NL: Severe motivation obligation for mayor in case of refusal of a permit due to 'bad life behaviour'

 

A catering entrepreneur may require various permits to operate a catering business, such as an operating license under the local General Local Regulation and a license under the Alcohol Act, formerly the Drinks and Catering Act, if alcoholic beverages are sold.

The criterion of 'bad behavior in life' plays a role in the application for the aforementioned permits. The requested permit will be denied if the supervisor or operator is ' in any way of bad conduct in life ' The purpose of this criterion is to guarantee safety, public order and the living and living environment in the vicinity of the catering business.

When assessing the application, the mayor investigates whether the catering entrepreneur had been in contact with the police and the judiciary five years prior to the decision to be made. If so, the mayor will look further back into the applicant's past to assess whether there may be a pattern that could indicate 'bad life behaviour'. The criterion of 'bad living behaviour' is not only a ground for refusal of a license applied for, but is also a ground for revocation for a license that has already been granted.

The administrative court must regularly consider the question of whether, on the basis of the facts and circumstances stated, the competent authority could reasonably take the position that the catering entrepreneur is not in any way showing bad behaviour. On 25 May 2022 , the highest general administrative court, the Administrative Jurisdiction Division of the Council of State (hereinafter: Administrative Jurisdiction Division), rendered an important decision in the context of this ground for refusal.

What was going on?

The entrepreneur did not agree with the rejection of his application and objected to this, but the objection was declared unfounded. For that reason, the entrepreneur appealed to the Zeeland-West-Brabant District Court, but here too he was blunt. The court found that in view of the nature and amount of criminal offenses the mayor could reasonably take the position that the entrepreneur does not meet the requirement that he is not in any way of bad behaviour. The entrepreneur appealed against the decision of the court to the Administrative Jurisdiction Division. And with success.

Judgment of the Administrative Jurisdiction Division

The Administrative Jurisdiction Division ruled that the mayor had insufficiently motivated the rejection of the permit. With the decision of 25 May 2022, the Administrative Jurisdiction Division introduces an increased obligation to state reasons for the ground for refusal 'bad life behaviour'. This sets the Administrative Jurisdiction Division in a new direction. Until recently, it was the case that the mayor must always substantiate, on a case-by-case basis, why there is 'bad life behaviour' and no limitations on the facts or circumstances that could be included in the assessment of life behaviour. For example, driving through a red traffic light could be a circumstance that could be included in the assessment. There was therefore no need for a connection between the conduct and the business operations. That has now come to an end with the ruling of 25 May 2022. It follows from the ruling that from now on the mayor must explain:

1. Why the entrepreneur's 'bad life behaviour' is relevant to the operation of the hospitality business. In other words, there must therefore be a link between the behavior on the one hand and the business operations on the other (relevance criterion);
2. How the entrepreneur could have known in advance that, in view of the behaviour, he did not meet the requirement of 'not in any way bad in life' (evidence criterion);
3. Why the behaviors on which the refusal is based are not minor and why these behaviors, despite a certain lapse of time, still say something about the reliability of the entrepreneur to operate a catering business in a responsible manner.

In the decision of 25 May 2022, the Administrative Jurisdiction Division ruled that the refusal of the mayor of the municipality of Loon op Zand does not meet these points. The Administrative Jurisdiction Division therefore declares the appeal well-founded and instructs the mayor to take a new decision on the entrepreneur's application.

Since the childcare allowance affair, we have seen that the Administrative Jurisdiction Department takes government decisions increasingly rigorously tested. The ruling of 25 May 2022 also demonstrates this, now that the assessment framework for 'bad behavior in life' has been tightened up by the Administrative Jurisdiction Division.

 

For further information, please contact:

Ramon Ridder , Partner

Labre, Amsterdam

e:  ramon.ridder@labre.nl

t: +31 20 3052030

 

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