The Marbella restaurant that has made a name for itself nationwide for blatantly defying the smoking ban could end up paying dearly for its rebellion. Last week Thursday the head of the Andalusian Health Department, María Jesús Montero, announced that later that day the Asador Guadalmina would be closed down as a “provisional and precautionary” measure in response to the owner’s “clear and permanent disobedience and infringement” of the no smoking legislation. After four hours of tension on Thursday evening, the restaurant owner reluctant agreed to comply with the order to close his business.
Montero specified that the provisional closure is for a period of two months and if the owner does not abandon his position he will be fined 145,000 euros and the matter will be passed on to the courts. In this case the department will propose that the precautionary closure of the restaurant is maintained until a court decision is made.
Thursday’s decision comes after the Junta de Andalucía delivered the notification of its proposed fine, 145,000 euros, on Tuesday. The restaurant owner, José Eugenio Arias, was given two weeks to make any claims against the fine.
At the beginning of January, José Eugenio Arias declared that he was openly against the new smoking ban and that he would continue to allow smoking in his restaurant.
It has taken the Health Department at the Junta de Andalucía since the beginning of January to decide on what action was to be taken against the Asador Guadalmina, whose owner has bragged about his disobedience of the law that banned smoking inside bars and restaurants from January 2nd. In the end they opted to issue an intermediate fine, a quarter of the maximum of 600,000 euros applicable for a serious infringement of the Ley General de Salud (General Health Law).
According to a statement made by the regional government, the closure and proposed fine respond to an infringement of the General Health Law for “repeatedly ignoring the request made by the health authorities” for the restaurant to comply with regulations and stop allowing smoking on the premises.
Nevertheless the law firm representing Arias maintains that the Junta’s decision amounts to ‘abuse of law’ as it is based on the General Health Law, instead of the new Anti-Smoking Law. Sources told EFE that the smoking law does not allow the authorities to close a business down and that the Junta has resorted to the General Health Law to “escape” the first regulation.
Town Hall silence
While it is the jurisdiction of the regional authority to take action against infringement of the General Health Law, the Town Hall can also impose penalties, up to 10,000 euros, for the failure to comply with the Anti-Smoking Law that declares all bars and restaurants smoke free zones. The Local Police visited the restaurant last January and the Junta has sent the Town Hall information of its disciplinary action, but as yet the local authority has not made a move.
The regional government maintains it has more than enough reason to act. “The penalty responds to the degree of intent, and in this case the owner has been aware from the beginning that he was committing an offence and has at no moment indicated that he will abandon his attitude”, continues a statement from the regional government.
The restaurant’s defiance of the smoking ban has angered the owners of other establishments in the Guadalmina area, who accuse the Asador of unfair competition. Last weekend restaurant owners complained to the SUR Newspaper that they were losing customers who were attracted to the Asador due to its defiance of the law.
Response
On Thursday the owner of the Asador Guadalmina, José Eugenio Arias, stated that the decision to close his business down amounted to “corruption”. “Nothing has changed”, he said, “I will continue my campaign. Everything’s the same”. The business owner admitted that he had lost this first battle but that he would continue to fight until the end. He accused the Government of being "dictatorial, marxist and terrorist" and said that he would open a new restaurant in new premises in the area in order to continue with his crusade.
On Tuesday Arias was not on the premises to greet the health department inspectors who delivered the notification of the proposed fine. He was in Madrid drumming up support for his crusade against the smoking ban that came into force on January 2nd. However he made it quite clear that he has no intention of handing over the money if the fine was confirmed. “I’m not going to pay, firstly, because I haven’t got the money, and secondly, because Justice is on my side”, he told the SUR newspaper.
“All they want to do is scare the industry”, said the businessman who was not fazed by the announcement that his restaurant was to be closed down. “It is an administrative issue. They can’t close me down. Only a judge can do that with a sentence and that would take four or five years”, he argued last Tuesday, convinced that by that time he will have overturned the smoking ban. Meanwhile he continues to collect signatures against the law (he says he has 100,000) and has announced an association to be called ‘Reforma o Ruina’ (Reform or Ruin).
All the same despite his proclaimed conviction that there are no legal grounds “for any action against me”, he eventually followed advice from his lawyers to abide with the decision and tell his staff to temporarily abandon their posts. Meanwhile he has instructed his lawyers to prepare claims in an attempt to overturn the closure.
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