In Costa Rica, any business (a restaurant, clothing store, movie theater, bar or hardware store) may reserve the right to refuse admission to those customers who do not wear masks when entering their premises, despite the decree published on May 11, which eliminated the use of masks in closed places.
Several lawyers specializing in the matter, such as constitutional lawyer Marvin Carvajal, consider President Rodrigo Chaves’ decree only protects the individual’s freedom to choose whether or not to wear a face mask; however, it does not eliminate the right of business owners to reserve admission to their establishments.
In this case, for example, they can make this decision in order to protect the health of their other customers and even the workers themselves.
Carvajal indicated that the business people are “perfectly entitled” to apply this restriction based on the freedom of commerce protected by Article 46 of the Constitution and that it would not be a discriminatory measure because it is not contrary to human dignity, which is the limitation established by Article 33 of the Constitution.
“Discrimination would occur if customers are not allowed to enter because of their skin color or nationality,” the expert pointed out.
“You can’t ask a businessman not to act within his means to safeguard his business and the health of his clientele and staff,” he added.
According to Costa Rica’s Constitutional Court, specifically in Sentence 1099-2022, “any commercial establishment or private association has the possibility to impose its admission rules, as long as they are not openly discriminatory, unjustified or disproportionate.”
This measure would not be discriminatory as long as it is applied to all customers, without any other distinction.
Likewise, the decree declaring a national emergency due to the pandemic is still in force and, until very recently, the mandatory use of masks was also still in force, so it would not be an unjustified or disproportionate measure at this time, expert lawyers concluded.
Constitutional lawyer, Ruben Hernández, also considers businesses can deny entry to customers who do not wear masks, according to Article 26 of the Constitution.
“Just as they do not allow naked people inside, they can apply the same criteria to deny admission to people without masks,” he explained.
Attorneys indicate the most important thing to enforce this measure, is to post a sign outside their premises so that customers are aware of the policy before they enter the place.