REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT > Francisco Gold Condominium It EDSA Cor. Mapagmahal St,, Diliman Quezon city LEGAL SERVICE * DILG Legal Opinion No. 51s. 2012 ATTY. ARNALDO M. TEJADA JUL 18 2012 Sangguniang Bayan Member Kalibo, Akion Dear Mr. Tejada: This has reference to your earlier letter requesting guidance on whether the Sangguniang Bayan of Kalibo, Aklan may grant a temporary franchise in favor of a certain cockpit, which is located within a residential subdivision project, hence prohibited under Presidential Decree No. 449, as amended by Presidential Decree 1802 as well as Kalibo Municipal Ordinance No. 20, seties of 1974, Per your letter, the following are the antecedent facts: = In 1974, Presidential Decree (P.D.) No. 449, otherwise known as the “Cockfighting Law of 1974", was issued. Section 5 (c) of the aforesaid Decree provides: “SECTION 5. Cockpits and Cockfighting: In General: 2000 200t 200 (c) Cockpits Site and Construction. Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. In the absence of such Jaw or ordinance, the local executives shall see to it that no cockpits are constructed within or near existing residential or commercial areas, hospitals, school buildings, churches or other public buildings. Owners, lessees, or operators of cockpits which are now in existence and do not conform to this requirement are given three years from the date of effectivity of this Decree to comply herewith. Approval or issuance of building permits for the construction of cockpits shall be made by the city or provincial engineer in accordance with their respective building codes, ordinances or engineering Jaws and practices. (Emphasis Supplied) * Based on the foregoing Decree, the Sangguniang Bayan of Kalibo approved Kalibo Municipal Ordinance No. 20 dated 23 August 1974, entitled “An Ordinance Prescribing Regulations for the Establishment, Operation, Maintenance and Ownership of Cockpits”. Section 2 of the aforesaid Kalibo Municipal Ordinance provides: “Section 2.—Any Filipino citizen or corporation, the capital of which is wholly owned by Filipino citizen shall be allowed to own, manage and operate cockpits in theMunicipality of Kalibo; provided, however, that no cockpit shall_be established within 50 meters from_any existing residential or commercial areas, hospitals, school buildings, churches, or other public buildings and provided furthermore that 20% of the total area will be allocated for parking space. Owners, lessees or operators of any exi: cockpit which do not conform with this requirement shall be given three (3) years from the effectivity of Presidential Decree No. 449, otherwise known as the Cockfighting Law of 1974, within which to meet these requirements.” (Emphasis Supplied) In 1976, a cockpit owned and operated by the Aklan Sportsman Enterprises, Inc. was constructed/established in Barangay Estancia, Kalibo, Aklan. The area occupied by the subject cockpit was subdivided for residential purposes and the Approved Plan was made as early as in 1959 or more than fifteen (15) years before the subject cockpit was constructed in 1976; Thereafter or on 16 January 1981, Presidential Decree No. 1802 was made effective and its implementing Rules and Regulations were promulgated thus: “Section 6. SITE AND CONSTRUCTION OF COCKPITS.— Cockpit _shall_be constructed and operated _within_the appropriate areas as prescribed in zoning laws or ordinances. In the absence of such zoning laws or ordinances, no cockpit shall be established, maintained and/or operated within a radius of two hundred (200) lineal meters from any existing residential or commercial area, hospitais, school buildings, churches or other public buildings. Cockpits may also be established within and/or as adjunct of resorts, sports and/or recreational project sites duly recognized and registered with the Philippine Tourism Authority, subject to the limitation of the number of cockpits allowable within the city or municipality. Approval of issuance of building permits for the construction of cockpits shall be made by the city or provincial engineer in accordance with the National building Code, ordinance or rules and regulations. Section 7. PHASING OUT OF COCKPITS.—Cockpits in existence and duly licensed to operate upon promulgation oj Presidential Decree No. 1802 on January 16, 1981 which do not fulfill the requirements with respect to site and construction or are in excess of the number therein allowed shall be phased out not later than December 31, 1981. In cases of excess of the number of cockpits in one city or municipality, the owners, lessees or operators thereof are given up to December 31, 1991 within which to reach an agreement for purposes of cooperative operation of the number of authorized cockpits. If the parties fail to reach an agreement, the question as to who will continue operation shall be determined by lottery to be conducted by the City or Municipal Mayor concerned in the presence of the parties, and under the supervision of the Commission.” (Emphasis Supplied) According to you, the cockpit owned and operated by the Aklan Sportsman Enterprises, Inc. continued to operate until the end of December2011 when its business permit expired and on said date, its application for renewal of its business permit was also denied. You also represented that the application of Aklan Sportsman Enterprises, Inc. for the renewal of its business permit was not granted since it did not comply with the site and construction requirement of PD 449, as amended by PD 1892 and 1802-A, in relation to Kalibo Municipal Ordinance No. 20, series of 1974, Such denial of the application of Aklan Sportsman Enterprises, Inc.,. according to you, has caused the owner, operator and management of the ‘existing cockpit to ask for a reconsideration since it is the only cockpit in Kalibo, Aklan, thus depriving the cockfighting aficionado a venue for relaxation and recreation which is part of Filipino culture and loss of source of livelihood for employees, and revenues for the municipality. In view of the foregoing, you are now seeking guidance on the legality and propriety for the Sangguniang Barangay to grant a temporary franchise to operate @ cockpit inside the prohibited area in the meantime that the owners and operators of Aklan Sportsman Enterprises, Inc. is looking for the relocation of suitable area in the construction and operation of a cockpit within a period of one year. We reply in the negative. Section 131 (m) of the Local Government Code of 1991 (RA 7160) defines a “franchise” as “a right or privilege, affected with public interest which is conferred upon private persons or corporations, under such terms and conditions as the government and its political subdivisions may impose in the interest of public welfare, security, and safety.” On the other hand, a Mayor's or business permit is issued primarily to regulate the conduct of business within a locality with the end view that all businesses operating therein are in accordance with law or ordinance. Since a franchise is a right or privilege affected with public interest, it is mandatory for the applicant or the grantee thereof to abide by the laws, rules and regulations enacted in relation thereto. Whenever a business is affected with public interest it may be subject fo regulation to protect the public against danger and injustice'. The same is true with respect to Mayor's or business permit since its primary objective is to ensure that all businesses within a locality are operating within the bounds of law. Let it be noted that the cockpit owned by Aklan Sportsman Enterprises, Inc. was established in 1976 or two (2) years after the issuance of PD 449. Hence, at the jime of the establishment of the cockpit by the Aklan Sportsman Enterprises, Inc., PD 449 which prohibits the construction of cockpits within residential area as defined under the concerned local government unit's zoning ordinance is already in force and effect. Furthermore, Section 5 (c) of PD 449 gave the owners, lessees, or operators of cockpits which were in existence at that time and did not conform to site and construction requirement three years from the date of its effectivity to comply with * acebedo Optical Company, Inc. vs. CA, G.R. No. 100152, 31 March 2000.such requirement. This was reiterated under Kalibo Municipal Ordinance No. 20 dated 23 August 1974. However, as could be inferred from your letter, Aklan Sportsman Enterprises, Inc. failed to comply with such site and construction requirement. Even assuming that Aklan Sportsman Enterprises, Inc. could not comply with PD 449 and the Kalibo Municipal Ordinance No. 20, may we note that on 16 January 1981, Presidential Decree No. 1802 was made effective and its implementing Rules and Regulations were promulgated both reiterating the site and construction requirement and gave the existing cockpit owners and operators at that time until 31 December 1981 to fulfil the requirements with respect to site ‘and construction requirement. Unfortunately, as could be gleaned from your letter, Aklan Sportsman Enterprises, Inc. again failed to comply with such site and construction requirement. Had it not been for the expiration of its business permit in December 2011 and the denial of its application for the renewal of its business permit by the Sangguniang Bayan of Kalibo and due to the change of incumbent local officials in Kalibo, Aklan (as you have called it), Akian Sportsman Enterprises, Inc. cannot yet be made to comply with the site and construction requirement. As already mentioned, a franchise is a right or privilege affected with public interest. We are of the view that the repeated failure by Aklan Sportsman Enterprises, Inc. to comply with the site and construction requirement despite the period of compliance provided under various issuances is inconsistent with the concept of “right or privilege affected with public interest”. We are of the further view that Aklan Sportsman Enterprises, Inc. should not have been issued with Mayor's or business permit when it did not relocate its cockpit on 31 December 1981, the last period set forth under PD 1802, since at that point in fime, Aklan Sportsman Enterprises, Inc. is already in violation of the said issuance. We hardly find relevance in giving Aklan Sportsman Enterprises, Inc. another opportunity to comply with the site and construction requirement, by giving them a temporary franchise, since PD 449, Kalibo Municipal Ordinance No. 20 dated 23 August 1974 and PD 1802 had already gave them sufficient opportunities to comply with such requirement. We are not persuaded by the arguments that its closure has deprived the cockfighting aficionado of the barangay and municipality a venue for relaxation and recreation which is part of the Filipino culture and loss of source and livelihood for employees and revenues for the municipality. In fact, we find such issuance of a temporary franchise an abdication by the local government unit to regulate the site and construction of cockpits. Further, in Canet vs. Deceno?, the Supreme Court held and we quote: “It should, furthermore, be borne in mind that cockfighting although authorized by law is still a form of gambling. Gambling is essentially antagonistic to the aims of enhancing national productivity and self-reliance. As has been previously said, a statute which authorizes a gambling activity or business should be strictly construed, and every reasonable doubt resolved so as to limit rather than expand *G.R. No. 155344, 20 January 2004.the powers and rights claimed bi chise holders under its authority.” (Emphasis Supplied) Hence, we are of the view that the Sangguniang Bayan of Kalibo should require Aklan Sportsman Enterprises, Inc. to comply with the site and construction requirement and all other requirements prescribed under existing laws, rules and regulations before issuing a franchise to its favor. We hope we have guided you accordingly. Very truly yours, > sésus ppagie v Ditéctorill Ls, sy, Copy furished: RD EVELYN A. TROMPETA 6 Parola St., Fort San Pedro lloilo City