Case Number

AAA 2469/12

Date Decided

6-25-2013

Decision Type

Appellate

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

An appeal against the judgment of the Tel Aviv Administrative Court, in which the Court rejected a petition by the Appellants, owners of grocery stores in Tel Aviv, to order the Tel Aviv Municipality to close the businesses operated by Respondents 2-6 (the A.M.P.M and Tiv Taam supermarket chains, hereinafter: the “Respondents”), which are open on the Sabbath, in violation of Section 2 of the Tel Aviv-Jaffa (Opening and Closing of Stores) Ordinance, 5740-1980 (hereinafter: “the Ordinance”), which prohibits opening stores on the day of rest. It shall be noted that each Sabbath the Municipality issues fines in the amount of NIS 660 to businesses that operate on the day of rest, under Section 265 of the Municipalities Ordinance. Given that the Municipality has additional authorities to enforce the Ordinance beyond imposing fines, including filing a motion for an order to close a business that violated the provisions of an ordinance passed according to Section 249(21) of the Municipalities Ordinance (Section 264A of the Municipalities Ordinance) – the issue at hand is whether the Municipality was obligated to exercise them?

The Supreme Court (opinion by Deputy President M. Naor, with President A. Grunis and Justice E. Rubinstein, concurring) upheld the Appeal on the following grounds:

Regarding judicial review of an administrative agency’s enforcement policy, the Court ruled that: “indeed, in order for the Court to intervene in the scope of enforcement of one law or another, the competent agencies must completely absolve themselves of their duty to enforce the law […] or unreasonably refrain from fulfilling their duty”. However, when dealing with enforcement policy, the agency’s discretion exists within the law and the need to enforce it. The agency has a duty to uphold the law and insist upon others upholding it as well. To the extent that the administrative agency’s position is that it is no longer appropriate to enforce the law, it cannot absolve itself of the duty to enforce it, but rather may act to change the law – and a fortiori when an ordinance is at stake, as in the case before us. However, as long as the law has not been changed, the agency must act according to the existing state of the law.

There are possible exceptions to the agency’s duty to enforce the law, such as when the law is anachronistic and conflicts with existing social positions. Such an exception does not exist here. The Municipality does not maintain it is inappropriate to enforce the Ordinance due to the nature and culture of Tel Aviv-Jaffa. It instead argues that it is in fact enforcing the Ordinance through imposing fines on anyone who opens their business in violation of the Ordinance. The Respondents are those arguing that due to the nature and culture of the city, the Municipality should not be forced to enforce.

The agency’s duty to enforce the law means that the range of reasonable discretion at the enforcement stage – as broad as this range may be – is more limited than the range of discretion it had when passing the Ordinance. After passing the ordinance, the agency must exercise its discretion under the ordinance and its objectives. As a rule, the administrative authority must enforce the ordinance it passed and it no longer has broad discretion on whether to enforce it.

The purpose of exercising an enforcement policy is, naturally, to bring about the actual enforcement of the law. Exercising ineffective means of enforcement does not realize this purpose. Lack of effective enforcement deals a severe blow to the rule of law.

When the means employed by the administrative agency bear no fruit, refraining from employing additional means could, in certain circumstances, lead to conclude that in fact the agency is refraining from fulfilling its duty to exercise discretion or that its discretion is unreasonable. In any event, when the existing enforcement policy does not lead to the desired result, the administrative agency must, at the very least, consider exercising additional means of enforcement within its authority. Refraining from considering additional means of enforcement in such circumstances could constitute a flaw in the agency’s conduct – a flaw which merits the Court’s intervention.

In this case, there is no doubt that the Respondents are violating the Ordinance. As such, in principle, the Municipality must act to close these businesses on the day of rest. This does not stem from a “religious” or “secular” perspective. It stems from the perspective that the law, including the Ordinance, must be followed.

Enforcing only by imposing fines is not, to the proper extent, realizing the objective of the Ordinance. The objective of the Ordinance, in light of the social and religious values regarding the day of rest, means that businesses should indeed be closed on the day of rest – not that businesses who wish to open their doors on the Sabbath can do so provided they are willing to pay a fine.

Enforcing only by imposing fines effectively enables continuous violation of the Ordinance by businesses that are part of large retails chains, who are economically resilient and who remain sufficiently profitable each Sabbath. It is therefore still in their benefit to continue to open their doors on the day of rest, despite the fine.

The outcome of this enforcement is that the Respondents gain profits from an additional business day on the weekend. The Municipality’s treasury benefits from the significant fines it imposes upon the Respondents each week. But the rule of law – which requires obeying the orders of the law – is compromised. This difficulty grows when it becomes impossible to ignore the concern that it is convenient for the Municipality – in light of the economic benefits of imposing fines – not to insist upon following the Ordinance.

If the nature and culture of Tel Aviv-Jaffa requires, in the opinion of its elected leaders, not to close businesses such as the Respondents’, on the Sabbath, the Ordinance may be changed in the manner prescribed by law. However, as long as the Ordinance has not been changed, the operating assumption is that it is to be followed.

Indeed, the Municipality’s authority to request a Prohibition to Open Order, under Section 264A of the Municipalities Ordinance, is discretionary. The Municipality is not required to exercise this authority each and every time the Ordinance has been violated. However it must consider whether and how to exercise the various means of enforcement it has in its toolbox.

The submissions demonstrate that the Municipality chose to impose fines on Respondents 2-6. They do not demonstrate that the Municipality so much as considered approaching the Local Affairs Court to move for a Prohibition to Open Order. Neither considering the possibility of filing a petition for such an Order, nor examining any other option for achieving – to a reasonable and proportional degree in light of all considerations – the Ordinance’s proper enforcement, constitutes a violation of the Municipality’s duty to act and to exercise discretion.

In these circumstances, the Municipality violated its duty to exercise discretion from time to time, and in doing so, its conduct was flawed as to merit the Court’s intervention.

The Appeal is upheld and the matter shall be remanded to the Municipality so that it exercises its discretion and adopt a meaningful decision on how to exercise its authorities under Section 264A of the Municipalities Ordinance or any other power in addition to its power to impose fines. The Municipality shall examine its position regarding the Ordinance’s enforcement within 60 days from the date of this decision. The Municipality’s decision in this matter shall be delivered to the Appellants’ attorney and, of course, is subject to additional judicial review.

Justice Rubinstein joins and refers to two additional issues: the Municipality’s conduct as a public entity, and the insult to the Sabbath as a national and religious day of rest for the Jewish people. Justice Rubinstein ends his ruling with the hope that city leaders will succeed in identifying an enforcement mechanism, which would honor the law and the Sabbath, as well as be reasonably satisfactory to the fair residents of Tel Aviv who wish to rest.

Keywords

Administrative Law -- Discretion, Administrative Law -- Judicial review, Jewish Law -- Shabbat

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