The Gazette 1991

april 1991

GAZETTE

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. 1 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

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