Law No. 13.425/2017 was recently enacted, establishing general guidelines for fire and disaster prevention and control measures in commercial establishments, buildings, and public gathering areas. This law amended aspects of the Consumer Protection Code (Law No. 8.078/90) and the Administrative Misconduct Law (Law No. 8.429/92). The law will come into effect on September 28, 2017.
In brief, the Law addresses some important criminal issues: the new type of administrative misconduct attributed to mayors (art. 13) and the abusive practice of “allow entry into commercial or service establishments of a greater number of consumers than that set by the administrative authority as a maximum” (Clause XIV, art. 39, of the Consumer Protection Code).
As provided in article 13, the Mayor who, within 02 (two) years, counting from the effective date of Law No. 13.425/2017, fails to issue special rules for combating and preventing fires and disasters in places with a large concentration and circulation of people, will be committing an act of administrative impropriety that violates the principles of public administration.
The mayor's conduct, in this case, must be willful, that is, committed with the purpose of violating the principles of Public Administration. If convicted, the sanctions provided for in Article 12 of the Administrative Misconduct Law are: a) full compensation for damages, if any; b) suspension of political rights for three to five years; c) loss of public office; d) payment of a civil fine of up to 100 (one hundred) times the amount of compensation received by the agent; e) prohibition from contracting with the Government or receiving tax or credit benefits or incentives, directly or indirectly, even through a legal entity of which he is a majority shareholder, for a period of three years.
Regarding additions to the Consumer Protection Code, articles 17 and 18 of the new legislative mandate added to articles 39 and 65 of the CDC, respectively, a new type of abusive practice and criminal offense against the consumer.
According to the aforementioned articles, upon the entry into force of the new law, those responsible for commercial or service establishments who allow the entry of consumers in a number exceeding the maximum established by the administrative authority, in addition to engaging in abusive practices, may be prosecuted for committing the crime provided for in art. 65 of the CDC. Let us consider the new wording of the aforementioned criminal offense:
“Art. 65. Performing a service involving a high degree of danger, contrary to the determination of a competent authority:
- 1. The penalties of this article are applicable without prejudice to those corresponding to bodily harm and death.
- 2. The practice of the provisions of item XIV of art. 39 of this Law also characterizes the crime provided for in the caput of this article (paragraph inserted by Law No. 13.425/2017).
Penalty: Imprisonment of six months to two years and a fine.”
This is a crime of abstract danger, which is committed when the person responsible for the establishment allows entry to more people than the maximum permitted by the administrative authority. Because it carries a maximum sentence of two years, it constitutes a minor offense, under the jurisdiction of the Special Criminal Court and also subject to the decriminalization benefits provided for in Law No. 9.099/99.
It is clear that the enactment of the new law is a well-intentioned reflection of the tragedy that occurred at the Kiss nightclub in early 2013, in which 242 young people were killed due to a fire that occurred during a university party held in Santa Maria/RS.[1].
[1] Report on the tragedy, available at: http://g1.globo.com/rs/rio-grande-do-sul/tragedia-incendio-boate-santa-maria/platb/
