Establishments receiving of the public

Policing powers of the mayor

The establishments receiving of the public represent a category of quite specific ships. The legislator decided to adopt about them safety measures specific concerning to construction, the implantation, insulation compared to the third parties, with interior installations, the emergency exits, the technical installations, lighting, the heating, split, the backup facilities, the monitoring, etc You are the main authority in charge to make adhere to these regulations.

According to item R 123 38 of the Code of construction and dwelling, exceptional regulations, either in aggravation, or in attenuation, can be planned for certain establishments because of their design or their specific measure. It belongs to you to define them on assent of the Commission of security.

> 1.La concept of establishments receiving of the public

item R. 123-2 of the Code of construction and the dwelling, constitute establishments receiving of the public “all ships, buildings and chambers in which people are allowed, either freely, or with the help of a remuneration or an unspecified participation, or in which are held of the meetings open to all coming or on invitation, paying or not”. Thus, establishments receiving of the public constitute the village halls, the schools, the stores, the hotels, sports equipment, the hospitals, the l/g hinges beam, the establishments of the worship, the old people's home.

Are regarded as belonging to the public all the allowed people in the establishment, with some bond that it is, in addition to the personnel.

>According to item R 093 11 of the Code of construction and dwelling, there exist several categories of establishments receiving of the public:
1e category: above 1.500 people;
2nd category: from 701 to 1.500 people;
3rd category: from 301 to 700 people;
4th category: 300 people and below, except for the establishments understood in the 5th category;
5th category: establishments being covered by the article R 628 16 in which the payroll of the public does not reach the minimum figure fixed by the safety regulations for each type of exploitation.

> 2.Vos capacities with respect to the establishments receiving of the public

item R 224 41 of the Code of construction and the dwelling, you are the main person charged to ensure the safety in the establishments receiving of the public. You are led to intervene at the time of construction, the opening and during the receiving operation of the establishments of the public.

If you hold your main capacities with respect to the establishments receiving of the public of a special font, you can also act by supporting you on your general policing powers resulting from the item L 2210 2 of the general Code of the territorial collectivities (see EC, July 21st, 1995, Epoux Will dribble, . EC. p. 942; EC, April 5th, 1996, limited liability company the Olympic club and , 647203 According to item R 823 99 of the Code of construction and dwelling, the representative of the State in the department can take, for all the communes of the department or several of them, as in all the cases where it is not provided there by the municipal authorities, all measurements relating to the security in the establishments receiving of the public. This right is exerted with regard to the establishments of only one commune or one only establishment only after one injunction sent to the mayor remained without result.

> 2.1 Your capacities with respect to the construction of a receiving establishment of the public

item R 443 27 of the Code of construction and the dwelling, you cannot deliver, for a receiving establishment of the public, the permit building that after consultation of the Commission of security.
In the event of favorable opinion of the Commission of security, you can deliver the permit building since this last adheres to the other regulations (rules of town planning in particular). The Commission of security can accompany its favorable opinion by specific regulations which will have to be adhered to.
In the event of unfavorable opinion of the Commission of security, you cannot deliver the permit building, according to the item of the Code of town planning.

For the delivery of a permit building of a receiving establishment of the public of the 5th category, the consultation of the Commission of security is not obligatory (see EC, October 13rd, 1993, ).
If work is not forwarded to obtaining a permit building, the consultation of the Commission of security and an prior approval of your share is however necessary.

> 2.2 Your capacities with respect to the opening and of the operation of a receiving establishment of the public

According to the Code of construction and dwelling, you are qualified for:
>To authorize, after opinion of the Commission of security, the opening of the establishments receiving of the public or the reopening of those which were closed during more than ten months ( item).
In the event of favorable opinion of the Commission of security, you can take a closure of opening which you must notify with the operator by registered letter with acknowledgment of delivery. You must also transmit it to the prefecture within the framework of the control of legality.
In the event of unfavorable opinion, you can prohibit the opening of the establishment while referring to you with the failures with the regulation listed by the Commission of security. You also can, by closure, to authorize the opening of the establishment. However, in the event of accident in this establishment, your responsibility could be then engaged.

It belongs to you, for the establishments which request a reopening, to check that necessary works were indeed completed (see EC, January 21st, 1994, limited liability company the #7F3545 Night, 127869 The absence of response of your share to a request for opening of an establishment receiving of the public for four months is equivalent to a rejection.
>To receive the official reports of the reports of the periodic or unexpected inspections of the establishments in the course of operation realized either on the initiative of the Commission, or at your request or that of the prefect (item R 553 29 Within sight of these reports, you can ask the operator to complete various work in order to conform to the regulation.
>To order, after opinion of the Commission of security, the closing of the establishments exploited in infringement with the texts (item R 123 59 Except in the event of urgency, you must beforehand have always put in residence the operator of the establishment to make necessary works with the compliance with the safety regulations (see EC, April 28th, 1976, ). The owner or the operator must also be invited to forward his observations on the observations carried out by the Commission of security and the proposed measure (see EC, February 28th, 1996, limited liability company “the Thistle”, 206968 Lastly, this decision of closing must be justified in fact and in law pursuant to the law of July 11th, 1979.

This injunction, by recommended with acknowledgment of delivery, must contain the following elements: the recall of the inspection of the Commission of security, the type and the category of the establishment, the enumeration of the failures to the safety regulations, the opinion of the Commission of security, the formal notice to close the establishment, the injunction to complete necessary works.
On the assumption that the continuation of the exploitation involves a danger which can be described as “serious and imminent”, you can approach by a summary procedure the chairman concerning the Court of Bankruptcy (see Item 65425 of February 26th, 1996, OJ YEAR, November 4th, 1996, p. 5788).

If the operator does not yield with your decision, it can be the subject of the penal sanctions provided for with item R. 152-4 of the Code of construction and the dwelling.

> 3.Vos responsibilities

Within the framework of the exercise of your policing powers as regards receiving establishment of the public, you can see your engaged responsibilities penal and civil.

> 3.1 Your criminal responsibility

You can be continued penally for homicide and involuntary injuries because you did not use your policing powers in a correct way.
example: you can be penally continued to have let function a receiving establishment of the public not answering the security standards (see . . of Rennes, September 30th, 1996, “psychiatric private clinic of ”; . . from Toulouse, February 19th, 1997 and CA Toulouse, January 29th, 1998, “Thermal baths of ”); you can be penally continued to have delivered a permit building in ignorance of the legislation relating to the establishments receiving of the public.

> 3.2 Your civil responsibility

If it is not proven that the use of the policing powers was the detachable fault purpose of the service of your share, your civil responsibility will be always assumed by the commune.

Card-index realized by Bernard , qualified schoolteacher of public law, avocado at the bar of Paris, François , assistant of public law at the University of Metz,
1st of and François , allocatee-monitor at the University of Metz
References
Items L. 123-1 and L. 123-2 and following, and R 182 57 of the Code of construction and the dwelling;
Decree 49 690 of March 8th, 1995 relating to the departmental advisory Commission of security and accessibility;
Circular of June 22nd, 1995 relating to the departmental advisory Commissions of security and accessibility;
Item L 2210 2 of the general Code of the territorial collectivities.
More
Code general autonomous regions, editions of the Monitor, Tome 2, item L 2210 2.
Vade mecum of the municipal action, collection Mail of the mayors and the town councilors, editions of the Monitor, “clean capacities of the mayor in his share on behalf of the commune”, pp. 36-42.

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