BackThe Ombudsman considered a complaint filed by a group of thirty Marketplace Vendors founded and ruled that the standards of Reason, Active and adequate information provision, and Reasonableness and proportionality have been violated. In October 2017, the vendors had informed the Ombudsman that they were negatively affected by the decision of the Minister of Tourism, Economic Affairs, Traffic and Telecommunication (Minister TEATT) to breakdown and remove all Kiosks in Philipsburg. Complainants alleged that they were not consulted, nor informed on the matter. Pursuant to the law, the Ombudsman investigated whether the actions of the Minister of TEATT observed proprierty.
Responding to queries from the Ombudsman, the Minister of TEATT mentioned that a report from November 2016 established that the market was already in need of repair prior to the passing of Hurricanes Irma and Maria and that the decision to remove the kiosks came due to the fact that all vending stalls were further damaged by the hurricanes. The Ombudsman however established that according to two damage assessments after the Hurricanes, from September and October 2017, showed that 3 of the 27 kiosks were destroyed beyond repair, 4 suffered structural damage and 20 lightly damaged, but could be repaired.
The Ombudsman therefore concluded that the facts provided in the request to temporarily remove the kiosks were not covered by the reports provided by the Minister. The decision of the Minister lacks proper reason, motives and grounds. Notwithstanding the intention of the Minister to relocate the vendors, in order to provide the tourists an upgraded Marketplace experience, no tangible considerations regarding the impact of 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 presented concerning 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 Complainants should have been informed promptly upon 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 been violated.
The Minister TEATT designates the place for keeping markets and issues the licenses to persons to sell merchandise on these locations. ‘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 Ombudsman recommended the Minister: To ensure that at all times proper reasons, motives and grounds be observed, provided and explained to the citizen in general, and the complainants in particular, in all pending decisions. And to inform complainants in writing about the steps taken and the action plan regarding the relocation of the Marketplace structures, with copy to the Ombudsman.
In January 2018 the Ombudsman received a response of the Minister of TEATT in reaction to the Final Report. The then Minister of TEATT, the Honorable Melissa Arrindell-Doncher, informed the Ombudsman that the recommendations are accepted. Copies of the steps to be taken and action plan were not enclosed. However a status report was promised no later than 15 March 2018.
Source: Ombudsman Sint Maarten
