“Adults Only” hotels and the Right of Admission vs. Consumer Right to Access. Is it really compatible?

Within our legal system whose supreme legal source is the Spanish Constitution, which preserves, on a preferential basis, fundamental rights such as the principle of Equality provided for in its article 14; there is no justified or proportionate reason for prohibiting a minor from entering a hotel of that nature.

Thus, the literal wording of Article 14 as a principle of constitutional equality establishes for all spheres of society that:

Spaniards are equal before the law, without any discrimination prevailing on the basis of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.

Therefore, for the hotel establishment to deny or prohibit the reservation because it includes minors in the group; it is a measure, Ab Initio, unconstitutional, since it goes against the constitutional spirit of equality, by inflicting obvious discrimination on minors because of their personal circumstance, that is, because of their AGE.

Notwithstanding what has been said, the refusals that certain hotel establishments allege, although legally surprising to us; perhaps they have been used because of their erroneous conception of the exercise of freedom of the entrepreneur; also provided for in our Spanish Constitution, article 38.

This article, unlike Article 14, is not a fundamental right, but a governing principle of social and economic policy, and therefore, it is a limited right subject to logical and not arbitrary conditions. That is, it cannot be exercised in an absolute way, and can and must be restricted for compelling reasons of general interest worthy of protection.

Thus, in the exercise of such business freedom, the hotel establishment could argue in its defense the exercise of the so many times heralded Right of Admission. However, as is the case in the present case, this Right of Admission You should never limit the Right of Access to a hotel establishment, arbitrarily or indiscriminately, because it is precisely this Right of Access, which finds its basis in the above-mentioned principle of constitutional equality in the article 14 of our Magna Carta.

Well, carrying out a comparative study of the tourism legislation of the Autonomous Communities regarding hotel establishments, none of them allows the limitation of access to hotel establishments for reasons of this nature (discriminatory).

This position undoubtedly justifiably restricts the business freedom of article 38 of the Magna Carta for compelling reasons worthy of protection (art. 14 of the EC), however, what these regional regulations do not prohibit, is that these hotel businesses can target their advertising or promotion solely and exclusively to a certain audience or group.

Finally, as obvious examples of such practices compatible with the constitutional principle of equality, we find feasible and reasonable options:

(i) Minors are not prohibited from entering, but the property lacks extra beds, cribs or high chairs. (ii) Advertising promotion is especially focused on certain groups or groups (singles, newlyweds... etc.), lacking interest or repercussion within family tourism with minors.

?IS IT POSSIBLE TO FILE A CLAIM IN AN EXCEPTIONAL CASE WHERE A MINOR IS DENIED ENTRY?

Obviously, because there is a clear violation of a fundamental right as essential as that of Equality, apart from the consumer/user's Right of Access.

Thus, in the event that we encounter such a prohibition in a Exceptional assumption (for example, being the only hotel in the area to attend a wedding, and not having the possibility of staying in another one that is fairly close), the first step will be to report such discrimination and prohibition through the mandatory complaint form, which will be processed in accordance with the procedure authorized by Consumo. (Mediation/Arbitration).

In spite of this, the consumer can go further, and if he considers that the consequence of such a prohibition is worthy of a judicial conviction given the material and formal seriousness of such a prohibition, a judicial action (demand) may be brought against the nullity of the clause on the Right of Admission of that establishment, since it is contrary to the legality, in this case, to the constitutional one.

The procedure to be followed would be that provided for in the General Law on Consumers and Users.

Notwithstanding what has been described, the most reasonable option is for families with minors to refrain from going to such hotels for obvious reasons (advertising for couples or singles and the absence of complementary services for minors). That is, first and foremost, the expected common sense applies, except for singular/exceptional assumptions such as the example described above.

CAN THE RIGHT OF ADMISSION TAKE PRECEDENCE IN THESE CASES?

As has been expressed, the Right of Admission is covered by the Right to Business Freedom provided for in article 38 of the Constitution, but it must be exercised under the rules of necessity and proportionality, and must respect first of all the above-mentioned Fundamental Right of Equality. Therefore, we can affirm that, by virtue of all the reasons described, it does not prevail, since it must always be based on objective, appropriate and equal conditions.

All this, without ignoring the possibility of peaceful coexistence of hotels of different kinds, after obvious publicity from the target audience.

Therefore, although the entry of minors cannot be prohibited, there are always respectful ways to exercise this business purpose, both on the part of the hotel entrepreneur and the consumer/client, who, we insist, must act with logic and common sense in the terms and advice listed above.

Marta Rosas (Managing T&L Attorney)