Renewal of Licenses, Permits. - Being The

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OCTAVIANO, Leslie Anne O.

2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

Dela Cruz vs. Paras July 25, 1983 | Fernando Facts: Ordinance No. 84, Series of 1975 (Prohibition and Closure Ordinance) is being assailed in this certiorari proceeding. The relevant provisions are as follows: Section 3. Prohibition in the Issuance and Renewal of Licenses, Permits. Being the principal cause in the decadence of morality and because of their other adverse effects on this community as explained above, no operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to operate within the jurisdiction of the municipality and no license/permit shall be issued to any professional hostess, hospitality girls and professional dancer for employment in any of the aforementioned establishments. The prohibition in the issuance of licenses/permits to said persons and operators of said establishments shall include prohibition in the renewal thereof. Section 4. Revocation of Permits and Licenses. The licenses and permits issued to operators of night clubs, cabarets or dance halls which are now in operation including permits issued to professional hostesses, hospitality girls and professional dancers are hereby revoked upon the expiration of the thirty-day period given them as provided in Section 8 hereof and thenceforth, the operation of these establishments within the jurisdiction of the municipality shall be illegal. Section 5. Penalty in case of violation. Violation of any of the provisions of this Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or both at the discretion of the Court. If the offense is committed by a juridical entity, the person charged with the management and/or operation thereof shall be liable for the penalty provided herein. Two cases for prohibition with preliminary injunction were filed with the Court of First Instance of Bulacan. The grounds raised for the nullification of the ordinance are as follow: 1. It is null and void as a municipality has no authority to prohibit a lawful business, occupation or calling. 2. It is violative of the petitioners' right to due process and the equal protection of the law, as the license previously given to petitioners was in effect withdrawn without judicial hearing. 3. The municipality has no authority to promulgate such ordinance since the power to license, supervise and regulate night clubs has been transferred to the Department of Tourism by virtue of Presidential Decree No. 189.

RTC dismissed the petitions. "Those who lust cannot last. It ruled that the ordinances validity and constitutionality must be upheld in the municipal corporations exercise of police power. Issue: WON Bocaue, Bulacan, a municipal corporation, can prohibit the exercise of a lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses Held: NO. Police power is granted to municipal corporations in general terms as follows: "General power of council to enact ordinances and make regulations. - The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." (Section 2238, Revised Administrative Code of the Philippines (1917).) In United States v. Salaveria, the ponente Justice Malcolm stated that the general welfare clause has two branches: 1) The first attaches itself to the main trunk of municipal authority, relating to such ordinances as may be necessary to carry into effect the powers and duties conferred upon the municipal council by law; 2) The second branch is much more independent of the specific functions of the council which are enumerated by law. It authorizes such ordinances as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. The ordinance in this case falls under the second branch. It is a general rule that ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable. It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify as reasonable. The objective of fostering public morals can be attained by a measure that does not encompass too wide a field. The ordinance on its face is thus characterized by overbreadth. The purpose sought to be achieved could have been attained by reasonable restrictions rather than by an absolute prohibition. In the guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those individuals desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those therein employed. RA No. 938, an Act Granting Municipal or City Boards and Councils the Power to Regulate the Establishment,

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

Maintenance and Operation of Certain Places of Amusement within their Respective Territorial Jurisdictions, though amended to include not merely the power to regulate, but likewise "prohibit, its titled remained the same. The power granted remains that of regulation, not prohibition. There is thus support for the view advanced by petitioners that to construe Republic Act No. 938 as allowing the prohibition of the operation of night clubs would give rise to a constitutional question (one subject-one bill rule). The general welfare clause, a reiteration of the Administrative Code provision, is set forth in the first paragraph of Section 149 defining the powers and duties of the sangguniang bayan. A look at the provisions in the LGC would show that municipal corporations cannot prohibit the operation of night clubs. They may be regulated, but not prevented from carrying on their business. It would be, therefore, an exercise in futility if the decision under review were sustained. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand sustaining police power legislation to promote public morals. Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila is not applicable in the case at bar. That was a regulatory measure; it didnt prohibit motels. What was involved is a measure not embraced within the regulatory power but an exercise of an assumed power to prohibit. Technology Developers, Inc. vs. CA January 21, 1991 | Gancayco Facts: Petitioner was engaged in the manufacture and export of charcoal briquettes. It received a letter from private respondent acting mayor Pablo N. Cruz asking the petitioner to stop its operations until further notice and to bring to his office the following: a) Building permit; b) Mayor's permit; c) Region III-Pollution of Environment and Natural Resources Anti-Pollution Permit; and of other document. It went to the office of the mayor to secure the mayors permit but it was not entertained. Withour prior notice, the acting mayor ordered that the premises of petitioners be padlocked causing the stoppage of its operations. Petitioner instituted an action for certiorari, prohibition, mandamus with preliminary injunction against private respondent with the lower court. The lower court issued a permanent mandatory injunction. During the hearing for respondents motion for consideration (which was not attended by the petitioners counsel), respondent presented the following documents: a) An investigation report saying that the fumes from coming from the factory during the manufacturing process are hazardous to the health of the people

b) Signatures of residents of Barangay Guyong, Sta. Maria, Bulacan (where the plant was located) c) A letter addressed to the mayor complaining about the smoke coming out of the chimney of the factory during operation The lower court reassessed the evidence and issued an order setting aside its earlier order granting the writ of preliminary mandatory injunction. Petitioner filed a petition for certiorari and prohibition with preliminary injunction in the Court of Appeals which was denied for lack of merit. Issue: WON the CA committed a grave abuse of discretion in rendering its questioned decision Held: NO. The issuance of a writ of preliminary injunction is addressed to the sound judicial discretion of the trial court and its action shall not be disturbed on appeal unless it is demonstrated that it acted without jurisdiction or in excess of jurisdiction or otherwise, in grave abuse of its discretion. The following circumstances militate against the maintenance of the writ of preliminary injunction sought by petitioner: No mayor's permit had been secured. While it is true that the matter of determining whether there is a pollution of the environment that requires control is essentially addressed to the Environmental Management Bureau of the DENR, it must be recognized that the mayor of a town has as much responsibility to protect its inhabitants from pollution, and by virture of his police power, he may deny the application for a permit to operate a business or otherwise close the same to control and/or avoid injury to the health of the residents of the community from the emissions in the operation of the business. This action of the Acting Mayor was in response to the complaint of the residents of Barangay Guyong, Sta. Maria, Bulacan. The closure order of the Acting Mayor was issued only after an investigation which yielded the observation that the fumes emitted by the plant goes directly to the surrounding houses and that no proper air pollution device has been installed. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but instead presented a building permit issued by an official of Makati. While petitioner was able to present a temporary permit to operate by the then National Pollution Control Commission on December 15, 1987, the permit was good only up to May 25, 1988. Petitioner had not exerted any effort to extend or validate its permit much less to install any device to control the pollution and prevent any hazard to the health of the residents of the community.

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

Chua Huat vs. CA July 9, 1991 | Davide, Jr. Facts: Re: G.R. No. 63863 (one of the consolidated cases) Manuel Uy and Sons, Inc. requested the City Engineer and Building Officials of Manila Romulo del Rosario, to condemn the dilapidated structures located at Pedro Gil St. and Paz St., Paco, Manila, all occupied by petitioners. Notices of condemnation were issued to petitioners, stating that the subject buildings were found to be in dangerous condition and therefore must be condemned, subject to the confirmation of the mayor of the City of Manila. The buildings, according to inspection reports, were suffering from structural deterioration by more than 50% and as much as 80%. Upon the request of petitioners, Civil Engineer Romulo C. Molas, a private practitioner, inspected the abovementioned structures. In his evaluation report, he stated that although the buildings are old, they were still structurally sound with a remaining economic life of at least eight years. A demolition order was issued. Petitioners then filed the instant Petition for Prohibition, with Preliminary Injunction and/or Restraining Order, against Mayor Ramon Bagatsing, City Engineer Romulo del Rosario and Manuel Uy and Sons, Inc. The RTC issued a TRO against public respondents. Meanwhile, the respondent mayor confirmed the rest of the condemnation orders issued by the respondent city engineer. Petitioners then instituted a petition for certiorari with the SC. Issue: a. WON the city engineers and the mayor acted with grave abuse of discretion in the exercise of their powers b. WON petitioners were entitled to the writ of certiorari Held: a. NO. There was also no grave abuse of discretion on the part of the respondent City Engineer because the orders were made only after thorough ocular inspections were conducted by the City's Building Inspectors. The results of the inspections were set forth in a memorandum that showed that all the all the buildings had architectural, structural, sanitary, plumbing and electrical defects of up to 80%. The respondent Mayor's act of approving the condemnation orders was likewise done in accordance with law. Add to that the fact that the protest was done 3 months after the notice of condemnation were issued, which exceeded the 7 days as prescribed in the compiled ordinances of the City of Manila. The power to condemn buildings and structures in the City of Manila falls within the exclusive jurisdiction of the city Engineer, who is at the same time the building officials, (Sec. 206, P.D. 1096). Also, according to Section 215 of P.D. 1096 or the National Building Code, building officials

have the authority to order the condemnation and demolition of buildings which are found to be in a dangerous or ruinous condition. It is also clear from the Compilation of Ordinances of the City of Manila that the mayor has the power to confirm or deny the action taken by the building officials, with respect to the dangerous or ruinous buildings. b. NO. Certiorari will not he then because petitioners failed to exhaust all the administrative remedies. Where the enabling statute indicates a procedure for administrative review (in this case, appeal within 15 days to the Secretarty of the Ministry of Public Works and ask for a reinspection), and provides a system of administrative appeal, or reconsideration, the courts, for reasons of law, comity and convenience, will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. Binay vs. Domingo September 11, 1991 | Paras Facts: Resolution No. 60 was passed on September 27, 1998, which aimed to provide for a burial assistance program by extending financial assistance to bereaved families from the unappropriated funds available in the municipal treasury. Families whose gross income doesnt exceed P2,000 a month are to receive cash relief of P500 from the Municipality of Makati. The municipal secretary certified the disburment of P400,000.00 for the implementation of the said resolution. It was referred to the Commission on Audit, which was disapproved later on. Petitioner Mayor Jejomar Binay wrote a letter for consideration which was denied on the following grounds: 1) The statute or ordinance did not have a real substantial, or rational relation to the public safety, health, morals, or general welfare to be sustained as a legitimate exercise of the police power. There must always be an obvious and real connection between the actual provisions of a police regulations and its avowed purpose, and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained. 2) The expenditure covered is not for a public purpose, since it is not intended to benefit the whole, if not the majority, of the inhabitants and not only a few individuals. The implementation of the said resolution has been stayed by this COA decision which compelled to file this review. Issues: WON Resolution No. 60 of the Municipality of Makati is a valid exercise of police power under the general welfare clause

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

Held: YES. While Police power is inherent in the state but not in municipal corporations, municipal governments exercise this power under the general welfare clause provided they are clothed with authority to enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law. Police power is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all comprehensiveness. Its scope, overexpanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals, and general welfare of the community, it is not limited thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of comfort of the inhabitants of the corporation. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. There is now a shift towards social welfare legislation as evinced by the Constitution. The care for the poor is generally recognized as a public duty. The support for the poor has long been an accepted exercise of police power in the promotion of the common good. *This decision, however must not be taken as a precedent, or as an official go-signal for municipal governments to embark on a philanthropic orgy of inordinate dole-outs for motives political or otherwise. Tatel vs. Municipality of Virac March 11, 1992 | Nocon Facts: Because of the complaints of the residents of barrio Sta. Elena against the operation of the abaca bailing machine inside the warehouse of Celestino Virac regarding its smoke emissions as well as the obnoxious odor, the municipal council investigated the matter. It added that the warehouse of petitioner was located in the crowded neighborhood, which puts in danger the residential houses surrounding it in case there was an accidental fire inside the warehouse. They passed Resolution 29 declaring the said warehouse a public nuisance. This Resolution was based on Ordinance no. 13 which prohibited the construction of

warehouses near a block of houses either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and properties by accidental fire. Petitioner assails the constitutionality of this ordinance. The lower court ruled against his favor and directed the petitioner to remove from the said warehouse all abaca and copra and other inflammable articles stored therein within 2 months from the finality of its decision. Issue: WON Ordinance 13 constitutes a legitimate and valid exercise of police power Held: YES. Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power. For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. These principles require that a municipal ordinance (1) must not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable. Ordinance No. 13, Series of 1952, meets these criteria. The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing inflammable products in the warehouse because of the danger of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can be no better policy than what has been conceived by the municipal government. Judge Tamin vs. CA May 8, 1992 | Gutierrez, Jr. Facts: Petitioner Municipality of Dumingag, Zamboanga del Sur filed a complaint for ejectment against respondents Vicente Medina and Fortunata Rosellon. Petitioner municipality claims that it is the owner of a parcel of land located in Poblacion, Dumingag which was originally reserved for public plaza. The lot was subsequently leased to respondent with the condition that they should vacate the place in case it will be needed for public use. The respondents paid the rentals at the beginning until refusing to do so in 1967. The mayor discovered that the respondents filed a Cadastral Answer over the lot. The petitioner asked the respondents to vacate which they refused to do. The land was supposed to be allotted for the construction of a

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

municipal gymnasium within the public plaza but the said construction could not push through because of the buildings that were built by the respondents. The lower court denied the respondents motion to dismiss and granted the petitioner municipalitys motion for a writ of possession with an ancillary writ of demolition (applying the rule on eminent domain) so that the public construction will not be jeopardized. The writ was implemented which resulted in the demolition of the structures owned by the respondent. The respondents answer alleged that the parcel of land has been owned and occupied by respondent Vicente Medina since 1947 when he bought the subject parcel from a Subanan native. He then leased a portion of the lot to the other respondent Fortunata Rosellon. They claim that there is actually a pending case before the Cadastral court regarding the ownership of the land. CA reversed the orders of the trial court. It ruled that the trial court did not have the authority to issue a writ of possession and a writ of demolition since it is a complaint for recovery of possession. It also held that the rule on eminent domain cant be applied analogously. Hence, this petition. The petitioners now contend that the allegations in the complaint constitute a cause of action for abatement of public nuisance. Issue: WON the petitioner municipality is entitled to a writ of possession and writ of demolition Held: NO. The issuance of the writ of possession and writ of demolition by the petitioner Judge in the ejectment proceedings was premature. **Under the then Local Government Code (B.P. Blg. 337) the Sangguniang Bayan has to first pass an ordinance before the municipality may summarily abate a public nuisance. (Sec. 149(z) (ee). Even before the issuance of Proclamation No. 365 dated March 15, 1968 which recognized private rights, there was already a pending cadastral proceedings to settle the ownership over the questioned portion of land. Under the cadastral system, the government through the Director of Lands initiates the proceedings by filing a petition in court after which all owners or claimants are compelled to act and present their answers otherwise they lose their right to their own property. The purpose is to serve the public interests by requiring that the titles to any lands "be settled and adjudicated." Clearly, the outcome of said proceedings is a prejudicial question which must be addressed in the resolution of the instant case. If the allegations in the complaint are true and that the parcel of land being occupied by the private respondents is indeed a public plaza, then the writ of possession and writ of demolition would have been justified. In fact, under such

circumstances, there would have been no need for a writ of possession in favor of the petitioner municipality since the private respondents' occupation over the subject parcel of land can not be recognized by any law. A writ of demolition would have been sufficient to eject the private respondents. However, not only did the municipality avoid the use of abatement without judicial proceedings, but the status of the subject parcel of land has yet to be decided. The petitioner municipality is required to put up a bond to be determined by the court after hearing to answer, for just compensation due the private respondents in case the demolition of their buildings is adjudged to be illegal. Patalinhug vs. CA January 27, 1994 | Romero Facts: After the prior approval and certification of zoning compliance, a building permit for the construction of a funeral parlor in the name and style of Metropolitan Funeral Parlor at Cabaguio Avenue, Agdao, Davao City was issued to petitioner Alfredo Patalinhug. Several residents of Barangay Agdao, Davao City filed their complaints stating that the construction of petitioner's funeral parlor violated Ordinance No. 363, which provided funeral parlors/memorial homes shall be established not less than 50 meters from any residential structures, churches and other institutional buildings. The claimed that the ongoing construction was situated within a 50-meter radius from the Iglesia ni Kristo Chapel and several residential structures. The investigation conducted by the Sangguniang Panglungsod revealed that the nearest residential structure, which was owned by Wilfred G. Tepoot, is only 8 inches to the south RTC dismissed the complaint saying that the Cribillos house and the Iglesia ni Kristo chapel are outside the 50-meter prohibition. It also held that even in Mr. Tepoots house is adjacent to the funeral parlor, it was only being rented by another person who devotes it for his laundry business. CA reversed the lower court and held that even if the funeral parlor was outside the 50-meter residential radius prohibited by the ordinance with respect to Cribillos buildings and the Iglesia ni Kristo, it still annulled the building permit for being located near Mr. Tepoots building. It rejected the lower courts reasoning that the infrastructure was commercial. It held that it was a residential lot as stated in the tax declaration. Issue: WON petitioner violated the Davao City Ordinance No. 363 Held: NO. The issue requires a facial determination, which the Court is in no position to disturb unless it falls under certain exceptions. The variance of the evidentiary facts with the CA findings called for the reading and examining of pleadings and transcripts submitted before the trial court.

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

The testimony of City Councilor Vergara was presented to show that Mr. Tepoot's building was used for a dual purpose both as a dwelling and as a commercial place. While its commercial aspect has been established by the presence of machineries and laundry paraphernalia, its use as a residence, other than being declared for taxation purposes as such, was not fully substantiated. The Court disagreed with the Court of Appeals in basing its decisions on the classification reflected in the Mr. Tepoots tax declaration. A tax declaration is not conclusive of the nature of the property for zoning purposes. A property may have been declared by its owner as residential for real estate taxation purposes but it may well be within a commercial zone. A discrepancy may thus exist in the determination of the nature of property for real estate taxation purposes vis-a-vis the determination of a property for zoning purposes. A tax declaration only enables the assessor to identify the same for assessment levels. In fact, a tax declaration does not bind a provincial/city assessor, for under Sec. 22 of the Real Estate Tax Code, appraisal and assessment are based on the actual use irrespective of "any previous assessment or taxpayer's valuation thereon," which is based on a taxpayer's declaration. Thus, even if we consider Tepoot's building as residential for taxation purposes, once a local government has reclassified an area as commercial, that determination for zoning purposes must prevail. While the commercial character of the questioned vicinity has been declared thru the ordinance, private respondents have failed to present convincing arguments to substantiate their claim that Cabaguio Avenue, where the funeral parlor was constructed, was still a residential zone. Unquestionably, the operation of a funeral parlor constitutes a "commercial purpose," as gleaned from Ordinance No. 363. The declaration of the said area as a commercial zone thru a municipal ordinance is an exercise of police power to promote the good order and general welfare of the people in the locality. Corollary thereto, the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. Thus, persons may be subjected to certain kinds of restraints and burdens in order to secure the general welfare of the state and to this fundamental aim of government, the rights of the individual may be subordinated. The ordinance which regulates the location of funeral homes has been adopted as part of comprehensive zoning plans for the orderly development of the area covered thereunder. Greater Balanga Devt. Corp vs. Municipality of Balanga December 27, 1994 | Quiason Facts: The lot in dispute is registered in the name of petitioner Greater Balanga Development Corporation, a domestic corporation owned and controlled by the Camacho

family. The said corporation donated to the Municipality of Balanga the land where the current Balanga Public Market sits. The controversial land is situated behind the public market. The petitioner corporation did a relocation survey of the land. It found out that some of its land area were being usurped and invaded by the Municipality of Balanga, which was given to market stalls while charging market fees and market entrance fees for its users. Petitioner applied with the Office of the Mayor of Balanga for a business permit to engage in business in the said area. On the same day, the mayor granted the business permit to operate a privately-owned public market. It was to expire on December 31, 1988. However, the Sangguniang Bayan of Balanga passed a resolution, annulling the Mayor's permit issued to petitioner and advising the Mayor to revoke the permit "to operate a public market. The mayor subsequently revoked the permit through an executive order. Petitioner filed the instant petition claiming that it was not proper for the mayor to have revoked the said business permit. It claims that it had not violated any law to justify the revocation and that he was deprived of due process when the permit was revoked without notice or hearing. Respondents claimed that the revocation was a legitimate exercise of local legislative authority. They also pointed out petitioners failure to disclose the true status of the area involved in the permit and to secure separate permits for its two businesses ("real estate dealer" and "privately-owned public market operator"). The Balanga Revenue Code enjoins an applicant for a Mayor's permit from making a false statement in his application specifically in neglecting to inform the Mayor that the lot in controversy was the subject of adverse claims in a pending civil case. Issue: WON the revocation done by the mayor of the business permit was proper Held: NO. While the permit should not have been issued without the required information given in the application form, revoking the permit based on this ground is another matter. To be a ground for revocation, there must be proof of willful misrepresentation and deliberate intent to make a false statement. Good faith is always presumed, and as it happened, petitioner did not make any false statement in the pertinent entry. Neither was petitioner's applying for two business a ground for revocation. The Balanga Revenue Code doesnt expressly require two permits in businesses to be conducted in the same place. The powers of municipal corporations are to be construed in strictissimi juris and any doubt or ambiguity must be construed against the municipal. Under the law, the Sangguniang Bayan has the power to provide for the establishment and maintenance of

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

public markets in the municipality and "to regulate any business subject to municipal license tax or fees and prescribe the conditions under which a municipal license may be revoked". As may be gleaned from said Resolution, the main reason for the revocation of the Mayor's permit was the controversy engendered by the filing of the civil case involving the ownership of certain portions of the land in controversy. The question of ownership over Lot 261-B had already been settled with finality by the Supreme Court. Entry of judgment was likewise, made in the same year. When the Mayor's permit was revoked on February 19, 1988, five years had already elapsed since the case was decided. Petitioner appeared to be the true owner of the said lot when the respondents revoked its permit to engaged in business on its own land. Assuming arguendo that the land was not yet adjudicated in favor of petitioner, the plan to acquire the lot adjacent of the public market is merely a proposal from the Sangguniang Bayan since there was still no expropriation proceedings instituted in court. Until so, the landowner cannot be deprived of its right over the land. The claim that the revocation was a measure to promote peace and order and protect the general welfare of the people of Balanga is too amorphous and convenient an excuse to justify respondents' acts. The uncertainty felt among the stall holders cannot be a valid ground for revoking the permit. In addition to that, the respondents failed to accord petitioner his right to due process. Petitioner was not informed of the specific violation that he committed to warrant the revocation. Since the Municipality of Balanga is not the owner of Lot 261-B-6-A-3, there is no legal basis for it to impose and collect market fees and market entrance fees. Only the owner has the right to do so. Be that as it may, the Mayor's permit issued on January 11, 1988 cannot now be reinstated despite the nullity of its revocation. The permit expired on December 31, 1988. Tano vs. Socrates August 21, 1997 | Davide, Jr. Facts: On December 15, 1992, the Sangguniang Panlungsod ng Puerto Princesa City enacted Ordinance No. 15-92, which banned the shipment of all live fish and lobster outside Puerto Princesa City from January 1, 1993 to January 1, 1998. The Acting City Mayor Amado L. Lucero issued an officer order which authorizes and directs officers to check or conduct necessary inspections on cargoes containing live fish and lobster being shipped out from the Puerto Princesa Airport, Puerto Princesa Wharf. This is to ascertain that the shippers carrying cargo containing live fish and lobster have the appropriate invoice or clearance as required by the rules.

The Sangguniang Panlalawigan, Provincial Government of Palawan also enacted a resolution prohibiting the catching, buying and selling of certain live marine coral dwelling aquatic organisms. The said ordinances were implemented which deprived the fisherman of the whole province of Palawan and the City of Puerto Princesa of their only means of livelihood and the petitioners Airline Shippers Association of Palawan and other marine merchants from performing their lawful occupation and trade. Petitioners were criminally charged for the violation of the aforementioned ordinances. The sought redress directly to the Supreme Court, invoking its original jurisdiction. They claim that the Ordinances deprived them of due process of law, their livelihood, and unduly restricted them from the practice of their trade, in violation of Section 2, Article XII and Sections 2 and 7 of Article XIII of the 1987 Constitution. Public respondents Governor Socrates and Members of the Sangguniang Panlalawigan of Palawan defended the validity of Ordinance No. 2, Series of 1993, as a valid exercise of the Provincial Government's power under the general welfare clause and its specific power to protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing. They claim that it only covered live marine coral dwelling aquatic organisms and that the prohibition was only for 5 years to allow them to regenerate. Issues: WON the assailed ordinances are a valid exercise of police power Held: YES. The LGC provisions invoked by private respondents merely seek to give flesh and blood to the right of the people to a balanced and healthful ecology. In fact, the General Welfare Clause (Section 16 of the LGC), expressly mentions this right. Moreover, Section 5(c) explicitly mandates that the general welfare provisions of the LGC shall be liberally interpreted to give more powers to the local government units in accelerating economic development... The LGC vests municipalities with the power to grant fishery privileges in municipal waters and to impose rentals, fees or charges therefor; to penalize, by appropriate ordinances, the use of explosives, noxious or poisonous substances, electricity, muro-ami, and other deleterious methods of fishing laws. Further, the sangguniang bayan, the sangguniang panlungsod and the sangguniang panlalawigan are directed to enact ordinances for the protection of the environment. Pursuant to the system of decentralization as expressly mandated by the Constitution, one of the devolved powers enumerated in the section of the LGC on devolution is the enforcement of fishery laws in municipal waters including the conservation of mangroves. This necessarily includes enactment of ordinances to effectively carry out such

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

fishery laws within the municipal waters. The term "municipal waters," in turn, includes not only streams, lakes, and tidal waters within the municipality, not being the subject of private ownership and not comprised within the national parks, public forest, timber lands, forest reserves, or fishery reserves, but also marine waters included between two lines drawn perpendicularly to the general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and a third line parallel with the general coastline and fifteen kilometers from it. Both ordinances have two principal objectives: (1) to establish a closed season for the species of fish or aquatic animals covered therein for a period of five years, and (2) to protect the corals of the marine waters of Puerto Princesa and Palawan from further destruction due to illegal fishing activities. The accomplishment of the first objective is well within the devolved power to enforce fishery laws in municipal waters, such as P.D. No. 1015, which allows the establishment of closed seasons. The devolution of such power has been expressly confirmed in the MOA between DAR and DILG (1994). The realization of the second objective falls within both the general welfare clause of the LGC and the express mandate thereunder to cities and provinces to protect the environment and impose appropriate penalties for acts, which endanger the environment. Regarding the ordinances constitutionality: There is absolutely no showing that any of the petitioners qualifies as a subsistence or marginal fisherman. A marginal fisherman is an individual engaged in fishing whose margin of return or reward in his harvest of fish as measured by existing price levels is barely sufficient to yield a profit or cover the cost of gathering the fish, while a subsistence fisherman is one whose catch yields but the irreducible minimum for his livelihood. The only provision of law which speaks of a preferential right of marginal fishermen is Section 149 of the LGC. It must be noted that the socalled "preferential right" of subsistence or marginal fishermen to the use of marine resources is not at all absolute. Repudiating Bellosillos dissent: - The jurisdiction and responsibility of the BFAR under P.D. No. 704, over the management, conservation, development, protection, utilization and disposition of all fishery and aquatic resources of the country is not allencompassing. - It is incorrect to say that the challenged Ordinance of the City of Puerto Princesa is invalid or unenforceable because it was not approved by the Secretary of the DENR. If at all, the approval that should be sought would be that of the Secretary of the Department of Agriculture. - However, the requirement of approval by the Secretary of the Department of Agriculture (not DENR) of municipal

ordinances affecting fishing and fisheries in municipal waters has been dispensed with in view of the following reasons: (1) Section 534 (Repealing Clause) of the LGC expressly repeals or amends Sections 16 and 29 of P.D. No. 704 insofar as they are inconsistent with the provisions of the LGC. (2) Under the general welfare clause of the LGC, local government units have the power, inter alia, to enact ordinances to enhance the right of the people to a balanced ecology. Mendoza, J., concurring: The ordinances in question in this case are conservation measures which the local governments of Palawan have adopted in view of the widespread destruction caused by cyanide fishing of corals within their territorial waters. At the very least, these ordinances must be presumed valid in the absence of evidence to show that the necessary factual foundation for their enactment does not exist. Their invalidation at this point can result in the untimely exoneration of otherwise guilty parties on the basis of doubtful constitutional claims. The ordinances in question are police power measures, enacted by the Province of Palawan and the City of Puerto Princesa, pursuant to the Local Government Code of 1991 which makes it in fact their duty to enact measures to "protect the environment and impose appropriate penalties for acts which endanger the environment, such as dynamite fishing and other forms of destructive fishing. . . ." There is no basis for the claim in the dissenting opinion that the subject of these ordinances lies within the competence of the national government. For the matter concerns a local problem, namely, the destruction of aquatic resources in the Province of Palawan. The ban imposed by Ordinance No. 2-93, as amended, covers only three species, i.e., mameng (scaridae), panther or seorita (cromilepres altivelis) and ornamental aquarium fishes (balistiedae), which are prized in the black market. With respect to other species, it is open season for legitimate fishermen Bellosillo, J., dissenting: The general welfare clause is not the sole criterion to determine the validity or constitutionality of the ordinances. Magtajas v. Pryce Properties Corporation provided for tests to determine the validity of an ordinance: (a) It must not contravene the Constitution or any statute; (b) It must not be unfair or oppressive; (c) It must not be partial or discriminatory; (d) It must not prohibit but may regulate trade; (e) It must be general and consistent with public policy; and, (f) It must not be unreasonable.

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

There is no doubt that under P.D. No. 704 fishing, fishery and aquatic resources in municipal waters are under the jurisdiction of the municipal or city government concerned. However, the same decree imposes a mandatory requirement directing municipal or city governments to submit ordinances enacted pertinent to fishing and fishery resources to the Secretary of Agriculture who now has control and supervision over the Bureau of Fisheries and Aquatic Resources (BFAR). The ordinances will attain full force and effect only upon the approval of the Secretary of Agriculture. Ordinance 15-92 of Puerto Princesa City, admittedly, was not submitted to the Secretary of Agriculture through the BFAR for approval. Such failure of compliance with the law prevented it from becoming valid and effective. To say that Sec. 4 of P.D. No. 704 was impliedly repealed by the Local Government Code is gratuitous. Cases abound holding that a repeal by implication is not presumed or favored considering that the legislature is presumed to be aware of existing laws. While the Local Government Code is a general law on the powers, responsibilities and composition of different local government units, P.D. No. 704 is a special law dealing with the protection and conservation of fishing and aquatic resources including those in the municipal waters. Hence, the special law should prevail over the general law. Section 4 of PD 1219 (providing for the exploration, exploitation, utilization and conservation of coral resources) states that the decree shall be implemented by the Secretary of Environment and Natural Resources who shall have jurisdiction and responsibility in the exploration, exploitation, utilization and conservation of coral resources. It is true that police power can be exercised through the general welfare clause. But, while police power is inherent in a state, it is not so in municipal corporations or local governments. In order that a local government may exercise police power, there must be a legislative grant which necessarily sets the limits for the exercise of the power. Under Sec 3, par. (i), of the Local Government Code, the operative principles of decentralization upon the environment and natural resources are not absolute when it is provided therein that "local government units shall share with the national government the responsibility in the management and maintenance of ecological balance within their territorial jurisdiction, subject to the provisions of this Code and national policies." This provision was crafted to make sure that local government enactments do not supplant or negate national government policies on environment. The core of the devolution adopted by the Local Government Code is found in Sec. 17 thereof which reiterates the basic services and facilities to be rendered by

the local governments. With respect to the protection and conservation of fisheries, Sec. 17, par. 2 (i), specifically provides that the municipality shall conduct "extension and on-site research services and facilities related to agriculture and fishery activities which include dispersal of livestock and poultry, fingerlings and other seeding materials for aquaculture . . . . and enforcement of fishery laws in municipal waters including the conservation of mangroves . . . ." The power devolved upon the municipality under the Local Government Code is the enforcement of existing fishery laws of the State and not the enactment thereof. While a local government unit may adopt ordinances upon subjects covered by law or statute, such ordinances should be in accordance with and not repugnant to the law. Local governments are not possessed with prohibitory powers but only regulatory powers under the general welfare clause. They cannot therefore exceed the powers granted to them by the Code by altogether prohibiting fishing and selling for five (5) years all live fishes and coral organisms. These prohibitions are tantamount to the establishment of a closed season for fish and aquatic resources which authority is not among those powers vested by the Local Government Code to the local government units. For the authority to establish a closed season for fisheries is vested upon the Secretary of Agriculture. The prohibitions set forth in the ordinances are not germane to the accomplishment of their goals. The means to achieve the objective of freeing our marine resources from cyanide and other obnoxious substances borders on the excessive and irrational, for the edict would absolutely ban the shipment of live fishes and lobsters out of the city for a period of five (5) years without prohibiting cyanide fishing itself which is the professed goal of the ordinance. While the ordinance aims to protect and preserve all marine coral-dwelling organisms from devastation and destruction through illegal fishing activities, the absolute prohibition in the catching, gathering, buying and shipment of live fishes and marine coral resources by any means including those lawfully executed or done in the pursuit of legitimate occupation, the ordinance overstepped the reasonable limits and boundaries of its raison d'etre. White Light Corp vs. City of Manila January 20, 2009 | Tinga Facts: Mayor Alfredo Lim signed into law Ordinance No. 7774, which prohibited short time admission rates, as well as pro-rated or "wash up" rates for such abbreviated stays, in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila. (Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said

OCTAVIANO, Leslie Anne O. 2006-33060

The Law on Local Governments Prof. Gisella D. Reyes

establishments but would mean the same or would bear the same meaning.) The Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order in the RTC. Petitioner White Light Corp. (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC), who are operators of drive-in-hotels and motels in Manila, sought to intervened to have the Ordinance nullified on the ground that the said Ordinance infringes on the private rights of their patrons. The RTC ruled in favor of petitioner, holding that the Ordinance strikes at the personal liberty of the individual guaranteed by the Constitution. It held that illicit relationships which the ordinance sought to be prevented could still be consummated by simply paying for a 12-hour stay. The CA reversed the decision of the RTC and affirmed the constitutionality of the Ordinance. It ruled that the ordinance had a lawful object that is obtained through a lawful method. Respondent City contended the ordinance is valid exercise of police power. It invoked the Section 458 (4)(iv) of the LGC, under which a city is empowered to regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports. Issue: a. WON the petitioners have standing b. WON Ordinance No. 7774 is a valid exercise of police power Held: a. YES. it is clear that the business interests of the petitioners are likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such special interest groups in our nation such as the American Civil Liberties Union in the United States may also be construed as a hindrance for customers to bring suit. b. NO. The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement.

It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment. Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. Consideration must be given to the legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative. Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification.

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