2014Nu53171 Revocation of an order to repair facilities

At night, Music Co., Ltd. and Music Co., Ltd.;

Head of Gwangjin-gu Seoul Metropolitan Government

Seoul Administrative Court Decision 2014Guhap700 decided May 30, 2014

January 15, 2015

February 5, 2015

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke on December 16, 2013 the order to improve the facilities issued by the plaintiff to the plaintiff.

1. Facts of recognition;

A. On December 16, 2011, the Plaintiff reported to the Defendant pursuant to Article 37(4) of the former Food Sanitation Act (Amended by Act No. 11690, Mar. 23, 2013) and Article 25(1)8 of the former Enforcement Decree of the Food Sanitation Act (Amended by Presidential Decree No. 24454, Mar. 23, 2013) with respect to conducting an ordinary restaurant business with the trade name of night and musicians at the first floor of the building underground (hereinafter “instant business site”) located in the 235 Kasan-ro, Seoul Special Metropolitan City (hereinafter “instant business site”).

The Plaintiff did not obtain permission from the Defendant for entertainment bar business under Article 37 (1) of the above Act and Article 23 (2) of the Enforcement Decree of the above Act.

Article 36 (Standards for Facilities) (1) of the former Food Sanitation Act (amended by Act No. 11690, Mar. 23, 2013) (amended by Act No. 11690), a person who intends to engage in the following businesses shall have facilities meeting the standards for facilities prescribed by Ordinance of the Ministry of Health and Welfare.3. Food service business (2) The detailed types and scope of the businesses under each subparagraph of paragraph (1) shall be prescribed by Presidential Decree. Any person who intends to engage in the businesses prescribed by Presidential Decree among the businesses under each subparagraph of Article 37 (Business Permission, etc.) (1) and Article 36 (1) shall obtain permission from the Commissioner of the Korea Food and Drug Administration or the Governor of a Special Self-Governing Province or the head of a Si/Gun/Gu for each type of business or each place of business, as prescribed by Presidential Decree.

The detailed types of business and the scope thereof under Article 21 and Article 36(2) of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 24454, Mar. 23, 2013) are as follows: A general restaurant business: A business of cooking and selling foodstuffs is allowed to engage in drinking together with meals; an entertainment bar business is a business of cooking and selling mainly alcoholic beverages, and an entertainment bar business is allowed to employ entertainment workers or install entertainment facilities and to allow customers to sing or dance. Article 22 (Scope of Workers) (d) of the former Enforcement Decree of the Food Sanitation Act (amended by Presidential Decree No. 24454, Mar. 23, 2013). Article 23 (Business Requiring Permission and Offices Granting Permission) of the same Act and Article 37(1) of the same Act shall be reported to the Governor of the competent Special Self-Governing Province or the Governor of the competent Special Self-Governing Province as prescribed in subparagraph 1 (d) or (e) of the same Article 28 of the same Act:

B. The Plaintiff: (a) installed a DNA stuff in the instant business site; (b) created a considerable space with which DNA 30 or more adults can see (hereinafter “the space of this case”) between gambling and guest seat; and (c) operated a music in a DNA stuff; and (d) operated special lighting facilities, such as racing and lighting installed in a tent, so that customers may dance in the instant space.

C. On January 15, 2014, the Defendant issued an order to repair facilities (hereinafter referred to as “order to repair facilities of this case”) to the effect that “The Plaintiff reported an ordinary restaurant business and did not obtain permission for entertainment bar business.” The instant place of business was a dance hall for which permission for entertainment bar business was allowed to be installed at the instant place of business. On the grounds that, pursuant to Article 74(1) of the Food Sanitation Act, the Defendant issued an order to repair facilities (hereinafter referred to as “order to repair facilities of this case”).

Article 36 (Standards for Facilities) (1) of the Food Sanitation Act shall have facilities meeting the standards for facilities prescribed by Ordinance of the Prime Minister. 3. Food service business operators, such as food service business operators and food service business operators prescribed by Presidential Decree, and their employees shall observe the matters prescribed by Ordinance of the Prime Minister to maintain the sanitation and order of business, and to promote the health and sanitation of the people.

Article 74 (Orders to Repair Facilities) (1) Where a business facility fails to meet the facility standards under Article 36, the Minister of Food and Drug Safety, a Mayor/Do Governor, or the head of a Si/Gun/Gu may order the relevant business operator to repair the facilities by fixing a period. The facility standards by type of business under Article 36 of the Enforcement Rule of the Food Sanitation Act shall be as specified in attached Table 14 (Standards for Facilities by Type of Business under attached Table 14). [Attachment Table 14] the facility standards by type of business (Standards for Facilities by Type of Business (Standards for Facilities of Food Services) and food service, or facility standards for general restaurant business and bakeries by type of business). If a guest room (excluding cases where a well-known partitions or transparent blocking wall installed is seen collectively) is installed in a general restaurant, a general restaurant, or a bakeries, the same shall not apply. However, the same shall not apply to the cases where a general restaurant equipped with a tobacco screen is installed in a general restaurant, a screen, etc., and a special space room or automatic device installed.

3) No locking devices shall be installed in guest rooms. (b) The fire-fighting systems, etc. under Article 9(1) of the Special Act on the Safety Control of Publicly Used Establishments and other safety facilities shall be equipped. Matters to be observed by food service business operators, etc. under Article 57 of the Act on the Safety Control of Publicly Used Establishments shall be as specified in attached Table 17. [Attachment Table 17] Matters to be observed by food service business operators, etc. (excluding entrusted food service business operators). Matters to be observed by food service business operators, etc. under Article 44(1) of the Act on the Safety Control of Publicly Used Establishments are as specified in attached Table 17. [Attachment Table 17] Matters to be observed by food service business operators (excluding entrusted food

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1 to 8 and the purport of the whole pleadings

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts that the order to repair the facility of this case should be revoked because it is unlawful for the following reasons.

1) The order to repair the instant facilities was unlawful on the ground that the Plaintiff did not have a dance hall installed in the instant business place, and thus, did not have a dance hall installed.

2) Article 74(1) of the Food Sanitation Act provides that an order to repair facilities may be issued where business facilities fail to meet the facility standards under Article 36. Article 36(1)3 of the Food Sanitation Act, and Article 36 Subparag. 8 (b) 1 of the Enforcement Rule of the Food Sanitation Act, which provides the facility standards for general restaurant business pursuant to Article 36(1)3 of the Food Sanitation Act, does not prohibit the installation of dance halls. Thus, even if the Plaintiff installed dance halls in the instant place of business, business facilities do not meet the facility standards under Article 36.

Therefore, the defendant cannot issue an order for facility repair to the plaintiff, and the order for facility repair in this case is unlawful.

3) Since the instant order to repair the instant facilities does not specify the object of repair, the instant order to repair the facilities was unlawful.

B. Determination

1) According to Article 22(2) of the Enforcement Decree of the Food Sanitation Act, the place where customers can dance is a dance hall. As long as the Plaintiff installed a dance room at the instant place of business, and provided that the Plaintiff had customers enjoy dancing by creating a considerable size of the instant space between the entertainment room and the guest seat (see, e.g., Supreme Court Decision 89Do2012, Jun. 22, 1990).

Therefore, the plaintiff can be deemed to have installed a dance hall in the instant business site, so this part of the plaintiff's assertion is without merit.

2) Subparagraph 8 (b) (i) of attached Table 14 of the Enforcement Rule of the Food Sanitation Act, which provides the facility standards for general restaurant business, does not provide that a dance hall cannot be installed at general restaurants.

(1) However, Article 36 subparagraph 8 (b) (i) of the Enforcement Rule of the Food Sanitation Act does not stipulate that a dance hall may be installed in a general restaurant; and (ii) Articles 21 subparagraph 8 (b) and 25 (1) 8 of the Enforcement Decree of the Food Sanitation Act shall prepare food and drinks for general restaurant business.

Article 21 subparag. 8 (d), Article 22(2), and Article 23 subparag. 2 of the same Act provide that the head of the Gu, etc. shall report to conduct an ordinary restaurant business, while Article 21 subparag. 8 (d), Article 22(2), and Article 23 subparag. 2 of the same Act provides that entertainment workers may have entertainment facilities, such as dance halls, or customers may have entertainment facilities, and provide that entertainment bar business shall be permitted by the head of the Gu, etc. in order to conduct entertainment bar business, and Article 44 (1) of the Food Sanitation Act, Article 57 subparag. 6 (l) of the Enforcement Decree of the Food Sanitation Act provides that food entertainment business operators shall not install business facilities other than those permitted or reported. In full view of the above, it is reasonable to interpret that a person who has obtained permission for an entertainment bar business may install dancing halls in an entertainment drinking house, but a person who has filed a report on an entertainment restaurant business cannot install a dance hall in a general restaurant business.

Therefore, as long as the Plaintiff who filed a report on an ordinary restaurant installed a dance hall in the instant place of business, which is a general restaurant, it can be deemed that the business facility under Article 74(1) of the Food Sanitation Act does not meet the facility standards under Article 36.

The plaintiff's assertion on this part is without merit.

3) The instant order to repair the instant facilities is a removal of the dance hall, and the Plaintiff can remove a dance hall by means of via a ample, ample, etc., so it cannot be said that the subject of the instant order to repair the facilities is not specified.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

The assistant judge of the presiding judge;

Judges Hatho

Judges Kim Gin-han