The Gazette 1991

GAZETTE

april

1991

It is obvious from reading the

section that the crucial feature is

whether the refusal is reasonable or

not and the section very

deliberately avoids defining what

reasonableness means. From the

Dail Debates on the Hotel

Proprietors Bill, it is clear that the

legislature wished to provide as

wide ranging a test of legality as

possible and to leave it to the

courts to interpret the phrase

"reasonable grounds of refusal"

according to the different

circumstances of each case.

But

though the phrase is a very general

one, one can still be fairly sure

about its application over a wide

range of situations.

Before going on to examine the

reasonableness of hotel refusals

relating to a person's appearance,

it is important to emphasise that

the obligation in s.3(1) to admit and

serve a person only arises if he is

seeking either a bedroom or food or

drink in the hotel. If the guest does

not seek these, if he wants to go to

a dance, function, night club, or go

for a swim, wait for a friend, use

the toilet, await a phone call, etc.,

then s.3(1) does not arise and the

hotel is relatively free to make

refusals. The only remaining legal

constraints on the hotel arise with

people who have pre-booked the

use of the hotel's facilities, or with

possible objections to the renewal

of the hotel's liquor and public

dance licences.

A further reason which might

prevent s.3(1) from arising as

regards bars and restaurants in

hotels is that if it can be shown that

the bar or restaurant where the

refusal was made was run

independently as part of the hotel

business and not as an integral part

of the hotel proper, and was more

" . . . the obligation . . . to admit

and serve a person only arises if

he is seeking either a bedroomor

food or drink in the hotel."

devoted to a non-resident than a

resident trade, then a court might

hold that, for s.3(1) purposes, the

duty to serve the customer did not

arise. There would, however, be

obvious difficulties in justifying

such a conclusion since there are

in general many factors which

suggest that any hotel bar or

restaurant is part of the hotel

proper.

The Appearance of a Guest

Types of Refusal

A person who presents himself at

a hotel in order to avail of sleeping

accommodation, food or drink may

find himself being refused because

of his race - as an Arab or black

or coloured person - or because of

his social group - as an itinerant

- or as a person from a deprived

or low income neighbourhood. He

may also be refused admittance

because of his clothes in that he is

wearing, say, denim or other jeans

or studded jackets or sneakers or

white socks, or even because he is

not wearing a jacket or a tie. It used

also happen that people were

refused admittance because of the

length of their hair, though

nowadays a refusal seems more

likely because of the style or

colouring of a person's hair. The

hotelier's refusal to receive the

person may rest on either or both

of two basic motives - the fear of

the effect which the presence of

the person will have on other

guests, or potential guesfs, of the

hotel, or the standards which the

hotel seeks to maintain; and

secondly, the hotelier's personal

objection to the

person's

appearance.

The existence of these refusal

motives raises a significant general

question as to how a court should

interpret the reasonableness of a

refusal. Is a hotelier entitled to

expect that the honesty or sincerity

of his view, regarding the effect

which the admission of customers

will have on his business, should be

the conclusive determinant of

whether or not be acted

reasonably? The answer to the

question appears to be in the

negative. For while the hotelier's

fears are obviously relevant to the

issue, it is quite clear from the

decisions in the cases that in this,

as in other areas of refusal law, the

honesty or validity of the hotelier's

motivation for making or sanction-

ing the refusal, does not on its own

make the refusal permissible.

Reasonableness is a broader

concept and is judged by a con-

sideration of all the circumstances

of the case. And, as will be seen,

a factor which perhaps looms

larger in this area of refusals than

in others is the influence of wider,

more general, legal and even

constitutional prohibitions against

racial and related discrimination

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and against unfair treatment of

people under Article 40 of the

Constitution.

Racial and Ralatad

Discrimination

To refuse to admit a person

because they come from North

Africa, or because they are Arab, or

black, or coloured is a reprehensible

practice, and although there is no

evidence to suggest that it is

widespread, it is clear that some

racial discrimination in admission to

hotels does occur.

Surprisingly, the Constitution

does not explicitly prohibit racial or

ethnic origin discrimination in any

sphere, let alone hotels and

catering establishments, although

a litigant with time and resources

to devote to a constitutional action

" . . . the Constitution does not

explicitly prohibit rscial or

ethnic origin discrimination in

any sphere

would probably find that the

Constitution implicitly prohibits this

kind of discrimination. Nor is there

any specific race or ethnic origin

legislation in Ireland. In the US, the

absence of adequate legislation in

this area has been a catalyst for a

number of developments. Up to the

federal Civil Rights Act 1964, hotel

and restaurant refusal to admit and

serve blacks was one of the pillars

of the

de facto

apartheid system

which operated in certain parts of

the US. The 1964 Act introduced a

general federal prohibition on racial

and related discrimination in access

178