Adults Only hotels and the Right of Admission vs. the Consumer's Right of Access: Is it really compatible?

Within our legal system whose supreme legal source is the Spanish Constitution, which preserves in a preferential way, the fundamental rights such as the principle of Equality provided in its article 14; there is no justified or proportional reason for the prohibition of entry of a minor in a hotel of such 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 for reasons 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 for including minors in the group, is a measure, ab initio, unconstitutional, since it goes against the constitutional spirit of equality, by inflicting on the minors an evident discrimination due to their personal circumstance, that is, their AGE.

Notwithstanding the foregoing, the refusals that certain hotel establishments allege, without prejudice to the fact that they are legally surprising, are perhaps due to the erroneous concept that they have of the exercise of the entrepreneur's freedom, also provided for in our Spanish Constitution, Article 38.

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

Thus, in the exercise of such entrepreneurial freedom, the hotel establishment could argue in its defense the exercise of the often touted Right of Admission . However, as in the present case, this Right of Admission should never limit the Right of Access to a hotel establishment in an arbitrary or indiscriminate manner, since it is precisely this Right of Access which is based on the aforementioned principle of constitutional equality of article 14 of our Magna Carta.

A comparative study of the tourism legislation of the Autonomous Communities regarding hotel establishments shows that none of them allows the limitation of access to hotel establishments for reasons of this nature (discriminatory).

This position, undoubtedly, justifiably restricts the entrepreneurial freedom of article 38 of the Magna Carta for imperative reasons worthy of protection (art. 14 of the Spanish Constitution), however, what is not prohibited by these autonomous regulations is that hotel businesses may direct their advertising or promotion solely and exclusively to a certain public or group .

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

 (i) Entry to minors is not prohibited, but the establishment lacks extra beds, cribs or other beds. (ii) The advertising promotion is focused especially on certain groups or collectives (singles, newlyweds, etc.), lacking interest or impact on family tourism with minors.

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

Evidently, since there is a clear violation of such an essential fundamental right as that of Equality, apart from the Consumer's/User's Right of Access.

Therefore, in the case of encountering such a prohibition in an exceptional case (for example, being the only hotel in the area to attend a wedding, and not having the possibility of staying in another moderately close), the first step will be to denounce such discrimination and prohibition through the mandatory complaint form, which will be processed according to the procedure that Consumer has enabled (Mediation/Arbitration).

In spite of this, the consumer can go further, and if he considers that the consequence of such prohibition is worthy of a judicial condemnation given the material and formal seriousness of such prohibition, a judicial action (lawsuit) may be brought for the nullity of the clause on the Right of Admission of said establishment, as it is contrary to the law, in this case, to the constitutional law.

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

Notwithstanding the above, the most reasonable option is for families with minors to refrain from going to these hotels for the reasons given (advertising for couples or singles and the absence of complementary services for minors). In other words, the expected common sense prevails above all, except for singular/exceptional cases such as the example described above.

CAN THE RIGHT OF ADMISSION TAKE PRECEDENCE IN SUCH CASES?

As has been stated, the Right of Admission is covered by the Right of Entrepreneurial Freedom provided for in Article 38 of the Constitution, but it must be exercised under the rules of necessity and proportionality, and must above all respect the aforementioned Fundamental Right of Equality; therefore, we can affirm that, by virtue of all the reasons described above, it does not prevail, since it must always be based on objective, appropriate and equal conditions.

All this, without deviating from the possibility of peaceful coexistence of hotels of different natures, with prior evident publicity of the public to which it is preferably destined.

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

Marta Rosas (Managing Attorney T&L)