LEGAL OPINION RE TRICYCLE CODING ORDINANCE

Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
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LEGAL OPINION NO.: _____________

21 July 2014

MR. CYRUS JOSE J. URBANO, CPA, MBA
City Administrator
This City

Sir:

Kanami Koronadal!

This is with reference to the Reports of the SP Committee on Good Government, Public Ethics, & Accountability dated April 28, 2014 and June 16, 2014, both re: Petition of Jonathan Bugnos, et al., dated April 10, 2014, urging the Sangguniang Panlungsod of Koronadal to investigate the implementation of Ordinance No. 08, Series of 2011 (Ordinance, for brevity), which you forwarded to this Office for perusal and recommendation.

As gathered, the facts are as follows:

1. The Ordinance mandated, among others, that as a condition for issuance of tricycle franchises, the units must be painted in accordance with the standards provided under the ordinance.
2. The said Ordinance also provided for the allocation of funds to cover a portion of the expenses for the painting to be subsidized by the City Government.
3. The City Bids and Awards Committee conducted a competitive bidding in accordance with RA 9184 and its IRR, and as a result, Shemarie Construction Supply (Shemarie, for brevity) qualified, won and was awarded with the contract.
4. Via Resolution No. 1087, Series of 2012, the SP subsequently approved new MTOP’s, but although the Ordinance requires the units to be painted in accordance with the stated standards, no funds were appropriated in the form of subsidy for the painting thereof.
5. The City Franchising Office, as mandated to implement the Ordinance, continued to require the tricycle operators to have their units painted as a condition for the issuance of their franchises, this time, on their own. The operators are, however, referred to Shemarie, being the one with the technical knowledge and expertise in the color combination and security features, and for purposes of maintaining uniformity. Relative thereto, it is to be stressed that the philosophy behind the color codification is primarily to ensure that despite the ingenuity of some to imitate the color combination, it would be easier for the traffic enforcers to determine the colorum tricycles from the legitimate tricycles.

This Office is therefore confronted with the following issues:

1. May the tricycle operators granted with new MTOP’s demand for the subsidy provided under the Ordinance?
2. May the tricycle operators choose any painter to perform the painting jobs for purposes of complying with the Ordinance?
3. May Shemarie continue to perform painting jobs for its clients?
4. May Shemarie continue to use the grounds of the City Hall in conducting such business?
5. What must be done now that the contract with Shemarie has already expired and no funds were allocated to partly subsidize the painting and renumbering of the tricycle units issued with new MTOP’s?

On the first question, the tricycle operators granted with new MTOP’s cannot demand for the subsidy as provided under the Ordinance, because the funds appropriated thereunder were intended for the “painting and renumbering of all motorized tricycles-for-hire with active MTOPs” (See Section VIII, par. 1). Unless and until a new appropriation ordinance is enacted granting such subsidy for the newly issued MTOP’s, it cannot be enforced as a matter of right.

The second question must be answered in the negative. Only sign painters duly appointed by the City Government may perform the painting and renumbering of the subject tricycles. The Ordinance, particularly, Section VI, par. A (1), in relation to Section IV (7), expressly provides:

xxxx xxxx

“SECTION VI. RULES AND PROCEDURES

xxxx xxxx

B. MOTORIZED TRICYCLE-FOR-HIRE: COLOR CODING AND RENUMBERING

xxxx xxxx

1. All operators of motorized tricycles-for-hire with active MTOP issued by the city government must cause their units to be painted with GOLDEN YELLOW by a sign painter duly appointed by the City Government.

xxxx xxxx

“SECTION IV. DEFINITION OF TERMS

As used in this ordinance, the following terms shall mean as:

xxxx xxxx

7. SIGN PAINTERS – are those persons duly appointed by the city government to perform the painting and renumbering of tricycles with active MTOPs for the purpose of uniformity.” (emphasis supplied)

xxxx xxxx

As to the third issue, on the assumption that it has the requisite business permit, Shemarie is not prohibited from doing business, including painting jobs for tricycle units. However, for purposes of the issuance of the MTOP’s, Shemarie is required to secure an accreditation from the City Government before it could perform the painting and renumbering of the tricycle units.

On the fourth issue, however, considering that Shemarie now conducts its business on its own, after its contract with the City Government has ended, Shemarie cannot validly utilize the City Hall grounds without the permission of the City Government in the conduct of its business operations.

As to the last question, considering that there is no appointed sign painter yet, after the contract of Shemarie expired, the Local Chief Executive may now fill in the gaps in the implementation of the Ordinance through the issuance of an Executive Order setting forth the requirements for the accreditation of the sign painter. For purposes of the MTOP’s, only the accredited sign painters may perform the painting and renumbering of the tricycle units to give life to the intent of the Ordinance of ensuring uniformity, thereby helping our law enforcers in the implementation of the Ordinance.

We therefore disagree with the recommendation of the SP Committee on Good Government, Public Ethics and Accountability “[t]o allow the operators of Motorized Tricycles-For-Hire with approved MTOP to cause the painting of their own units, unless and until the City Government of Koronadal shall be able to identify and duly designate an official painter for the codification of tricycle units in the City of Koronadal xxx.” This would be violative of the very Ordinance which the SP itself enacted.

The City Government, however, may appropriate funds to partly subsidize the painting and renumbering of the tricycle units with newly issued MTOP’s, in the same manner that it subsidized the painting and renumbering of the first batch of tricycles. This would be in keeping with the principle of fairness and equality before the law.

Pending the accreditation of the sign painters, those tricycle operators with approved MTOP’s should be allowed to operate their units because they cannot be unduly burdened by the circumstances that are beyond their control.

We hope that we have sufficiently addressed your concerns.



Yours truly,




ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer

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ATTY. MARY GRACE L. VENTURA
Attorney IV



cc: CMO, CAdmin, File