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October 2, 2017

IF YOU WANT TO OPERATE A CASINO IN COLOMBIA: PREVIOUS CONCEPT HOW TO APPLY AND WHAT TO DO IF YOU ARE DENIED

Previous concept Municipal Hall. In Colombia for those who do not know, the casinos or local slot machines must, among others, have a prior permission from the mayor of the city where they will be installed.

Dear readers, with regard to all the problems that have been presented in various cities of the country on the so-called “Prior Proposed Concepts of Mayors” or “Concepts of Location”, usually confused with the so-called “Uses of Soil” In the process of authorization of the activity of localized games of chance. Today it seemed vital to guide them and explain how and what to do in case of having to request a prior concept and the step to follow in case it is denied.

Please take the time to read this news and share it because for its elaboration we have the valuable collaboration of Dr Leon Dario Montoya well known in the industry of games of chance and that has written many columns of opinion in this, his house

It is good for entrepreneurs to know what their rights are and what the duties of the municipalities in this matter so that you know how to apply, before whom and especially, what you can do when you are denied it for the first time or even when you are denied renewal

But before it is good to know the nature of these Previous Concepts as well as its normative regime.

The legal nature of the Mayor’s Favorable Precedent is very clear, thanks to the abundant jurisprudence that has been issued on this matter in the High Courts, especially the Constitutional Court has been reiterated in defining clearly on these concepts what appears to be a bit confusing In the Law and in the Constitution, itself.

For example, in Judgment C-173 of 2006, with the presentation of Magistrate Humberto Antonio Sierra Porto, the Court has made clear the nature of the Prior Favorable Concepts that have been contemplated by Law 643 of 2001, as a necessary prerequisite for the Establishment, installation and operation of localized games of chance (machines and games of casinos, among others). In this important ruling, the highest constitutional court has said:

In that sense, the issue of a prior and favorable opinion, as a constituent element of a complex administrative act, is not merely a formality, but an act of material content, and must therefore be reasoned. In sum, the previous and motivated concept that the mayor must render in terms of the installation of games located in their respective municipality is an act of material content, which must contain factual and legal considerations, and therefore, may be susceptible to be controversial judicially.

With the recognition of its nature as an administrative act, these very important qualities are attributed to these very important qualities:

1. They must be motivated, that is to say, when they are granted and, above all, when they refuse, the Municipalities must clearly support this refusal, stating the reasons of fact and of law for which they deny it, Those that are sustained.

2. The applicant or interested party must be allowed to dispute, that is, to file the so-called appeals of the government, replacement and appeal, or only replacement, as the case may be. In those cases where the denial comes directly from the Mayor or his Delegate, only admits recourse, if not, must admit an appeal to the Mayor.

3. The Negative or Positive Prior Concept can be a simple act as when a single official responds from his competence (he may be the same Mayor or the Secretary of Planning for example) or it may be a complex act, such as when the Inspector u Another official who visits and issues a concept, then another official such as the Secretary of Government or Planning issues a visa and then the Mayor or his Delegate sign or issue the final concept, in this case, such procedure as well as the competencies To act in the expedition of the concept, is established in the municipal norms (Municipal Agreement, Manual of Functions, or similar).

4. There must be an express normative basis for the refusal and this ground must be specific, that is to say, in the respective Municipal Agreement through which the Territorial Planning Plan or POT (EOT or PBOT according to the number of inhabitants) was issued. Clearly indicate in which cases and in which zones the operation of Luck and Chance Games is allowed, and what are their conditions and requirements.

5. In the event that these rules of Territorial Ordinance (OT) do not establish a prohibition or rules or requirements that imply the refusal, IT MIGHT NOT be for any other reason that there is a refusal on the part of the Mayor or the Municipal Administration.

However, from the previous aspects that derive from the nature of administrative act enjoyed by the Preliminary Provisions for Games of Chance and Localized Gambling, we allow to make several practical recommendations that can be very useful for Concession Operators of this activity:

1. Ask for the Favorable Pre-Concept early enough because in some cases Mayoralities may be delayed or simply because it may be a matter of controversy or appeal when denied and this takes time (usually 2 or 3 months).


2. When you already have a favorable prior concept, when you request your “renewal” as suggested by some times COLLECTIONS, do not request it as “Renewal” or “Extension” or as a new one, rather ask to be certified if the Concept already granted to a particular establishment, is in force or if conditions have been varied according to current OT standards. It should be noted that this question is meager or innocuous, but it has to be done, because the OT rules have varied, there is an “established use” that the municipality must respect, it can only be revoked through a process involving Consent of the same interested party, therefore, the Mayor should only respond that said concept remains as long as the activity is not interrupted, do not vary conditions or do not transgress the rules generating a negative impact on the area where it is located.

 

“However, of the above, COLJUEGOS has forced that every one that is going to subscribe contract, in spite of not existing solution of continuity or interruption of activity, goes to the mayoralties every 3 or 5 years”


3. Verify that you clearly explain the reasons why the concept is denied, also indicating the rules that are allegedly allowed to deny it, otherwise within the next five (5) days, hopefully less, submit a new letter interposing replenishment resources and appeal (it does not matter that they only grant the replacement in some cases, it never hurts, ask more than less in this type of processes). With this writing, you must gather all the documentation, and explain why you do not agree with the denial, and demanding that you indicate the rule or specific rules for which you are denying. With this response, at least you can apply for a guardianship or other judicial actions even compensation that can prosper.


4. In the event that the establishment is not new, which has been in operation before, it must use the most favorable OT standard that have been in force since it was first granted, so the Mayor is obliged to apply those rules , These rules of prohibition or freezing must be prior to the start of the activity, and this can be demonstrated with the date of commercial registration and with the contract, and in these cases whenever you make the request or file the appeal must be made known that the Establishment has been operating since before, that has not interrupted activity and that has all the requirements of Law.

“As you can see, there are many mechanisms that you can use and the law is clear, as we explain here. What I recommend is do not leave everything for last minute because this type of procedures take time “

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