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patoc
04-10-2010, 03:31 PM
We are about to have a Community AGM, with one proposal being to hire a local company as "control guards (porteros). Our Administrator is opposed to this proposal so we would like some advice on where we stand.

We have a local Company which do not operate as a fully fledge security company but as "Control Guards" or "Porteros". The reason for this is one of cost - if they employ fully fledge security guards, they will have to double the hourly costs. In our case the costs to the Community would then be prohibitive.

While we appreciate that fully fledge guards are able to have powers of arrest, like the Police and carry batons and handcuffs, the Community believes that we do not need this type of cover. We just need to have people looking out for the interests of the owners and Visitors. This particular Company is employed by 20 other urbanisations and has an excellent reputation, working closely with the local Police and GuardiaCivil.

We have seen their Insurance policy and all seemed OK ; however our Administrator has also seen the insurance and he has found a clause that said the cover only covered the Company if they operated in a "legal way". His interpretation of this is that they are not doing this as, by patrolling, they are pretending to be a security company. I find this hard to believe, especially as 20 other urbanisations employ them - what do you think ?

He also says that as long as nothing happens then all is ok but if one of the guards injured someone and they took them to court we could also be in trouble as we employ the company. Is this true ?

The Company strongly maintain that they are not vigilantes and do not go around looking for trouble. If they did see someone breaking into a property, their brief is to call the police and if need be restrain the person using "Citizens power of arrest". I understand this is the same in Spain as the UK - can you confirm this ?.

Our Community believes that, according to what we have been told, we are allowed to employ Porteros or control guards. They are allowed to walk around urbanisations to act as Janitors, making sure that nothing untoward is going on and that urbanisation laws are being complied with. Are we right ?

We can all see where our Administrator is coming from but we feel his role is to give us advice on issues like this but no more.

Any other advice regarding this matter would be most appreciated.

Regards
Patrick O'Connell

patoc
04-10-2010, 03:48 PM
Addendum:

In case I didn't make it clear. The Company in question are NOT employed as security guards as they do not have the official clearance to be a fully fledged security firm in the eyes of Spanish law. They are employed on urbanisations as Porters (Portero) or Caretakers.

Pat O'Connell

Lawbird Lawyer
04-12-2010, 12:18 PM
Dear Mr O'Connell,

We use in my urbanisation a portero, he is not a licenced security guard and does just about what you are describing in your post.

Nowadays cutting down overheads and keeping costs under control is key for developments.

Many developements use a "portero" and there is absolutely no need for them to be licenced security personel. The law does not require it. Naturally a portero cannot walk around with a gun and a baton. They act disuasively as janitors.

Yours faithfully,
Raymundo Larraín Nesbitt

patoc
04-12-2010, 02:43 PM
Raymundo

Thank you for your swift reply ; very helpful.

Kind regards
Patrick O'Connell

Lawbird Lawyer
04-12-2010, 02:50 PM
You're welcome Patrick.

Regards,

patoc
04-13-2010, 10:24 PM
Raymundo,

Some quick developments on this subject. The President of an adjoining urbanisation who I have been speaking to, had a Meeting with the Administrator today ( the same one that looks after our urbanisation) and the subject of employing "porteros" came up again. He passed on what you had said and received the following responses.

The Adminisrator said that in Spain it is illegal to have anybody patrolling the urbanisation pretending to be Security guards when they are not. The President explained that they were not security guards but purely there for assisting the owners etc. He said this is not the case and any judge would say they are acting as security guards and therefore illegal.
Can this be true ? What is the difference between "patrolling" and just walking around for example ? How can he define "pretending" ?

The Administrator went on to say that a Portero is for blocks of Apartments not properties like ours (we have a mix of Apartment blocks, town houses and villas), as a Portero can ONLY be on private land. In our case they would have to walk on the main pavements/roads which are public and therefore have to be licenced by the town hall and Government. Again I find this hard to believe withn so many urbanisations using Companies like this - any comments?

The Administrator said the only way we can have security is by a national security firm which are, as we know, twice the price. From local feedback the local Companies are also totally useless.

From what you have been Raymundo, a portero does not have to be licenced as a security Company. Is our Administrator correct in saying that as long as they are on Private land then it is ok but not if they have to walk on public roads (which they mustb in our urbanisations). If so is their any other licence / permission needed from the Town Hall ?

He also says that a a similar urbanisation to ours employed a similar "portero" company Pratorian and were fined 30,000 euros for using an unlicensed security company, and reminded us of the liabilities of the President. Do you think this can be true, and if so what were they likely to be fined for ?

I keep coming back to the fact that 20 other urbanisations employ this Company with 100% satisfaction and no problems - do you thing the Administrator is being over cautious ?Might he be scare mongering?

Again any assistance you can give, particularly on HOW we should engage such a Company, would be very much appreciated on this important issue ..... many, many owners want to see a cost effective solution put in place but the Administrator seems dead against it.

Regards

Patrick O'Connell

Lawbird Lawyer
04-14-2010, 11:32 AM
I keep coming back to the fact that 20 other urbanisations employ this Company with 100% satisfaction and no problems - do you thing the Administrator is being over cautious? Might he be scare mongering?



The cynic in me would say he may be being offered an "incentive" by a sec company but he's probably just being overcautious.

I really do not see what he's rambling on. The people who you hire to patrol the grounds cannot have any type of weapon such as a gun or a baton. To bear a gun in a holster you need to have a special licence. i.e. a proper licenced security guard

Thre is no problem in you hiring porteros to do surveillance and janitor duties so long as its clear they cannot detain anyone nor carry any type of weapon.
If all developments had to hire state-of-that-art security then setting up a security company would be a fantastic business.

Regards,

patoc
04-14-2010, 12:39 PM
Raymundo

Many thanks again for your quick, helpful response

Regards
Patrick O'Connell

patoc
04-14-2010, 12:46 PM
Raymundo

One final question to be absolutely clear - in my previous note I said that if this Company did see someone breaking into a property, their brief is to call the police and if need be restrain the person using "Citizens power of arrest". I understand "Citizens power of arrest" is the same in Spain as the UK - can you confirm exactly what they can / cannot do in these circumstances please ?

Many thanks again
Patrick O'Connell

Lawbird Lawyer
04-14-2010, 12:50 PM
Dear Patrick,

You're welcome.

In my last post above I've written they cannot detain anyone.

Your portero has no "citizen power of arrest". What he must do is act as a deterrant and if he happens to catch someone red handed he must phone the police so that they deal with the intruder.

Only licenced security guards could arrest for example a thief. They carry handcuffs with them for this purpose.

Regards,
Raymundo Larraín Nesbitt

patoc
04-14-2010, 02:54 PM
Raymundo

I am confused now. I was under the impression that any private citizen can make a "Citizen's arrest" . I found a few articles earlier ; a global definition -

" an arrest made not by a law officer but by any citizen who derives the authority to arrest from the fact of being a citizen. Under common law, a citizen may make an arrest for any felony actually committed, or for a breach of the peace committed in his or her presence."

When I looked at another Spanish web site I also read

"1. Arrest
An individual can be arrested either before a criminal proceeding is initiated, during prosecution or once it is completed.

1.1. How long may the arrest last?
The detained must either be released or brought before a Judge within 24 hours from the arrest.

If you are detained in custody you may be held in a police cell for up to 72 hours, then you must either be released or brought before a Judge.

1.2. Who may arrest the offender? under which circumstances?
A private citizen may arrest the offender:

•Should the offender intend to commit an offence.
•When the citizen sees suspicious activity, or knows that a crime is being committed.
•Where search order is issued against the defendant for contempt.
•Where the convicted is escaped from prison.
It is the police's duty to arrest the person who is under any of the circumstances described above.

The Spanish Constitution prohibits arbitrary arrest.

1.3. Your rights as a detained person
If you are detained, be aware that you must be informed in a language that you understand and in detail of the nature and cause of the accusation against you.

Your rights as a detained person are guaranteed under Article 17 of the Spanish Constitution:

•You have the right to remain silent and not plead guilty of the offence you are charged with.
•You may appoint a private Lawyer and have that Lawyer during questioning. If you do not appoint a lawyer or cannot afford him, one will be assigned by the court.
•An interpreter must assist you if you cannot understand or speak Spanish.
•You have the right to be examined by the Court Doctor.
•The Consulate office of your home country in Spain must be informed about your arrest.
The judge may determine in specific cases no communication with the detained person, and thus he cannot inform his family about his arrest, the Lawyer will be then assigned ex officio.

These are only general guidelines and not definitive statements of the law, all questions about the law's applications to individual cases shall be directed to a Spanish lawyer."


Under section 1.2 above then surely anyone, including a portero who is also a private citizen, who witnesses a crime being or about to be committed can hold someone until the police arrive ? Obviously you have to be very careful and not make arbitrary arrests or breach the rights of the offender, otherwise the private citizen could be arrested I understand.

Regards
Patrick O'Connell

Lawbird Lawyer
04-14-2010, 03:07 PM
Dear Patrick,

You are quoting me the Habeas Corpus procedure and the Spanish Constitution. No wonder you are confused.

A normal citizen cannot "arrest" in the legal sense another citizen, they are not a public authority or licenced for it as a private security guard would be.

I believe my prior post was very clear.

If your development wants to hire janitors or porteros that's fine. If you want them to patrol the grounds carrying handcuffs and a baton/gun arresting would-be tresspassers you are bound to be fined as they will lack the official licence your administrator has already pointed out.

I'm under the impression you do not want to pay for security guards yet you want to hire someone else doing exactly the same role, that simply is not possible as per my prior posts.

Regards,

patoc
04-14-2010, 03:46 PM
Raymundo

Sorry if I didn't make myself clear. We definitely do not want this Company to patrol the grounds carrying handcuffs and a baton/gun, arresting would-be tresspassers - that is the full Security Guard approach which is too expensive and inaffective in our area. We want a low key, effective deterrant approach as I said before.

However you will appreciate that if we are going to hire this Company we want to protect ourselves from any possible legal problems. This is why we want to know what the Company employees are allowed to do if, for example, while walking around our urbanisation (as any other private citizen) they come across a burglar coming out of someone's house ? Phone the police - Yes .... anything else ? At present, on other urbanisations, I believe they would detain the person until the police arrive ( as a Citizen's arrest) so we want to know if this is legal or not. So if they did detain someone while awaiting the police are you saying this is illegal ? Would the urbanisation or just the Company be liable for any penalty ?

Sorry to labour this point and thank you for being patient with me

Regards
Patrick O'Connell

patoc
04-15-2010, 02:39 PM
Raymundo

I want to thank you for all your advice and the time you have given me. It is very much appreciated.

I have enough information now to report back to my Community so that we can make a decision.

Thanks again
Patrick O'Connell

Lawbird Lawyer
05-06-2010, 10:31 AM
You are welcome.

kala
09-07-2010, 01:50 PM
They are employed on urbanisations as Porters (Portero) or Caretakers...Thank you for your swift reply....