Rick Moen
Tue, 27 Jun 2006 19:30:03 -0700
I wrote: > Late last year, I heard on a radio legal affairs programme about an East > Coast court case, where a family had gone out to a special dinner, felt > they'd gotten really bad service, and crossed out the "automatic service > charge" and written something smaller when paying the bill. The > restaurant manager (evidently clueless about public relations) summoned > the police and filed a criminal complaint against the customers, upon > which the judge ruled, sorry guys, if you want it to be non-optional, > you need to make it part of the listed price, not a "service" charge. > "Service" is in the eye of the customer, not the vendor.
It's been bothering me that I hadn't found a reference, on this court case, but I've finally tracked one down. Turns out that a _service_ charge, or "surcharge", properly disclosed, might be mandatory (and that the case I had in mind didn't actually go to trial, though a cited precedent had): http://www.tbhmr.com/News/ABA09242004.htm From ABA Journal eReport HERE'S A TIP: NOT LEAVING ONE IS LEGAL N.Y. Prosecutor Finds a Difference Between Surcharge and Gratuity BY STEPHANIE FRANCIS WARD A $2 tip on a $77 restaurant bill may be cheap, but it isn't criminal. So says a New York state district attorney, who declined to press charges against a man who refused to leave a restaurant's required gratuity of 18 percent for large parties. Humberto A. Taveras' arrest on Sept. 5 came under New York's theft of services law, which carries misdemeanor charges. With a party of eight, the Long Island man dined at Soprano's Italian and American Grill, a Lake George, N.Y., restaurant that applied the tip policy to parties of six or more. (Ironically, The Sopranos, HBO's television series, had a recent episode involving a dispute over a gratuity for a large party of mobsters. That dispute ended in the macabre, with the waiter being killed in the argument.) Ultimately, the case boiled down to language. Soprano's restaurant described the policy on its menu as a "gratuity," which by definition means "discretion," says Kathleen B. Hogan, the district attorney of Warren County, who ultimately decided to drop charges against Taveras. She mentions a Southern District of Indiana ruling in which a judge found that a tip or gratuity was strictly within the customer's discretion and payment could not be forced. U.S. v. Indianapolis Athletic Club, IP90-1783C. Had the service been written as a surcharge rather than a gratuity, Hogan probably would have prosecuted the case. "It really did turn on the word," she says, adding that under restaurant policy, the tip should have been nearly $14. "It's not like they didn't leave any tip. They just left a smaller tip than you would want." That's for sure, say attorneys who represent the restaurant industry. On average, those interviewed for this article say they tip at least 20 percent. "The whole reason so many restaurants do have notice is because this historically is a problem," says R. Rogge Dunn, a Dallas lawyer and former pizza restaurant assistant manager. "You get a large group that splits the tab, and some people are chintzy on the amount they're going to leave." Al DeNapoli, a Boston lawyer who represents the hospitality industry, says this is the first time he's heard of someone being arrested for poor tipping. "I'm surprised it was pushed this far, but there are people who are bad tippers all the time," he says. "Whether this is the case here, I don't know." Hogan says Taveras was unhappy with the service and said it did not warrant an 18 percent tip. DeNapoli, who waited tables as a law student, says that not tipping, even when service is bad, may not be the best solution for disgruntled diners. Servers' salaries depend on tips, he says, and they often share the money with busboys and dishwashers. Instead, DeNapoli advises you to speak with management about the situation or to "talk with your feet" and stop patronizing the restaurant. Having someone arrested for poor tipping may also not be the best solution, even if it's a fantasy scenario of many servers. "You might have a decent civil suit against them, but whatever you would win in that case would be far outweighed by the adverse publicity," Dunn says. "My advice would be to look at the bottom line, and let it go." Lake George is a resort town, and according to Hogan-herself a former waitress who always tips 20 percent-the publicity they've received from the incident concerns many restaurant owners there. Some of them, she says, changed their language from "mandatory gratuity" to "service charge" on large party bills. "They want to make sure their employees are getting compensation," Hogan adds, "and make sure they're following what obviously is the law in a federal case." _______________________________________________ basfa mailing list basfa@basfa.org http://vesta.wallis.com/mailman/listinfo/basfa