Guideline Sentence

There is a legal entitlement to the granting of the restaurant license if there are no grounds for refusal. (Rn.16)

The license must be refused if the rooms intended for the operation of the business for guests cannot be used without barriers by disabled persons, insofar as these rooms are located in a building for which a building permit for the first-time construction, for a significant alteration, or a significant expansion was granted after November 1, 2002. (Rn.18)

There is no evidence to suggest that § 4 Abs. 1 Satz 1 Nr. 2a GastG could be unconstitutional in view of Art. 3 Abs. 3 Satz 2 GG. (Rn.26)

The plaintiff in the underlying proceedings had taken over a restaurant from his predecessor, which he operates in Berlin-Spandau.

,, …The restaurant is barrier-free accessible and includes a guest room area of 149.55 sqm located on the ground floor as well as a beer garden. Only accessible via stairs, the guest toilets are located in the basement. The restaurant is operated based on a building permit from 1975. There is agreement between the parties that the structural deviations of the current state of the restaurant from the sketch of the premises made in 1966 were carried out at least before the year 2002…. ,,

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,, …When applying, the district office informed the plaintiff that, according to the state restaurant regulation, at least one toilet facility for mobility-impaired guests must be usable from a serving area of 50 sqm and asked him to provide written information on how the requirements could be implemented in his business. Initially, the plaintiff argued that the installation of a barrier-free toilet was only possible at high costs and at the expense of the serving area; a stair lift would be cheaper, but still cost 29,000 euros, and the freshly renovated toilets would have to be remodeled again. He also had to spend 30,000 euros on maintenance backlogs from his predecessor when taking over the business.... ,,

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,, …By notice of April 29, 2015, served on the plaintiff on the same day, the district office refused to grant the requested restaurant license and threatened immediate enforcement by closing and sealing the restaurant if the plaintiff continued to operate after receiving the refusal notice. The main reason given was that the plaintiff's restaurant did not meet the requirements of the restaurant regulation, which requires the installation of a disabled-accessible WC for restaurants of the plaintiff's size. The integration of people with mobility impairments into social life, which also includes the barrier-free use of restaurants without health and hygiene risks, has constitutional status. It is not possible to deviate from this requirement due to an unreasonable burden. Insofar as the building supervisory authority and the commissioner for the disabled assume a protection of the existing status of the restaurant, these are merely building law arguments; however, a decision must be made here according to restaurant law.... ,,

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,, …The only possible grounds for refusal under § 4 Abs. 1 Satz 1 Nr. 2 and Nr. 2a GastG in conjunction with § 4 Abs. 3 GastG are not met, contrary to the defendant's opinion.

a. According to the provision of § 4 Abs. 1 Satz 1 Nr. 2a GastG - inserted by the law of April 27, 2002 (BGBl. I S. 1467) - the license must be refused if the rooms intended for the operation of the business for guests cannot be used without barriers by disabled persons, insofar as these rooms are located in a building for which a building permit for the first-time construction, for a significant alteration, or a significant expansion was granted after November 1, 2002, or which, in the case that a building permit is not required, was completed or significantly altered or expanded after May 1, 2002. The rooms intended for the stay of guests also include the toilets. Although these are only accessible via stairs in the basement of the plaintiff's restaurant and thus not barrier-free within the meaning of this provision, § 4 Abs. 1 Satz 1 Nr. 2a GastG is not applicable to the plaintiff's restaurant. This is because its rooms are - undisputedly - not located in a building for which a building permit was granted after November 1, 2002. Instead, a building permit from 1975 is documented; whether, as the stamped note on the floor plan submitted as Annex K12 "Belongs to building permit no. 369/98 of April 15, 1998, building inspection approved … District Office S... of Berlin …" might indicate, the restaurant was the subject of another building permit from 1998, does not need to be explored further, as this also does not fall within the temporal scope of the provision. A significant alteration or expansion without the requirement of a building permit for the period after May 1, 2002 cannot be established in the present case. Whether the deviations documented for the guest room on the floor plan from 1966 (also Annex K12) constitute a significant alteration - the parties agree that this is not the case - does not need to be clarified further. This is because these alterations were carried out before the last-mentioned cut-off date according to the consistent statements of the parties.

The defendant cannot derive anything to the contrary from the authorization of § 4 Abs. 3 GastG. According to § 4 Abs. 3 Satz 2 GastG, the state governments may, by legal ordinance, determine minimum requirements to be imposed with the aim of creating barrier-free access in terms of the location, condition, equipment, and division of the rooms (lit. a), and define the conditions for the existence of a case of unreasonableness for the implementation of § 4 Abs. 1 Satz 2 GastG (lit. b). The state of Berlin has made use of this authorization through the design of the Ordinance for the Implementation of the Restaurant Act of September 10, 1971 (GVBl. S. 1778), amended by the law of December 14, 2005 (GVBl. S. 754 – GastV). There, among other things, it is regulated in § 3 Abs. 1 Satz 2 GastV that the main entrance to restaurants must be barrier-free - which applies to the plaintiff's restaurant - and the rooms serving the guests of the restaurants must be barrier-free accessible and usable. § 4 Abs. 1 Satz 2 GastV specifies this requirement with regard to toilet facilities to the effect that at least one barrier-free toilet must be usable for mobility-impaired guests from a serving area of 50 sqm.... ,,

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,, …According to this standard, there is no evidence to suggest that § 4 Abs. 1 Satz 1 Nr. 2a GastG could be unconstitutional in view of Art. 3 Abs. 3 Satz 2 GG. This is because the provision of § 4 Abs. 1 Satz 1 Nr. 2a GastG, with which the legislator had in mind a "flanking measure" to the requirements of the state building codes (BT-Drs. 14/7420, p. 36), does not result in a deterioration of the situation of persons due to their (walking) disability and thus does not constitute discrimination within the meaning of Art. 3 Abs. 3 Satz 2 GG. Rather, it pursues the goal of improving the situation of people with (walking) disabilities with regard to access and use of restaurants through regulations vis-à-vis third parties. For this purpose, the legislator can refer to Art. 3 Abs. 3 Satz 2 GG, which contains a mandate for the state to promote and integrate the equal participation of disabled persons (see BT-Drs. 12/8165, p. 29). However, insofar as the legislator influences the elimination of obstacles that stand in the way of the equal participation of persons with disabilities as actual circumstances - as in the case of physical obstacles for (walking) disabled guests of restaurants - the legislator has a scope for discretion. There is no indication that the legislator has exceeded this scope limited by the prohibition of arbitrariness (see BVerfG, decision of October 7, 1980 - 1 BvL 50/79, 1 BvL 89/79, 1 BvR 240/79 -, margin no. 50, juris) by exempting existing restaurants from the new regulation under certain conditions through the disputed cut-off date regulation. This is because it cannot be established that there is a lack of a comprehensible reason for the legal differentiation and that the unreasonableness of the differentiation is evident (see BVerfG, ibid.). The draft law states on this (BT-Drs. 14/7420, p. 36):

"The regulation does not apply in every case of a renewed granting of a concession (such as a mere change of tenant), but only if the restaurant is located in a building for which the building permit for the first-time construction or for a significant alteration or expansion was granted after the cut-off date, i.e., 6 months after the entry into force of the law. If such a construction measure does not require a building permit, the completion before the cut-off date, i.e., before the entry into force of the law, is decisive. This regulation ensures the planning certainty required in the interest of the protection of legitimate expectations."... ,,

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,, …The defendant cannot derive anything more favorable from Art. 11 of the Constitution of Berlin (VvB). According to this provision, persons with disabilities must not be discriminated against. The state is obliged to ensure equal living conditions for persons with and without disabilities.

In particular, the wording of Art. 11 Satz 2 VvB, which goes beyond the wording of Art. 3 Abs. 3 Satz 2 GG, does not provide the defendant with a legal basis for deviating from the provisions of §§ 3 Abs. 1 Satz 2, 4 Abs. 1 Satz 1 GastV from the requirements of § 4 Abs. 1 Satz 1 Nr. 2a GastG. This is because Art. 31 GG, according to which federal law breaks state law, stands in the way. State constitutional law also belongs to the state law that must give way to federal law according to the conflict rule of Art. 31 GG (Korioth, in: Maunz/Dürig, Grundgesetz, as of September 2015, Art. 31 margin no. 24).

This is not contradicted by the fact that the law of restaurants was transferred to the sole responsibility of the states with the federalism reform (Act of August 28, 2006, BGBl. I, p. 2034) by amending Art. 74 Abs. 1 Nr. 11 GG (see Degenhardt, NVwZ 2006, 1209 ff.). This is because a transfer of legislative competence does not release the defendant from the requirements of Artt. 31, 80 GG in this area. Rather, the defendant - by now - has the power to replace the Restaurant Act, which continues to apply as federal law, with a state law within the scope of the legislative discretion granted to it (Art. 125a Abs. 1 Satz 2 GG). As long as it does not make use of this possibility, it is bound by the requirements of the existing Restaurant Act.... ,,