Difficulties and countermeasures of environmental administrative law enforcement in catering industry

With the rapid development of social economy, the tertiary industry is booming. Because the planning, construction and management of catering industry are seriously lagging behind, most catering enterprises are built under residential buildings, and the oil smoke and noise pollution seriously affect the normal life of the surrounding residents. Therefore, the problem of oil smoke and noise pollution disturbing the people in catering industry has become one of the most environmental problems complained by environmental petitioners in recent years. For example, of the more than 121 complaints received by the masses in Huli District of Xiamen in February, about 81% were caused by oil smoke and noise pollution. However, such complaints are difficult to handle and are universal.

one of the difficulties: the laws and regulations on the environmental management of the catering industry are not perfect

Although the problem of cooking fume and noise pollution disturbing the people in the catering industry has become one of the most complained environmental problems in urban areas, so far, the laws and regulations on the environmental management of the catering industry have not been perfected. Although Article 26 of the Regulations on Environmental Protection of Fujian Province stipulates: "Urban catering service places should install oil fume purification devices to meet the discharge standards. The height and position of the exhaust port of the fume purification device should not affect the living environment of the surrounding residents. " , but there is no corresponding legal responsibility, and administrative punishment cannot be implemented accordingly. At present, in the practice of law enforcement, the competent administrative department of environmental protection implements it according to the Regulations on Environmental Protection Management of Construction Projects promulgated and implemented by the State Council in 1998, and treats the catering industry as a construction project. According to the Catalogue of Classified Management of Environmental Protection of Construction Projects (the first batch), the catering industry fills in the Environmental Impact Report or the Environmental Impact Registration Form according to the size of its business area and whether its location is in a sensitive area. This is not difficult for the administrative department of environmental protection, but it is not so intuitive and simple for the owners of the catering industry to understand these provisions. Even the owners who know these provisions use the unclear legal provisions as an excuse to justify their illegal behavior. Therefore, in real life, more than 91% of the catering industry has no environmental impact assessment and approval procedures, let alone environmental pollution control facilities and completion acceptance, and the resulting phenomenon of environmental pollution disturbing people is an inevitable result.

the second difficulty: the lack of effective coordination mechanism between administrative law enforcement departments

in the field investigation, we know that the owners of the catering industry generally believe that they all have business licenses issued by the administrative department for industry and commerce, health permits issued by the administrative department for health and tax registration certificates issued by the administrative department for taxation. They believe that since these government departments have issued them with "three certificates", it means that the government allows them to operate, they are legal owners, and at the same time, they have paid taxes to the country and made contributions to the country. Now they have opened their business, but the competent environmental protection department thinks that they are operating illegally and they cannot understand and accept administrative punishment. In the process of administrative punishment, they argued that no department told them to go through environmental protection procedures when they went through the "three certificates" procedures. Since they are all government departments, why can't they be told all the procedures they should go through at one time? I didn't know until today that I would be subject to administrative punishment for violating the Regulations on Environmental Protection Management of Construction Projects. If they had known, they would not have opened this restaurant illegally, or gone through environmental protection-related procedures like other procedures. It is true that the owners of food and beverage outlets do not know that environmental protection laws and regulations cannot be the reason for their non-compliance, and they are duty-bound to bear legal responsibility for their illegal acts, but the reasons for their defense are also worthy of our reflection. In some areas, while the competent administrative department of environmental protection deals with the environmental pollution of catering industry, the phenomenon that the administrative department for industry and commerce continues to issue business licenses to restaurants that have not gone through the formalities of environmental protection examination and approval still exists. This reflects the lack of effective cooperation mechanism between administrative law enforcement departments, which can not control the environmental pollution of catering industry from the source, resulting in lagging environmental administrative punishment, which further aggravates the difficulty of environmental management and law enforcement costs of catering industry.

the third difficulty: long time, high cost and poor effect of environmental administrative litigation

With the continuous improvement and perfection of China's socialist democracy and legal system construction, a series of administrative laws and regulations, such as the Administrative Procedure Law of the People's Republic of China, the Administrative Punishment Law of the People's Republic of China and the Administrative Reconsideration Law of the People's Republic of China, have been promulgated one after another, which requires that However, in the process of environmental law enforcement in catering industry, grass-roots environmental law enforcement personnel have another experience. First of all, according to Article 37 of the Administrative Punishment Law of the People's Republic of China, there shall be no less than two environmental law enforcement personnel for the investigation and evidence collection of illegal restaurants; According to the provisions of Article 31, before making an administrative penalty, the administrative organ shall inform the parties of the facts, reasons and basis for making the administrative penalty, and inform the parties of their rights according to law; According to the provisions of Article 42, if a party requests a hearing, the administrative organ shall notify the party of the time and place of the hearing seven days before the hearing, and the hearing shall be presided over by an investigator other than the case designated by the administrative organ, and the hearing shall be recorded; According to the provisions of Article 38, if the circumstances are complicated or major illegal acts are given heavier administrative punishment, the person in charge of the administrative organ shall make a collective discussion and decision. Secondly, according to the provisions of Article 41 of the Environmental Protection Law of the People's Republic of China, if a party refuses to accept the decision on administrative punishment, he may, within 15 days from the date of receiving the notice of punishment, apply for reconsideration to the organ at the next higher level of the organ that made the decision on punishment; Anyone who refuses to accept the reconsideration decision may bring a suit in a people's court within 15 days from the date of receiving the reconsideration decision. According to Article 58 of the Administrative Procedure Law of the People's Republic of China, if a party refuses to accept the judgment of the people's court of first instance, he has the right to appeal to the people's court at the next higher level within 15 days from the date when the judgment is served. If the party concerned fails to apply for reconsideration, bring a suit in a people's court or perform the punishment decision within the time limit, the organ that made the punishment decision shall apply to the people's court for compulsory execution. Furthermore, although Article 44 of the Administrative Procedure Law of the People's Republic of China stipulates that the execution of specific administrative acts shall not be stopped during the litigation period, the catering industry does not execute the punishment decision, and the administrative department of environmental protection has no enforcement power, and there is nothing that can be done about the environmental pollution caused during this period. Even if the parties know that their actions are illegal, they can still make full use of the time limit of investigation and evidence collection and administrative litigation to conduct illegal business and pollute the environment. For example, the environmental administrative litigation of Xin Hakka Restaurant in Siming District, Xiamen has gone through all procedures, such as investigation and evidence collection, administrative punishment, administrative reconsideration, first instance and second instance of the court, which lasted for 14 months. Although the case was finally lost, the administrative department of environmental protection spent a lot of manpower, financial resources, energy and time in the whole process of administrative punishment and administrative litigation. Compared with the effect, environmental law enforcement has spent a lot of cost and time, but the effect is not ideal.

fourth difficulty: unreasonable planning leads to an embarrassing situation in the rectification of food and beverage outlets

although many food and beverage outlets owners sincerely ask for opportunities and time for rectification, in fact, many food and beverage outlets are built on the ground floor of residential areas or residential buildings, and some food and beverage outlets cannot be rectified at all due to conditions. The reason is that the city is developing rapidly, but the planning can't keep up with the changes. Especially in recent years, with the upsurge of real estate development, many original industrial communities, township industrial parks, some old enterprises and even some enterprises have changed the nature of land use and built commercial houses, and many food and beverage outlets have been built on the bottom of commercial houses. However, in the process of design and construction of these commercial houses, the environmental pollution problem of food and beverage outlets was not considered at all, and there was no dedicated passage for oil smoke pollution of food and beverage outlets, which is also an embarrassing situation commonly encountered at present. At present, a considerable number of hot and difficult environmental complaints are caused by unreasonable planning. Because the catering industry is too close to the residential area, noise and lampblack pollution have seriously affected the physical and mental health of the surrounding residents, and the masses have strongly reacted, resulting in many complaints about environmental pollution.

from the above analysis, the environmental pollution problem of catering industry has different characteristics from general construction projects. Generally speaking, the business scale is small, but the pollution is serious and the impact is great, but the environmental law enforcement cost is high, the litigation limitation is long and the effect is not good. To this end, in view of the above-mentioned difficulties, the following suggestions are put forward:

1. Improve and perfect the relevant environmental laws and regulations to control the environmental pollution of the catering industry from the source

The formulation of laws and regulations is constantly improving and developing with the development of society and the needs of the situation. Through years of law enforcement practice, we think it is necessary to separate the catering industry from the management of construction projects, legislate according to the characteristics of the catering industry, or try it in local environmental legislation first, and then wait until conditions are ripe. For example, Articles 34 to 37 of Xiamen Environmental Protection Regulations (Revised), which was implemented on June 5, 2113, clearly defined the environmental management of the catering industry. Among them, Article 36 clearly stipulates: "When operating catering projects that may produce oil smoke and noise pollution, operators should make it public in advance and solicit opinions from nearby units and residents in writing, and then report to the environmental protection administrative department in turn for approval of their environmental impact assessment documents, and the health administrative department will issue health permits and the industrial and commercial administrative department will issue business licenses before operators can start business." This can block the environmental violations of the catering industry from the source, and achieve greater law enforcement results with smaller law enforcement costs. This is undoubtedly a very beneficial breakthrough for the environmental management of catering industry in Xiamen, and also provides reference experience for all parts of the country. Therefore, it is suggested that on the basis of the implementation of Xiamen Environmental Protection Regulations (Amendment), the state can raise the local mature practices and experiences to the legal level when revising relevant environmental protection laws and regulations, so as to truly control the environmental pollution of the catering industry from the source.

Second, establish an administrative law enforcement information network and form an effective service mechanism

Generally speaking, most enterprises hope to operate legally by going through legal procedures, and the catering industry is no exception. However, due to some restaurant owners' weak environmental awareness and some lack of environmental legal knowledge, they did take a lot of detours. Fortunately, they all hope that the government departments can give them a chance to make rectification within a time limit, and ask the competent administrative department of environmental protection to guide them on how to make rectification. Developing economy is our top priority, and enterprises are the cells of economy and the main body of economic development. As a functional department of the government, it is our duty and obligation to provide services for enterprises. However, the existing management mechanisms are all vertical, each taking care of its own affairs, but what enterprises need is horizontal information. Therefore, it is suggested that the project should be the main line and title, and an administrative law enforcement information network should be established among government departments to form an effective joint law enforcement mechanism, and the relevant matters of administrative examination and approval of various projects should be made public online. For example, you can know what laws and regulations you need to know, what procedures and steps you need to go through in some departments, what materials you need, and so on. This is not only the basic requirement of administration according to law and governing for the people, but also an effective means to implement the project-driven strategy, improve administrative efficiency and reduce the cost of administrative law enforcement. Xiamen has implemented the notification and commitment system for catering and entertainment industries since April 1, 2114. Some attempts have been made in this regard, and certain results have been achieved, which can be gradually improved and popularized.

3. Reasonable planning and establishment of catering concentrated areas

Starting with planning is the key to combining dredging and blocking and preventing environmental pollution in catering industry from the source. For example, Article 34 of Xiamen Environmental Protection Regulations (Revised) stipulates that the reconstruction of old cities and the development of new areas should plan and build a centralized catering business area, and buildings that are allowed to engage in catering industry should set up a dedicated catering channel. Article 35 clarifies the place where new catering projects are prohibited: residential buildings; Buildings within 11 meters from residential buildings; Buildings without special flue for catering industry; Commercial and residential complex adjacent to the residential floor; The Municipal People's Government explicitly prohibits the establishment of other places in the catering industry. These regulations are of great practical significance. Although there are some difficulties in the implementation process, the administrative department of environmental protection in Xiamen has actively helped enterprises to choose reasonable catering business premises, constantly strengthened the construction of catering concentrated areas, and strived to solve problems from the source of planning, and has achieved certain results. Take Huli District of Xiamen as an example: the built catering concentration area is 68,111 square meters, namely: Jiangtou Tiandi Food City is 36,111 square meters, SM City is 8,111 square meters on the third floor, Yuanheshan Town Agricultural Machinery Factory is 4,111 square meters, and Zhukeng Road Catering Street is 21,111 square meters; The catering concentration area under construction is about 31,111 square meters; The concentration area to be built is about 81,111 square meters. The above built, under construction and to be built catering concentration areas * * * are about 178,111 square meters. Xiamen's successful experience in rational planning and establishment of catering concentration areas is worth popularizing throughout the country.

Fourth, strengthen the publicity and popularization of environmental laws and regulations in combination with the creation of green communities

In real life, most environmental pollution problems in the catering industry occur in communities. For example, China-Hong Kong Garden and Yongsheng New Town in Xiamen are all hot spots for people to complain. Article 8 of Fujian Environmental Protection Regulations stipulates: "Citizens have the right to enjoy a good environment and the obligation to protect the environment. Any unit or individual has the right to report and accuse units and individuals that pollute and destroy the environment; Have the right to claim compensation when it is damaged by environmental pollution. " Environmental rights and obligations are complementary to each other. It is suggested to combine the publicity and education of law popularization with the activities of creating green communities, give full play to the role of neighborhood committees, property companies and other units, widely publicize environmental protection laws and regulations, and mobilize the forces of all sectors of society to publicize and protect everyone's environment, so as to form a good atmosphere in which everyone is responsible for environmental protection and everyone participates in environmental protection, so that people can produce and live in a good environment. While the public participates in supervising the law-abiding operation of the catering industry, it also protects everyone's living environment. The competent administrative department of environmental protection should gradually make the concept of environmental protection a household name, deeply rooted in the hearts of the people, and become the conscious action of every citizen by increasing publicity. [Written by Guan Yanzhu, Xiamen Municipal Committee of Zhi Gong Dang]