Ombudsman rules complaint of the Marketplace vendors against the removal of kiosks founded
In the case filed by a group of thirty Marketplace Vendors, the Ombudsman considered the Complaint founded, and ruled that the standards of Reason, Active and adequate information provision, and Reasonableness and proportionality have been violated.
On 12 October 2017 thirty (30) Marketplace vendors, represented by Mrs. Ingrid Grell-Davis (Complainants), informed the Ombudsman that they were negatively affected by the decision of the Minister of Tourism Economic Affairs, Traffic and Telecommunication (Minister TEATT) to breakdown and remove all Kiosks in Philipsburg.
Complainants alleged that they were not consulted, nor informed on the matter, nor could their concerns be properly addressed by representatives of the Department of Economic Affairs.
Pursuant to the law, the Ombudsman investigated whether the Minister of TEATT observed propriety in the decision and execution to remove and relocate the Marketplace kiosks without informing the affected vendors.
Responding to queries from the Ombudsman, the Minister of TEATT mentioned that a report dated November 16, 2016 established that the market was already in need of repair prior to the passing of Hurricanes Irma and Maria.
The Minister alleged that the damages sustained post Hurricanes Irma and Maria greatly exacerbated these conditions; the decision to remove the kiosks came due to the fact that all vending stalls were damaged.
The Ombudsman however established that according to a report dated 16 November 2016 from the ‘Marktmeester’ only five light poles and some tiles were damaged, while some bricks needed to be reset and water retainers for the palm trees needed to be replaced.
No repairs were needed for the kiosks.
Two damage assessments after the Hurricanes, dated respectively 27 September 2017 and 24 October 2017, showed that 3 of the 27 kiosks were destroyed beyond repair, 4 suffered structural damage and 20 lightly damaged, but could be repaired.
The Ombudsman therefore concluded that the facts provided in the request to the Ministry of VROMI by letter of 5 October 2017 to temporarily remove the kiosks were not covered by the reports provided by the Minister.
Consequently, the Ombudsman observed that actions taken by government should be carried by facts and logic, communicated to the citizen.
The decision of the Minister lacks proper reason, motives and grounds.
The standard of Reason has been violated. Proper reasons, motives and grounds should be provided and explained to the citizens affected by decisions made by government, as well as proportionality observed.
A public body cannot act on the basis of its own discretion nor can it act randomly; every decision and action of a public body has to be properly motivated.
Notwithstanding the intention of the Minister to relocate the vendors, and as subsequently reported in the media, in order to provide the tourists an upgraded Marketplace experience, no tangible considerations regarding the impact of the decision has on the livelihood of the vendors were presented by the Minister in responding to the questions posed by the Ombudsman.
Neither was a plan of approach presented to materialize the relocation of the vendors and safeguard their livelihood, nor was such timely discussed with the vendors.
On the contrary, relocation dates and information provided to the vendors after the intervention of the Ombudsman were not met.
The Complainants should have been informed promptly upon taking such a decision, which severely impacted their livelihood and that of their families. As such the ‘standard of active and adequate information provision’ has also been violated.
Pursuant to the “Landsverordening Openbare straathandel‘, the Minister TEATT designates the place for keeping markets and issues the licenses to persons to sell merchandise on these locations.
As such it behooved the Minister to carefully weigh the impact of the decision taken against the interests of the vendors. ‘The standard of reasonableness and proportionality’ requires that the negative consequences of an action to achieve a certain goal may not be disproportionate to the interests of the citizen, or group of persons.
The considerations presented by the Minister do not establish however that proportionality has been observed in the decision to (temporarily) remove and not restore the kiosks.
In this light the Ombudsman observes that the standard of proportionality requires that the measure that interferes the least with the interest of the citizen should prevail and be employed.
The Ombudsman recommended the Minister:
To ensure that at all times proper reasons, motives and grounds be observed, provided and explained to the citizen in general, and the complainants in particular, in all pending decisions. And to inform complainants in writing about the steps taken and the action plan regarding the relocation of the Marketplace structures, with copy to the Ombudsman.
The full report regarding this matter can be read on the Ombudsman website: ombudsmansxm.com.