Did you know that by allowing the entrance of people, into your bar, restaurant or nightclub, above the permitted limit you could be committing a crime?
Law Nº. 13,425/2017 was recently published establishing general guidelines on fire and disaster prevention and control measures in commercial establishments, buildings and public meeting areas. This law amends the Consumer Protection Code (Law Nº. 8,078/90), as well as the Administrative Misbehavior Law (Law Nº. 8,429/92) and will enter into force on 28th September, 2017
In short, the Law addresses some important criminal issues, namely: a new modality of administrative misbehavior attributed to mayors (article 13) and the abusive practice of “allowing entry into commercial or service establishments of a greater number of consumers than what is was fixed by the administrative authority” (Clause XIV of article 39 of the Consumer Protection Code).
Pursuant to article 13, every mayor who, within two (2) years counted as from the entering into force of Law No. 13,425/17, fails to issue special rules for fighting and preventing fires and disasters in sites of high concentration and circulation of persons, will incur in the practice of administrative misbehavior that violates the principles of public administration.
The mayor’s behavior, in this case, must be intentional, which means that he/she must have had the intention of violating the principles of Public Administration. Further, in the event of being convicted, the penalties provided for in article 12 of the Administrative Misbehavior Law are: a) full compensation of damages inflicted, if any; b) suspension of political rights from three to five years; c) loss of public function; d) payment of a civil fine of up to 100 (one hundred) times the value of the remuneration earned by the agent; E) prohibition to contract with the Public Administration or to receive tax or credit benefits or incentives, directly or indirectly, even by means of a legal entity in which the mayor is a Controlling Shareholder, for a period of three years.
As far as additions to the Consumer Protection Code are concerned, articles 17 and 18 of the new norm add articles 39 and 65 to such Code, respectively, introducing a new type of abusive practice and criminal offense against consumers.
As mandated by the above-mentioned articles, as from the effectiveness of the new law, those responsible for commercial or service establishments allowing the entrance of a greater number of consumers than that which is permitted by the administrative authority, besides incurring abusive practice, may be prosecuted for committing the crime contemplated in art. 65 of the Consumer Protection Code. The new wording of such articles are:
“Article 65, Perform service of great hazardousness, contrary to the determination of the competent authority:
Paragraph 1 – The penalties of this article are applicable without prejudice to those relating to bodily injury and death.
Paragraph 2 – The practice of the provision in clause XIV of article 39 of this Law also characterizes the crime contemplated in the caption of this article. (Paragraph inserted by Law 13.425 /2017).
Penalty: six month’s to two year’s imprisonment and fine.”
It is a crime of abstract danger, which is committed when the person in charge of the establishment allows the entrance of persons above the maximum capacity allowed by the administrative authority. Since it entails a maximum penalty of two years, it is an infraction of lower offensive potential, which falls under the jurisdiction of the Special Criminal Courts and is also subject to the decriminalizing benefits provided by Law Nº. 9,099/99.
It is clear that the enactment of the new law is a well-intentioned reflection of the tragedy that occurred at the “Kiss Nichtclub” in early 2013, where 242 youngsters were killed by a fire that occurred during a university party held in Santa Maria/RS.
Report on the tragedy, available at: http://g1.globo.com/rs/rio-grande-do-sul/tragedia-incendio-boate-santa-maria/platb/