Brazil, 2nd Public Treasury Court of Florianopolis, 17 March 2022, Mandado de Segurança No. 5025189-11.2022.8.24.0023/SC
Case overview
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Deciding body (Original)
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Link to the full text of the decision
General Summary
The Condomínio XX filed a "mandado de segurança" against an administrative act issued by the Directoría de la Vigilancia Sanitária of the Municipality of Florianopolis. Through the action, it was intended that the administrative authority authorize the condominium to use the access control system through facial recognition, with photo registration necessary for each person, individually, without crowds, and without any physical contact, to lower the face mask for a short time. This action was filed after an administrative decision against the condominium.
The Judge recognized that the benefits of implementing the measure outweighed the eventual damages derived from quickly lowering the mask. The form of entry to the municipality does not require sharing objects with officials and other visitors. In these terms, the act violates the principle of reasonableness and motivation of administrative acts. The Court accepts the claims of the Plaintiff, which is the condominium.
Facts of the case
During the COVID-19 pandemic, the Health Surveillance Directorate of the Municipality of Florianópolis issued an act of intimidation against the Condomínio XX. The basis of this act was that the Condominium did not comply with the sanitary protocols against the pandemic since people needed to lower their masks to carry out the access registration. Based on this administrative act, the Condominium filed a "Mandado de Segurança”) seeking authorization to use the access control system through facial recognition, with the necessary photographic record for its operation, for which each person, individually, without crowding and without any physical contact, can lower their mask for a few seconds.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
For the Court, as demonstrated in the process, the condominium acquired a new access control model by turnstile that works through facial recognition and temperature measurement. The equipment could identify the passage of people without masks or register the incorrect use of protection. The initial registration requires a photo of the person's full face, which is only possible by lowering the mask for an instant. In analyzing the claim, the Court recognized that the gains from implementing the measure outweighed the possible harm from briefly lowering the mask. The entry form does not require sharing objects with staff and other visitors, such as pens or fingerprint readers. Finally, the Court emphasized that the Sanitary Inspection Report, containing the infraction details, was only prepared after the notification of the inputted authority, so the document does not validate the previous administrative act.
Conclusions of the deciding body
The Court concluded that, although the use of masks indoors has been recently disobliged by the state government, the case under examination occurred while the norm requiring the use of equipment in the prevention of COVID-19 was still in force last December. Nevertheless, the fine issued by the health agency for the removing of the protective mask for a few seconds during facial registration violates the principle of reasonableness. In this sense, the Court granted the action pleaded by the corporate condominium and suspended the effects of a summons issued by the municipality's Health Surveillance.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
For the Court, the principle of reasonableness guides administrative action according to the principles of isonomy, logical coherence, and equity.
In the specific case, the application of reasonableness is not merely a matter of the mere pursuit of compatibility between cause and effect. On the contrary, a reasonable compatibility between interests and reasons to be carried out by the public administration was evidenced in the case.
Other notes
Act of intimation of the Directorate of Sanitary Surveillance of the Municipality of Florianópolis against the Condomínio XX.
On "type of procedure": “Mandado de segurança”, action to protect liquid and certain rights, not protected by habeas corpus or habeas data, whenever, illegally or with abuse of power, any natural or legal person suffers violation or risk of suffering it by the authority (Art. 5 LXIX – LXX Federal Constitution of Brazil 1988; Act. 12016/2009 art. 1).
