Ombudsman: Vendors have valid complaint against kiosks’ removal

December 7, 2017

PHILIPSBURG–The Ombudsman has ruled in favour of the Philipsburg Marketplace vendors who filed a complaint against the removal of their stalls last month by Minister of Tourism and Economic Affairs Mellissa Arrindell-Doncher.

The Ombudsman said Thursday that the complaint of the 30 vendors was valid and ruled that “the standards of reason, active and adequate information provision, and reasonableness and proportionality have been violated.”
The Ombudsman recommended that the Minister ensure at all times that proper reasons, motives and grounds be observed, provided and explained to the citizenry in general and the complainants in particular, in all pending decisions. The Minister is to also inform complainants in writing about the steps taken and the action plan regarding the relocation of the Marketplace structures, with copy to the Ombudsman.
Vendors, represented by Ingrid Grell-Davis, informed the Ombudsman on October 12 that they were negatively affected by the Minister’s decision to break down and remove all kiosks in Philipsburg following Hurricanes Irma and Maria. Complainants alleged that they were not consulted or informed, nor could their concerns be properly addressed by representatives of the Department of Economic Affairs.
Pursuant to the law, the Ombudsman investigated whether the Minister had observed propriety in the decision and execution to remove and relocate the kiosks without informing the vendors.
Responding to the Ombudsman’s queries, the Minister said a report, dated November 16, stated that the market already had been in need of repair prior to the passing of Hurricanes Irma and Maria. The damage sustained post-Hurricanes Irma and Maria “greatly exacerbated these conditions” and the decision to remove the kiosks came due to the fact all stalls were damaged.
However, the Ombudsman established that, according to the Marktmeester’s report of the same date, only five light-poles and some tiles were damaged, while some bricks needed to be reset and water retainers for the palm trees needed to be replaced. No repairs were needed for the kiosks, according to the report.
Two damage assessments after the hurricanes, dated respectively September 27 and October 24, showed that three of the 27 kiosks had been destroyed beyond repair, four suffered structural damage and 20 were lightly damaged, but could be repaired.
The Ombudsman therefore concluded that the facts provided in the request to the Ministry of Infrastructure VROMI by letter of October 5 to temporarily remove the kiosks were not covered by the reports provided by the Minister. Consequently, the Ombudsman observed that actions taken by Government should be carried by facts and logic, communicated to the citizen.
“The decision of the Minister lacks proper reason, motives and grounds. The standard of Reason has been violated. Proper reasons, motives and grounds should be provided and explained to the citizens affected by decisions made by Government, as well as proportionality observed,” the Ombudsman said.
A public entity cannot act on the basis of its own discretion nor can it act randomly; every decision and action of a public entity has to be properly motivated, she added.
Notwithstanding the Minister’s intention to relocate the vendors and, as subsequently reported in the media, to provide tourists an upgraded Marketplace experience, “no tangible considerations” regarding the impact the decision has on the livelihood of the vendors were presented by the Minister in responding to the questions posed by the Ombudsman.
“Neither was a plan of approach presented to materialise the relocation of the vendors and safeguard their livelihood, nor was such timely discussed with the vendors. On the contrary, relocation dates and information provided to the vendors after the intervention of the Ombudsman were not met.”
The vendors should have been informed promptly on taking such a decision, which severely impacted their livelihood and that of their families. As such the “standard of active and adequate information provision” has also been violated.
Pursuant to the “Landsverordening Openbare straathandel,’ the TEATT Minister designates the place for keeping markets and issues the licences to persons to sell merchandise on these locations. As such, it behoved the Minister to carefully weigh the impact of the decision taken against the interests of the vendors, said the Ombudsman.
The standard of reasonableness and proportionality requires that the negative consequences of an action to achieve a certain goal may not be disproportionate to the interests of the citizen or group of persons.
“The considerations presented by the Minister do not establish, however, that proportionality has been observed in the decision to (temporarily) remove and not restore the kiosks. In this light the Ombudsman observes that the standard of proportionality requires that the measure that interferes the least with the interest of the citizen should prevail and be employed.”
The full report regarding this matter can be read on the Ombudsman website
ombudsmansxm.com .