Suppose you are faced with a penalty payment order. A first question that then arises is whether it is justified. This will always have to be assessed sharply. But even if the conclusion is that the order has been rightly imposed, recovery of a penalty payment forfeited (allegedly) pursuant to that order need not be. After all, for this too it will have to be sharply examined whether it is absolutely clear that you have committed the alleged violation.
That that assessment can still sometimes go wrong is shown, for example, by a ruling by the Administrative Law Division of the Council of State on August 29, 2018 (ECLI:NL:RVS:2018:2849).
What was going on?
This case concerns 'Dutch nights' organized by the soccer club IJsselstreek in Deventer. According to an interest group of local catering entrepreneurs, organizing these evenings violates the General Local Regulation (Apv). They are asking the mayor for enforcement and to impose an order under penalty to prevent these - and similar - evenings. According to the business association, Article 2.34b of the Apv is being violated. It states:
A paracommercial legal entity shall not provide alcoholic beverages during meetings of a personal nature and meetings aimed at persons who are not or not directly involved in the activities of the legal entity in question.
Soccer club IJsselstreek is a so-called 'paracommercial legal entity'. According to this provision it is not allowed to serve alcohol during meetings to persons not involved with the club. The soccer club is of the opinion that it does not violate the Apv. Events organized by it are intended only for members, former members, donors and sponsors.
Supervisors: Apv being violated
The municipality wants to check whether the Apv is indeed being violated. To that end, a supervisor dressed in civilian clothes buys a number of tickets at a local snack bar, not checking whether he is also a member of the soccer club.
He then goes with a colleague to a "Dutch night," where they are admitted without incident. Upon entering, the supervisors receive a donor card and are told that from now on they can call themselves donors to the soccer club and attend all Dutch nights. Next, the supervisors find that alcohol is being served on this evening for a fee. All this is recorded in an official report.
The mayor then imposed an order under penalty of €10,000.00 on the soccer club to prevent another violation of the Apv (Article 2.34b, second paragraph).
Despite charge, new party is organized and violation is found
Despite the enforced order, the soccer club is once again organizing a party. This time a "kick-off party" to mark the beginning of the new soccer season.
Also on this evening, supervisors came by and found that the Apv was once again being violated. The supervisors observe that evening that there is a singer in front of the audience, which consisted of 150 to 170 persons. Many of these persons are holding plastic cups of beer that evening. The supervisors also observe crates of beer and cans of mixed drinks in the storage area and note that consumption tokens are available for two euros each, after which they completed the inspection.
Since the imposed order under penalty has thereby been violated, according to the mayor, the mayor proceeds to recover the €10,000.00 from the soccer club.
Appeal
The soccer club disagreed with the imposed order for a penalty payment and the subsequent recovery decision. After being ruled against in objection and appeal proceedings, the soccer club turns to the Administrative Law Division of the Council of State. In the appeal proceedings, the Division must rule:
(I) whether the mayor was justified in imposing an order for periodic penalty payments and in addition;
(II) whether the charge was also violated so that the mayor could proceed with collection.
(I) Department: charge rightly imposed
The Division is quick to decide whether the charge was justified. In doing so, the Division relies on the findings of the supervisors. It was possible at the first visit to the "Dutch evening" without effective and adequate control to obtain admission and donor tickets for a number of subsequent Dutch evenings. This means that those evenings were also aimed at persons who were not or not directly involved in the activities of IJsselstreek. This means that the Apv is violated and the mayor was right to impose an order under penalty.
(II) Section: wrongly proceeded to recovery
The Division then turns to the question of whether an amount of €10,000.00 was also rightly recovered. Here, too, the Division relies on the findings of the supervisors. And those findings lead the Division to the very conclusion that the violation has not been proven. After all, at the "Kick-off party," the supervisors did not check who the festivity was open to. Nor did the supervisors check who was present at the party. As a result, it cannot be determined whether the gathering was also aimed at persons who were not or not directly involved in the activities of soccer club IJsselstreek. And precisely that point constitutes the essence of the violation, the Division argues. The Division thus draws the conclusion that the soccer club complied with the charge and the mayor wrongfully collected an amount of €10,000.
Conclusion: justified charge does not yet mean justified recovery
Even if an order for periodic penalty payment is rightly imposed, a subsequent recovery decision will always have to be assessed sharply. Only if that recovery decision is based on a sound and verifiable establishment of facts and circumstances proving violation of the imposed order will a recovery decision stand up in court.
