Facts
The [B. GmbH] operated the restaurant [C.] in [U.] in premises that had been sublet by the main tenant [E.] . The owners of the property were [F.] and [G.] . The sole managing director of the GmbH and operator of the restaurant was the appellant [A.] .
On 7 August 2019, [H.] handed the Lucerne Cantonal Police a declaration dated 2 August 2019, allegedly signed by the appellant, by which she deregistered as operator of the restaurant and waived the hospitality licence. [H.] was named as successor. On 8 August 2019, the Cantonal Police granted [H.] the licence. The appellant argued that the deregistration was forged and void. By decision of 12 September 2019, the Cantonal Police found that the deregistration was not void and refused to reissue the licence to the appellant.
The appellant appealed the decision to the Department of Justice and Security of the Canton of Lucerne and additionally requested a provisional measure permitting her to sell beverages and food on the premises. The Department rejected this request by interlocutory decision of 18 October 2019. The Cantonal Court of Lucerne dismissed the administrative law appeal filed against it on 30 December 2019, with costs, insofar as it was admissible.
By public law appeal of 5 February 2020, the appellant requested the annulment of the cantonal court's judgment, a finding that the decision of 12 September 2019 was void, or alternatively that she continued to hold the licence, and in the alternative the granting of the licence. She also applied for provisional measures, legal aid and appointment of counsel. The Federal Supreme Court rejected the request for provisional measures by presidential order of 27 February 2020. By judgment of 31 March 2020, the District Court of [U.] ordered the [B. GmbH] , with final effect, to vacate the commercial premises. The appellant thereafter maintained the appeal only with respect to the costs and compensation consequences.
Considerations
The contested decision is an interlocutory decision on a provisional measure. It is appealable under Art. 93 para. 1 lit. a FSCA, because refusing the provisional hospitality licence may cause an irreparable disadvantage to economic freedom (Art. 27 Cst.). The current legal interest lapsed after the premises were vacated in the main proceedings, insofar as the rejection of the provisional measure is challenged. However, the requirement of a current interest is waived because the fundamental questions may arise again under the same or similar circumstances without timely review. The appeal is therefore in principle admissible. Inadmissible are the requests against the decision of the Cantonal Police, since the cantonal court permissibly limited its review to the provisional measure and there is no formal denial of justice under Art. 29 para. 1 Cst..
In proceedings on provisional measures, only the violation of constitutional rights may be complained of (Art. 98 FSCA). Arbitrariness (Art. 9 Cst.) must be substantiated, and the findings of fact may be corrected only if manifestly incorrect (Art. 105 para. 2 FSCA). Provisional measures require urgency, an irreparable disadvantage that is not easily remedied, and a summary examination. Anticipating the final decision is in principle impermissible, and restraint is required where the prognosis on the merits is not clear. In the case of police licences, there is a particular risk of creating a state of affairs that is in principle unlawful.
The nullity of the deregistration under the evidence theory (BGE 138 II 501 E. 3.1) was rightly rejected. In the proceedings before the lower court, it was only necessary to examine as a preliminary question whether the validity of the deregistration had been manifestly incorrectly established. The indications of forgery, such as handover by a third person, the self-registration of that person as innkeeper and the deregistration after a few days, as well as the forensic analysis with only a 'moderately strong' suspicion, are not sufficient for an obvious forgery. The Cantonal Police were therefore entitled to regard the deregistration…