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  • Interpretation
  • No.738【Limitation of Distance Involving Electronic Gaming Arcades】
  • Date
  • 2016/06/24
  • Issue
    • Is it constitutional for Point 2, Section 1, Subsection 1 of the Operating Procedures on the Issuance of Electronic Gaming Arcade Classification Identification for the Electronic Gaming Industry to stipulate that the operating facilities of electronic gaming arcades shall be in compliance with the Self-governing Ordinance?
    • Is it constitutional for Article 5, Paragraph 1, Section 2 of the Taipei City Electronic Gaming Arcades Installation and Management Self-governing Ordinance, Article 4, Paragraph 1 of the Taipei County Electronic Gaming Arcades Installation Self-governing Ordinance (now invalid), and Article 4, Paragraph 1 of the Taoyuan County Electronic Gaming Arcades Installation Self-governing Ordinance (continuously in effect as of December 25, 2014 by promulgation) to respectively regulate that an electronic gaming arcade should maintain a distance of 1,000, 990 or 800 meters away from certain locations?
  • Holding
    •        Point 2, Section 1, Subsection 1 of the Operating Procedures on the Issuance of Electronic Gaming Arcade Classification Identification for the Electronic Gaming Industry, which stipulates that the operating facilities of electronic gaming arcades shall be in compliance with the Self-Governing Ordinance, is not in contradiction with the Principle of Statutory Reservation. Article 5, Paragraph 1, Section 2 of the Taipei City Electronic Gaming Arcades Installation and Management Self-governing Ordinance, “[t]he operating facility of an electronic gaming arcade shall be in compliance with the following stipulations: … 2. Restrictive Level: … shall maintain a distance of no less than 1,000 meters from kindergartens, public elementary and middle schools, high schools, vocational schools, hospitals or libraries”; Article 4, Paragraph 1 of the Taipei County Electronic Gaming Arcades Installation Self-governing Ordinance, “[t]he operation facilities indicated in the previous section (meaning the operating facilities of electronic gaming arcades, including General and Restrictive Categories) shall maintain a distance of no less than 990 meters from public elementary and middle schools, high schools, vocational schools or hospitals” (now invalid); and Article 4, Paragraph 1 of the Taoyuan County Electronic Gaming Arcades Installation Self-governing Ordinance (continuously in effect as of December 25, 2014 by promulgation), “[t]he operation facilities of electronic gaming arcades shall maintain a distance of no less than 800 meters from public elementary and middle schools, high schools, vocational schools or hospitals”, do not violate the Principle of Constitutional Delineation between the Central and Local Authorities, the Principle of Statutory Reservation or the Principle of Proportionality. However, in order not to effectively create the result of substantive prohibitions, it is also pointed out that it would be appropriate that the restrictions on distance concerning electronic gaming arcades among the respective local self-governing bodies be subject to timely reviews and reasonable adjustments as dictated by the change of the objective environment and regulatory effects.
  • Reasoning
    •        The people’s freedom to operate is the essence of protection of the Right to Work and Property Rights under Article 15 of the Constitution. The people’s pursuit of a certain business operation as an occupation, with the selection of an operating facility, is also under the protection of freedom to operate, and may be regulated only when necessary and in the form of a law (statute) or a regulation clearly authorized by law, except that the governing authority may issue necessary regulations only on secondary matters concerning the implementing or technical details without violating the Principle of Statutory Reservation under Article 23 of the Constitution, as repeatedly interpreted as such by this Yuan (see J.Y. Interpretations Nos. 443, 716 and 719). The Constitution provides that this nation adopts local self-governance. The Local Government Systems Act, promulgated in accordance with Article 118 and Article 9, Paragraph 1 of the Additional Articles of the Constitution (a/k/a Amendments of the Constitution), is the basis of local self-governance. Article 25 and Article 28, Section 2 of the Local Government Systems Act provides, among other things, that local governing bodies may enact self-governing regulations and ordinances to stipulate the rights and obligations of residents on matters of self-governance or authorized by law and superior regulations, although their contents may not contradict the regulations on delineation of powers between central and local authorities, the Principle of Statutory Reservation or the Principle of Proportionality.
      
    •        Article 11, Paragraph 1, Section 6 of the Electronic Gaming Arcades Management Statute states: “Prior to being operational, an electronic gaming arcade … shall apply to the special municipality or county (city) governing authority for the issuance of the Electronic Gaming Arcade Classification Identification Certificate and the registration of the following … 6. The address and square footage of the operating area.” As the central governing authority over electronic gaming arcades (see Article 2 of the same Statute), the Ministry of Economic Affairs revised and implemented the Operating Procedures on the Issuance of Electronic Gaming Arcade Classification Identification for the Electronic Gaming Industry. Point 2, Section 1, Subsection 1 stipulates: “Operation procedure for electronic gaming arcade application: … the application for an Electronic Gaming Arcade Classification Identification Certificate or registration of alterations shall meet the following: (1) Operating facility 1. To comply with … the regulations of … the Local Government Systems Act.” (Hereinafter Disputed Provision 1) It only identifies the applicable laws and regulations concerning the application and issuance of the Classification Identification Certificate or registration of alterations indicated above, and is deemed a detailed, technical regulation, and thus does not contradict the Principle of Statutory Reservation. It follows, naturally, that the related self-governing regulations and ordinances promulgated by the respective local governing bodies may be applicable only if they do not contradict the Constitution and the laws.
      
    •        Chapter 10 of the Constitution enumerates in detail the powers and delineation of the central and local authorities. Article 108, Paragraph 1, Section 3 states: “For the following matters, the Central Government shall have the power of legislation and administration, but the Central Government may delegate the power of administration to the provincial and county governments: … 3. Forestry, industry, mining and commerce.” Article 110, Paragraph 1, Section 11 further states: “For the following matters, the county shall have the power of legislation and administration: … 11. Other matters delegated to the county in accordance with national laws and provincial Self-Governing Regulations.” In addition, Article 111 lays out the Principle of Balance of Powers by expressly providing that any non-enumerated matter which should occur having the nature of nationwide uniformity belongs to the central authority, whereas those of a county-wide nature belong to the county authority, thus meeting the concept of vertical separation of powers such as residential self-governance and localization (or local adaptation). Given the diverse and complex nature of modern national affairs, it is sometimes not easy to have clear delineation of individual areas, nor is there any lack of incidents where local authorities are mandatorily required to collaborate in light of the need for an integral national implementation of policies (see J.Y. Interpretation No. 550). In the event that vagueness should occur in the specific division concerning either the local administrative authority by the central authority’s legislative authorization or mandate, or a self-governing regulation implemented by the local authority, the above-stated Principle of the Balance of Powers shall be the basis for consideration so that cooperation on the specific matter involving the central and local authorities can be forged into a joint-collaboration to reap the benefit of localization and to comply with the purpose of the self-governing system installed by the Constitution (see J.Y. Interpretation No. 498). As such, it is permitted by the rules concerning the  delineation of powers between the central and local authorities under the Constitution for both the central authority to enact the Electronic Gaming Arcades Management Statute, Article 11 of which gives the local governing authorities the power to review, issue, cancel and repeal Electronic Gaming Arcade Classification Identification Certificates and related registration matters, and the local authorities to issue localized self-governing ordinances on advisory and management matters for  industry and commerce (see Article 18, Section 7, Subsection 3, Article 19, Section 7, Subsection 3 of the Local Government Systems Act), as long as the local [rules] do not encroach upon the scope of the central regulations.
      
    •        In addition to not violating the separation of powers between the central and local authorities, the principle of Statutory Reservation under Article 23 of the Constitution must also be complied with in the event that the self-governing regulations involve a limitation on the fundamental rights of the people. As such, Article 118 of the Constitution delegates the legislators to enact laws on the self-governance of special municipalities; Article 9 of the Additional Articles of the Constitution subsequently provides that the local institutions of the provinces and counties shall be enacted by law as well. Article 25 of the Local Government Systems Act states: “Special municipalities, counties (cities), and townships (villages, cities) may, in accordance with law or upon authorization from higher government levels, formulate self-governing ordinances and regulations.” Article 28, Section 2 states: “The following shall be regulated by the self-governing ordinance: 2. Matters that create, deprive, or restrict the rights and duties of residents of local self-governing bodies.” Accordingly, there is no contradiction with the Principle of Statutory Reservation if the limitations by self-governing bodies on the residents’ fundamental rights should be within a reasonable scope and based on self-governing matters, the authorization of law or superior regulations.
      
    •        Article 5, Paragraph 1, Section 2 of the Taipei City Electronic Gaming Arcades Installation and Management Self-governing Ordinance, “[t]he operating facility of an electronic gaming arcade shall be in compliance with the following stipulations: … 2. Restrictive Level: … shall maintain a distance of no less than 1,000 meters from kindergartens, public elementary and middle schools, high schools, vocational schools, hospitals or libraries” (hereinafter Disputed Provision 2); Article 4, Paragraph 1 of the Taipei County Electronic Gaming Arcades Installation Self-governing Ordinance, “[t]he operation facilities indicated in the previous section (meaning the operating facilities of electronic gaming arcades, including General and Restrictive Categories) shall maintain a distance of no less than 990 meters from public elementary and middle schools, high schools, vocational schools or hospitals” (still in effective on December 25, 2012 when Taipei County was transformed into New Taipei City; later becomes invalid by expiration, hereinafter Disputed Provision 3); and Article 4, Paragraph 1 of the Taoyuan County Electronic Gaming Arcades Installation Self-governing Ordinance (continuously in effect as of December 25, 2014 by promulgation, hereinafter Disputed Provision 4), “[t]he operation facilities of electronic gaming arcades shall maintain a distance of no less than 800 meters from public elementary and middle schools, high schools, vocational schools or hospitals;” all involve the area of facilities for the operation of electronic gaming arcades, and are advisory and management matters over industry and commerce, as well as fall within the scope of self-governing by special municipalities or counties (cities) and may be subject to localized ordinances not otherwise contradictory to laws and regulations at the central level. Article 9, Paragraph 1 of the above-indicated Electronic Gaming Arcades Management Statute concerning the regulation that the operating facilities of electronic gaming arcades shall maintain a distance of at least 50 meters from public elementary and middle schools, high schools, vocational schools, or hospitals can be deemed to be the minimum standard established under the law to preserve room for localized rules, and does not prohibit specialized municipalities, counties (cities) from mandating a greater distance. Thus the stricter regulations under the Disputed Provisions 2, 3 and 4 for the distance of 1,000, 990, and 800 meters away from public elementary and middle schools, high schools, vocational schools, or hospitals can hardly be said to have violated the Principle of Constitutional Delineation between the central and local authorities, and the added limitations on the people’s freedom to operate have not exceeded the scope of general authorization under the Local Government Systems Act, and, therefore, do not contradict the Principle of Statutory Reservation. The 1,000 meter distance requirement from kindergartens and libraries is also within the scope of legislative authority under the self-governing matters for local self-governing bodies, and can hardly be said to have violated the Principle of Constitutional Delineation between the central and local authorities.
      
    •        Since the operation of electronic gaming arcades can create detrimental effects to the peace and quietness, decent morality, public safety and national health of society, the legislators enacted the Electronic Gaming Arcades Management Statute to serve as the basis for their management (see Article 1 of the Electronic Gaming Arcades Management Statute). That Article 9, Paragraph 1 stipulates that electronic gaming arcades should be at a distance of at least 50 meters away from public elementary and middle schools, high schools, vocational schools, and hospitals is one of the means to achieve that legislative purpose. The Disputed Provision 2 extends the limitation of distance for electronic gaming arcades to 1,000 meters and includes kindergartens and libraries, whereas the Disputed Provisions 3 and 4 extend the distance to be maintained to at least 990 and 800 meters, respectively. Since by nature a limitation on the work location is related to the freedom to choose an occupation, unless its result effectively denies such freedom, in which case it is subject to a more stringent review, there is no violation of the Principle of Proportionality as long as the legislators [only] pursue a general public interest, the limitations serving to assist in achieving that purpose, and there being no alternatives to accomplishing the same purpose with less detrimental means available, provided that there is due proportionality between the critical nature of the public interests to be maintained and the degree of damage to the public interest caused by the restrictions (see J.Y. Interpretations Nos. 584, 711). The Disputed Provisions 2, 3, and 4 have a proper legislative purpose, namely to achieve peace and quietness, decent morality, and public safety as well as the mental and physical health of society, among other things, and the means adopted, i.e., maintaining a distance between electronic gaming arcades and certain specific locations cannot be viewed as irrelevant to the achieving of that purpose. Furthermore, it is necessary for the respective special municipalities, and counties (cities), based upon their advisory and management authority over local industry and commerce in self-governing matters, and in light of localized policy considerations, to establish a greater distance, so that the legislative purpose of maintaining the public interest can be effectively accomplished without the need to devote a large amount of manpower and physical resources for intensive control and cracking down on violations against electronic gaming arcades located near certain locations. There is also no doubt about the comparability between the limitations in question and the public interests they intend to pursue, and they can hardly be said to have violated the Principle of Proportionality, thus violated the people’s freedom to operate businesses. Given that there is a distinction between a restrictive level and a general level for the installation of an electronic gaming arcade, and that there may be a variety of causes that are to the detriment of peace and quietness, decent morality, and public safety as well as the mental and physical health of the nation, and that the degree of impact from those causes may also be different even in individual areas within the same special municipality or county (city), and that there is a significant difference in the population density and community distribution in each special municipality or county (city), and that this is constantly changing, were the restriction on distance imposed by each self-governing body to exceed the minimum legal standard to a much greater degree, it is not impossible that an effective denial would have been created and that it should be subject to a more stringent review under the Principle of Proportionality. It is also to be pointed out that it would be appropriate for the related self-governing bodies to make random reviews and reasonable adjustments to accommodate changes in the objective environment and the scope of effectiveness.
      
    •        Separately, regarding one of the Petitioners’ claims that the opinions of the Taipei High Administrative Court Judgment (102) Su Tze No. 56 and the judgment of the Supreme Administrative Court (102) Pan Tzu No. 740, which applied the proviso of Article 18 of the Central Standard Regulation Act (Standard Act for the Law and Rules), are different from the opinions of the Taichung High Administrative Court (92) Su Tzu No. 877 and the judgment of the Supreme Administrative Court (94) Pan Tzu No. 1005, and thus uniformity of interpretation was requested, since it does not concern a difference of opinions on the application of the same law or regulation by different adjudication bodies (such as the Supreme Court and the Supreme Administrative Court) in their final judgments, it is not in compliance with Article 7, Paragraph 1, Section 2 of the Constitutional Interpretation Procedure Act and shall be dismissed in accordance with Paragraph 3 of the same provision. So ordered.
      
    • ______________________
      
    • * Translated by Andy Y. SUN.
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