"Irregular opening of bingos can seriously jeopardize the legalization process"

GMB - Although the activity is banned in Brazil, a new gaming room will be opened in Porto Alegre. What legal aspect allowed the owners to decide to open it?

Roberto Brasil Fernandes -  First, I speak only as a militant lawer of Entertainment Law and from a very personal point of view. I do not know the project or the company responsible, so that I do not know the legal aspects that support the enterprise. However, I can generally make some personal comments to the questions of this interview.

From a legal point of view, are they breaking the law? Or is there any safeguard that allows them to remain open?

Gaming in Brazil has a constitutional provision, according to article 22-XX, which grants the Union, with exclusivity, the power to legislate on "draws". However, the Federal Government has not issued a federal norm, currently valid, authorizing the exploitation of "Bingos" in national territory.

The eventual opening of a bingo hall, can only happen if it is supported by Federal Law in force or by a valid judicial decision. If said decision has become final, we will have the Constitutional protection under the terms of article 5, XXXVI, which ensures that "the law shall not prejudice the acquired right, the perfect legal act and res judicata (a matter [already] judged)."

Can you briefly explain the current situation of gaming activity in Porto Alegre? Why do you think businessmen take risk opening bingos?

It is known that the Extraordinary Appeal - RE 966,177, filed by the Rio Grande do Sul Public Prosecutor's Office, is filed in the Supreme Court, in the face of the ruling of the Rio Grande do Sul State Court that "tired" of considering a criminal offense to exploit gambling due to a law of 1941 (article 50 of Decree 3688/41), a fact that, by itself, smj (except a better judgment), does not authorize the exploitation of gaming, but also does not consider it criminal contravention, especially in that state.

Prudence suggests that the entrepreneur invest in this market, only in two hypotheses:

i) after publication of a federal law regulating this activity, with the respective authorization

or

ii) supported by a valid judicial decision.

In this second scenario, they should hire a lawyer they trust to be sure of the scope and validity of the court decision.

Do you personally believe that this kind of attitude helps or hinders the process of legalizing gambling in Brazil?
Due to the "delay of the legislature", which should have regulated this market, licit business initiatives provoke debate and can contribute to the adoption of the law. In fact, "use and custom" is the source of right.

The opening of bingo halls, without regulatory regulations, can seriously jeopardize the process of legalization, especially if the entrepreneur who comes to exploit this modality, does not adopt responsible gambling practices and fails to comply with tax, labor, etc., presenting itself as a "bad social example".
I have argued that the offer of legal gambling is the most efficient way to combat gambling addiction and ensure protection to the gambler. So I really hope, as a Brazilian citizen, that the Porto Alegre’s businessman announcing the opening of this venue is adequately protected by judicial decision and to exercise the activity in order to demonstrate the social benefits of bingo.

What is your suggestion for the entrepreneurs of Porto Alegre? Take the risk of opening gaming halls even though the police can close them or wait for more consistent legislation?

I suggest that an eventual gaming business can only happen if it is supported by a valid judicial decision, considering the risk that it may be hunted by higher authority or, wait for the federal law edition that deals with this market, which seems to me more sensible.

Another aspect that should be very well observed is the taxation on the activity carried out under amparo in a judicial decision (without law defining the basis of calculation, tax rate and taxable event) related to the activities carried out in that establishment.

These are my brief considerations.

Source: Exclusive GMB