Licences

My interest was piqued this morning when I heard on the news that two young men had been arrested for conducting a business without a licence.  There was no information released on the facts in this matter.  I have no knowledge of the special circumstances affecting the men or their business.  What I say here is not intended to advise anyone or their advisers.  If you have any doubt whether you are required to obtain a business licence to cover some activity that you do in Anguilla, you should obtain appropriate legal advice, and not rely on what I am about to say here. 

I have previously written on this issue, as you can read by checking my earlier post of 29 January 2008.  The bottom line of that post was that the law of Anguilla does not require every business conducted in Anguilla to be licensed.  The law only requires “places of business” where specified businesses are conducted to be licensed.  This is what the law says:

Obligation to obtain licence to carry on certain trades, businesses, occupations and professions

3. Every person carrying on any trade, business, occupation or profession set out in the Schedule shall take out an annual licence in accordance with the provisions of this Act in respect of each premises or place where such trade, business, occupation or profession is carried on, and shall only carry on such trade, business, occupation or profession from such premises or place.

The meaning of the words in the section is clear.  If you have a place of business at which you do one of the businesses set out in the Schedule to the Act, then you are required to obtain a licence in respect of the place in question.  The Act does not say words to the effect that “no business shall be carried out in Anguilla without a licence”.  The words above cannot be stretched to bear this meaning.  

A ‘place of business’ is not defined under the law.  However, the meaning of the words is clear enough.  A place is a spot, a space on the ground, a location.  The businesses that are required to be licensed are listed in the Schedule to the Act. 

A place of business is by implication a place dedicated to doing business, a place to which you invite members of the public to do business with you.  If you do your business of designing Christmas and greeting cards on the computer in your bedroom, your bedroom does not become a ‘place of business’.

If you conduct your business from three different locations, then you are required to obtain three different licences. 

If you have a licensed business place, then you must carry out your business from there.  You cannot have a licensed shop, and then open an unlicensed branch and claim that your licence covers that unlicensed branch.

If however, your business is of a type that does not require any contact in person with members of the public, and you in fact have no contact with the public at a particular place of your own, then it is clear that the words of the Act do not apply to you. 

If you conduct your business from your home, or from a pay phone, or from the computers in the public library, ie, if your business is of a type that does not require a dedicated ‘place’ of business, then the Act does not require you to have a licence to conduct your business. 

If I conduct my business in private, without inviting members of the public to come to my residence, then the Act does not apply to me.

Let us take a few practical examples.  The Schedule lists these occupations:

32. Consultant/Arbitrator ............................................................................................... 1500.00

57. Hairdresser ................................................................................................................. 600.00

66. International Trader .................................................................................................. 1500.00

       Each of these occupations can be carried out at a place of business as defined above.  The places where I carry out the business would need to be licensed.  Equally, they could be carried out without a place of business.  I would not need a licence then to carry out the business.

A consultant who lives in Anguilla and is consulted on the telephone or in the homes or businesses of her clients is not required to be licensed.  The St Kitts consultant engineer or attorney at law who flies in to Anguilla to do a particular job for a client, is not required to take out a licence in respect of his hotel room.

A hairdresser who visits clients at their homes or hotel rooms is not covered by the wording of the Act. 

An international trader who uses her computer at home or at the Library and who does not have a ‘place of business’ is not compelled by the Act to have a place of business, and is not required to have a business licence.

A heavy-equipment operator who keeps his equipment near his home, and takes contracts to do work on different construction sites from time to time has no place of business, and is not required to take out a licence.

I hope the police arrested the right persons.  Otherwise they could be in trouble under the law.  Mind you, remember to take advice from your attorney before acting on what I have written here.

Malfunction

System malfunction?  Overseas Report has a very interesting article by Benito Wheatley on the British Virgin Islands political culture.  Everything he says is applicable to Anguilla.  I urge you to read it for yourself.  His point is that the people of the BVI are discontented with the political system of that Overseas Territory.  He ascribes this discontent to the political culture of the Territory. 

In the BVI, as in Anguilla, recent governments can claim to have improved the territory’s progress and development.  Yet, some areas of society are worse off than previously.  Something is undermining government’s effectiveness.  He believes that the blame lies in certain political practices that have been adopted.  It is not that the politicians are particularly corrupt, it is that the system they have inherited and have continued to cultivate seems almost designed to cause suspicion and disquiet. 

The first corrupt practice he refers to is post-election patronage.  The culture of Anguilla, as in the BVI, and no doubt of every British Overseas Territory in the West Indies, is that the first thing a new government does is to dissolve the various Boards, Commissions and Committees established by the previous administration, and appoint their own political supporters in their place, no matter how inappropriate and incompetent they are.  They say it is expected of them, and they are only considering the expectations of their followers.  There is nothing further from the truth.  This is a system of British Foreign Office encouraged victimisation that has existed in our Leeward Islands since the earliest colonial times.  Political victimisation is designed to muzzle a segment of the population and to inhibit free speech in order to give the administration free reign.  It makes life easier for the Foreign Office as well as for the local administration.  It is an evil system that the British themselves have now done away with.  No politician in that country can appoint a single person to a Board or a Committee without that person being vetted by an independent body established for the purpose of ensuring that ability and merit outweighs political patronage.

He calls the second problem with our governments the “headstrong” approach to governance.  We in Anguilla well know what he means.  This is the system whereby Ministers are encouraged to believe that only they know best.  There is no need for real consultation with the people on certain matters.  They have been appointed “to rescue the people from themselves”.  Ministers, by their election to the House and appointment by the Governor, believe they have been empowered to take decisions, even when they are contrary to the opinion and advice of technical experts.  There is no need to give specific examples from Anguilla.  Every one of the public works projects, awards of licences, and granting of permits over the last ten years have proceeded under this system.  It is facilitated through the agency of compliant permanent secretaries.  The inevitable result of this style is that public confidence in the integrity of government leaches away.  The public becomes more and more disenchanted with the system of governance.  Their only pathetically inadequate remedy is the quinquennial return to the polls.  It is inadequate because the flaw lies in the system that each administration functions under, not with the individuals who happen to have been elected.

Tied to this problem of the headstrong approach to governance is the lack of transparency.  Contracts are awarded under a veil of secrecy.  Villagers wake up in the morning to find that a public road has been bulldozed through their midst in the night.  The Chief Surveyor approves the alteration of boundary marks when the affected neighbours have not been notified of the proposed change.  The public works tendering process is neither constitutionally mandated nor otherwise protected from political interference.  On the contrary, public works contracts are viewed as a political opportunity to keep contractors happy and in the right camp.  Worse, many contracts are awarded to political favourites without any consideration of the public interest in having the work done at a reasonable cost and to an adequate standard.  The standard argument in support of this approach is that if government had to consult the public on every issue nothing would get done.  Our governments fail to accept that a proper functioning democracy depends on a consistent and dependable consultative process.  People who are affected by public works decisions must be given a chance to make their input, even if it slows the pace of government.

His final criticism is the corrupting influence of the constituency system.  We in Anguilla all know about that.  The politician with the means to buy off the majority of his voters is almost guaranteed to win his seat in the House.  When most elections are won by majorities of less than one hundred, it helps if you have more relatives in your village or district than the other candidate.  We expect our politicians to favour the constituency from which they were elected.  We demand the right to approach the Minister and ask for his help with a personal problem, even if it means corrupting the system designed for the protection of the public.  Planning permission objections are overruled, work permits are granted, and residence permits are awarded, depending on who is the individual applying.  This is so routine that Ministers tout it as proof of their concern for the interests of the little man, a source of popularity.  It is not recognised for the corruption that it is.

The blame for this must be put where it belongs.  The political system, the Westminster Model, does not function efficiently in Anguilla.  We need to put more checks and balances in place.  Structural change is needed in the way we do government in Anguilla.  A course of re-education for all our senior officials in the principles and practices of transparency and accountability is urgently needed.  A legally enforceable and mandatory tendering process for all contracts above a certain level is essential.  Transparency in the award of contracts would be a first step.  The granting of permits and licences on the basis of merit only, is universally demanded.  The vetting of political appointees requires no great change in the law, only a commitment to transparency and accountability.  Island-wide elections must be provided for in the new Constitution.  These reforms are needed by all the Territory governments of the West Indies.

Dolphin Park

Dolphin Discovery Relocation at Sandy Point to be Investigated. This case is not over. A final decision still has to be given. We have to be careful what we write. It is important not to pollute justice by writing things that can be read as intended to wrongfully influence the court.

However, we cannot let the making of the recent order in the High Court pass without any notice at all.

The court had been asked to permit the neighbours of the Dolphin Discovery to bring the government to court. The alllegation is that government did not follow its own procedures and laws for permitting an activity such as this to begin at the Sandy Spit at Blowing Point Harbour. I have written about this previously, most recently here, and here, and here.

The court listened to the argument by the neighbours and by the government. The court agreed that the matter needed to be fully ventilated. While the matter is being made ready for argument, the court ordered the dolphin people to stop their construction.

The story of the court's decision has been published in the newspapers. You may like to read the actual words of the judge. This is what she said:

“THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

TERRITORY OF ANGUILLA

(CIVIL)

AD 2008

CLAIM NO. AXAHCV/2008/0015

BETWEEN:

PAUL WEBSTER
MAJORIE MACCLEAN
MAJORIE CONNOR
PHILIPPE CHAMPAULT
CHRISTINE CHAMPAULT
ANNE KELLER
LLOYD SINCLAIR
NEIL FREEMAN
WENDY FREEMAN
Applicants/Intended Claimants

And

THE ATTORNEY GENERAL
(FOR THE GOVERNMENT OF ANGUILLA)
Respondent/Intended Defendant

TRANSCRIPT OF DECISION

6th May, 2008 at 9:10 a.m.

BY: HON JUSTICE JANICE GEORGE-CREQUE, Judge.

APPEARANCES: Ms. Palmavon Webster, Ms. Tameka Davis and Mr. Gerhard Wallbank for the Applicants;

Mr. Ivor Greene for the Respondent;

Mrs. Josephine Gumbs-Connor: (watching brief on behalf of Dolphin Fantaseas Anguilla).

PROCEEDINGS

THE COURT: Now yesterday, I granted leave to the Applicants to make a claim for judicial review of the various decisions of the governmental bodies or persons giving rise to the construction of a dolphin pier and/or a dolphinarium at Sandy Point Beach in Anguilla, and I reserved until today the question as to whether interim relief ought also to be granted pursuant to CPR 56.4(9), which in essence states that the Court, on hearing an application for leave for judicial review, may, if it considers that it is just to do so, grant such interim relief. Now, counsel for the Applicants made this application in light of certain information given by counsel for the Respondent in connection with this matter.

From the evidence adduced the following matters appear to be clear and uncontroverted.

(1) On the 12th of June, 2007, Dolphin Fantaseas Anguilla, applied for permission to construct a dolphin pier in the water at Sandy Point, Blowing Point, Anguilla and in respect of Block 28309, Parcel 169. (See exhibit "VP3" to the first affidavit of Vincent Proctor)

(2) This parcel is properly described as Registration West, Block 28309 B, Parcel 169 and is owned by the Crown having been acquired by compulsory acquisition for public purposes, namely: The development of a public park and a sports complex. (See Statutory Rules and Orders 1997 No.8).

(3) Planning approval was given by the Land Development Control Committee, LDCC, on 12th December, 2007. (This is exhibited at "VP3" to the first affidavit of Vincent Proctor).

(4) Apart from the LDCC's planning approval, the only other written approval granted by any other governmental body or person appears to be for a building to be located at Sandy Point, Blowing Point, in respect of an application dated either 14th or 19th February, 2008, bearing application No. 0017/07 in respect of parcel 169, shown as having been approved on December 14th 2007 by the Anguilla Building Board.

(5) Sandy Bay Point Beach is a protected beach pursuant to the Beach Protection Orders, Revised Regulations of Anguilla, B25-1 made under section 2 of the Beach Protection Act (Revised Statutes of Anguilla Chapter B25)

(6) The Port of Blowing Point as per the Prescribed Ports Regulations, Revised Regulations of Anguilla P55-4, made in accordance with the provisions of the Ports Harbours and Piers Act (the Revised Statutes of Anguilla Chapter P55), encompasses an area of sea and land extending on both sides to the extremities of the Blowing Point Beach and seawards to the edge of the farthest reef or to a distance of 1,000 yards from the mean shore line where no reef exists and includes the harbour and piers situated therein.

(7) Construction of a Dolphinarium or Dolphin pier commenced in the water in an area falling within the prescribed limits of the port of Blowing Point at Sandy Point Beach. Photographs and plans are exhibited depicting the site and the physical location of the structure being constructed.

(8) The Beach Control Act (Revised Statutes of Anguilla Chapter B20) vests all rights in and over the foreshore of Anguilla and the floor of the sea in the Crown. (This is set out in section 2 of that Act.). Section 3 prohibits the use of the foreshore and the floor of the sea without a licence. The Act also provides for a licence to be granted by the Minister and that Minister is the Minister charged with the administration of Crown Lands upon application being made. The application must be published in the Gazette and members of the public must be afforded an opportunity of making representations to the Minister in respect thereof. Encroachment on or use of the foreshore by any person without a licence attracts a penal sanct ion.

(9) The Ports, Harbours and Piers Act section 36 states, in effect, that no person shall construct any pier on any part of the foreshore without the written permission of the Minister (and in this case it is the Minister responsible for Ports, Harbours and Piers). Section 37 of the said Act provides for owners of piers or constructions on the foreshore to apply for a licence, renewable annually. It further fixes the responsibility for the management of Ports with the Supervisor of Ports and also charges the Supervisor with the responsibility for the management and protection of the foreshore with power to order the removal of any obstruction or construction thereon. The Supervisor is also empowered to operate the ports as appears best calculated to serve the public interest.

Counsel for the Respondent stated that:

(1) There has been no decision to lease Parcel 169;

(2) That no licence has been issued by the Minister responsible for Crown Lands pursuant to the Beach Control Act. He refers, however, to the first affidavit of Vincent Proctor, paragraph 25, where Mr. Proctor alludes to information passed on to him by the Permanent Secretary, Ministry of Lands, to the effect that "the Ministry of Lands gave the Developer permission to commence building the pier" and that "the licence to use the beach is a new concept, the details of which is still being developed". From this it is readily inferred as accepted by counsel for the Respondent, that no licence has been granted for the use of the foreshore or of the floor of the sea as required by the Beach Control Act.

(3) There is no written permission given by the Minister of Ports pursuant to the Ports, Harbours and Piers Act. Indeed, there is no evidence of any permission in any manner given by the Minister of Ports for the construction of a pier on that part of the foreshore falling within the domain of the port of Blowing Point, or that any licence for such has been applied for or granted by the Superintendent of Ports as required under the Ports, Harbours and Piers Act. Breach of any provisions of the Ports, Harbours and Piers Act also attracts a penal sanction. (See section 44 of that Act.)

Despite the lack of such licences and permissions under the Beach Control Act and the Ports, Harbours and Piers Act, it is not challenged that construction of a Dolphinarium or a Dolphin Pier has been proceeding apace in the water forming part of the port and harbour of Blowing Point and encroaching on the foreshore and floor of the sea at Sandy Point Beach. It is because of the Dolphinarium's peculiar location which brings it within the ambit of the provisions of these Acts quite apart from any other law which may be applicable thereto. Admittedly, the construction as being carried out runs afoul of the provisions of these Acts. This then begs the question: "How could such activities which attract criminal sanctions, in the absence of the requisite licences and permissions, simply be allowed to occur and proceed unabated without the necessary intervention by the relevant servants or agents of the Crown?" Yet no steps have been taken to bring such activities which are being carried out in plain sight to a halt. Can such a dereliction or abdication of responsibility be permitted to the detriment of the public interest? I think not. It is after all in the public interest that the laws of the land be applied and obeyed. Such is essential for the good governance in a democratic society. Accordingly, in such an instance, the Court must step in with a view to safeguarding the interest of the ordinary citizen.

Based on all the circumstances as I have set out, I am satisfied that the granting of interim relief is warranted to halt the activities being undertaken in admitted violation of the provisions of the Beach Control Act and the Ports, Harbours and Piers Act.

Accordingly, it is ordered as follows:

(1) That all construction of all piers or structures or any encroachment on the foreshore or floor of the sea in whatever manner at the Sandy Point Beach or in the waters forming the Port at Blowing Point by any persons whether by themselves, their servants or agents, in violation of the requisite licensing provisions of the Beach Control Act and the Ports, Harbours and Piers Act cease forthwith until further order.

(2) The Respondent shall perform all acts and do all things as may be necessary to ensure compliance with the terms of this order.

(3) It is further ordered and directed that this order be served upon Dolphin Fantaseas Anguilla, being a person appearing to the Court to be directly affected by the making of this order.”

What is the significance of this decision? It is that when an Anguillian resident has a good reason to believe that government has not been following its own laws and procedures, that resident can ask the court to review the decision of government. Government is under the Constitution and the law. The court has power under our Constitution and our law, if it finds that government came to a decision that adversely affects some or all of us by following an incorrect procedure, to cancel that government decision. It can call up the government's decision into the court and set it aside, declaring it to have been an illegal decision. Damages can follow. That is why government ministers always get the opinion of the Attorney-General before making any important decision. They need to be sure their decision is legal.

That is where we are. The court has given permission for the case to go ahead. The court is now going to hear the argument in June. Until then, the construction at Blowing Point must stop.

All Anguillians wait with baited breath to see if the Mexicans will obey the order of the court. The law is that every order of the court must be obeyed, regardless of how you object to it.

Since the order was made against Government, what will happen if the Mexicans proceed with their construction in defiance of the order of the court? We shall keep our ears to the ground.

Amplified Sound

Noise in Sandy Ground. A few weeks ago there was confusion in Sandy Ground. The police were closing down the entertainment spots. That was the rumour. There were some meddlesome visitors who had complained to the police about the music. So it was being said. The police had, in lightning fast style, moved to visit all the entertainment spots and to tell them they were not permitted to play amplified sound without a permit from the Commissioner of Police. That was what I heard. I carried out an investigation. This is what I learned.

Sandy Ground is a village with several hundred residents trying to get a good night’s sleep. There are also several business places that provide entertainment for the late-night crowd. Some of them play amplified music until three or four in the morning. Not all of the entertainment spots are enclosed. The noise level in Sandy Ground and echoing down to South Hill Village was intolerable. The hours of duration were unreasonable.

About forty residents got together and wrote a petition to the Commissioner of Police. The vast majority of petitioners were ordinary Sandy Ground residents. This is what the petition read, in its entirety:

“We, the undersigned, respectfully request that the authorities in Anguilla enact and enforce laws with regard to reasonable and specific levels of noise and reasonable and specific hours of operation in Sandy Ground to enable residents, businesses, and visitors to exist/function/live in harmony.”

From any reading, the petition asked for laws to be enacted. It asked that the laws be enforced. It asked that these laws set reasonable and specific levels of noise and reasonable and specific hours of operation for Sandy Ground. It asked that this be done so that residents, businesses, and visitors could exist and function and live in harmony. Not unreasonable requests, I hope you will agree!

The police Commissioner received the petition. He knew there was already a law on the books. It is called the Sound Amplification (Restriction) Act.

The entire Act is one and a half pages long. It consists of three sections. One imposes a fine of $2,000 for breaking the terms of a permit. The other two sections state,

Restriction on amplification of sound

1. Any person who, except under the authority and in accordance with the terms and conditions of a permit issued under section 2—

(a) operates, or causes or allows to be operated, any amplifier, loud speaker or any other device so as to amplify the sound made by the playing of any musical instrument or human voice or so as to amplify any other sound; or

(b) plays or operates, or causes or allows the playing or operation of, any record player, radio, television set, tape cassette player or other device designed or adapted for the transmission of sound;

from any premises in a manner which, by reason of the causing of noise, unreasonably disturbs or annoys any other person dwelling or working in neighbouring premises commits an offence and is liable on summary conviction to a fine of $2,000.

Commissioner’s power to issue permits

2. (1) The Commissioner of Police or any other police officer not below the rank of Deputy Commissioner of Police authorised by the Commissioner of Police may, on application by any person, issue a permit, subject to such terms and conditions as he may think fit.

(2) Every application for a permit shall be in writing addressed to the Commissioner of Police within a reasonable period of time before the commencement of the amplification and transmission of sound and shall specify—

(a) the date of commencement of the amplification and transmission of sound;

(b) the place on which such amplification and transmission are to be carried out;

(c) the name and address of the person who is in charge of such place for the time being; and

(d) the duration of and the necessity for the permit.

(3) Every application for a permit concerning such a place shall be accompanied by a signed statement by the person in charge of the place for the time being giving his consent for the use of the place for such amplification and transmission.

At a first glance, the law appears to be of general application. It seems to prohibit any amplification of sound from any premises which “unreasonably disturbs any other person” without a permit. It does not appear to be a general licensing law. What does this law really say? It does not require every person to obtain a permit before amplified music is played. A permit is only required for you to play amplified sound that unreasonably disturbs or annoys another person. If you are not planning to be unreasonable, no permit is required. So, in my opinion, a permit is not required for playing amplified music in an enclosed space, when the music cannot be easily heard outside. It is only if the amplified noise that you are making is unreasonable that you need to get a permit.

The Act is a mere skeleton of a law. It contains no detailed regulations or specifications of any kind. Nor does it provide for regulations to be made.

It is child’s play to test the level of amplified sound. Decibel counters can be picked up in any electronic shop. If the House of Assembly had intended to restrict business places that provide entertainment by amplified music to a reasonable level of noise and to reasonable hours, it would have provided for detailed regulations to be made.

Section 2(2)(a) and (d) suggest something else. Note that they do not cover existing restaurants and bars that play music every day. You have to submit the date when you will commence the sound, the duration of the amplified sound, and the necessity for the permit. This suggests that the House of Assembly intended it as a police permit for occasions such as political meetings and other sporadic and one-off events. There is nothing in the Act that suggests it is meant to be a general licensing law regulating the playing of amplified music.

So, what did the Commissioner do when he received the petition? He did not call a meeting as requested. He did not ask for regulations to be made, as requested. He did not send down an officer to warn the business premises that there were complaints and that they were being unreasonable. He got tough. He decided to implement the law. On the Friday night he sent a police officer down to Sandy Ground just as the bands were starting up. The officer’s instructions were clear. He told each manager that if amplified music was played that night, or any other night, without a permit, the manager would be prosecuted. The bands were sent home. No music was heard in Sandy Ground for several days.

Over the next several days, the Commissioner held unsatisfactory and ill-tempered meetings with irate residents and even more irate night spot owners.

The politicians washed their hands of it and said it was a police matter.

Eventually, the businesses all applied for and obtained permits setting out the hours when amplified music could be played. An uneasy calm returned to Sandy Ground.

In my opinion, none of this is satisfactory.

What the residents asked for has still not been done. No rules have been laid down establishing “reasonable and specific levels of noise”. No rules have been laid down establishing “reasonable and specific hours of operation in Sandy Ground”. It all lies in the hands of the Commissioner. He may well be a fair man, but who says he is an expert in what is reasonable when it comes to entertainment spots in Sandy Ground? Neither the residents nor the business places are happy with this situation.

Without regulations, the police will never know whether a complaint of unreasonable noise is justified. They have no authority to test for decibels. Certainly, they have no authority under this law to impose a permit for the playing of a reasonable level of amplified noise.

The conclusion must be that the law that is being enforced is inadequate to achieve what either the legislators or the administrators intend. The law is being implemented in a way that is outside the bounds. The government are inviting a suit for maladministration.

The moral of the story? If there is one it is this. You cannot run a country on inadequate, badly drafted laws. A rough skeleton of a law, which is clearly meant to work through detailed regulations should have the regulations made. A skeleton regulatory law, with no provision for detailed regulations to be made, cannot be made to work fairly on its own.

When you leave the discretion on how to make such a law work up to a single individual, you are inviting accusations of bad government, and worse.

Colombians

Colombian Exposition at LA Cafe. Rumza, otherwise known as LA Cafe, is in tatters. It has lain more or less abandoned the past couple of years. The fanfare surrounding the big “disco” openings have all turned out to be just noise and no substance. The structure itself is dilapidated, a shell of what it once was. The armed men patrolling the premises at all hours of the night are no more.

Someone has organised a “Colombian Exposition” on the premises. It is to last for 11 days until 3^rd March. I went to visit it on Sunday. It cost me EC$5.00 just to get in. The items on sale are not cheap. But, the product at LA Café always was expensive! I saw containers in the yard, and about 30 sales people who might have been Colombians. The premises are divided up into at least 40 tiny counters selling product of one kind or another.

Every chintzy gadget you can imagine is on display. Imitation gold, flashy jewelry. Battery-operated gadgets. Pseudo-medical cures that would not be allowed into any country with proper regulation. A guy with a computer and a machine that looks at your retina. It can tell you whether you have any disease. It can detect everything from liver disease to “stress”. Devices guaranteed to enlarge various body parts. The most exciting find was the “Colombian snail slime”. It is being sold in cream and lotions. It is guaranteed to cure wrinkles and arthritis. I am so excited about the news that I hasten to share it with you!

There are unanswered questions. Are the containers of stuff in the yard also from Colombia? Does anyone know what came in them? Did the visitors pay duties on everything? Did they get special work permits, or were they exempted?

One has to ask who in government let these people in, and what is it all about?

Do you suppose the Colombians are giving money to the Ruthwill Auditorium?

Overlooked

International Anti-Corruption Day. I suppose it was the house-full of guests over Christmas. I completely missed the anniversary date of 9 December 2007. That was the day I started this blog back in 2006. It commemorates International Anti-corruption Day. This is the day set aside by the United Nations for all of us to look at the state of governance in all our countries. The problem with corruption, and how it permeates the fabric of all our West Indian societies, seems almost intractable. It is easy to see how high-level corruption involves people in power. So many of our leaders at all levels of government get involved in terms of contracts, money laundering, health and education. But, it has often been pointed out that there is another, lower, level. It involves simple expediency. We give in to corrupting influences because it is the easy way out. Too many of us are coerced into submitting to the machinations of corruption. The hurdles that are put in our way have to be crossed. We give in because it is the easiest way to move forward.

Restaurants are the scene and source of significant amounts of corruption in Anguilla. The varieties of corruption involved in running a restaurant in Anguilla are numerous and ingenious. When you are a foreign owner of a restaurant, you have licences and permits to obtain that locals do not. There is the Aliens Landholding Licence to hold the lease. There is the Work Permit for your French chef. There is the Restaurant Licence itself. There are electricity and water mains connections. There are conditions that you have to satisfy to get some of these. Some of the conditions are legal. Others are not. Typically, the foreign restaurant owner is told that he has to have a “local partner”. There is nothing wrong, in theory, with having a local partner. Government’s insistence on it originated with the best of intentions. Partnership encourages Anguillians to get involved in business with international entrepreneurs. Anguillians can learn how to be successful in business from such associations. In return, the Anguillian partner contributes part of the start-up capital, and provides local know-how and contacts, so essential in business.

In practice, local partnership has not worked in such a straightforward way in Anguilla. Much of the time it is the cause of a great deal of corruption. I could tell you a dozen awful stories from the restaurant scene in Anguilla. Often, the “local partner” is purely a front. He puts in no capital, yet gets 10% of the equity and the income. Oh, he gives value all right. He “arranges” exemptions from the work permit regulations. He “arranges” for customs duties to be evaded. On occasion, he even “arranges” to appear on the record as the majority owner of the business, thus converting it into a “local” business for the purpose of evading all Aliens Landholding Licence requirements.

This business of insisting on a “local” partner is one of the most corrupting influences in Anguilla today. This corruption is pervasive and widespread. It makes many of the restaurants in Anguilla smell to high heaven. And, the practice of fronting does not only apply to restaurants. It reaches even up to hotel ownership.

So, it was with a great deal of satisfaction that I heard of one foreign restaurateur who refused to give in to the pressure. He had bought an existing restaurant. He had thought it would be straightforward to do business in Anguilla. The British flag, he was told, is a guarantee of integrity and good governance. Instead, he learned he would not get his licences unless he took a “local partner”. His chef and senior staff were on-island. They were ready to open the restaurant. They were stopped. They could not begin work in the restaurant until all the licences were in place. The licences would not be forthcoming unless he took a “local partner”. Months passed. A year passed. His restaurant remained closed. I am told he was adamant. He simply refused. Fortunately, he could afford to. He refused to enter into any corrupt arrangement. Eventually, good sense prevailed. His licences were forthcoming. The restaurant is now open. Without one of us fronting for him.

I shall enjoy dining there.

Very few of us have the resources to be able to do what he did.

Let us celebrate integrity when we meet it. It is rare enough in Anguilla to be considered of high value. Let us try to make every day in Anguilla an anti-corruption day.

Business Licence

No, there Are No Licences Required in Anguilla for Doing Business. I cannot believe it. A civil service friend of mine contacted me recently. He had been told that he had to get a business licence to continue to do his photography business. He has a good camera. He tells me that he has been taking photographs for years. He has started to earn some money from his hobby. He does not have a photo studio, just his home. He does not have a sign outside his home advertising that he is doing business from there. He has no studio in his home. All his advertising is by word of mouth. He has got some real lucrative commercial work recently. Word has got back to the Inland Revenue. Someone in his department tapped him on his shoulder and told him that questions were being asked. Did he have a business licence? If he did not get a licence he was going to get in trouble! So, he had gone to Inland Revenue and paid for and obtained the licence. It cost him about US$1,000.00. He has been told he has to renew it annually.

He asked me the question. Did he need a business licence to do what he was doing? The answer is a resounding NO! There is no licence required for doing business as such in Anguilla. There never has been.

About 20 years ago, Lawyer Fred Kelsick tested the law. Fred Kelsick was a St Kitts lawyer. He has died now. He used to come to Anguilla to represent his clients in court and give advice and other legal services. Charlie Gumbs of the Quarter was his agent. You made appointments by contacting Charlie to find out when Mr Kelsick was coming next to Anguilla. Mr Kelsick interviewed his clients outside the court house, under the loblolly tree that is still there. That was the old court house, which we now know as the “Statistics Department”. The police served a summons on Mr Kelsick. It had been approved by the Attorney-General. The charge was for working as a lawyer in Anguilla without a business licence contrary to section 3 of the Trades, Businesses, Occupations and Professions Act. I do not remember who the Magistrate was. He threw out the charge. The Magistrate ruled that you don’t need a licence to do business in Anguilla.

You do not have to be a lawyer to see why he threw out the charge and told the police not to harass Mr Kelsick. You only have to be able to read a simple sentence. Section 3 of the Act reads:

Obligation to obtain licence to carry on certain trades, businesses, occupations and professions

3. Every person carrying on any trade, business, occupation or profession set out in the Schedule shall take out an annual licence in accordance with the provisions of this Act in respect of each premises or place where such trade, business, occupation or profession is carried on, and shall only carry on such trade, business, occupation or profession from such premises or place.

It should be obvious. The licence is in respect of “each premises or place where such trade, business, occupation or profession is carried on”. If you set up an office in your home, advertise it, and have customers come to your home to conduct the business, it is arguable that your home is a place of business. But, if you only practice your profession in a public place like a courthouse, and interview your clients under the loblolly tree, then you do not have a place of business that can be licensed. Nor do you have to.

The late Clement Daniels used to have a retail business called Galaxy Shoppe. It had two outlets. One was at Wallblake. He had another branch at The Valley where Brodie runs his retail outlet. He had two places of business. He had to obtain two licences under the Act.

My friend does not have a place of business. What he is doing does not require a place of business. He goes out on assignment to take photographs. He is photographing a wedding at a hotel one day, at an event of one kind of another at a different place the next day. The Act goes on to say that if you do have a licensed place of business, you cannot open additional branches all over the island. If does not say that you cannot carry on a business without having a licensed place of business. Do you think that my friend needs a licence?

Well, do we need an Ombudsman in Anguilla, or do we not?

I told my civil service friend I hoped he had permission from the Governor to be doing an outside business. But, that is another story.