Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Tel No. (083) 228-1742
LEGAL OPINION NO. ________
DATE : 15 November 2013
TO : CYRUS JOSE J. URBANO, CPA, MBA
City Administrator
RE : As Stated
________________________________________________________
Kanami Koronadal!
This is with reference to your letter dated 12 November 2013 requesting for a legal opinion apropos the letter of Atty. Raul O. Tolentino asking for the cancellation/revocation of the lease contract which was entered into by John Abella with the City Government of Koronadal.
It appears that on 14 January 2013, a Contract of Lease was entered into between the City Government of Koronadal, as the lessor and John Abella, as the lessee, covering Stall No. 13, Supermarket Building 1, Ground Floor of the City Public Market of this City. The lease has duration of two (2) years renewable upon its expiration unless revoked in accordance with the Local Revenue Code of Koronadal City. However, it appears from the record of the Licensing Office that Agencia Niña, Inc. under the business name, Golden Drug Store had been actually occupying the leased subject property.
Based on the foregoing facts, it can be gleaned that John Abella subleased the said property to the Agencia Niña, Inc., /Golden Drug Store.
However, note must be taken that the aforementioned contract specifically prohibits the subleasing of the above-mentioned property to any third person which provides:
x x x
“6. That it shall be inviolable [sic] violation of this contract to sublease, mortgage, sell, transfer or in any manner allow people to conduct business in the said stall/room other than the lessee himself/herself”
x x x
Also, the Civil Code of the Philippines particularly Article 1649 expressly provides, inter alia, that:
x x x
Art. 1649. The lessee cannot assign the lease without the consent of the lessor, unless there is a stipulation to the contrary."
x x x
Applying the above provisions to the case under consideration, it follows that the subleasing could not have been valid there being no proof that the City Government of Koronadal, the lessor, gave its express consent to the substitution of Agencia Niña, Inc.,/Golden Drug Store in lieu of John Abella as lessee. In view of such violation of the provision of the lease contract or for failure to comply with the terms/ conditions thereof, the lessor has a right to revoke/cancel/terminate the contract of lease with the lessee John Abella and to take physical possession of the subject property.
Section 5, B.04. Administrative Provisions.- of the City Market Ordinance provides that:
x x x
“Dummies, sublease of stalls/rooms- In any case the person registered to be the holder or lessee of a stall room/room in the public market, is found to be not the same person who is actually occupying said stall/room, the lease of such stall/room shall be cancelled, if upon investigation such stall holder shall be found to have subleased his stall/room to another person or to have connived with such person so that the latter may for any reason, be able to occupy the said stall.”
x x x
Nonetheless, it does not follow that the actual occupant Agencia Niña, Inc., /Golden Drug Store be permitted or be placed as lessee.
Anent thereto, the undersigned, consequently, recommend that the subject property be DECLARED VACANT AND REOPENED FOR APPLICATION FOR LEASE.
Please be guided accordingly.
In public service,
ATTY. EUFEMIO A. SIMTIM, JR., REA, REB
City Legal Officer
JACQUELINE MAE ESTORNINOS-SAQUILABON, LLB
Legal Assistant II
c.c
BPLS
CMO
City Market Committee
Who is Atty. Jayr?
- atty. jay_ar
- Atty. Eufemio A. Simtim, Jr. or Atty. Jayr is a licensed lawyer in the Philippines. He is a Partner at Simtim Gunay Viejo Sales Sobrejuanite Law Group, but he does only virtual consultations as he is presently out of the country. He has been in the litigation practice in most part of his legal career and has worked in the academe, in the government and in the corporate world. He also passed the PRC licensure exams for Real Estate Broker and for Real Estate Appraiser (Rank No. 5). He presently runs his Youtube Channel, @yourlawyer, providing free legal information and updates.
Thursday, November 28, 2013
LEGAL OPINION RE CONFLICTING CLAIMS OF STALLHOLDERS IN THE KORONADAL CITY PUBLIC MARKET [STALL NO. 22]
Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Tel No. (083) 228-1742
LEGAL OPINION NO. ________
DATE : 20 November 2013
TO : CYRUS JOSE J. URBANO, MPA
City Administrator
City Market Committee, Chair
SUBJECT : As Stated
__________________________________________________
Kanami Koronadal!
Subject of this Opinion is the query of herein parties, Mrs. Clarita M. Cuaresma and her son Mr. Leslie C. Lu seeking the resolution of their contest apropos the lawful leasehold right of Stall No. 22, Supermart Building Shed 2, Ground floor of the City of Koronadal Public Market lodged before the City Market Committee.
As culled from the records of the City Treasurer and Office of the Market Supervisor, and the minutes of the meetings previously called for by the Market Committee, hereunder are the uncontroverted factual antecedents:
Herein parties are Mrs. Clarita M. Cuaresma lessee of Stall No. 22 and Mr. Leslie C. Lu lessee of Stall No. 23, both in the Supermart Building 2, Ground Floor of the City of Koronadal. Both stalls are being occupied as a compact stall removing the division between them in which their family business, the Liberty Bakeshop, is situated. Both parties admit that at the onset of the business, Mrs. Cuaresma was the sole proprietor of the bakery.
Meanwhile, Mrs. Cuaresma left their business to her sister and pursued another course elsewhere. However, due to the prodding of her son, Mr. Lu, she had a change of heart and decided to instead leave the business to him, inversely promising that he will send his brother to school while his mother is away.
Pursuantly, Mr. Lu managed Liberty Bakeshop and paid the rentals and surcharges for Stall Nos. 22 and 23 in the name of Mrs. Cuaresma, in her absence.
As evidenced by Official Receipts issued by the Treasurer’s Office, rentals and surcharges were paid either by Mrs. Cuaresma or paid by Mr. Lu in her name. Also, the latest Lease Contract between the City Government and Mrs. Cuaresma duly signed by her issued on 30 August 2006 which took effect on January 2006 until December 2007. Sans the Contract of Lease from 2008 up to present, Stall No. 22 remained under the name of Mrs. Cuaresma.
Herein parties assert opposing claims of leasehold rights over Stall No. 22. In particular, Mrs. Cuaresma clung to her claim being the Lessee by virtue of the Lease Contract and as appearing in the Official Receipts of the Treasurer’s Office. On the contrary, Mr. Lu based his claim on his payment of rentals and surcharges for several times during the absence of his mother.
This office opines that Mr. Lu failed in his burden of clearly and unequivocally proving his claim of leasehold rights on the subject stall. The fact of his payment of the rentals and surcharges on the subject stall during the absence of Mrs. Cuaresma cannot mean that the latter relinquished her leasehold thereto. She may have been remiss in her obligation to personally maintain or conduct business in the said stall but this cannot belie the fact that the bakery was family-owned.
In addition, worthy of note is the records of the Office of the Treasurer which accepted payments and issued receipts for the stall in the name of Mrs. Cuaresma. Payment of Mr. Lu on several occasions is bereft of indicia of Mrs. Cuaresma’s intent to surrender or abandon said stall in favor of Mr. Lu. Had that been the case, proper procedures should have been observed.
Reason dictates that the acceptance of payments by the City Government from Mr. Lu in the name of his mother is recognition on our part that the legitimate lessee of the contested stall is Mrs. Cuaresma sans a contract of lease. Failure of Mr. Lu to show proof that he is the lessee of the stall defeats his challenge. He cannot by the mere fact of his payment of the rentals and surcharge validly claim leasehold on the stall.
Herein parties cannot undermine the proscriptions of the Local Tax Ordinance on dummy and subleasing of stalls and the lease of more than one stall in the public market.
Ergo, this office respectfully opines that Mrs. Clarita M. Cuaresma is the LEGITIMATE LESSEE OF STALL NO. 22. Further, it is recommended that the stalls of Liberty Bakeshop must be reverted to its original state. Consequently, necessary division must be constructed between Stall Nos. 22 and 23, being leased by separate individuals. This shall also serve as a stern warning to herein parties that said stalls must not be merged to form a single compact stall contrary to the provisions of Lease Contract and market ordinances. Otherwise, the City Government can, motu proprio revoke or cancel the lease and declare the stall of erring stall holders vacant.
Please be guided accordingly.
In public service,
ATTY. EUFEMIO A. SIMTIM, JR., REA, REB
City Legal Officer
MYRA JOY H. LAWI-AN, LLB
Legal Assistant II
c.c
BPLS
CMO
City Market Committee
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Tel No. (083) 228-1742
LEGAL OPINION NO. ________
DATE : 20 November 2013
TO : CYRUS JOSE J. URBANO, MPA
City Administrator
City Market Committee, Chair
SUBJECT : As Stated
__________________________________________________
Kanami Koronadal!
Subject of this Opinion is the query of herein parties, Mrs. Clarita M. Cuaresma and her son Mr. Leslie C. Lu seeking the resolution of their contest apropos the lawful leasehold right of Stall No. 22, Supermart Building Shed 2, Ground floor of the City of Koronadal Public Market lodged before the City Market Committee.
As culled from the records of the City Treasurer and Office of the Market Supervisor, and the minutes of the meetings previously called for by the Market Committee, hereunder are the uncontroverted factual antecedents:
Herein parties are Mrs. Clarita M. Cuaresma lessee of Stall No. 22 and Mr. Leslie C. Lu lessee of Stall No. 23, both in the Supermart Building 2, Ground Floor of the City of Koronadal. Both stalls are being occupied as a compact stall removing the division between them in which their family business, the Liberty Bakeshop, is situated. Both parties admit that at the onset of the business, Mrs. Cuaresma was the sole proprietor of the bakery.
Meanwhile, Mrs. Cuaresma left their business to her sister and pursued another course elsewhere. However, due to the prodding of her son, Mr. Lu, she had a change of heart and decided to instead leave the business to him, inversely promising that he will send his brother to school while his mother is away.
Pursuantly, Mr. Lu managed Liberty Bakeshop and paid the rentals and surcharges for Stall Nos. 22 and 23 in the name of Mrs. Cuaresma, in her absence.
As evidenced by Official Receipts issued by the Treasurer’s Office, rentals and surcharges were paid either by Mrs. Cuaresma or paid by Mr. Lu in her name. Also, the latest Lease Contract between the City Government and Mrs. Cuaresma duly signed by her issued on 30 August 2006 which took effect on January 2006 until December 2007. Sans the Contract of Lease from 2008 up to present, Stall No. 22 remained under the name of Mrs. Cuaresma.
Herein parties assert opposing claims of leasehold rights over Stall No. 22. In particular, Mrs. Cuaresma clung to her claim being the Lessee by virtue of the Lease Contract and as appearing in the Official Receipts of the Treasurer’s Office. On the contrary, Mr. Lu based his claim on his payment of rentals and surcharges for several times during the absence of his mother.
This office opines that Mr. Lu failed in his burden of clearly and unequivocally proving his claim of leasehold rights on the subject stall. The fact of his payment of the rentals and surcharges on the subject stall during the absence of Mrs. Cuaresma cannot mean that the latter relinquished her leasehold thereto. She may have been remiss in her obligation to personally maintain or conduct business in the said stall but this cannot belie the fact that the bakery was family-owned.
In addition, worthy of note is the records of the Office of the Treasurer which accepted payments and issued receipts for the stall in the name of Mrs. Cuaresma. Payment of Mr. Lu on several occasions is bereft of indicia of Mrs. Cuaresma’s intent to surrender or abandon said stall in favor of Mr. Lu. Had that been the case, proper procedures should have been observed.
Reason dictates that the acceptance of payments by the City Government from Mr. Lu in the name of his mother is recognition on our part that the legitimate lessee of the contested stall is Mrs. Cuaresma sans a contract of lease. Failure of Mr. Lu to show proof that he is the lessee of the stall defeats his challenge. He cannot by the mere fact of his payment of the rentals and surcharge validly claim leasehold on the stall.
Herein parties cannot undermine the proscriptions of the Local Tax Ordinance on dummy and subleasing of stalls and the lease of more than one stall in the public market.
Ergo, this office respectfully opines that Mrs. Clarita M. Cuaresma is the LEGITIMATE LESSEE OF STALL NO. 22. Further, it is recommended that the stalls of Liberty Bakeshop must be reverted to its original state. Consequently, necessary division must be constructed between Stall Nos. 22 and 23, being leased by separate individuals. This shall also serve as a stern warning to herein parties that said stalls must not be merged to form a single compact stall contrary to the provisions of Lease Contract and market ordinances. Otherwise, the City Government can, motu proprio revoke or cancel the lease and declare the stall of erring stall holders vacant.
Please be guided accordingly.
In public service,
ATTY. EUFEMIO A. SIMTIM, JR., REA, REB
City Legal Officer
MYRA JOY H. LAWI-AN, LLB
Legal Assistant II
c.c
BPLS
CMO
City Market Committee
Tuesday, March 5, 2013
LEGAL OPINION RE ESTABLISHMENT OF PUBLIC TRANSPORT TERMINAL
Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
DATE : 30 May 2012
TO : HON. PETER B. MIGUEL, MD, FPSO-HNS
City Mayor
This City
RE : LEGAL REQUIREMENTS FOR THE ESTABLISHMENT OF PUBLIC
TRANSPORT TERMINAL
Sir:
In your letter dated 3 May 2012, you requested for a legal opinion/assessment on the use of the city’s proposed integrated public terminal vis-à-vis the existing transportation and traffic laws and regulations.
Republic Act No. 7160, otherwise known as the “Local Government Code of 1991” provides for the power of the LGU, through the Sangguniang Panlungsod, to regulate the use of streets, the traffic as well as the operation of transport terminals, thus:
x x x
“Section 458, par. (3). Subject to the provisions of Book II of this Code, enact ordinances granting franchises and authorizing the issuance of permits or licenses, upon such conditions and for such purposes intended to promote the general welfare of the inhabitants of the city and pursuant to this legislative authority shall:
xxx
(vi). Subject to the guidelines prescribed by the Department of Transportation and Communications, regulate the operation of tricycles and grant franchises for the operation thereof within the territorial jurisdiction of the city;
x x x
“Section 458, par. (4). Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall:
xxx
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports;
x x x
“Sec. 458, par. (5). Approve ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, shall:
xxx
(v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, parks and other public places and approve the construction, improvement repair and maintenance of the same; establish bus and vehicle stops and terminals or regulate the use of the same by privately-owned vehicles which serve the public; regulate garages and the operation of conveyances for hire; designate stands to be occupied by public vehicles when not in use; regulate the putting up of signs, signposts, awnings and awning posts on the streets; and provide for the lighting, cleaning and sprinkling of streets; and public places;
(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon, and when necessary in the interest of public welfare, authorize the removal or encroachments and illegal constructions in public places;
x x x
Similar provisions are found under Article IV, Section 10, (D), of Republic Act No. 8803, otherwise known as “An Act Converting the Municipality of Koronadal, South Cotabato Province, Into A Component City To Be Known As The City Of Koronadal.”
There is no doubt as to the power of the LGU to establish its own integrated transport terminal. Also, the power of the LGU to regulate the use of the same is clearly provided under the law. However, the Department of Interior and Local Government (DILG) and the Department of Transportation and Communications (DOTC) had issued Joint Memorandum Circular No. 01, s. 2008 (JMC No.1 for brevity), on 10 September 2008, providing for the guidelines in the review of local ordinances, orders, rules and regulations concerning public transportation. Specifically, JMC No. 1 provides for the guidelines governing the establishment and operation of public transport terminals, as follows:
x x x
“3.2 On the Establishment and Operation of Public Transport Terminals
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. Prior to the commencement of the construction, a public hearing must be held and publication of the construction of the public transport terminals in local newspapers of general circulation and/or posting in at least four conspicuous and publicly accessible places including the main entrance of the city/municipal hall must be observed.
Public hearing includes an official notification of authorized representatives of the LTO, LTFRB and other concerned agencies, public transport operators/drivers and stakeholders.
b. The use of public terminal established or designated by LGUs shall not be imposed compulsorily, directly or indirectly, on operators/drivers with existing private terminals.
Public and private transportation terminals refer to any building or facility constructed or designated by the local government unit and by a private transport operator, respectively, primarily for the purpose of loading and unloading of passengers and cargoes by the different modes of public transportation and for the necessary repair and maintenance of equipment to insure public safety.
c. Vehicles merely passing through cannot be compelled to use the public terminals established or designated by the LGUs.
Passing-through public utility vehicles refer to public utility vehicles plying the routes between points of origin and designation.
d. LGUs cannot close down existing private terminals or curtail the operation of said terminals for the purpose of using the public transport terminals established or designated by the LGUs as this is tantamount to encroachment by LGUs upon property rights of private individuals and the legitimate use thereof.
e. The standards set by the LTFRB as prescribed in its Memorandum Circular No. 2008-013 dated June 4, 2008 or any amendment thereto must be complied with by all public and private transport terminals, to wit:
1. - Adequate and comfortable benches or sets with backrests for waiting passengers;
2. - Roofing that would provide sufficient shade to passengers from heat of the sun and rain;
3. - Information and Passenger Assistance Counters;
4. - Appropriate and adequate signages;
5. - Sufficient number of security personnel for the protection of passengers from abusive vendors, pickpockets and other lawless elements and for the proper inspection of baggages; and
6. - Diaper changing table inside the female restrooms for female passengers traveling with infant or babies;
In addition, the following standards must also be included for inter-modal transport terminal or one which can simultaneously accommodate or serve at east three types of public land transport vehicles, such as PUBs, PUJs, Multi-Cabs, Vans/AUVs, etc. and for bus terminal or terminal which caters to less than three vehicle types, one of which would be public utility buses, to wit:
1. - Concrete pavement and flooring;
2. - Wide entrances and exits for easy mobility to and from the terminal;
3. - Provision for communication facilities (such as telephone, fax machines, internet, etc.);
4. - Installation of Public Address System Facilities and CCTV cameras or monitors;
5. - Separate rest rooms for male and female disabled passengers which must at all times be clean, sufficiently lighted, foul odor-free, ventilated with clean running water, flush system, toilet seat with cover, lavatory, waste bin, toilet paper, mirror, dispenser with soap, hand dryer, dry flooring, functional door lock, and janitorial maintenance personnel;
6. - Provision for separate and sufficient parking lots or spaces for each mode of transport, for inter-modal transport terminal only; and
7. - Priority lane for persons with special needs specifically pregnant women, mother travelling with infants or small children and those with physical disabilities, for inter-modal transport terminal only.
f. The minimum location standards provided under the HLURB’s Locational Guidelines and Standards for Land Transportation Terminal and Garages pursuant to Board Resolution no. R-408, series of 19888, or any amendment thereto, must be fully satisfied, to wit:
1. - Terminals should be more than 100 meters away from institutional establishment particularly schools and hospitals.
2. - The terminal must be accessible to commuters, i.e. transfer routes are available or within its service radius. However, direct access to major thoroughfares especially high speed highways and expressways should be discouraged for safety and smooth traffic flow purposes.
3. - The approved zoning ordinance should indicate the location of bus stations/terminals, freight/truck terminals which should be at the periphery of a commercial zone.
4. - If the municipality has no approved zoning ordinance, the location of bus stations/terminals, freight/truck terminals should be outside the center of commercial activities to reduce and minimize street congestion.
5. - Jeepney/taxi terminal may be located within the central business district or commercial zone provided, it should not be major road intersection.
6. - Garage must be located at the outskirt of the business center or commercial zone.
g. The standards set by the Department of Health as provided under Chapter IX Section 54 of the Sanitation Code of the Philippines or any subsequent amendment thereto, must be duly observed, to wit:
1. - Rest areas, bus terminals, bus stops and service stations shall be established with ample area to prevent overcrowding of motor vehicles and travelers.
2. - They shall be provided with adequate ventilation and lighting away from sources of nuisance.
3. - Safe and adequate water supply shall be provided in accordance with the provisions of Chapter II of this Code.
4. - Refuse collection and disposal shall be in accordance with the provisions of Chapter XVII of the Sanitation Code of the Philippines.
5. - Adequate numbers of comfort rooms shall be provided as well auxiliary facilities therein in accordance with the provisions on Chapter XVII of the Sanitation Code of the Philippines.
6. - Waiting sheds for commuters shall be of adequate size to comfortably accommodate a minimum of thirty persons. Floors shall be of smooth concrete finish and adequate sitting facilities provided for.
7. - Sale of foodstuffs in those establishments shall be done in conformity with the provisions of Chapter III of the Sanitation Code of the Philippines.
h. Should there be an existing LGU-operated or owned Inter-Modal Grand Terminal which is compliant with LTFRB standards, the existing transport terminals of franchise grantees within the said LGU should be considered as garage and the use of the LGU operated or owned inter-modal terminal is hereby encouraged.
i. Existing transport terminals, both LGU-owned and privately-owned, not in compliance with the aforementioned standards shall be given a period of one (1) year from the effectivity of this Joint Memorandum Circular to implement and fully comply with the policies, standards and limitations set forth above.
j. Any further extension of time for compliance may be submitted by the concerned owner or operator, transport association or cooperative on justifiable reasons, subject to the approval of the LTFRB or its Regional Directors, as the case may be.
3.4 On the Issuance of Traffic Citation Tickets
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. The LGUs can issue traffic citation tickets but only the LTO and their deputized agents can confiscate driver’s licenses. However, in Metro Manila, the single ticketing system shall be worked out.
Traffic citation ticket refers to traffic violation receipts issued by traffic law enforcers in the course of their enforcement of traffic rules and regulations.
3.5 On the Imposition of Other Local Fees and Charges Affecting
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. As a general rule, the LGUs should desist from unilaterally increasing fees and charges that would contribute to higher public transport cost. Increases in fees and charges should be in coordination with the LTFRB and should be commensurate with the administrative expenses. Before changes in fees can be imposed, there must be a public hearing and publication in local newspapers of general circulation and/or posting in at least four (4) conspicuous places including the main entrance of the city/municipal hall prior to said imposition.
b. As provided for under Section 10 of Republic Act no. 8794 (An Act Imposing a Motor Vehicle User’s Charge on Owners of all Types of Motor Vehicles and for other Purposes), to wit:
“No other tax, fee or any charge of similar nature, as the Motor Vehicles Users Charge shall be imposed by any political subdivision or unit in the country.”
c. Fees to be charged in the use of public transport terminals shall be reasonable and commensurate with the administrative and operating expenses in the operation of the said terminals.
Fees and charges refer to fees collected or charged by LGUs relating to public transport and do not include fines and penalties imposed for violation of traffic rules and regulations.
x x x
A full copy of JMC No.1 is attached hereto as ANNEX “A” for your ready reference.
A question however that may possibly confront the LGU is how to deal with the existing private transport terminals. It is clear that, as a general rule, the LGU cannot stop the operation of existing private transport terminals simply by reason of the establishment of a public transport terminal. There are, however, legitimate reasons upon which grounds the existing private transport terminal may be ordered to stop its operation without running afoul with the JMC, to wit:
1. If the existing private transport terminal constitutes a nuisance under the Civil Code, Fire Code or the National Building Code;
2. If the existing private transport terminal violates the Local Revenue Code;
3. If the existing private transport terminal is not compliant with the requirements set by the JMC; or
4. If the existing private transport terminal is a non-conforming entity under the local zoning ordinance based on the adopted revised Comprehensive Land Use Plan.
Further, it is worthy to note that under the same JMC No. 1, tricycles are not allowed to ply along national highways, thus:
x x x
“3.0 Guidelines
3.1 On the Granting of Franchises to Tricycles
All locally issued ordinances, orders, rules and regulations should be in the conformity with the following policies, standards and limitations:
x x x
b) Tricycle operation should only be confined along the city or municipal roads, not along national roads and is limited only to routes not traversed by higher modes public transport. However, the local Sanggunian may allow if there is no other alternative route.
Municipal and city roads refer to roads within the poblacion; they are roads that connect to provincial and national roads and provide inter-barangay connections to major municipal and city infrastructure without traversing provincial road.
National roads refer to any public road classified as primary and secondary, declared as national road by the President of the Philippines.”
x x x
This condition is deemed written in tricycle franchises but a corresponding ordinance could further give teeth thereto and effectively prohibit tricycles from plying along national highways. To reiterate, the LGU has the power to regulate not only the operation of tricycles but, more importantly, the traffic and the use of the streets within its territorial jurisdiction. It is opined therefore that a comprehensive traffic ordinance could regulate and properly set the flow of traffic in order to address the problem on traffic congestion. Consequently, however, this could render some existing transport terminals situated along the national highways physically obsolete, thus, for them to die a natural death, so to speak.
The undersigned believes, however, that earnest effort should first be exerted to reconcile the interests of the city and its constituents, on one hand, and the interests of the transport sector, on the other. This underscores the importance of proper consultation and negotiation with the stakeholders. This notwithstanding, the general welfare and convenience of the public, being the paramount consideration, should still prevail.
Meanwhile, actual visits and interviews conducted by the CLO staff in the three (3) neighboring LGU’s, particularly the Municipality of Surallah, City of Tacurong and City of General Santos, has brought about the following findings, to wit:
1. The operation of the Integrated Transport Terminal of Surallah is governed by the Local Revenue Code (a copy of which is attached hereto as ANNEX “B” for easy reference).
2. The operation of Tacurong City Integrated Public Terminal, on the other hand, is governed by a separate ordinance, Ordinance No. 51, Series of 2004, otherwise known as the “Tacurong City Integrated Public Terminal Ordinance” (a copy of which is attached hereto as ANNEX “C” for easy reference). It can be noted that the ordinance already embodies traffic rules prescribing the flow of traffic. The LGU of Tacurong has likewise come up with a Management Manual which provides in detail the operation of the terminal (a copy of which is attached hereto as ANNEX “D” for easy reference).
3. General Santos City, on its part, has passed Ordinance No. 08, Series of 2005, otherwise known as “An Ordinance Providing for the Policies, Rules and Regulations in the Operation and Maintenance of Eusebio Bulaong Public Terminal Located at Bulaong Subdivision, Barangay Dadiangas North, General Santos City, And For Other Purposes” (a copy of which is attached hereto as ANNEX “E” for easy reference). It was related to the CLO staff that LGU-GSC had once passed an ordinance prohibiting tricycles from using the national highway, but a copy thereof has still to be produced.
Relative to the case between the LGU of General Santos City and YBL, this office continues to communicate and to follow up with the LGU of General Santos City for a copy of the decision in a case filed by YBL against the LGU regarding their public transport terminal.
I hope this opinion could be of help to the LGU’s endeavors.
Yours truly,
ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer
cc:
CPDO
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
DATE : 30 May 2012
TO : HON. PETER B. MIGUEL, MD, FPSO-HNS
City Mayor
This City
RE : LEGAL REQUIREMENTS FOR THE ESTABLISHMENT OF PUBLIC
TRANSPORT TERMINAL
Sir:
In your letter dated 3 May 2012, you requested for a legal opinion/assessment on the use of the city’s proposed integrated public terminal vis-à-vis the existing transportation and traffic laws and regulations.
Republic Act No. 7160, otherwise known as the “Local Government Code of 1991” provides for the power of the LGU, through the Sangguniang Panlungsod, to regulate the use of streets, the traffic as well as the operation of transport terminals, thus:
x x x
“Section 458, par. (3). Subject to the provisions of Book II of this Code, enact ordinances granting franchises and authorizing the issuance of permits or licenses, upon such conditions and for such purposes intended to promote the general welfare of the inhabitants of the city and pursuant to this legislative authority shall:
xxx
(vi). Subject to the guidelines prescribed by the Department of Transportation and Communications, regulate the operation of tricycles and grant franchises for the operation thereof within the territorial jurisdiction of the city;
x x x
“Section 458, par. (4). Regulate activities relative to the use of land, buildings and structures within the city in order to promote the general welfare and for said purpose shall:
xxx
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, including tourist guides and transports;
x x x
“Sec. 458, par. (5). Approve ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, shall:
xxx
(v) Regulate the use of streets, avenues, alleys, sidewalks, bridges, parks and other public places and approve the construction, improvement repair and maintenance of the same; establish bus and vehicle stops and terminals or regulate the use of the same by privately-owned vehicles which serve the public; regulate garages and the operation of conveyances for hire; designate stands to be occupied by public vehicles when not in use; regulate the putting up of signs, signposts, awnings and awning posts on the streets; and provide for the lighting, cleaning and sprinkling of streets; and public places;
(vi) Regulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon, and when necessary in the interest of public welfare, authorize the removal or encroachments and illegal constructions in public places;
x x x
Similar provisions are found under Article IV, Section 10, (D), of Republic Act No. 8803, otherwise known as “An Act Converting the Municipality of Koronadal, South Cotabato Province, Into A Component City To Be Known As The City Of Koronadal.”
There is no doubt as to the power of the LGU to establish its own integrated transport terminal. Also, the power of the LGU to regulate the use of the same is clearly provided under the law. However, the Department of Interior and Local Government (DILG) and the Department of Transportation and Communications (DOTC) had issued Joint Memorandum Circular No. 01, s. 2008 (JMC No.1 for brevity), on 10 September 2008, providing for the guidelines in the review of local ordinances, orders, rules and regulations concerning public transportation. Specifically, JMC No. 1 provides for the guidelines governing the establishment and operation of public transport terminals, as follows:
x x x
“3.2 On the Establishment and Operation of Public Transport Terminals
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. Prior to the commencement of the construction, a public hearing must be held and publication of the construction of the public transport terminals in local newspapers of general circulation and/or posting in at least four conspicuous and publicly accessible places including the main entrance of the city/municipal hall must be observed.
Public hearing includes an official notification of authorized representatives of the LTO, LTFRB and other concerned agencies, public transport operators/drivers and stakeholders.
b. The use of public terminal established or designated by LGUs shall not be imposed compulsorily, directly or indirectly, on operators/drivers with existing private terminals.
Public and private transportation terminals refer to any building or facility constructed or designated by the local government unit and by a private transport operator, respectively, primarily for the purpose of loading and unloading of passengers and cargoes by the different modes of public transportation and for the necessary repair and maintenance of equipment to insure public safety.
c. Vehicles merely passing through cannot be compelled to use the public terminals established or designated by the LGUs.
Passing-through public utility vehicles refer to public utility vehicles plying the routes between points of origin and designation.
d. LGUs cannot close down existing private terminals or curtail the operation of said terminals for the purpose of using the public transport terminals established or designated by the LGUs as this is tantamount to encroachment by LGUs upon property rights of private individuals and the legitimate use thereof.
e. The standards set by the LTFRB as prescribed in its Memorandum Circular No. 2008-013 dated June 4, 2008 or any amendment thereto must be complied with by all public and private transport terminals, to wit:
1. - Adequate and comfortable benches or sets with backrests for waiting passengers;
2. - Roofing that would provide sufficient shade to passengers from heat of the sun and rain;
3. - Information and Passenger Assistance Counters;
4. - Appropriate and adequate signages;
5. - Sufficient number of security personnel for the protection of passengers from abusive vendors, pickpockets and other lawless elements and for the proper inspection of baggages; and
6. - Diaper changing table inside the female restrooms for female passengers traveling with infant or babies;
In addition, the following standards must also be included for inter-modal transport terminal or one which can simultaneously accommodate or serve at east three types of public land transport vehicles, such as PUBs, PUJs, Multi-Cabs, Vans/AUVs, etc. and for bus terminal or terminal which caters to less than three vehicle types, one of which would be public utility buses, to wit:
1. - Concrete pavement and flooring;
2. - Wide entrances and exits for easy mobility to and from the terminal;
3. - Provision for communication facilities (such as telephone, fax machines, internet, etc.);
4. - Installation of Public Address System Facilities and CCTV cameras or monitors;
5. - Separate rest rooms for male and female disabled passengers which must at all times be clean, sufficiently lighted, foul odor-free, ventilated with clean running water, flush system, toilet seat with cover, lavatory, waste bin, toilet paper, mirror, dispenser with soap, hand dryer, dry flooring, functional door lock, and janitorial maintenance personnel;
6. - Provision for separate and sufficient parking lots or spaces for each mode of transport, for inter-modal transport terminal only; and
7. - Priority lane for persons with special needs specifically pregnant women, mother travelling with infants or small children and those with physical disabilities, for inter-modal transport terminal only.
f. The minimum location standards provided under the HLURB’s Locational Guidelines and Standards for Land Transportation Terminal and Garages pursuant to Board Resolution no. R-408, series of 19888, or any amendment thereto, must be fully satisfied, to wit:
1. - Terminals should be more than 100 meters away from institutional establishment particularly schools and hospitals.
2. - The terminal must be accessible to commuters, i.e. transfer routes are available or within its service radius. However, direct access to major thoroughfares especially high speed highways and expressways should be discouraged for safety and smooth traffic flow purposes.
3. - The approved zoning ordinance should indicate the location of bus stations/terminals, freight/truck terminals which should be at the periphery of a commercial zone.
4. - If the municipality has no approved zoning ordinance, the location of bus stations/terminals, freight/truck terminals should be outside the center of commercial activities to reduce and minimize street congestion.
5. - Jeepney/taxi terminal may be located within the central business district or commercial zone provided, it should not be major road intersection.
6. - Garage must be located at the outskirt of the business center or commercial zone.
g. The standards set by the Department of Health as provided under Chapter IX Section 54 of the Sanitation Code of the Philippines or any subsequent amendment thereto, must be duly observed, to wit:
1. - Rest areas, bus terminals, bus stops and service stations shall be established with ample area to prevent overcrowding of motor vehicles and travelers.
2. - They shall be provided with adequate ventilation and lighting away from sources of nuisance.
3. - Safe and adequate water supply shall be provided in accordance with the provisions of Chapter II of this Code.
4. - Refuse collection and disposal shall be in accordance with the provisions of Chapter XVII of the Sanitation Code of the Philippines.
5. - Adequate numbers of comfort rooms shall be provided as well auxiliary facilities therein in accordance with the provisions on Chapter XVII of the Sanitation Code of the Philippines.
6. - Waiting sheds for commuters shall be of adequate size to comfortably accommodate a minimum of thirty persons. Floors shall be of smooth concrete finish and adequate sitting facilities provided for.
7. - Sale of foodstuffs in those establishments shall be done in conformity with the provisions of Chapter III of the Sanitation Code of the Philippines.
h. Should there be an existing LGU-operated or owned Inter-Modal Grand Terminal which is compliant with LTFRB standards, the existing transport terminals of franchise grantees within the said LGU should be considered as garage and the use of the LGU operated or owned inter-modal terminal is hereby encouraged.
i. Existing transport terminals, both LGU-owned and privately-owned, not in compliance with the aforementioned standards shall be given a period of one (1) year from the effectivity of this Joint Memorandum Circular to implement and fully comply with the policies, standards and limitations set forth above.
j. Any further extension of time for compliance may be submitted by the concerned owner or operator, transport association or cooperative on justifiable reasons, subject to the approval of the LTFRB or its Regional Directors, as the case may be.
3.4 On the Issuance of Traffic Citation Tickets
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. The LGUs can issue traffic citation tickets but only the LTO and their deputized agents can confiscate driver’s licenses. However, in Metro Manila, the single ticketing system shall be worked out.
Traffic citation ticket refers to traffic violation receipts issued by traffic law enforcers in the course of their enforcement of traffic rules and regulations.
3.5 On the Imposition of Other Local Fees and Charges Affecting
All locally-issued ordinances, orders, rules and regulations should be in conformity with the following policies, standards and limitations:
a. As a general rule, the LGUs should desist from unilaterally increasing fees and charges that would contribute to higher public transport cost. Increases in fees and charges should be in coordination with the LTFRB and should be commensurate with the administrative expenses. Before changes in fees can be imposed, there must be a public hearing and publication in local newspapers of general circulation and/or posting in at least four (4) conspicuous places including the main entrance of the city/municipal hall prior to said imposition.
b. As provided for under Section 10 of Republic Act no. 8794 (An Act Imposing a Motor Vehicle User’s Charge on Owners of all Types of Motor Vehicles and for other Purposes), to wit:
“No other tax, fee or any charge of similar nature, as the Motor Vehicles Users Charge shall be imposed by any political subdivision or unit in the country.”
c. Fees to be charged in the use of public transport terminals shall be reasonable and commensurate with the administrative and operating expenses in the operation of the said terminals.
Fees and charges refer to fees collected or charged by LGUs relating to public transport and do not include fines and penalties imposed for violation of traffic rules and regulations.
x x x
A full copy of JMC No.1 is attached hereto as ANNEX “A” for your ready reference.
A question however that may possibly confront the LGU is how to deal with the existing private transport terminals. It is clear that, as a general rule, the LGU cannot stop the operation of existing private transport terminals simply by reason of the establishment of a public transport terminal. There are, however, legitimate reasons upon which grounds the existing private transport terminal may be ordered to stop its operation without running afoul with the JMC, to wit:
1. If the existing private transport terminal constitutes a nuisance under the Civil Code, Fire Code or the National Building Code;
2. If the existing private transport terminal violates the Local Revenue Code;
3. If the existing private transport terminal is not compliant with the requirements set by the JMC; or
4. If the existing private transport terminal is a non-conforming entity under the local zoning ordinance based on the adopted revised Comprehensive Land Use Plan.
Further, it is worthy to note that under the same JMC No. 1, tricycles are not allowed to ply along national highways, thus:
x x x
“3.0 Guidelines
3.1 On the Granting of Franchises to Tricycles
All locally issued ordinances, orders, rules and regulations should be in the conformity with the following policies, standards and limitations:
x x x
b) Tricycle operation should only be confined along the city or municipal roads, not along national roads and is limited only to routes not traversed by higher modes public transport. However, the local Sanggunian may allow if there is no other alternative route.
Municipal and city roads refer to roads within the poblacion; they are roads that connect to provincial and national roads and provide inter-barangay connections to major municipal and city infrastructure without traversing provincial road.
National roads refer to any public road classified as primary and secondary, declared as national road by the President of the Philippines.”
x x x
This condition is deemed written in tricycle franchises but a corresponding ordinance could further give teeth thereto and effectively prohibit tricycles from plying along national highways. To reiterate, the LGU has the power to regulate not only the operation of tricycles but, more importantly, the traffic and the use of the streets within its territorial jurisdiction. It is opined therefore that a comprehensive traffic ordinance could regulate and properly set the flow of traffic in order to address the problem on traffic congestion. Consequently, however, this could render some existing transport terminals situated along the national highways physically obsolete, thus, for them to die a natural death, so to speak.
The undersigned believes, however, that earnest effort should first be exerted to reconcile the interests of the city and its constituents, on one hand, and the interests of the transport sector, on the other. This underscores the importance of proper consultation and negotiation with the stakeholders. This notwithstanding, the general welfare and convenience of the public, being the paramount consideration, should still prevail.
Meanwhile, actual visits and interviews conducted by the CLO staff in the three (3) neighboring LGU’s, particularly the Municipality of Surallah, City of Tacurong and City of General Santos, has brought about the following findings, to wit:
1. The operation of the Integrated Transport Terminal of Surallah is governed by the Local Revenue Code (a copy of which is attached hereto as ANNEX “B” for easy reference).
2. The operation of Tacurong City Integrated Public Terminal, on the other hand, is governed by a separate ordinance, Ordinance No. 51, Series of 2004, otherwise known as the “Tacurong City Integrated Public Terminal Ordinance” (a copy of which is attached hereto as ANNEX “C” for easy reference). It can be noted that the ordinance already embodies traffic rules prescribing the flow of traffic. The LGU of Tacurong has likewise come up with a Management Manual which provides in detail the operation of the terminal (a copy of which is attached hereto as ANNEX “D” for easy reference).
3. General Santos City, on its part, has passed Ordinance No. 08, Series of 2005, otherwise known as “An Ordinance Providing for the Policies, Rules and Regulations in the Operation and Maintenance of Eusebio Bulaong Public Terminal Located at Bulaong Subdivision, Barangay Dadiangas North, General Santos City, And For Other Purposes” (a copy of which is attached hereto as ANNEX “E” for easy reference). It was related to the CLO staff that LGU-GSC had once passed an ordinance prohibiting tricycles from using the national highway, but a copy thereof has still to be produced.
Relative to the case between the LGU of General Santos City and YBL, this office continues to communicate and to follow up with the LGU of General Santos City for a copy of the decision in a case filed by YBL against the LGU regarding their public transport terminal.
I hope this opinion could be of help to the LGU’s endeavors.
Yours truly,
ATTY. EUFEMIO A. SIMTIM, JR.
City Legal Officer
cc:
CPDO
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