DOJ Opinion No. 147, s. 1984

DOJ OPINION NO. 147 , s. 1984 October 9, 1984 The Director Bureau of Tourism Ministry of Tourism Rizal Park, Manila Sir : This is with reference to your request for opinion on whether or not restaurants are "still subject to the power and function to the Ministry of Tourism." You state that your office has promulgated "Rules and Regulations to Govern the Business Operation of all Restaurants in the Philippines", classifying them as Class A-de Luxe, Class B-First Class, Class C-Tourist Class, Class D-Economy Tourist Class, pursuant to Section 4, par. (e) of P.L. No. 1463 which grants the Ministry of Tourism the broad power to: "(e) License, classify, regulate and/or supervise the operation of all persons, businesses, establishments, facilities and services that cater to, or have anything to do with travelers and tourists, such as travel agencies, travel agencies/solicitors, tour operators, tour guides, hotels, hostels, resorts, apartment-hotels (APARTELS) tourist inns, motels, pension houses, lodging houses, and other similar lodging establishments, all tourist transport operators, private membership clubs/club houses and recreational complexes with room accommodations offering such services to the public, schools and training centers offering tourism-oriented business/establishments/facilities/services as may be determined by the department." You state further that in the process of classifying these restaurants you have met resistance and opposition from some operations, particularly of Class C and Class D restaurants, in view of the provisions of Batas Pambansa Blg. 337, otherwise known as the Local Government Code, particularly Section 149, par. (rr) and Section 177, par. (d), thereof, which respectively read as follows: LexLib "Sec. 149. Powers and Duties . (1) The sangguniang bayan shall: xxx xxx xxx (rr) Regulates cafes, restaurants, beer houses and lodging houses, except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist inns of international standards which shall remain under the licensing and regulatory power of the Ministry of Tourism which shall exercise such authority without infringing on the taxing or regulatory powers of the municipality. . . ." (Emphasis supplied) "Sec. 177. Powers and Duties . The sangguniang panlungsod shall: xxx xxx xxx (d) Regulate, fix the license fee for, and tax any business or profession being carried on and exercised within the territorial jurisdiction of the city except travel agencies, tourist guides, tourist transports, hotels, de luxe restaurants , and tourist inns of international standards which shall remain under the licensing and regulatory power of the Ministry of Tourism which shall exercise such authority without infringing on the taxing and regulatory powers of the city government. . . ." (Emphasis supplied) The question is whether the Ministry of Tourism still has the power to license, regulate and supervise the operations of all classes of restaurants as establishments catering to tourists and travelers, or whether such authority is limited to Class A or "de luxe" restaurants. The power of local legislative bodies to regulate restaurants is not new. The Revised Administrative Code empowered the municipal council to "regulate" restaurants (sec. 2243[k]). City charters empowered the municipal boards to "tax, fix the license fee and regulate the business of restaurants" (See, for example, Sec. 18, R.A. No. 409 [Manila]; Sec. 2553, Revised Administrative Code [Baguio]; Sec. 21(k), C.A. No. 57, as amended [Iloilo City]; Sec. 16(m), R.A. No. 4354, as amended [Davao City]; Sec. 15(p), R.A. No. 4584, as amended [Laoag City]; Sec. 17 (o) R.A. No. 4585 [La Carlota, Negros Occ.]; Sec. 15(p), R.A. No. 5131 [Tangub, Misamis Occ.]; Sec. 16(n), R.A. No. 5518 [Oroquieta City]). The enactment of the charter of the Department (now Ministry) of Tourism (P.D. No. 189, as amended by P.D. No. 1463), vesting in the said Ministry the broad power to license, classify, regulate and/or supervise the operation of all persons, business and establishments having anything to do with travelers and tourists, which included restaurants as tourism-oriented establishments, did not necessarily repeal or abrogate the power of local legislative bodies to regulate restaurants, as businesses operating within the city or municipality, because a municipal regulation may co-exist with a national regulation of the same activity. It is established that there is nothing inherently obnoxious in the requirement that a person engaging in a business shall have two licenses, one issued by the state and other by a political subdivision (35 Am Jur. 345; U.S. vs. Joson, 26 Phil. 1; U.S. vs. Cham Tienco, 25 Phil. 89). The fact that a business is regulated by statute does not preclude a municipality from imposing additional regulations of a reasonable nature within its legislative authority, but this is so only where the state does not exclusively occupy the field, because an ordinance to be valid must not contravene any statute, and it cannot authorize what a statute forbids nor forbid what a statute expressly permits (Op. No. 206, s. 1952, No. 88, s. 1951 citing U.S. vs. Abandan, 25 Phil. 165; Clinton vs. Wilson, 257 III. 580, 101 NE 192; Medias vs. Indianapolis, 125 A.L.R. 590). An examination of the Rules and Regulations promulgated by the Bureau of Special Services of the Ministry of Tourism "to govern the business operation of all restaurants in the Philippines" will show that the said rules are directed towards the classification, regulation and supervision of restaurants to be accredited for foreign tourist patronage, under the "exclusive" classification of Classes A to D, although all other lesser restaurants may be classified by the Bureau for purposes of regulation, supervision or licensing as "carinderia", "cafeteria", "canteen", etc. (Chapter I, Sec. 3). Needless to state, not all restaurants in the Philippines are tourism-oriented, and there is room for municipal regulation of such restaurants. It is to be noted, however, that with respect to Classes "A" to "D" restaurants, the rules are comprehensive enough to cover all aspects of the operations of the restaurants, and would appear to pre-empt the entire field of regulation. LexLib The enactment of the Local Government Code is a reiteration of the powers of the city/municipal government to regulate and license restaurants, except that "de luxe" restaurants (Class A) are now expressly excluded from the authority of the local legislative body, and now/exclusively pertain to the Ministry of Tourism. Since the Local Government Code expressly alludes to the MOT classification by referring to "de luxe restaurants", and since the express mention of the "de luxe restaurants" excludes other not specified, the intention of the legislature to limit the jurisdiction of the MOT to de luxe restaurants is clear. The phraseology that "travel agencies, tourist guides, tourist transports, hotels, de luxe restaurants, and tourist inns of international standards (which) shall remain under the licensing and regulatory power of the Ministry of Tourism" to our mind evinces the legislative intent to remove restaurants not falling under the category of "de luxe restaurants" from the licensing and regulatory powers of the MOT. Please be guided accordingly. Very truly yours, (SGD.) ESTELITO P. MENDOZA Minister of Justice