proposal to adopt some relaxation measures in the context of the evolution of the COVID-19 pandemic which provides by art. 4, taken over in its entirety by GD no. 550/2021, that: “Starting with 15.05.2021, it is proposed to eliminate the ban on the movement of persons outside the home / household in all localities, as well as the restrictions on the program of economic operators carrying out trade activities / provision of services in spaces closed and / or open, public and / or private.”

Public working hours of operators licensed in the field of traditional gambling in the context of “relaxing” the restrictions applicable during the alert period

Moreover, if we analyze in detail both the provisions of GD no. 531/2021 prior to 15.05.2021, as well as those in force after 15.05.2021, we will note that the decision, before being amended and supplemented by GD 550/2021, provided by art. 7 para. 1 that all economic operators that carried out trade activities and services that were not expressly prohibited, could operate only between 05:00 – 21:00, and by exception from this general rule, according to par. 2 and para. 7 of art. 7, between 21:00 and 05:00, could operate only the pharmaceutical units, gas stations, economic operators with home delivery activity, economic operators in the field of road transport of persons using vehicles with a capacity of more than 9 seats , as well as those in the field of road transport of goods using motor vehicles with a maximum authorized mass of more than 2,4 tonnes.
Subsequent to 15.05.2021, if we consider that the operating schedule of economic operators carrying out trade / service activities is subject to the provisions of art. 6 point 3 of the normative act, it would result that ALL economic operators have the obligation to carry out their activity with the public in the time interval 05:00 – 24:00 and that the economic operators exempted from the restriction of operation in the past, respectively the pharmaceutical units, gas stations, economic operators with home delivery activity, etc. They would NOT be able to carry out their activity in normal work regime, being obliged to close their locations and to stop their activity between 24:00 and 05:00.
As an exception, these operators listed above could operate in the time interval 24:00 – 5:00 only if the provisions of par. 3 and para. 4 of art. 7 of Annex 3 to GD no. 531/2021, respectively only if in the localities on the Romanian territory the cumulative incidence of COVID-19 cases at 14 days would be higher than 4/1000 inhabitants.
Therefore, in other words, all categories of economic operators exempted before 15.05.2021 from the limitation of the operating schedule, so who could operate 24 hours a day, currently would be required to work with the public in the time interval 05: 00 – 24:00, and in the situation where on the Romanian territory the epidemiological situation would worsen and the more drastic restrictions from par. 3 and para. 4 of art. 7 of Annex 3 to the decision, could operate and carry out activity with the public between 24:00 and 05:00, so 24 hours a day.
Or, such an interpretation of the legal texts can only be a profoundly erroneous one, which contradicts the will of the legislator, the intention and the purpose for which GD no. 550/2021 amending and supplementing GD no. 531/2021 not being to establish, starting with 15.05.2021, stricter rules than those in force until that moment, but to regulate some “relaxations” from the existing restrictions.
Moreover, in the preamble of the Decision of the National Committee for Emergency Situations no. 29 / 14.05.2021, document that represented the basis on the basis of which GD no. 550/2021, it is provided that the proposal to adopt some relaxation measures came “in the context of the need to improve the socio-economic conditions necessary to carry out activities specific to the national economy” and not out of the desire to establish more burdensome rules and restrictions.
As a result, analyzing in a correlated way both forms of GD no. 531/2021, both the original and the amended form, it can be concluded that the legislator wanted and removed the category of economic operators carrying out trade and service activities, including the category of licensed economic operators in the field of traditional gambling, from the application the restriction on the working hours with the public, as they can carry out their activity with the public 24 hours a day, of course in compliance with all other protection and prevention measures.
Consequently, the application of contravention sanctions to economic operators licensed in the field of gambling on the grounds that they carry out specific activity with the public between 24:00 and 05:00 raises issues of legality and validity, the minutes of finding and sanctioning being thus susceptible to annulment by filing a misdemeanor complaint before the courts.

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