November 29, 2020

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There are limits on the restrictions that mayors may impose

Amidst the increase in cases of COVID-19 infection, several municipalities have begun to adopt various restrictive provisions in order to prevent the spread of the potentially deadly coronavirus.

For example, the Municipality of San Juan announced that Old San Juan would be closed to people who are not residents of it or who are not staying there, during the period in which the curfew is in force according to the executive order, between 10:00 pm and 5:00 a.m. Mayor Carmen Yulín Cruz also announced that she would issue an order to close the bars starting at 8:00 p.m. in Old San Juan if there are no changes in the executive order, and also announced restrictions on hours in markets and other places in the municipality, as well as the imposition of fines for failing to comply with the use of masks.

In Cabo Rojo, the Mayor Roberto Ramírez also announced similar measures with a curfew between 7:00 pm and 5:00 am, as well as the closing of beaches, bars and boat ramps, and the closing of almost all businesses during the next two Sundays (July 19 and 26).

But with these provisions, some people They have also begun to question whether it is not the case that the municipalities are exceeding themselves by issuing all those restrictions, even when they do so with the good intention of seeking to protect their citizens.

As explained by attorney Edgardo Román, president of the College of Lawyers, the municipalities can impose restrictions whenever it is done under certain parameters and limitations, seeking a balance between the purpose of the measure and the rights of the citizen.

“First of all, we recognize the role of mayors and mayors, and their desire to protect their citizens, particularly in those towns without hospitals or with health centers with limited hours. However, it should be noted that the Autonomous Municipalities Law, although it gives powers to mayors, are limited powers, "said Román.

He explained that, for example, a mayor could not unilaterally enact a curfew, but that it would have to have the support of the municipal legislature, and furthermore, that curfew would have to be within the territorial limits of the municipality, and in order to attend, “reasonably” to a particular situation.

“The order should not be confusing, your language should be clear. And if it is going to affect constitutional rights, such as freedom of expression, that incidentally those rights are not absolute and can be limited under certain exceptional circumstances, you have to take stock of interests, "added Román.

For example, he took the recent events in the town of Boquerón during the weekend of July 4, "that there were people out of control and the whole country could see that", in which case the sale of drinks could be limited alcoholic at certain times. “There you see a balance, because there are people who live there, who want to rest and do not want those problems with intoxicated (drunk) people.”

Instead, he recalled the case when the municipality of San Juan tried to establish a search of all the people who went to the San Sebastián Street parties, and “it was suggested that there was an excess and the right of privacy was violated. You can limit that certain vehicles do not enter, to protect the place that is also a historical site, but registering each visitor is illegal, there must be a justified reason for that registration. "

Or, more recently, the case de San Lorenzo, where the mayor tried to limit access to the town by blocking the passage through a highway without permits from the Department of Transportation and Public Works (DTOP) and was unable to do so. "In that case, you see that even the municipality did not have jurisdiction over that road and that closure was not reasonable, contrary to what you can see from time to time, that some streets are closed to celebrate the patron saint festivities." [19659002] In addition, he indicated, any measure taken by a municipality or its mayor, "must ensure that they have the necessary resources to be able to enforce those provisions," since, if you do not have the funds, or the police, then you will not they could be put into effect effectively and would not be of much use.

Román evaluated that, at the moment, with the situation of the COVID-19 pandemic, “it could be reasonable to cancel the celebrations with crowds of people, festivals, discotheques. If there are municipal facilities such as museums, libraries, it may be decided to close them for health reasons. ”

The municipality can also impose fines on those who do not comply, for example, with the use of masks, more now that they are available and accessible to anyone. .

Instead, the lawyer expressed concern about the provisions that limit hours, or that seek to limit people's access to a place.

"You cannot think that this will be like the medieval towns that closed the bridge input and now. You cannot prevent the passage of a person to that municipality. That is illegal. And that someone gets there does not mean that virus cases will increase. You cannot establish something like this, "said Román, adding that in addition" you would have to close streets over which you have no authority, you would have to have a force of order that many municipalities do not have to assert that. "

" So everything It will depend on the scope of these provisions. If it is done correctly, complying with legal questions, regulations, with the approval of the municipal legislature when necessary, in a reasonable manner and without violating fundamental rights, ”Román insisted, reiterating the recognition of the figure of the mayor or mayor and his desire to preserve the health of the people.

“And the more reasonable the measure, the less it interferes with fundamental rights, the more possibilities it will be upheld in court if they claim it. That is why I say that the use of a mask, social distancing, because that is much more reasonable than closing roads or imposing time restrictions, "he insisted.

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