Placement of non-stationary retail facilities
Small business owners often use non-stationary retail facilities. Such retail facilities mean mobile retail structures that are temporarily located on a specific plot of land without being attached to it. Typically they are not connected to utility networks. AT first glance, it may seem that the design and placement of such an object is not difficult. But in practice everything turns out to be much more difficult, since there are now strict requirements for obtaining permission to this type trade. It is especially difficult to obtain permission to place an object in a building or on a plot of land owned by the state. Non-stationary shopping facility must be included in the layout plan. It is developed by the city authorities for a certain period of time, and after its expiration is subject to re-examination.
The placement of non-stationary retail facilities is carried out in accordance with the Federal Law of December 28, 2009 No. 381 - Federal Law “On the Basics of Regulation of Trade Activities in Russian Federation" If an NTO is planned to be located on a plot of land owned by a private individual, then the procedure for its placement and operation is agreed upon with the owner of the stationary facility on whose territory the NTO’s activities are planned.
In the case of placing a non-stationary retail facility on land plots, in premises that are municipal or state owned, the process must be carried out according to the layout scheme, in order to most rationally provide residents with retail space and sustainable development of the city.
Problems for a businessman arise precisely in the second case, so he will have to go through two stages of registering an NTO.
The first stage of registration is that the NTO is included in the placement scheme. Local authorities are responsible for its creation. We list what documents are required for inclusion in this scheme:
- For legal entities– charter, certificate of state registration
- For individuals entrepreneurship - certificate of state registration of a person as an individual entrepreneur
- certificate of registration with the tax office, as well as a certificate of issuance of a TIN
- a project describing a non-stationary retail facility
If your NTO is included in the location scheme, then the second stage is obtaining permits, which specify the service life of the facility, as well as other individual conditions.
The main question that arises in the process of obtaining permission is who should raise the issue of including NTOs in the placement scheme. The reason for this is the lack of an answer to this question in the legislation, as well as the lack of judicial precedents. City authorities claim that the inclusion of NTOs in the placement scheme is only their prerogative and the owners have nothing to do with this issue. This goes against the state policy of promoting small and medium-sized businesses, as it does not provide favorable conditions for their activities and does not facilitate the sale of goods and services. That is, the state takes care of small and medium-sized businesses without taking into account their opinions.
Another problem for the owner of an NTO is the lack of confidence in tomorrow, or rather, that after revising the placement scheme, he will be able to continue to carry out his activities in the same place, since they do not have the right of priority placement for a new term.
The legislation does not oblige the authorities to include existing NTOs in the schemes, but only guarantees them the right to conduct activities until the expiration of the period for providing land for their location.
If you do manage to place a retail outlet, then it must meet certain requirements and standards. Firstly, all goods and services sold must be of appropriate quality.
At a small retail trade facility there should be a sign with the company name, location ( legal address), as well as work schedule.
NTOs must meet fire, sanitary, environmental and other standards. Also, the owner of the NTO must provide appropriate working conditions for employees.
If the activities of the NTO are completed upon expiration of the permit for the placement of the NTO, the dismantling and removal of equipment is carried out by the entrepreneur at his expense.
To summarize, we can say that the authorities should establish a clear procedure for obtaining permission to locate a retail outlet and guarantee the entrepreneur the fact of obtaining permission after the current one expires.

NTO: “suspended” entrepreneurship (Semenova E.)

Article posted date: 01/26/2015

IN Lately Cases of arbitrary revision of NTO placement schemes, non-inclusion in the placement schemes or exclusion of already functioning facilities from them have become widespread, which leads to administrative reduction and even termination of business by a number of economic entities. What should an NTO owner do?

Non-stationary retail facility

The concept of a non-stationary retail facility is disclosed in subparagraph. 6 tbsp. 2 of the Federal Law of December 28, 2009 N 381-FZ “On the Fundamentals of State Regulation of Trade Activities in the Russian Federation” and clause 16 of the National Standard of the Russian Federation “Trade. Terms and Definitions”, approved. By Order of Rosstandart dated August 28, 2013 N 582-Art.
A non-stationary retail facility (NTO) is a temporary structure or temporary structure that is not firmly connected to the land plot, regardless of the presence or absence of a connection (technological connection) to utility networks, including a mobile structure.
The rules for including NTOs located on land plots, in buildings, structures and structures owned by the state in the layout of non-stationary retail facilities are approved by Decree of the Government of the Russian Federation of September 29, 2010 N 772.
Based on clause 2 of the above Rules, the inclusion of objects in the placement scheme is carried out by a local government body in agreement with the executive body of the Russian Federation or a subject of the Federation exercising the powers of the property owner.
Due to numerous requests from business associations, legal entities and individual entrepreneurs operating in the field of non-stationary (small retail) trade, the Ministry of Industry and Trade of the Russian Federation prepared an information letter dated January 27, 2014 N EB-820/08.
The Ministry of Industry and Trade of Russia considers it advisable, when forming and changing the layout of non-stationary trading facilities, not to allow a reduction in the number of legally operating facilities, to increase the number of facilities selling socially significant goods, and to ensure the stability of the rights of business entities engaged in trading activities.
However, recommendations are recommendations, and arbitrage practice is replete with examples when the courts refuse to satisfy demands to invalidate the refusal of a local government body to include an object in the layout of non-stationary retail facilities (Resolutions of the FAS VVO dated 03/19/2014 in case N A28-8163/2013, FAS VSO dated 03/27/2014 in case N A33-7495/2013, FAS UO dated July 24, 2014 N F09-3483/14, AS SZO dated October 30, 2014 in case N A42-816/2014, FAS MO dated July 24, 2013 in case N A40-41105/12-84 -402, etc.).
The reasons for the refusal are justified by the fact that the expiration of the period for placing a temporary structure entailed the termination of the company’s right to place temporary structures; there are no grounds for including the location of objects in the diagram; no land was provided for the pavilion.

Contract-trap

The procedure for placing NTOs on land plots is not established by federal legislation.
Failure legal regulation non-stationary trade at the federal level allows the constituent entities of the Federation to adopt regulations establishing the conditions and procedure for the placement of buildings that are movable things.
For example, Decree of the Moscow Government dated 02/03/2011 N 26-PP approved the Procedure for organizing an auction for the right to conclude an agreement for the placement of scientific and technical equipment and to conclude an agreement for its placement.
According to entrepreneurs, Resolution No. 26-PP, obliging them to participate in auctions, introduces restrictions on engaging in trading activities using non-stationary retail facilities. However, the possibility of concluding an agreement for the placement of NTOs without an auction also does not guarantee entrepreneurs the protection of their rights.
The practice of implementing Resolution No. 26-PP develops in such a way that land legal relations are actually re-registered.
At the end of the land lease agreement, the owner of a trade or public catering pavilion in the location established by the NTO placement scheme has the right to draw up an agreement for the placement of the NTO.
The agreement for the placement of a non-stationary retail facility is not regulated by the provisions of either the Civil Code of the Russian Federation or the Land Code of the Russian Federation.
Resolution No. 26-PP does not provide for the extension of the agreement for the placement of NTOs or the execution of a new agreement.
By signing an agreement for the placement of NTO, the entrepreneur agrees to its terms, according to which, upon termination of the agreement, he ensures the dismantling and removal of the object from its location.

Demolition is possible without trial

Within the competence of the subject of the Federation, the Moscow Government, by Resolution No. 614-PP dated November 2, 2012, approved the Regulations on the interaction of executive authorities in organizing work on the liberation land plots from objects illegally placed on them that are not capital construction projects.
According to clause 3.2 of Appendix 1 to Resolution N 614-PP, documents confirming the legality of the placement of non-capital facilities are:
- a valid agreement for the placement of a non-stationary object or an object that is not a capital construction project;
- a valid lease or gratuitous use agreement, a certificate of the right to permanent (indefinite) use of a land plot for the placement of a non-capital facility.
In case of absence specified documents in accordance with clause 2.1 of the above-mentioned Resolution N 614-PP, the prefecture of the administrative district ensures the release of land plots from illegally located objects.
Consideration of issues regarding the release of land plots from objects located on them that are not capital construction projects is carried out by permanent district commissions to suppress unauthorized construction.
Based on the results of the consideration, the district commission makes a decision:
- on dismantling and (or) moving illegally placed objects;
- sending a statement of claim to the court for the release of a land plot from objects illegally placed on it if the objects illegally placed on the land plot were registered as real estate and the copyright holder has certificates of state registration of property rights.
Despite the fact that by virtue of Art. 35 of the Constitution of the Russian Federation, no one can be deprived of their property except by a court decision; the dismantling of a non-stationary object in an administrative manner is carried out, moreover, supported by the judiciary.
In a number of judicial acts, the arbitrators come to the conclusion that the bodies exercising public powers acted within the framework of the powers granted by the Moscow Government and in pursuance of the regulations binding on them (Resolutions of the Federal Antimonopoly Service of the Moscow Region dated May 21, 2014 N F05-10243/13, dated June 20, 2014 N F05-5114/2014, Ninth Arbitration Court of Appeal dated 05.11.2014 N 09AP-36864/2014).
The decision of the Federal Antimonopoly Service of the Moscow Region in case No. A40-171632/12-139-1672 overturned the decision of the Moscow Arbitration Court and the Resolution of the Ninth Arbitration Court of Appeal, and the case was sent for a new trial. The cassation instance pointed out that when considering the case, the court must evaluate the actions of the government agency to seize property for compliance with the law.
When re-examining the case, the court refused to satisfy the applicant's demands to declare illegal the actions of the prefecture, expressed in the cessation of operation and removal of trade objects. The court proceeded from the fact that the layout of the NTO on the territory of the Eastern Administrative District does not provide for the placement of the applicant’s retail facility. The prefecture notified the applicant in writing that non-stationary facilities without an agreement for the placement of NTOs are subject to dismantling in the manner approved by Moscow Government Decree N 614-PP. Guided by the norms of this Resolution, the district commission decided to instruct the district government to cease the activities of retail premises and remove the facility. By Resolution of the Ninth Arbitration Court of Appeal dated March 4, 2014 N 09AP-1888/2014, the decision of the arbitration court was left unchanged.
Appealing decisions of the district commission to suppress unauthorized construction, as a rule, also does not lead to a positive result.
For example, the decision of the Moscow Arbitration Court dated December 17, 2013 in case No. A40-127178/2013 states that the decision of the district commission in itself does not entail negative consequences for the company, since it does not contain any administrative instructions obligatory for the applicant, does not impose any obligations on him and does not interfere with the implementation of entrepreneurial and other economic activity. The contested part of the commission's decision consists only of instructions to the municipal authorities of Moscow.
Not in the best possible way things are the same in other regions of Russia.
Demolition (dismantling) is carried out, as a rule, in cases where objects are erected on land plots leased for the operation of a temporary trade pavilion without the right to erect capital construction projects on the land plot (Resolution of the Federal Antimonopoly Service of the Federal Antimonopoly Service of April 24, 2014 N F03-1494/2014 , FAS VSO dated March 27, 2014 in case No. A69-1025/2013, FAS ZSO dated June 20, 2014 in case No. A67-5865/2013, FAS BVO dated November 2, 2012 N A43-32887/2011).

Registration won't help

By virtue of current legislation, ownership of a retail facility is registered only if the facility is classified as real estate.
A shopping pavilion consisting of prefabricated structures does not meet the criteria of a real estate property established by legal acts, therefore there are no grounds for state registration of it as such.
Sometimes entrepreneurs manage to register ownership of non-stationary retail facilities. However, such registration may be challenged in court and cancelled.
Thus, the Ministry of State Property Management Volgograd region appealed to the arbitration court with a claim to declare the ownership of the shopping pavilion absent. By the court decision dated December 2, 2013, left unchanged by the Resolution of the Twelfth Arbitration Court of Appeal dated March 31, 2014, the claims were satisfied.
By the decision of the Arbitration Court of the Volga District of August 26, 2014 in case No. A12-19707/2013, the adopted judicial acts were left unchanged for the following reasons.
According to Art. 130 of the Civil Code of the Russian Federation, immovable things include land plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible.
In accordance with Art. 1 of the Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it,” real estate, the right to which is subject to state registration, are those objects that are associated with land.
Thus, the main thing hallmark real estate objects, the state registration of rights to which is recognized as mandatory, is an inextricable connection with the land and the impossibility of moving objects without causing disproportionate damage to their purpose.
According to the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 3809/12 dated September 4, 2012, the mere fact of registering an object as real estate in isolation from its physical characteristics in the Unified State Register does not mean that the object is an immovable thing and is not an obstacle to filing a claim on recognition of the right to an object as absent.
Having assessed the evidence presented, the courts came to the conclusion that the pavilion was built from collapsible structures and can be moved from the land plot without disproportionate damage, there is no strong connection between the pavilion and the land, it belongs to movable property, the ownership of which is not subject to state registration .
The court panel did not take into account the applicant’s reference to the fact that the property had a cadastral passport to confirm the correct classification of the pavilion as real estate, since the classification of a particular property as movable or immovable in this case is a legal assessment and falls within the prerogative of the court.

Owner in fact

Entrepreneurs often make transactions in relation to retail properties, that is, sell them, rent them out, etc. However, such agreements are not legally registered anywhere. Naturally, questions arise: how can the owner of the pavilion prove that this object belongs to him, and is there a risk of resale of the object to a third party?
In such cases, the potential owner of a non-stationary facility can only carefully check all available documents: a lease agreement for a land plot or an agreement for the placement of a trade pavilion, contracts for electricity and water supply, the manufacture (purchase) of facility structures, technical inventory documents, etc.
As we can see, the legal framework in the area of ​​organizing the activities of non-stationary retail facilities is quite imperfect, which often leads to violations of the rights of entrepreneurs.
Due to the insufficiency of legal regulation at the federal level of the status of non-stationary retail facilities and their placement, there is a need for urgent amendments to Russian legislation.

The state's struggle with illegal activities entrepreneurs owning non-stationary retail facilities has led to the fact that a whole layer of small businesses is now being destroyed. But you can’t put one label on everyone - not everyone works in unsanitary conditions.

Respectable entrepreneurs who are engaged trade through non-stationary objects, a lot more. Many of the victims have been investing in the development of their business for decades, taking care of the territory, and assisting government authorities in beautifying areas. And now they are being deprived of everything! In my article I will talk about what problems owners of kiosks, stalls and other things face and will face in the future non-stationary objects.

Temporary structures

The rules for locating non-stationary trade facilities throughout our country are established by the Federal Law of the Russian Federation dated December 28, 2009 No. 381 “On the fundamentals of state regulation of trade activities in the Russian Federation.” It provides a clear definition of which objects are non-stationary. These are temporary structures and structures that are not firmly connected to the land plot, regardless of whether they are connected or not connected to utility networks.

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Non-stationary retail facilities are divided into:

• temporary structures: pavilions, kiosks;
• temporary structures: summer cafes, tents, trays, containers;
• mobile structures: auto shops, auto shops, trailers.

Source: information kindly provided by Alexandra Fomicheva, lawyer in private practice, St. Petersburg

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Private

The problems of entrepreneurs are primarily related to the adoption of Moscow government decree No. 26-PP dated 02/03/2011 “On the placement of non-stationary retail facilities located in the city of Moscow on land plots, in buildings, structures and structures owned by the state.” According to this document, it is now possible to install a non-stationary retail facility only by winning an auction (for more information about the resolution and rules for placing non-stationary retail facilities, see “Placement Rules” and “Inclusion Scheme”). This is the only way an entrepreneur can buy an object, then install it, connect it to communications, and get everything permits and get to work.

• Initially, these auctions were positioned as completely transparent, accessible to everyone. Even before the start of their holding, information about where and when which objects would be auctioned off, and based on the results, who won the auction and who entered into an agreement and on what terms, should have been publicly available.
• In life, everything turned out differently: it is very difficult to find information, and the lists of winners are carefully hidden, although they should be published immediately after the event. Information about the amounts of the final contracts is also closed. It is absolutely natural that this is what interests both entrepreneurs who want to try to fight for their positions in the future, and public organizations.

Posting rules

The main document regulating this moment rules for the placement of non-stationary retail facilities - Moscow Government Decree No. 26-PP dated 02/03/2011 “On the placement of non-stationary retail facilities located in the city of Moscow on land plots, in buildings, structures and structures owned by the state.” Its essence is as follows.

• In accordance with the resolution, a scheme for the placement of non-stationary trade places is being developed.
• Then the executive authorities and the prefecture must post information on their websites and advertise open auctions at which the right to locate a non-stationary retail facility can be purchased.
• Anyone interested can apply.
• The winner receives an asphalt site landscaped by the prefecture with the ability to connect to power grids.
• The winner must pay the amount declared at the auction in full within three subsequent years.
• With the release of 26-PP, all objects established according to previous laws and regulations were declared illegal.
• Existing land contracts were unilaterally terminated and all previous permits were annulled. That is, it was decided to demolish all the pavilions that were previously installed legally. Their owners now have to go to court and demand the return of their property.
• For some time now, a clause has appeared in 26-PP, stating that all objects located before its adoption and the development of new placement schemes and having valid land contracts have the right to remain in their original location. But this rule was recently introduced into the law and has not yet come into force, and thousands of objects have already been demolished or taken to impound lots.

Source: information kindly provided by Tatyana Rodicheva, head of the commission for small retail trade Moscow branch of "Supports of Russia", Moscow

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Connection diagram

According to Federal Law No. 381, the basic rules for the placement of non-stationary retail facilities are as follows:

• the placement of non-stationary retail facilities is carried out in accordance with the layout of non-stationary retail facilities, taking into account the need to ensure sustainable development of the territories and achieve the standards for the minimum provision of the population with the area of ​​retail facilities;
• the procedure for inclusion in the placement scheme is established by the government of the Russian Federation;
• the placement scheme is developed and approved by the local government (it is worth noting that in the placement scheme at least 60% of the objects must be allocated to small and medium-sized businesses);
• the layout scheme and changes made to it must be published and also posted on the official websites of the executive body of the constituent entity of the Russian Federation and local government on the Internet information and telecommunications network.

Source: information kindly provided by Alexandra Fomicheva, lawyer in private practice, St. Petersburg

Trading through non-stationary objects is not according to the rules

At the moment, several thousand kiosks, pavilions and other non-stationary objects have been auctioned. The auction took place as follows.

• Entrepreneurs were offered to pay the remaining participants so that they would give up the fight and make only a few nominal bets. If they agreed, the raffled places left the auction for only 10–15 thousand rubles.
• The owners of these objects were about a dozen companies registered in offshore zones. All these companies are major players in the real estate market. This is a blatant violation of antitrust laws!
• For others wishing to purchase a non-stationary object, the final bids exceeded the amount of 1 million rubles. One of our entrepreneurs participated in the auction and “left the race” when the amount reached 1.7 million rubles. And besides this, another 500–700 thousand rubles. must be spent on constructing the facility and obtaining all permits. Thus, in order to open a tent or kiosk, an entrepreneur needs to invest 3–3.5 million rubles in the business. This is an absolutely unaffordable amount for small retail!

Forced sublease

Kiosks purchased at auction by large firms are then subleased. And entrepreneurs, who have always been direct tenants, are forced to enter into contracts with third parties, take additional risks and significantly overpay.

Currently, about 95% of properties are subleased. The auctions have been suspended because they turned out to be even more corrupt than the competitions that were organized before the release of 26-PP.

The capital's Department of Trade and Services proposes to amend No. 26-PP in order to make it easier to obtain permission to locate a non-stationary facility. In particular, the authorities propose that self-regulatory public organizations, which could monitor the activities of entrepreneurs, be involved in the placement of non-stationary objects.

Cleaning by law

It is unknown how the epic with the organization of auctions will end. Meanwhile, as recently as November 2 of this year, Moscow government decree 614-PP was signed “On approval of the regulations on the interaction of executive authorities of the city of Moscow when organizing work to clear land plots from objects illegally placed on them that are not capital construction projects, in including dismantling and (or) moving such objects.” According to this document, 2,593 non-stationary objects will be demolished.

And these are not the illegal objects that the mayor spoke about! As a result, about 20 thousand people in the capital will be unemployed. Also, we must not forget about the suppliers who provided the kiosks with products. Thus, small businesses are being destroyed in several directions at once.

Resolution 614-PP gives government representatives the powers bailiffs. Now the administration can issue notices to move the pavilion to a penalty parking lot in a short time, which will cost the entrepreneur 3,000 rubles. per day per place. It is understood that the object will remain there until the final trial.

This completely contradicts several articles of the constitution, including the Presidential Order of 1993 “On freedom of trade on the territory of the Russian Federation,” as well as federal legislation, in particular the law of December 28, 2009 No. 381-FZ.

How to defend your rights

There is also a corruption component in the current situation, since instead of these shops, vending machines will appear at bus stops in the near future. And of course, no one is offering entrepreneurs who previously engaged in trading activities at bus stops to purchase machines and reorient their business. They are not given alternatives.

Our organization has prepared and sent an appeal to the President and Mayor of Moscow, in which we draw their attention to the state of small retail trade (you can read the text of the letter on our website http://drprf.ru). Entrepreneurs are ready to fulfill all the requirements of the mayor's office:

• remove pavilions from the red zone;
• update them;
• remove alcohol and cigarettes from the range.

They only want to do their own thing. To solve the problem competently, you need individual approach, and not the massive demolition of objects, which, importantly, are privately owned.

But so far all our attempts to convey information to the authorities about the illegality of the current situation only end in accusations against us. We are not against obeying the law. But we want the laws to be fairly implemented and give people the opportunity to work.

In some cities of Lipetsk and Irkutsk regions entrepreneurs obtained permission to remain in their previous places. This shows that it is possible and necessary to fight. If entrepreneurs unite now, they will have more opportunities to defend their rights.

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Expert opinion

Ekaterina Gunbina,

owner of IP Gunbina, Moscow

In 2003, my husband and I decided to start a new business. We purchased a pavilion and opened a pet store. I learned the registration rules, received all the permits, and registered with the tax authorities. This is how we began to develop our business. Neither my husband nor I have a specialized education, so we learned everything from own mistakes, some things were difficult, we gradually sorted out all the issues. The business developed, and in 2004 they opened a second store.

In a new status

Since 2003, my pavilions legally stood in their places: there was a land lease agreement and an agreement with Mosenergosbyt. Nowadays we are called “illegal stall traders,” but we only recently became such. The mayor's large-scale campaign to demolish shopping pavilions is explained by the fact that we are located in the road network (the so-called red lines) and are interfering with traffic flow. But our observations have shown that the new pavilions are safely located in this very UDS, and for some reason they do not bother anyone! I would like to note that the installation of stopping trading modules was at one time initiated by the Moscow government.

With the release of 26-PP, according to which all non-stationary retail facilities must be located according to the scheme developed by the Department of Trade, the land contract with us was unilaterally terminated. More than 7 thousand retail establishments in Moscow found themselves in the same situation. In some regions, local authorities solved this problem in their own way: they adopted a new resolution taking into account previous laws. Those who had contracts and permits were offered compensatory places. But the Moscow authorities did not condescend to do this. We are all illegal! We are all required to remove the pavilions by January 1st. This is a large-scale demolition of business property without a court decision!

In addition to the pet store, I have a consumer services pavilion. This is a socially significant object, and the government should support this direction. I wrote a statement that I undertake to provide social benefits some groups of citizens, for example, to repair shoes for pensioners free of charge. But this will not bring profit to the council, so my proposal was ignored.

And one of the most outrageous decisions was the adoption of 614-PP, according to which heads of government and prefectures are given the opportunity to demolish objects without a decision of the arbitration court. Now they can dismantle my own pavilion at any time and transport it to a parking lot, for which I will have to pay additionally.

The scary thing is that corruption remains. In our places will be those who will pay the prefecture in circumvention of the law.

Court cases

It is said about the owners of non-stationary objects that they are in their places illegally and are also challenging the decisions of the city authorities. But will someone who conducts illegal business activities go to court? I went and will sue to the last. And the truth is on my side: I have all the documents, all the permits, I’ve paid my taxes honestly all these years.

I purchased the pavilion from the company under a sales contract. But I, as the owner, was not even brought to court! Bypassing me, the court decided to oblige the company for which the land contract was drawn up to demolish my pavilion. I convinced them that this was illegal, since only the owner, by a court decision, can demolish his property. She asked not for concessions, but for a legal decision. I understand what the government is guided by when it improves the city, and I am ready to replace the pavilion, move it away, but I do not want my business, in which I have invested so much effort and to which I have given several years of my life, to be taken away.

Nowadays there is a lot of talk about supporting small businesses, but in reality the situation is very unfavorable for entrepreneurs. I believe that what is happening now is the murder of the middle class. But most individual entrepreneurs work honestly and just want not to depend on anyone. But I am sure that we need to continue to fight for what we honestly earned. We hold pickets and write appeals. Many, unfortunately, despaired. And I understand them better than anyone, because in the same way I lost my business, which last years was a very important part of my life. I'm practically broke.

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Tatiana Rodicheva,

Head of the commission for small retail trade of the Moscow branch of “Opora Rossii”, Moscow

Each region issues its own legislative act on the placement of non-stationary retail facilities in accordance with federal laws dated December 28, 2009 No. 381-FZ “On the fundamentals of state regulation of trade activities in the Russian Federation”, dated September 29, 2010 No. 772 “On approval of the rules for the inclusion of non-stationary retail facilities located on land plots, in buildings, structures and structures that are state-owned, into the layout of non-stationary retail facilities”, and therefore the issued regulations are almost similar and further changes adopted in Moscow almost always affect the work of legislators on all over the country.

Main violations

Moscow Government Decree No. 26-PP dated 02/03/2011 “On the placement of non-stationary retail facilities located in the city of Moscow on land plots, in buildings, structures and structures owned by the state” reflected the original intent of the legislators, including:

• optimal placement of non-stationary retail facilities;
• improving the architectural appearance of the city;
• creating favorable conditions for providing residents with public catering, trade and consumer services;
• improving the culture of serving the population;
• ensuring consumer rights protection;
• improvement of sanitary conditions.

However, when forming placement schemes and conducting auctions, problems arose that require an early solution.

Most of the trading that took place at the end of 2011 revealed major irregularities.

Several companies emerged that won most of the auctions in the administrative districts of Moscow. Undoubtedly, this denies the likelihood of fair trading and leads to monopolization of the market, which is a violation of antitrust laws. The Federal Antimonopoly Service should look into this.

Irregularities during an auction are often indicated by the final price of the auction. Where the auction is held according to the rules, almost all entrepreneurs obtain the right to place a non-stationary facility at the market price. On average, if we talk about objects with the specialization “groceries”, “gastronomy”, “catering”, “vegetables and fruits”, “flowers” ​​(these objects were sold at the maximum price), then they cost entrepreneurs an average of 1 -1.5 million rub. over a three-year period. The total amount varied depending on the location of the facility. But where auctions were held with violations, similar places left the auction at prices ranging from 5 to 50 thousand rubles. for three years of placing a retail facility, which, naturally, indicates a lack of equal opportunities for everyone and signs of collusion during auctions. As a result, the final price of payment under the contract for the placement of retail facilities is many times lower, and the city budget has not received a significant portion of the funds planned for receipt.

The adoption of changes to the above-mentioned resolution gives some hope for improving the situation.

If previously open auctions were held as usual, now, according to the changes made, auctions must be held electronically. When conducting electronic trading, it is easier to comply with the prescribed procedure and avoid violations, which makes the relationship between the seller and the buyer more transparent.

Besides, significant change was introduced in September of this year: now proposals for changes to the placement scheme can be made by various associations, unions, non-profit organizations, deputies of municipal districts. This provides more opportunities to locate exactly the facilities that residents of specific areas need.

Secrets of interaction

The greatest objections are raised by the adoption of the Moscow government decree of November 2, 2012 No. 614-PP “On approval of the regulations on the interaction of executive authorities of the city of Moscow when organizing work to clear land plots from illegally placed objects on them that are not capital construction projects, including the implementation dismantling and (or) moving such objects.”

It gives prefectures the authority to dismantle and move non-stationary retail facilities without the consent of the owners in the absence of a court decision, which is illegal and contrary to constitutional norms, federal law and is confirmed by existing arbitration practice.

“No one can be deprived of his property except by a court decision” (Article 35 of the Constitution of the Russian Federation). By the mentioned resolution, Moscow executive authorities are empowered to dismantle and move property that does not belong to them, and without a court decision. However, they do not bear responsibility for the safety of property. Moreover, this resolution proposed that agreements for the placement of non-stationary objects include a condition according to which the executive authority carrying out the dismantling or relocation “is not responsible for the condition and safety of goods, equipment or other property located in the facility during its dismantling and ( or) moving...”

There is an annex to this resolution that lists more than two thousand objects that have already been declared illegal and are subject to dismantling. The list of them is very extensive, but does not contain any specific information about who and on what basis they were declared illegal.

Of course, this decision will be challenged, but while the trial lasts, thousands more objects belonging to small businesses may suffer.

• How to open your own mini-bakery with a profitability of 25–30%

Expert opinion

Alexandra Fomicheva,

private practice lawyer, St. Petersburg

The rules for including non-stationary retail facilities in the placement scheme were developed by the Government of the Russian Federation (Resolution No. 772 dated September 29, 2010). But local governments can choose the form of inclusion of these objects in the location scheme. In previous years, inclusion was carried out on a competitive basis, but now it is based on the results of auctions.

It is important to note that the formation of a new layout and the introduction of any changes to it is not a basis for changing the locations of non-stationary retail facilities that were previously approved.

How to apply

An entrepreneur who wishes to locate a non-stationary retail facility must submit an application to the authorized local government body responsible for management in the field of trade, attaching the following documents (the list may vary depending on the requirements in each specific region):

• charter, certificate of state registration - for legal entities;
• certificate of state registration as an individual entrepreneur - for individual entrepreneurs;
• certificates of absence of debt on accrued taxes, fees and other obligatory payments to budgets of any level for the past calendar year;
• certificate of registration with the tax authority and assignment of a taxpayer identification number;
• a list of workers involved in servicing in small retail trade, indicating education and qualifications, information on passing a medical examination.

Mandatory package of documents

The placement and layout of facilities, their technical equipment must meet sanitary, fire, environmental and other standards and regulations, conditions for the reception, storage and sale of goods, as well as ensure working conditions and personal hygiene rules for workers.

At each facility during the entire period of operation the following documents must be available and presented at the request of state control (supervision) bodies:

• permission to place a non-stationary object of a small retail chain (for non-stationary objects of a small retail chain), which must be located in a place accessible to customers;
• license for the right to carry out activities (in the case provided for by law);
• documents indicating the source of receipt and confirming the quality and safety of the products sold (agreements, contracts for the supply of food products, certificates of conformity, declarations of conformity, quality certificates, veterinary certificates, sanitary and epidemiological reports);
• agreement for the supply of water and removal of wastewater (in the absence of a centralized water supply and a centralized sewerage system), a schedule for the disinfection of storage containers drinking water;
• a certified copy of the document on registration of cash register equipment (except for cases where, in accordance with federal legislation, cash register equipment is not used);
• text federal law“On the protection of consumer rights”;
• a book of reviews and suggestions, stitched, numbered and certified by the head of a legal entity or individual entrepreneur;
• control log;
• contracts for the removal of solid household waste, disposal of bactericidal lamps, sanitary treatment of workwear.

Company information

IP Gunbina. Year of creation: 2003. Number of stores: 3 non-stationary pavilions. Area: 18 m2 and 4 m2 (stopping area). Staff: 8 people. Turnover and profit: not disclosed

« Support of Russia" Year of creation: 2002. Goals: promoting the consolidation of entrepreneurs and other citizens to participate in the formation of favorable political, economic, legal and other conditions for development entrepreneurial activity in the Russian Federation, ensuring effective economic development. Structure: the organization has 81 regional office in the territory from Kaliningrad to Kamchatka, which protects the rights of local entrepreneurs and unites more than 370 thousand people, creating over 5 million jobs.

Legal office of Alexandra Fomicheva. Year of creation: 2006. Services: legal assistance to small businesses.

Trade permitimplies that the activities for the sale of goods are coordinated with government authorities. But here's to receiving this permission not always necessary. When is it needed and where to go for it - that’s what the article will discuss.

Notice of commencement of activity

To start your own business in the trading field, it is not always necessary to receive permission for trade from the state. Only certain types of activities are subject to licensing, and they are specified in the law. But in some cases it is still necessary notify the relevant government agency about its opening. This requirement is set forth in the Law “On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Supervision” dated December 26, 2008 No. 294-FZ.

This regulatory act contains a list of types of activities to which the notification procedure in trade applies. But there is also a decree of the Government of the Russian Federation “On the notification procedure for the start of certain types of business activities” dated July 16, 2009 No. 584, where the list of types of activities is specified in more detail. In the end it looks like this:

Persons who decide to conduct one of these types of activities do not need to obtain a trade permit, but simply notify the relevant government agency.

Procedure for submitting notification

The order in which it is served notification to the authorized body, is recorded in Decree of the Government of the Russian Federation No. 584. According to it, the applicant needs to provide 2 completed copies of the notification to the authorized body. Such a body in Moscow is the city district government or the prefecture of the administrative district, it all depends on where the applicant is registered. The form of notification is given in the same resolution.

The notification can be submitted in person, sent by mail or via the Internet in the form of an electronic document.

Two copies are submitted in order to immediately return one to the applicant with a mark of delivery. When submitting an electronic document, the applicant is sent confirmation of delivery also in electronic form.

The notification itself contains the following information:

• name of the legal entity or full name of the entrepreneur;
• OGRN;
• legal address and actual address of the trading facility;
• type of activity and list of works and services within a separate type of activity.

Please note: you do not need to attach any documents to the notification. This order is much easier to obtain permissions for trade.

All information from the notification serves to form the Trade Register, which is maintained in accordance with Order of the Ministry of Industry and Trade dated June 16, 2010 No. 602.

What awaits a seller who fails to submit a notice?

Everyone has long understood that the absence permissions for trade (if required in mandatory) entails the imposition of fines. But the notification procedure is not taken so seriously, although there is also responsibility here.

The Code of Administrative Offenses of the Russian Federation considers violation of the rules of notification of the start of activity to be a misdemeanor. And responsibility is spelled out in Art. 19.7.5-1. There are two options here:

• The merchant did not submit a notification at all, which threatens him with a fine of 10,000 to 20,000 rubles.
• The notification was submitted, but contained inaccurate information. Here they can already be fined 20,000-30,000 rubles.

To avoid problems and unnecessary expenses, you should follow established order start of activity.

Permission to open a non-stationary retail facility

A non-stationary trade object is an object that is not firmly anchored to the ground, for example a kiosk or a vending machine. And such objects are placed only in designated areas approved by a specially developed layout scheme. Each of the objects must comply with standard architectural solutions.

For placing non-stationary objects in Moscow, when we're talking about the Moscow Department of Trade and Services is responsible for their location on state-owned land.

To start trading in such a non-stationary facility, you do not need to register permission for trade, this requires the conclusion of an agreement for the implementation of trading activities or for the placement of a non-stationary object of trade. Such an agreement will be concluded with the winner of the auction, since the rules of competitive selection of the seller apply here.

To participate in the auction, a legal entity or individual entrepreneur must submit an application, the form of which is established by the auction organizer, and at the same time have in his account the money necessary to pay the deposit for participation in the auction.

License to sell alcohol

If you intend to sell alcohol in the course of trading activities, you will have to obtain an appropriate license, since retail alcohol-containing products require a special permit for trade. This formulation of the question corresponds to the norms of the law “On state regulation of the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products and on limiting the consumption (drinking) of alcoholic products” dated November 22, 1995 No. 171-FZ.

To obtain a license to sell alcohol at retail in Moscow, you need to contact statement to the Department of Commerce and Services of this city. The application itself is filled out in the prescribed form, and the following is attached to it:

• Constituent documents. If there are no notarized copies, then you can submit simple copies, but have the originals with you.
• Receipt for payment of state duty.
• Documents from which it is clear that authorized capital company at least 1,000,000 rubles.

The following documents can be obtained by the department independently within the framework of an interdepartmental facility, and only when this is not possible should they be brought by the applicant:

• Certificate of state registration of a legal entity.
• A document confirming tax registration.
• Documents from which it could be determined that the applicant has the rights to premises for opening retail facilities and for storing alcoholic beverages.

Trade permit alcoholic products is issued on a paid basis, so a license for a period of one year costs 65,000 rubles.

Permission to organize a retail market

Another form of trading can be called the organization of a retail market, which is regulated by the law “On retail markets and on amendments to the Labor Code of the Russian Federation” dated December 30, 2006 No. 271-FZ. According to this normative act, you can obtain permission to organize a market by submitting an application that must indicate:

• The name of the legal entity, its address and the location of the facility where the market is planned to be located.
• Applicant's Taxpayer Identification Number.
• Type of organized market.

And the list of attached documents consists of the following items:

• Constituent documents.
• Extract from the Unified State Register of Legal Entities.
• A document confirming the existence of the right to the object where the market will be located.

If the proposed location of the market complies with the market organization plan and the applicant has fulfilled all the requirements for registration and submission of the corresponding application, then he has every chance of receiving permission for trade.

A trade permit is required only in certain cases, for example, when you plan to sell alcohol. For the most part, entrepreneurs are only required to notify the relevant government agency about the start of their activities. But do not forget that if you do not need to obtain a permit to trade, then it will not be controlled. The authorized bodies are developing an inspection plan to check whether the requirements for the organization and conduct of trade are being complied with.