The 2019 IMS Business Report highlights a worrying trend in nightlife: the decline in nightclub venues is accelerating, with a number of high-profile closures around the world in recent months. The news on the closure of Café d’Anvers and the temporary closure of Kompass Klub shows that Belgium is not spared from this trend.
Kompass Klub is a renowned nightclub in Ghent. It regularly organises dance events with famous DJs as its headliners. The audience – up to 1,500 persons per night – comes from Belgium and abroad.
Running a nightclub comes with a certain degree of (neighbourhood) nuisance, such as alcohol-related incidents (e.g. drunk-driving) and other drug-related issues (e.g. illegal substance use and dealing). To avoid these types of incident and to tackle the related problems caused by them, Kompass Klub entered into a nuisance agreement and was in constant dialogue with the police authorities (e.g. the club spontaneously turned in 18 out of the 23 drug dealers that were caught at the club).
Unfortunately, these efforts could not prevent two serious drug-related incidents from happening early in 2019, including one in which one person lost his life.
As a result, the Mayor of Ghent decided to close the club for four months, with the possibility of it reopening after two months if sufficient measures were taken by the club’s management. The club then decided to challenge that decision before the Council of State, which resulted in a successful outcome for the club.
The club was closed on the basis of article 9bis of the Act on Drugs. This article gives Mayors the authority to close down private, but publicly accessible, establishments if there are serious indications of repeated illegal drug-related activities that may interfere with public safety and peace.
The club unsuccessfully argued that the conditions for applying article 9bis had not been fulfilled. Amongst other arguments, the club claimed that it was not sufficiently aware of the drug-related issues and that it had already taken sufficient measures to prevent such issues.
In its judgment of 26 March 2019, the Council of State rejected this argument on the basis of police findings. In particular, investigations showed that volunteers working at the club were part of a chat group that warned each other of any upcoming police controls. Subsequently, the Council of State found that the Mayor had not misjudged the efforts made by the club to keep it free from drugs as the serious incidents of early 2019, including one lethal incident, had demonstrated.
However, the Council of State did suspend the order to close the club because the order had not been sufficiently reasoned.
Given the detrimental effect of a four month closure on the both the club’s financial position and reputation, it was essential to have sufficient reasoning that demonstrated that no alternative was possible.
The Council of State held that – given a reopening was possible after two months and the fact that the club had always showed a very cooperative attitude towards tackling drug-related issues - a two month closure could have been sufficient. Therefore, the term of four months should have been reasoned in more detail.
What is to be learned from the judgment?
Club owners and other nightlife venue owners should be aware of what is going on in their venues and take appropriate measures to safeguard public safety, public health and to avoid neighbourhood nuisance as much as possible. The judgment clearly shows how important it is to invest in and maintain a constructive partnership with the (police) authorities to tackle any issues, including drug-related issues, together.
If, despite such cooperation, problems continue to exist, then the authorities must realise that closure should be the ‘last resort’. Decisions should be proportional and thoroughly reasoned, taking into account the measures that have already been taken by the club owners and possible (less far-reaching) alternatives should be considered.