Unconstitutionality of mandatory free parking in shopping mall parking lots

Recently, a Federal Court in Baja California declared several provisions of the Parking Service Regulations and the Municipal Building Law Regulations for Tijuana, B.C., unconstitutional. These provisions mandated that shopping centers in the state provide 40 minutes of free parking without any possibility of financial compensation for the service provider. This ruling sets a significant precedent regarding freedom of labor and commerce.

The core of the unconstitutionality lies in the fact that the challenged regulations obligated businesses to provide a service without compensation by mandating free parking for the first 40 minutes, without allowing for any minimum purchase requirement or cost recovery. This directly impacts the essential content of Article 5 of Mexico´s Constitution, since:

• It compels the provision of personal services without fair compensation.

• Prevents the obtaining of a lawful profit derived from a permitted commercial activity.

• Shifts operating costs and risks (including insurance and liability for damages) onto the individual owner without financial compensation.

The Federal Court expressly applied the “proportionality test” to the challenged regulations, concluding that these do not comply with it, for the following reasons:

• Constitutionally valid purpose: While the protection of the consumer economy was alleged, this objective alone does not justify the annulment of the individual's right to receive compensation.

• Suitability: The measure does not effectively guarantee the promotion of commerce, nor does it demonstrate that free service generates a sufficient general benefit.

• Necessity: Less restrictive measures exist, such as preferential rates, tiered pricing schemes, or tax incentives, which were not considered.

• Proportionality: The sacrifice imposed on the service provider is greater than the intended social benefit, disrupting the constitutional balance between public interest and fundamental rights.

This criterion reinforces a clear principle: public policy cannot be implemented by forcing private entities to finance social benefits through the free provision of lawful services, especially when they are compelled to provide free services under threat of administrative penalties.