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Business operation in quarantine conditions. How not to get a fine?

You can read the article in Ukrainian

"Stay home!" - a slogan that is now promoted by the whole world. The rapid spread of coronavirus forces the leadership of the state to impose a number of restrictions and prohibitions, ranging from bans on economic activities and mass events (most European countries), gather in groups (Germany, Israel, Ireland) before the state of emergency (Kazakhstan, Portugal, Moldova) and curfew (Cyprus, Georgia, Jordan, Peru).

Ukraine is no exception. For violation of the rules of quarantine of people KUoAP supplemented by Article 44-3, which provides for a fine of 17,000 UAH to 34,000 UAH - for citizens and from 34,000 UAH to 170,000 UAH - for officials. For 2 weeks of action of this norm in Ukraine about 3000 protocols on administrative offenses are made.

Restrictive measures in quarantine conditions are being strengthened on a daily basis, so it is necessary to closely monitor the latest changes and analyze what actions can be considered a violation of quarantine conditions.

In this article we will try to find out what economic activity is allowed in the conditions of quarantine, and also separate nuances of its implementation.

Taking into account the latest changes made by the government decree of 25.03.2020 № 239, the quarantine was extended until 24.04.2020. Also, this resolution supplemented the list of economic activities that can be carried out in quarantine.

As we wrote above, changes regarding restrictions and permissions are made daily. Thus, on April 2, 2020, the government expanded the list of activities that can be carried out under quarantine conditions. The full text of the resolution is not yet available, but the list published on the Cabinet's website shows that the expansion took place according to the same criteria as before.

In particular, only activities related to meeting people's daily needs are allowed. If it is trade, then only the goods necessary for life: food, medicines, fodder, fuel and the like. It is also allowed to carry out banking and insurance activities, medical and veterinary practice, repair of household products. A number of restrictions have also been introduced on passenger transport, but in general, access to public transport is provided to citizens.

Detailed list of activities, which are allowed to be carried out during the quarantine period can be viewed below.

At the same time, the implementation of each activity is allowed subject to certain requirements.

The general prerequisite for the implementation of activities is the provision of workers with personal protective equipment, as well as compliance with appropriate sanitary and anti-epidemic measures.

Note * Since the virus is spread by contact with the mucous membranes of the nose, mouth or eyes, personal protective equipment in accordance with GOST 7239: 2011 should be considered filtering devices for the face, ie masks and respirators, as well as hand protection, ie protective gloves.

If we talk about passenger traffic in public transport, there are restrictions on the number of passengers. If more passengers are found, there will also be a more administrative offense. However, there are no such restrictions on passenger transportation.

Recommendations may also be made at the local level as to what preventive and anti-epidemic measures should be observed in working conditions during quarantine.

In the capital, for example, in order to prevent the spread of the virus, Recommendations have been developed for food trade establishments and Recommendations for enterprises, institutions and organizations where it is not possible to provide remote operation.

That is, if you sell, for example, food, but your employees are not provided with masks, gloves, antiseptics or other anti-epidemic measures (according to the above recommendations), then in the case of a police visit, a report on an administrative offense will be drawn up.

We pay attention! The employer or another employee authorized by the employer (labor protection engineer or labor protection specialist) is responsible for providing employees with personal protective equipment, so in case of drawing up an administrative protocol against an employee who worked without means of protection, the protocol is considered violated.

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Restrictive anti-epidemic measures may also be imposed by local executive bodies and local self-government bodies.

Among the recent additional events in Kyiv, Protocol №17 of March 23, 2020 was adopted, which introduced additional restrictions:

  • the work of MAFs on the sale of shawarma, preparation and sale of coffee drinks, etc .;
  • sale of alcoholic beverages for bottling and preparation and sale of coffee drinks in outlets is prohibited;
  • introduced a mandatory "mask mode" for people in administrative, industrial premises and public transport.

We pay attention! When drawing up the administrative report upon violation of Art. 44-3 of the Code of Administrative Offenses must be a reference to the rule that is violated. Therefore, if your establishment prepares and sells coffee drinks with address delivery (as required by the resolution of the Cabinet of Ministers), then prosecution for violation of paragraph 3 of the Resolution of the Cabinet of Ministers №211 is excluded.

Judicial practice

The analysis of the insignificant case law that has developed to date shows that the case file has been returned to the national police in connection with numerous violations and shortcomings.

Among the most common errors in compiling the protocol are the following:

  1. Lack of proper and admissible evidence: explanations of the person who allegedly bought the goods, lack of video recording materials of the committed offense, lack of witness testimony (Resolution of 25.03.2020 № 753/5355/20 Darnytskyi District Court of Kyiv).
  2. The person who will be prosecuted has not been identified according to the disposition of Art. 44-3 KUoAP - as a citizen or official (Resolution of 24.03.2020 № 753/5292/20 Darnytskyi District Court of Kyiv).
  3. There is no evidence that the person against whom the report was drawn up “received visitors” (Resolution of 24.03.2020 № 645/1648/20 Frunzensky district court. Kharkiv).
  4. It is not specified which of the listed prohibitions is violated; it is not taken into account that the person is not a business entity (Resolution of 24.03.2020 № 333/1374/20 Kommunarsky district court. Zaporozhye).
  5. The essence of the committed administrative offense is not specified: it is not specified which of the prohibitions the person violated and under what circumstances (conditions) (Resolution of 24.03.2020 № 359/2462/20 Borispol city district court).

Thus, it can be concluded that the courts correctly approach the prosecution for violating the conditions of quarantine and, provided that the guilt of the person is not proven, make an objective decision in favor of the person.

Conclusions: It is obvious that it is impossible to completely stop the work of enterprises. However, as we can see, due to numerous shortcomings in the fixation of the fact of committing an offense, business entities manage to avoid liability. In addition, quite often there is no offense at all. Therefore, with a reasonable approach to the organization of work in compliance with anti-epidemic measures and sanitary rules, the activities of many enterprises are allowed.

Follow the news and stay healthy.

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Activities that can be carried out during the quarantine period

  1. Activities related to the reception of visitors:
  • Trade in food, fuel, hygiene products, medicines and medical devices, veterinary drugs, feed, pesticides and agrochemicals, seeds and planting material, means of communication, provided that the relevant personnel are provided with personal protective equipment, as well as compliance with appropriate sanitary and anti-epidemic measures.
  • Note *04.2020 added: sale of spare parts for vehicles, including for tractors and other agricultural machinery; sale of daily young poultry.
  • Implementation of banking and insurance activities, as well as medical practice, veterinary practice, gas stations, maintenance and repair of vehicles, maintenance of registrars of settlement operations, repair of computers, household goods and personal items, postal facilities provided providing appropriate personnel with personal protective equipment, as well as compliance with appropriate sanitary and anti-epidemic measures;
  • Note *04.2020 updated: operation of all types of financial institutions, including pawnshops and credit unions.
  • Trade activities and activities for the provision of catering services with targeted delivery of orders, provided that the relevant personnel are provided with personal protective equipment, as well as compliance with appropriate sanitary and anti-epidemic measures.
  1. Activities related to passenger transportation:
  • Regular and irregular transportation by cars;
  • Regular and irregular transportation by official and / or rented motor vehicles of enterprises, institutions, provided that drivers and passengers are provided with personal protective equipment during such transportation within the number of seats and only on routes agreed with the National Police, as well as compliance with relevant sanitary and anti-epidemic measures;
  • Regular and irregular transport in one city electric (tram, trolleybus) and motor vehicle, which carries out regular passenger transport on urban routes, the number of passengers that does not exceed half the number of seats provided by the technical characteristics of the vehicle and defined in the registration documents provided that people are transported in personal protective equipment, as well as compliance with the relevant sanitary and anti-epidemic measures, except for transportation by motor vehicles provided for in the fourth paragraph of this subparagraph;
  • Regular and non-scheduled services in one vehicle and buses performing regular passenger services on city bus routes in the route taxi mode, the number of passengers that does not exceed half the number of seats provided for in the technical characteristics of the vehicle and specified in the registration documents, provided transportation of people in personal protective equipment, as well as compliance with appropriate sanitary and anti-epidemic measures;
  • Arrival on the territory of bus stations of buses carrying passengers in suburban, intercity, intra-oblast and inter-oblast communication, and sale by bus station owners of tickets to road carriers that perform such transportations.

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