TJAM believes that half an hour of gratuitousness in mall parking lots is unconstitutionalThe judgment of the law happened this week and serves lawsuit filed by the Brazilian Association of Shopping Centers (Abrasce).
The Municipal Law 417/2015, which deals with the exemption from the parking fee in Manaus malls for those who prove ten times costs the fee or free stay for up to 30 nonlocal minutes, It was declared unconstitutional by the Plenum of the Amazon Court (TJAM), on trial this week.
The Full Court agreed, mostly, with the vote of the process Rapporteur, Judge Wellington José de Araújo, the origin of the direct action of unconstitutionality (ADI) No 4000149-81.2016.8.04.0000, moved by the Brazilian Association of Shopping Centers (Abrasce). The prosecutor also stated the unconstitutionality.
According to the association, the challenged norm is a repeat, at the municipal level, of State Law 3.028/2005. This law was declared unconstitutional by the Court in June 2015, na ADI nº 4002571-34.2013.8.04.0000, of the judge rapporteur Paulo Lima.
In January this year, the Plenary had already endorsed the injunction granted injunctive relief by the rapporteur, suspending the effectiveness of municipal law until the final judgment of the action.
According to Judge Wellington Araújo, the contested rule advances in the sphere of use of private property and affront the competence of the State Constitution and the Republic, by extrapolating the legislative competence of the Municipality.
"On previous occasions, the Supreme Court has held that all matter to regulate charging for the use of private parking suffers from unconstitutionality by Union exclusive competence of invasion to legislate on civil law ", the rapporteur says.
According to the rapporteur, beyond the STF, other states have had the same position when judged laws of equal content, as it happened last week in special organ of the São Paulo Court of Justice (TJSP), which was unanimous illegal judge law fragmented parking, for violation of the principle of free enterprise and private competence of the Union to legislate on civil.
Text of the law declared unconstitutional
You n. 417, from 23 December 2015
It provides for the exemption from the parking fee to users showing purchases made by the same amount, at least, ten times the amount of the parking fee at shopping centers in the city of Manaus and other measures.
Art. 1.° are exempt from paying fees for the car use, charged in shopping centers installed in the city of Manaus, users who prove expenses relating to, at least, ten times the amount of that tax.
1.º The gratuity referred to in the caput shall only be effective upon presentation of receipts proving the expenses made in the establishment.
2.º The invoices must, necessarily, dating the same day that the user is the gratuitousness of election.
Art. 2.º The user of the vehicle stay, for up to thirty minutes in the parking lot of the establishments mentioned in Article 1, should be free, and the length of stay evidenced by card or document issued at the mall entrance.