When are non-alcoholic drinks banned?

General decree General decree of the Altona district office prohibiting the out-of-home sales of alcoholic beverages

  1. The sale and delivery of alcoholic beverages within the territorial scope shown in the annex is on Friday, July 31, 2020, Saturday, August 1, 2020 and Sunday, August 2, 2020 from 8 p.m. to 6 a.m. of the following day prohibited. An exception to this is the serving of alcoholic beverages in the licensed area, including the approved outdoor catering of restaurants, for consumption on the spot.
  2. This general ruling is deemed to have been made public on the day after it has been made available on the website of the Altona district office (https://hamburg.de/altona) in accordance with Section 41 (4) sentence 2 of the Hamburg Administrative Procedure Act (HmbVwVfG).

Reason


I.

In December 2019, the respiratory disease COVID-19, which is caused by the novel coronavirus SARS-CoV-2, occurred for the first time in the Chinese city of Wuhan. Since then, the disease has spread worldwide. The situation in Germany and worldwide continues to be a very dynamic and serious situation. In some of the cases, the course of the disease is severe, and fatal courses of the disease also occur.

The risk to the health of the population in Germany, especially with a view to the current travel season, according to the assessment of the Robert Koch Institute, which has special expertise in the prevention of communicable diseases and the prevention of the spread of infections (Section 4 IfSG ), still rated as high. According to the available medical knowledge, the disease is very infectious. It is a very dynamic and serious situation worldwide and in Germany. The number of newly transmitted cases in Germany was declining from around mid-March to the beginning of July, and the number of cases has increased steadily since then. Some circles are currently transferring very few or no cases to the Robert Koch Institute. However, there are increasing numbers of individual outbreaks. The Robert Koch Institute currently rates the risk to the health of the population in Germany as high overall and as very high for risk groups. This assessment can change at short notice due to new findings. The main route of transmission for SARS-CoV-2 is the respiratory uptake of virus-containing liquid particles that arise when breathing, coughing, speaking and sneezing. Depending on the particle size, a distinction is made between droplets and aerosols, whereby the transition between the two forms is fluid. While larger respiratory droplets in particular sink quickly to the ground, aerosols can also float in the air for long periods of time and distribute themselves in closed spaces. Whether and how fast the droplets and aerosols sink or float in the air depends on the size of the particles and a number of other factors, including: the temperature and the humidity. Aerosols are excreted when breathing and speaking, but even more so when screaming and singing; when coughing and sneezing, significantly more droplets are produced. In addition to the increasing volume, individual differences can also contribute to the increased release. Basically, the likelihood of exposure to droplets and aerosols within a 1 to 2 meter radius of an infected person is increased.

Since neither specific therapy nor vaccination is available, all measures must be aimed at preventing the spread of the virus as much as possible. According to the assessments of the Robert Koch Institute, the protection of the health of the population depends largely on compliance with the distance requirement, contact restrictions, wearing mouth and nose covers and the countermeasures taken (contact tracking, quarantine and testing). The Free and Hanseatic City of Hamburg has corresponding requirements for this with the ordinance to contain the spread of the coronavirus SARS-CoV-2 in the Free and Hanseatic City of Hamburg of June 30, 2020 (HmbGVBl., P. 365 - HmbSARS-CoV-2-containment regulation) enact. According to § 3 HmbSARS-CoV-2 containment regulation, every person is called upon to reduce physical contact with persons other than members of their own household to an absolutely necessary minimum, the current recommendations of the responsible public authorities to avoid the transmission of the coronavirus SARS CoV-2 must be observed and appropriate hygiene measures must be observed. According to paragraph 2 of this regulation, people in public places must always keep a minimum distance of 1.5 m from one another (distance requirement). Exceptions only apply to a limited extent - for example for members of a household or for gatherings with up to ten people)

The background to this strict regulation is that large gatherings of people can quickly lead to a large number of transmissions of SARS-CoV-2 pathogens. Every time a large group of people get together, there is a real and increased risk of infection. If the minimum distances are not safely observed or can no longer be observed due to local conditions, this favors the transmission of SARS-CoV-2 from person to person.

At gatherings of a large number of people, where individuals could be carriers of the pathogen, in the event of an outbreak, contact tracking is in fact only possible to a very limited extent, especially where no contact data is collected. This can significantly promote the spread of the virus. This must be prevented in the specific situation, which, despite the easing decided by the Hamburg Senate, continues to focus on contact restrictions and distance as effective measures of infection protection.

If, in particular in connection with the consumption of alcoholic beverages, the aforementioned minimum standards, which are bindingly laid down in the HmbSARS-CoV-2 containment regulation, are no longer complied with by a large number of people, further regulations are required at the local level in order to To ensure effective health protection.

The aim of the Altona district office, as the infection control authority responsible for the Altona district, is to accompany the relaxation of the restrictions imposed by the Senate of the Free and Hanseatic City of Hamburg with a sense of proportion. In doing so, particular danger situations are to be identified and addressed to protect against the risk of infection for human health.

In the last few weeks, the Hamburg police forces have increasingly violated the distance requirements in the area of ​​responsibility of the Altona district office, specifically in the Sternschanze and Altona-Altstadt districts as well as in the area around Alma-Wartenberg-Platz in the Ottensen district, in the evening and at night, detected. Due to the recent relaxation of the HmbSARS-CoV-2 containment regulation and the associated increase in social gatherings, the aforementioned areas are experiencing a steady influx of visitors, both in the restaurants there and in the surrounding public areas. It was found that many of the people present stood close together and visibly intoxicated without the required distance. Requests by the emergency services to adhere to the distance regulations were not suitable for changing the behavior of the visitors.

There has been a steady increase in visitor numbers in the aforementioned areas in the past few weeks. For the Sternschanze area, for example, on July 25, 2020, it was found that up to 1,400 visitors had visited the district at the peak. Only in rare cases did visitors to the district bring their own alcoholic beverages to consume. The purchase of alcoholic beverages at the kiosks or restaurants led to a very large crowd in front of the corresponding objects. On the part of the Hamburg police, it could not be determined over the past weekends that the responsible restaurateurs or operators of retail stores could exert a noticeable influence on compliance with the regulations of the HmbSARS-CoV-2 containment regulation. In the late evening and after-hours there was alcohol-related behavior on the part of visitors that was uninhibited and, in some cases, unrestrained. When the police intervened, solidarity was regularly observed by larger groups of people against the emergency services. The Altona district office had already prohibited individual businesses from selling alcohol away from home on the weekend from June 26, 2020 to June 28, 2020. However, these selective measures could not ensure reliable compliance with the regulations of the HmbSARS-CoV-2 containment regulation. The initially visible successes were only of a temporary nature.

Last weekend (July 24, 2020 to July 26, 2020) the Hamburg police repeatedly violated the distance requirement of § 3, the contact restrictions of § 4 and the general hygiene requirements in the above. Districts determined. Along with the holiday season, both the entertainment and red light districts in the Sternschanze and on St. Pauli recorded an overall increase in visitor numbers. On the weekend of July 24, 2020 to July 26, 2020, visitor numbers were again reached for the first time, as they were before the restrictive measures before the containment of the pandemic in March of this year. During the night, the number of people visiting popular places was repeatedly high, especially in the Sternschanze and Große Freiheit areas. Police forces repeatedly had to direct streams of visitors and block parts of the streets to prevent further influx.

The sidewalks in the affected areas were already heavily frequented from the afternoon onwards. Although the volume was still manageable at that time, there was a lack of space in various places on the sidewalks due to the outdoor restaurants, stalls and trees. In the evening and night, the increasing number of visitors noticeably increased this spatial confinement. On the one hand, many visitors tried to reach pubs, clubs, discos, restaurants and similar facilities via the Reeperbahn. According to the assessment of the Hamburg police, the Great Freedom was of overriding or cross-district importance. The predominant outdoor gastronomy also exerted its charm. Bottlenecks on the sidewalks were made worse by the fact that visitors tried to buy alcoholic beverages through out-of-home sales. There were queues that visitors pushed past. Mouth and nose covers were only worn very rarely by guests.

In the areas of the shoulder blade, new horse market, St. Pauli-Nord, Wohlwillstrasse and Thadenstrasse, around 50% of alcohol was bought from pubs and around 40% from kiosks. Incidentally, the visitors took care of themselves. The Hamburg police were forced to issue several sales bans in accordance with Section 13 (4) HmbSARS-CoV-2-containment regulation. It was found that each individual closure of sales outlets led to a migration to other sales outlets. In turn, queues formed in which the distance requirement of the HmbSARS-CoV-2 containment regulation was not complied with. Measures by the Hamburg police found little or no acceptance and the intervention of the emergency services was followed for a short time, but not permanently.

The events of the past weekends have shown that the measures stipulated in the HmbSARS-CoV-2 containment regulation are not sufficient to take sufficient or comprehensive protection against infection into account. In summary, it can be stated that there have been situations that made it no longer possible for the Hamburg police to ensure compliance with the distance requirement and the hygiene requirements without the application of immediate coercion. Additional measures are required to ensure that the regulations of the HmbSARS-CoV-2 containment regulation, in particular the distance requirement according to § 3 HmbSARS-CoV-2 containment regulation, are complied with.

The places in Altona affected by the general decree are known and attractive, especially among young adults. Due to the rather coincidental meeting of many people, the contacts with each other are varied. It is not possible to keep up the contact, which makes epidemiological narrowing down of a possible infection impossible. The places of origin of those present are largely unknown. It cannot be ruled out that the location will appear extremely attractive beyond the Altona district. It is therefore to be feared that the infection situation may become even more confusing. The virus can be carried into the Altona district from a wide variety of areas and can also be brought back to other parts of the Free and Hanseatic City of Hamburg and the surrounding area. The observed groups of people are characterized by a comparatively high mobility, which contributes to a significantly higher risk of infection. Should there be an outbreak of infection (superspreader) due to a large gathering of people in the Altona district, a very effective means of the public health service, namely the interruption of infection chains, would be switched off.

Based on the current weather forecast (no rain, outside temperatures of up to 30 ° C), it is to be expected that numerous violations of the distance regulations of the HmbSARS-CoV-2 containment regulation are to be expected next weekend. In view of these circumstances and due to the increased number of new infections and the return of many Hamburgers from the summer holidays, the Altona district office has decided to prohibit the out-of-home sales of alcoholic beverages in the aforementioned areas in advance in order to avoid the risk of a to counteract uncontrollable infection events effectively.

II.

The legal basis for the measures taken is Section 28 (1) IfSG. According to this, the competent authority has to take the necessary protective measures if sick people, suspects or suspects of being infected or who have been eliminated, or if it emerges that a deceased person was sick, suspected of being sick or who had eliminated it, insofar as and as long as it is necessary to prevent the spread of communicable diseases. The authority can also restrict or prohibit events or other gatherings of people. This does not conflict with the fact that this measure prohibits operators and owners of out-of-home sales outlets from behaving that is protected by fundamental rights (sale of alcoholic beverages on certain days at certain times of the day), and it is not certain that these persons used belong to the in § 28 paragraph 1 sentence 1 IfSG (sick people, suspected illnesses or contagion suspects or people who have eliminated the disease) count. Because § 28 paragraph 1 sentence 1 IfSG enables the competent authorities to take necessary protective measures against third parties, so-called non-interferers. The term “protective measures” is comprehensive and provides the infection control authority with the broadest possible spectrum of suitable protective measures, which is limited by the need for the measure in individual cases. The identification of sick people, suspects of illness, suspected contagion or excretors opens up the scope of application of the standard, but does not limit the group of possible addressees of orders for protection against infection.

With regard to the type and scope of the control measures, the competent authority must take the necessary protective measures. This opens up a broad spectrum of suitable measures for the authority, which is limited by the necessity of the measure in individual cases. This is based on the fact that the range of protective measures that can be used if a communicable disease occurs cannot be determined in advance. Regardless of the HmbSARS-CoV-2 containment regulation, which has an effect on the entire area of ​​the Free and Hanseatic City of Hamburg, further protective measures against infection can be taken if these are considered necessary by the competent authority in certain areas or locations.

1.

The aim of the general decree is to prevent large gatherings of people in the Sternschanze district as well as in the area around Alma-Wartenberg-Platz and the fish market, where there is a risk that the inhibition threshold, according to the HmbSARS-CoV-2, will decrease due to alcoholism -EinderungsVO continue to comply with the requirements. The general decree is intended to help protect the health of the population and, in particular, to prevent the health system from being overloaded.

The consumption of alcoholic beverages promotes the risk of SARS-CoV-2 being transmitted from person to person by means of droplets or aerosols or the like due to an increasingly uncontrolled way of articulation. This is particularly serious, since the consumption of alcoholic beverages also leads to the ability to react and perceive being impaired and to decrease in terms of spatial distances. In addition, the willingness to obey orders from the police is also decreasing. This increases the risk of falling below the specified minimum distance. In the observed gatherings of (in some cases considerably) drunk people, there is therefore a particularly high risk of infection because the distances between people necessary to avoid infection are not maintained there.

Against the background of the very dynamic spread of infections with the SARS-CoV-2 virus and diseases caused by COVID-19, effective measures must be taken to delay the spread of the virus and to break the chains of infection. Far-reaching effective measures are urgently needed to ensure the long-term maintenance of the health system in the Free and Hanseatic City of Hamburg in the interests of the population and health protection. The measures already taken serve to maintain the functionality of the health system over a foreseeable longer period of time. For inpatient and semi-inpatient facilities, the necessary leeway must urgently be created in order to ensure the necessary performance for the expected increased treatment requirements in the intensive care area under isolation conditions for people suffering from COVID-19.

The dispensing of alcoholic beverages at a late hour in connection with the further relaxation of the HmbSARS-CoV-2 containment regulation and upcoming summer nights has a high potential for crowds of people to form in different places over a longer period of time. Experience shows that citizens tend to gather outdoors, especially when the weather is good. In addition, there is a noticeable decrease in willingness to adhere to the restrictions of the HmbSARS-CoV-2 containment regulation.

The risk of infection with the SARS-CoV-2 coronavirus is increased due to the gathering of large numbers of people who consume alcoholic beverages and who find it increasingly difficult to comply with the distance and hygiene rules. At the same time, there is also a decrease in sensitivity with regard to compliance with the distance requirement. The observations made by the emergency services of the Hamburg police during the controls last weekend as well as in the past in the affected areas have shown that, due to the disinhibiting effect of alcohol, the distance requirement is not complied with during corresponding meetings. However, compliance with the distance regulations is of enormous importance in order to counter the risk of a renewed increase in the number of infections. Measures like these, the purpose of which is to effectively enforce the distance regulations or to ensure compliance with them, or at least to support them, thus serve a very legitimate, general interest.

2. 

The ban on the out-of-home sale of alcoholic beverages is suitable for effectively countering the risk of infection and thus ensuring compliance with the minimum distance regulations according to § 3 HmbSARS-CoV-2-containment regulation.

The availability of alcoholic beverages for consumption in public spaces also promoted and promoted the formation and persistence of crowds in the affected areas in the past. The ban on the out-of-home sale of alcoholic beverages reduces the attractiveness of the public space for gatherings and thus reduces the risk that such large gatherings will form at all, which may involve a great deal of effort and the associated aggressive behavior of those addressed, selectively and even only for a short time can be successfully resolved.

Since the serving of alcoholic beverages is still permitted on the licensed areas of the restaurants, it is to be expected that experience-oriented visitors will be distributed among these and, in the event of insufficient space, due to a lack of alternative offers, will leave the area identified as problematic by the Hamburg police .

The ban on out-of-home sales counteracts the formation of dangerous crowds in advance of the risk of infection. It also eliminates the need for the police to dissolve dangerous accumulations, which further minimizes the potential for conflict and the risk of infection.

3. 

The prohibition of the out-of-home sales of alcoholic beverages is necessary both in terms of space and time as well as in relation to those affected by the measure, since it can be assumed that without this measure the necessary containment of the spread of the coronavirus SARS-CoV- 2 cannot be done enough.

In addition, no means are apparent that are similarly suitable for achieving the objective of the measure. For example, a complete ban on the sale of alcohol has to be ruled out, as this would deprive residents of the opportunity to buy alcohol at all. The general decree is the milder means with regard to a general curfew with the consequence of the complete closure of retail stores and restaurants. While a curfew would result in the extensive closure of restaurants and kiosks within the scope of the general decree, the ban on going out -Sales of alcoholic beverages the remaining business activities continue. The retail trade will also continue to be allowed to continue operating. In this respect, the measure chosen here also represents a less intensive intervention. Furthermore, against the background of the principle of proportionality, it is out of the question to prohibit visitors from entering and staying in the affected areas without exception or to prohibit alcohol consumption outside of licensed restaurants to prohibit in principle. The experience of the past weekends has also shown that repressive action against individual companies - insofar as it is permitted by Section 13 (4) HmbSARS-CoV-2-containment regulation - is not suitable for preventing large gatherings of people from occurring in the long term. Insofar as an out-of-home sales ban had already been pronounced against individual companies, it had to be determined that the potential customers then switched to other companies. These measures could not prevent the gatherings of people, which are questionable in terms of infection protection law. Against the background of the different intensity of intervention, the Altona district office assumes that the ban on the out-of-home sales of alcoholic beverages is the most suitable measure. Due to the volatile nature of the infection, a preventive rather than a repressive approach is now preferable.

Based on the findings of the Hamburg police, it can be assumed that the out-of-home sale of alcoholic beverages contributes significantly to the fact that citizens do not comply with the requirements of the ordinance to contain the SARS-CoV-2 virus. On the past weekends, the Hamburg police made use of the possibility of the individual company-related possibility of § 13 Abs. 4 HmbSARS-CoV-2-containment regulation; However, it was found that this temporary means alone is not suitable to achieve sustainable compliance with the regulations of the HmbSARS-CoV-2 containment regulation. In addition, this procedure could not prevent the emergence of the hazard situation. The latter is essential in order to adequately comply with the protection against infection

The spatial scope of this general ruling is based on the knowledge gained over the past weekends by the Hamburg police and the Altona district office. The Sternschanze area and the center of Ottensen are regularly frequented by outside visitors. As the alcoholism progresses, it becomes increasingly difficult for them to comply with the requirements of the HmbSARS-CoV-2 containment regulation. According to the findings of the police and the Altona district office, the establishments in this area serve to supply those present with alcoholic beverages. The legitimate aim of this general decree can be promoted by prohibiting the out-of-home sales of alcoholic beverages in the affected areas, as this can permanently prevent the supply of alcoholic beverages. This can contribute to the fact that staying in public space is perceived as less attractive and thus relieves the public space.

If it was established in the course of the police operations that in some places of the spatial area of ​​application no excessive gatherings of people were recognizable, this does not prevent inclusion in the spatial area of ​​application of this general ruling. The Altona district office assumes that if the out-of-home sale of alcoholic beverages is prohibited only occasionally, there is a risk of migration to alternative locations within walking distance. The findings from the previous weeks show that younger visitors in particular are extremely mobile and are readily willing to visit different parts of the city or to take short to medium distances. The district offices of Eimsbüttel and Hamburg-Mitte have already announced that they will issue similar general decrees, so that it can be ensured that the events that are problematic under infection protection law are not simply relocated to other districts.

The temporary ban on the out-of-home sale of alcoholic beverages is also necessary for the spatial scope. The time limit of the general ruling ensures that the commercial activities of those affected are not excessively restricted. It is ensured that a sufficient number of alcoholic beverages can be sold on the days concerned. The assessments of the Hamburg police show that the supply pressure increases in the later evening hours. The sales ban ensures that the supply is interrupted if it becomes necessary from the perspective of those present.

With regard to the addressees concerned, it is also ensured that the remaining commercial activity can be continued without restriction. The catering establishments may continue to serve alcoholic beverages as part of their licensed activities. For kiosks, petrol stations, delivery companies and comparable businesses, the option remains to sell the rest of the range to customers. It goes without saying that so-called trunk sales and private street sales are not permitted and cannot be tolerated in this context.

4. 

The measure ordered is also appropriate.

The infection protection law approach is aimed specifically at companies in whose vicinity the emergence of hazardous situations can be foreseen with a high degree of probability based on previous police findings. The official procedure therefore complies with the requirement of proportionality, because the target group is adapted to the current police situation and has been selected with moderation.

The traders affected by the general decree are adversely affected in exercising their freedom of occupation in accordance with Article 12 (1) of the Basic Law. However, the effects of the intervention are limited to a foreseeable period of time and - with regard to the retail trade - only affect a peripheral area of ​​business activity.

In addition, the ban on the take-away sale of alcoholic beverages is limited in time to what is necessary. It will be on the busy evenings and nights on the upcoming weekend from July 31st. until 02.08.2020, each time from 8:00 p.m. to 6:00 a.m. of the following day, because due to the good weather conditions, it can be assumed that more and more citizens will visit the affected area again for a sociable get-together this coming weekend.

For the reasons mentioned above, the economic interests of those affected have to take second place to the interests of the general public with regard to health and infection protection during the extremely dynamic course of the corona pandemic.

Finally, the Altona district office also recognizes that those affected by the general decree are not immediate interferers. However, the past weekends and the knowledge gained by the Hamburg police have shown that addressing the interferer directly is not suitable in order to achieve compliance with the regulations of the HmbSARS-CoV-2 containment regulation required under infection protection law. Ultimately, the Hamburg police could only ensure that illegal conditions were triggered, but could not prevent the emergence of the dangerous situation themselves. Against the background of the high risk of infection and in the sense of an effective defense against danger, measures must be taken that can also be directed against non-disturbing people.

5. 

A prior hearing of those who may be affected is refrained from in accordance with Section 28 Paragraph 2 No. 4 Alt. 1 HmbVwVfG. In the present case, the immediate decision results from the short-term update of the risk forecast for the upcoming weekend. Due to the current situation, the Altona District Office cannot rule out the possibility that the anticipated crowds and consumption of alcohol will lead to considerable health risks for the citizens present due to a high rate of disease transmission from the SARS-CoV-2 coronavirus.

6. 

The announcement of this general decree is made publicly in accordance with Section 41 (3) sentence 2 HmbVwVfG. In accordance with Section 43 (1) of the HmbVwVfG, an administrative act becomes effective for the person for whom it is intended or who is affected by it at the point in time at which it is made known. An administrative act may be made public if this is permitted by law and a general order may also be made public if it is impracticable to announce to the parties involved. In particularly urgent cases, the public announcement of a general order in accordance with Section 41 Paragraph 4 Clause 2 HmbVwVfG can also be made by making its operative part accessible on a website of the authority or its administrative body. The concept of special urgent cases covers situations in which an announcement in the Official Gazette would lead to a loss of time, which with a high degree of probability would mean that the measures required in the matter would come too late. This is the case here. The ban on out-of-home sales of alcoholic beverages will be ordered for the upcoming weekend from July 31, 2020 to August 2, 2020. Any announcement in the Official Gazette would lead to a loss of time. The general decree could therefore not be effective for the upcoming weekend.

The general decree can be viewed in the foyer of the Altona district office, Platz der Republik 1, 22765 Hamburg, in accordance with Section 41, Paragraph 4, Clause 4 of the HmbVwVfG.

Legal instruction

Objections to this general ruling can be lodged with the Altona District Office, Platz der Republik 1, 22765 Hamburg, within one month of its announcement.

Hints

Section 1 of the general decree is immediately enforceable by virtue of the statutory order in accordance with Section 28 Paragraph 3 in conjunction with Section 16 Paragraph 8 IfSG. An objection to the general decree therefore has no suspensive effect. Infringements of the order of number 1 constitute administrative offenses in accordance with Section 73 (1a) No. 6 IfSG and can be punished with fines of up to € 25,000 in accordance with Section 73 (2) IfSG. The determination of personal details is also permitted for the initiation of administrative fine proceedings.

The provisions of the ordinance to contain the spread of the SARS-CoV-2 coronavirus in the Free and Hanseatic City of Hamburg remain unaffected by this general decree.

In order to enforce this general order, the Altona district office has asked the Hamburg police to provide additional assistance by way of administrative assistance.

​​​​​​​