How can a pavement be used for business purposes without violating the law?

Currently, my family wants to take advantage of the pavement in front of the house to buy and sell (Grocery) on Lac Long Quan street, Lien Chieu District, Da Nang city. So how can I use the pavement for business purposes without violating the law? I hope FDVN Law Firm can consult. Thanks so much!

FDVN’s Opinions:

Thank you very much for submitting questions to FDVN Law Firm (FDVN). After studying relevant legal regulations, FDVN has some discussions for your consulting requirements as follows:

[1] Legal provisions on the use of streets and other activities on street

Pursuant to Article 36 of the 2008 Law on Road Traffic, the use of streets and other activities on roads are prescribed:

“Article 36. Use of streets and other activities on streets

1. Roadbeds and pavements are used only for traffic purposes;

2. Other activities on streets must comply with Clause 1, Article 35 of this Law; in special cases, temporary use of parts of roadbeds and pavements for other purposes is subject to regulations of provincial-level People’s Committees and must not affect traffic order and safety.”

Thus, first of all, doing business on the pavements and roadbeds is prohibited. And you can only be traded on the pavements and roadbeds if it falls into the case specified in Clause 2, Article 36 above.

Accordingly, the provisions of the law on the management and temporary use of pavements for non-traffic purposes on roads in Da Nang city are prescribed as follows:

Clause 1 Article 4, Decision No. 55/2014/QD-UBND dated December 31^st, 2014 of the People's Committee of Da Nang City ("Decision No. 55/2014/QD-UBND") and amended by Clause 3 Article 1, Decision 24/2019/QD-UBND of the People's Committee of Da Nang city dated May 2^nd, 2019 ("Decision 24/2019 / QD-UBND") is as follows:

"1. Permitting the temporary use of pavement for non-traffic purposes: means allowing the temporary use of part of the pavement for weddings or funerals; for doing business (except for trading construction materials, scrap, gasoline, oil, gas, construction machinery and equipment); individuals doing commercial activities independently and often without having to register a business (hereinafter referred to as commercial individuals for short); parking of motorbikes, motorcycles, and bicycles; gathering construction materials (including in combination with the installation of protective fences), machinery and equipment for the construction works; installation of public service works; install the bus station according to the approved bus route and organize cultural and social activities, propagate the Party's guidelines and policies and the laws of the State."

Thus, in the concept of the temporary use of pavement in addition to traffic purposes, there are some cases where it is allowed to temporarily use part of the pavement for weddings or funerals; to do business; parking of motorbikes, motorcycles and bicycles; gathering construction materials (including in combination with the installation of protective fences), machinery and equipment for the construction works; installation of public service works; to install the bus station according to the approved bus route and organize cultural and social activities, propagate the Party's guidelines and policies and the laws of the State. Except for the business of trading construction materials, scrap, gasoline, oil, gas, construction machinery and equipment); individuals who do commercial activities independently and often do not have to register a business (hereinafter referred to as commercial individuals for short).

1.1. Scope of temporary use of pavement

Pursuant to Article 5 of Decision No. 55/2014 / QD-UBND regulating the scope of using temporary pavement as follows:

“Article 5. Scope of temporary use of pavement

1. Provisions on the scope of temporary use of pavement according to its width:

a) Pavements  with a width of less than 3.00 meters: Temporary use is not allowed for non - traffic purposes, except for the cases specified in Clauses 1 and 2, Article 6 of this Regulation but must ensure for pedestrian passageways the minimum set is 1.50 meters;

b) Pavements  with a width of from 3.00 meters to under 4.00 meters: The minimum pedestrian path is 1.50 meters; the rest allows temporary use for non - traffic purposes;

c) Pavements  with a width of from 4.00 meters to under 6.00 meters: The minimum pedestrian path is 2.00 meters; the rest allows temporary use for non - traffic purposes;

d) Pavements  with width from 6.00 meters to less than 9.00m: The minimum pedestrian path is 3.00 meters; the rest allows temporary use for non - traffic purposes.

dd) Pavement with a width of 9,00 meters or more: Temporary use of pavement is allowed for non - traffic purposes, but must ensure:

- The width of the remaining pavement (not temporarily used for traffic purposes) is at least 5.00 meters wide.

- The minimum pedestrian path is 3.00 meters.

2. Depending on the specific conditions of each route, the licensing authority is entitled to delimit the part of the pavement used as a pedestrian crosswalk as prescribed in Clause 1, Article 5 in order to ensure that the clear pavement, urban beauty."

1.2. Cases of temporary use of pavements  outside of traffic

Pursuant to Article 6 of Decision No. 55/2014 / QD-UBND, as amended by Clause 5, Article 1 of Decision 24/2019 / QD-UBND regarding cases of temporary use of pavements  for non - traffic purposes as follows:

"1. In case of using temporary pavement for motorbikes, motorcycles, bicycles, vehicles are required to be arranged in rows, along the length of the pavement and in a certain order.

2. For cases of temporary use of pavements to gather construction materials, depending on specific conditions, the licensing agency shall consider and settle on the principle of ensuring pedestrian passageways as stipulated in Clause 1, Article 5 of this Regulation and must be carefully shielded, ensuring no drop on the roadbed and urban water drainage system, ensuring environmental sanitation and urban beauty.

3. For cases of temporary use of pavements for the installation of public works, organization of cultural activities, propaganda of Party’s guidelines and policies and the laws of the State, gathering machines, equipment, in service of the construction and installation of a bus station according to the approved bus route, depending on the specific conditions, the competent agency to issue the License shall consider and settle the above principles of ensuring pedestrian access as prescribed in Clause 1, Article 5 of this Regulation, ensuring traffic safety and urban beauty.

4. For the case of using temporary pavement for weddings or funerals: Households and individuals must notify the People's Committees of wards and communes where the wedding or funeral is held; must take measures to ensure traffic safety and arrange pedestrian walkways with the minimum width of 1.5m; Time to use the temporary pavement is not more than 48 hours, in special cases, it can not exceed 72 hours.”

1.3. Cases in which the temporary use of pavements is prohibited outside of traffic purposes

Pursuant to Article 7 of Decision No. 55/2014 / QD-UBND, as amended by Clause 6, Article 1 of Decision 24/2019 / QD-UBND regarding cases of temporary prohibition of using pavements  for non - traffic purposes as follows: :

"1. Roads that prohibit the use of pavements  temporarily for commercial business and personal commercial activities are specified in Appendix I to this Regulation.

2. Routes that prohibit the use of pavements temporarily for personal commercial activities are specified in Appendix II to this Regulation.

3. In case of using the pavement for other purposes according to the city policy on a number of roads planned by the city that do not allow temporary use for the purpose of trading, business, and private business activities. The competent agency must submit to the City People's Committee for consideration and decision.

4. It is strictly forbidden to conduct business and trade activities at any time on the pavement in front of schools, offices, hospitals, churches, communal houses, pagodas, temples, shrines, public parks, and historical sites, ranked cultural sites, and scenic spots."

Thus, above are the cases in which the temporary use of pavements for non - traffic purposes is prohibited. Accordingly, based on the list of routes that prohibit the use of pavements for personal commercial activities (Attached to Decision No. 24/2019 / QD-UBND dated May 2, 2019 of the Commission The People's Committee of Da Nang City), Lac Long Quan, Lien Chieu District, Da Nang City is not part of the prohibited roads from using the pavement for trading.

Note: It is strictly forbidden to conduct business activities at any time on the pavement in front of schools, offices, hospitals, churches, communal houses, pagodas, temples, shrines, public houses public parks, and areas belonging to historical, cultural, and historical sites.

1.4. Competence to grant permits to use the pavement temporarily for non-traffic purposes

Pursuant to Clause 3 Article 8 of Decision No. 55/2014 / QD-UBND of the People's Committee of Da Nang city:

“3. People's Committees of districts grant permits for organizations and individuals to temporarily use pavements for non-traffic purposes to carry out business and trading activities; commercial individuals; parking of motorbikes, motorcycles and bicycles; gathering construction materials on roads allowing temporary use of pavements, which are assigned to the Department of Transport for management.”

1.5. Application for a license to use the temporary pavement for non-traffic purposes and the processing time

Pursuant to Clauses 1 and 2, Article 9 of Decision No. 55/2014 / QD-UBND of the People's Committee of Da Nang city regulating the application for a license as follows:

"1. A dossier of application for a license to use the pavement temporarily for non-traffic purposes in case of using the pavement temporarily to conduct business activities:

a) An application for the temporary use of the pavement for non-traffic purposes (under the form prescribed by the licensing authority) or the Official Letter of the organization or individual with full information such as the Application;

b) A copy of the business registration certificate issued by a competent state agency (or a certificate of the People's Committee of the ward or commune where the residence is for small traders);

c) Location map (showing the full size and current status of the area);

d) A written commitment to environmental hygiene and urban beauty.

2. A dossier of application for a license to use the pavement temporarily for non-traffic purposes in case of the temporary use the pavement for personal commercial activities:

a) An application for the temporary use of the pavement for non-traffic purposes (under the form prescribed by the licensing agency) or the official letter of the organization or individual with full information such as the Application. The application or official letter must be certified by the People's Committee of the ward or commune where he resides;

b) A written commitment to environmental hygiene and urban beauty;

c) Location map (showing the full size and current status of the area in case of using the fixed location).”

Above is the advisory opinion of FDVN related to your consulting request on the basis of researching legal regulations. Hopefully, the advice of FDVN will be useful to you.

According to Dinh Thi Thong - FDVN Law Firm

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