Thursday, February 22

Shops and bars that want to force the wearing of a mask will have a difficult time: this is how the right of admission works

Indoor masks are no longer mandatory, but there are still exceptions. We know that on public transport or in hospitals we will have to continue wearing them, but what happens if a store decides to require their use? Can they rely on the right of admission to force customers to wear the mask? Here we explain how the law works in this regard and in what situations it can be applied.

The government leaves the decision in the hands of business. As explained by the Minister of Health, Carolina Darias, the obligation will be in those places where there are vulnerable people, for the rest “there is a recommendation of responsible use”. That is, whether or not to require the mask is in the hands of the different businesses, restaurants and stores, which will do so by virtue of their right of admission.

However, it should be noted that the application of this right is not so automatic. We may see stores that recommend wearing the mask, but the prohibition to enter if it is not worn is an additional step that has certain requirements.

The “right of admission” as such does not exist. One of the confusions with this right is that there is no specific law that regulates the power of the owners of the establishments to limit their entry and establish regulations. It is the different autonomous communities that have the competence and usually this rule is described in the different laws of shows and public establishments.

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In the case of Madrid, it is established that the right of admission must “prevent the access of people who behave violently, who may cause inconvenience to the public or users or who may alter the normal development of the show or activity.” In opinion of lawyer Alonso de Frutos, “the conditions for the exercise of the right of admission must be used as an effective instrument to prevent violence.” As masks are no longer mandatory in general, this requirement would not fit as part of the so-called “right of admission”.

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Are the masks included in the right of admission?. The clearest limitation of the right of admission is established in article 14 of our Constitution, where it states, as described in the BOE, that it will be exercised with “respect for the dignity of people and their fundamental rights, without in any case discrimination any reason of birth, race, sex, religion, opinion or any other personal or social condition or circumstance of the users, both in relation to the conditions of access and the permanence in the establishments and the use and enjoyment of the services lend themselves to them”.

Reviewing these limitations, forcing the use of masks could be considered as a specific condition of admission, without conflicting with fundamental rights. As long as they do not conflict with fundamental rights, forcing the use of the mask can be understood as a precautionary principle for the safety of the business or even of the workers themselves, according to Agustín Ruiz, professor of Constitutional Law. It is not difficult to imagine a supposed specific case where there were workers at risk and the owner of the establishment decided to force the use of the mask as an admission requirement.

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There is an important preliminary step: the Administration must approve each case. The owner of a store cannot suddenly force the use of masks based on this right. And it is that the right of admission requires a series of administrative processes to be applied.

The permit will be granted by the competent administration of each Autonomous Community, based on the regulation of each CCAA or state regulations, failing that. Only if the Administration grants the store permission for the right of admission based on these requirements, can it be applied. Otherwise, the store could be fined for applying an admission fee that has not been approved.

The term may vary from one community to another. In the case of Murcia, it is established that the Ministry has a maximum term of three months, while the specific temporary conditions linked to a certain show, the communication must be made with at least five days, and the term to dictate and notify the resolution will be three days. In case the business wants to change the conditions, they must start the request again.

The use of the right of admission requires a certain warning sign. The use of the right of admission requires that the store display a sign exposed to the public, usually at the entrance. And not just any one. This poster must have the message “admission reserved” written and must have the exclusion requirements described, in addition to having the seal of the corresponding Administration, showing that they have received its approval.

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Who can apply it? Those who have an Opening License for an activity included in the catalog of public shows can exercise and request this right of admission. This includes restaurants, hotels, shops, museums, nightclubs, associations or libraries.

Neighborhood communities cannot apply it. The previous rule established that in closed common areas such as the portal or the elevator, the use of the mask was mandatory. But from now on that obligation has been eliminated. In Spain there is the so-called Horizontal Property Law that regulates the obligations of the different neighbors, but its application is very exceptional and is only contemplated for more serious cases.

Image | Adria Salido Zarco/GTRES

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