Adults-only hotels: Regulation and right of admission

In our country there are numerous hotel establishments that are offered as adults only, offering the client an environment of comfort and tranquility and a set of personalized services focused on a specific segment of clients. In the sense, from a legal point of view, the convenience of this can be considered restriction or limitation with regard to potential customers who can purchase and enjoy the accommodation service with the right of admission to the hotel itself and the prohibition of discrimination imposed by our legal system through the principle of equality enshrined as a fundamental right in the Spanish Constitution (Article 14). In order to carry out a legal analysis, we must first point out that there are currently no regulations that regulate this assumption in a specific way. For this reason, we must rely on the forecasts made by the tourism regulations of each Autonomous Community —which, by virtue of Article 148.1.18 of the EC, are competent for the promotion and management of tourism in their territorial area-. Thus, and although unevenly, some of them in the regulation of tourist activity delimit the exercise of the right of admission, configured as the right of the owner of an establishment open to the public to determine the conditions of access to it according to objective and publicized criteria. Among others, Law 1/1999, of March 12, on the Regulation of Tourism of the Community of Madrid establishes that tourist establishments, because they are considered public premises or facilities, shall be freely accessible, without being restricted for reasons of birth, race, sex, religion, opinion, or other personal or social circumstance And that the same they may exercise the right of admission in such terms as may be conditioned by the legal provisions in force -in the same sense, Act 13/2002, of 21 June, on Tourism of Catalonia or Law 8/2012, of 19 July, on Tourism of the Balearic Islands are pronounced. In this sense, the right of admission can be framed within the right of business freedom provided for in article 38 of the Constitution, and must be exercised under the rules of necessity and proportionality, in weighting with the right to equality, which enjoys the rank of fundamental right. Thus, under no circumstances can the right of admission be used as excuse for the exercise of arbitrariness and discrimination, since tourist establishments are considered to be open to everything the public. However, under the conditions that we will develop later, the entrepreneur's right to establish a certain business model and to provide services specially configured for a Target specific to customers. As for the possible imposition of limitations, these should not constitute discriminatory treatment, as we have argued, setting objective conditions that must be publicized together with the services to be provided (website, catalogs, etc.), as well as duly communicated to the competent body, and must also be applied in terms of equality. Despite the above, and as a result of the interpretation of the above-mentioned regulations, under no circumstances is it forbidden for hotel establishments to target their advertising or promotion solely and exclusively to a specific audience or group. As an example of such practices compatible with the principle of equality, we find feasible options that have already been developed by hotel entrepreneurs, that is: not to explicitly prohibit minors from entering, but not to have the establishment have extra beds, cribs, high chairs or entertainment or care services for minors and/or focusing advertising promotion on sales channels to certain groups or groups (singles, newlyweds, etc.) thus moving away from interest in such family tourism services.An example of this would be the faculty of specialization that hotel establishments have and which are included, among others, in the Balearic tourist regulations - Law 8/2012, of July 19, on Tourism of the Balearic Islands - which establishes that hotels and hotel-apartments may specialize depending on the different subject matter or orientation towards a specific tourist, cultural, sports, artistic, gastronomic or health product, of accessibility or any other conceptual element that specializes and differentiates them, provided that they meet the requirements and conditions established in the Development Act and regulations. On the other hand, it is important to emphasize the provisions made by state regulations for the protection of consumers and users (Royal Legislative Decree 1/2007, of November 16), which establishes that it is a basic consumer right to protect their legitimate economic and social interests, as well as to receive correct information about the different goods or services to be purchased. Consequently, in the marketing of accommodation for adults only it will be important to convey to the potential customer the conditions under which the service will be provided and the special configuration of the establishment upon contracting, recommending in all available means and supports to define the customer or group profile that fits the service, without the express imposition of prohibition or limitation in order to avoid discriminatory treatment against minors. Finally, in relation to intermediary tour operators that market accommodation services - B2C platforms or travel agencies - we must emphasize the liability regime to which they are subject, since if they sell only one hosting service, they must carry out the brokerage work under correct conditions, that is, provide adequate information about the characteristics of the service, without being responsible for the good purpose of the service. However, in the event that the accommodation service were integrated into a package trip, in the event that the consumer did not meet the requirements set by the establishment and his right of admission was violated and, as a result, the package travel contract could not be executed, the agency would be responsible for this possible faulty compliance or breach of the contract.

Júlia Petit (T&l Attorney)

Article published in the February edition From the monthly newspaper CEHAT