In our opinion, these criticisms are excessive because the main reason established by the aforementioned law allowing municipalities to order the temporary closure of any establishment is the existence of an imminent risk. This is defined as:
Potential contingency or proximity of a damage of natural origin or induced by human action, occurring in a specific place, in an immediate period and that may cause death, serious physical injury or serious damage to the life, health, property or safety of one or more persons.
Therefore, contrary to what the law's detractors have said, the law at no time reduced the municipal power to supervise or close establishments. The law establishes precise grounds and a procedure through which the municipalities could adequately and proportionally exercise this power, avoiding the numerous arbitrary actions that had been occurring (for example, the arbitrary closure by the municipality of Ate of a well-known grilled chicken restaurant or the intention of closing the airport by the municipality of Callao for not having anti-discrimination signs).
Strictly speaking, Law No. 31914 established that there are only five grounds on which any municipality may order the immediate temporary closure of an establishment. These grounds are as follows:
- Not having an operating license
- Carrying out activities other than those authorized by the law
- Not having an ITSE building safety certificate in force
- Generating odors, fumes, noise or other effects detrimental to the tranquility of the neighborhood above the maximum limits provided by the laws of the matter
- The finding of an imminent danger to life, health, property or safety of persons, if such risk cannot be remedied during the inspection
Therefore, it is not true that the municipalities have been limited in exercising their supervisory powers or ordering the immediate closure of commercial establishments in cases where there is a danger of affecting the safety, life or health of persons, because what the law established was the obligation to comply with certain requirements to curb abuses. For example, the closure in the act must be ordered not only by a municipal inspector but it also requires the signature of the respective manager of the commune. The law also prohibits the simultaneous imposition of a fine for the same facts that gave rise to the closure, to avoid the bad practice of conditioning the lifting of the closure to the payment of the fine (which, in any case, may be imposed after the lifting of the closure order, if the observations have not been corrected).
It is not true that Law No. 31914 has legally prevented municipalities from supervising establishments. In fact, in spite of the entry into force of this law, the opposite has happened. The municipalities have been trying to "fit" by force other situations that are not foreseen in the legal grounds, which has been happening in several districts. For example, when many establishments, especially industrial ones, are being closed, municipalities claim that their operating licenses do not expressly state that they could have rooms for an administrative office, as if it were a different activity or business, which is what is required by law. Likewise, municipalities have ordered closures for minor formal infractions that are not related to the safety of the facilities (such as not submitting formal reports with a certain frequency), cases for which the law provides that it is appropriate to initiate the respective administrative sanctioning procedure, without prejudice to the possibility of ordering temporary closure as a preventive measure only for the most serious and truly risky situations to the safety, life or health of persons, or those that cannot be remedied.
Even worse, it became clear that most municipalities were imposing a fine in addition to the closure, in order to pressure the owner of the establishment to pay the fine before they could question the reasons for the closure. In addition, inspectors would claim that they act on behalf of the inspection managers or carried closure minutes that were already signed by the municipality's officials".
In conclusion, the municipalities still have the authority to inspect shopping centers and similar establishments for compliance with technical safety standards and rules. They can even close them if there's an imminent danger to people's lives. This is evidenced by actions, which we have seen in recent days, closing establishments everywhere, without the need for any regulatory change. The proposal to modify Law No. 31914 is neither necessary nor justified. It is a pretext to justify to the citizens the lack of action prior to the recent unfortunate events, and, rather, it could lead to the possibility of municipal excesses of power that it was meant to prevent
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We hope this information is of benefit to you and your company. Please do not hesitate to contact us if you require any advice in this regard.
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