15% added for parties of 6 or more, legally enforceable?

[flight]

A recent thread on tipping has left me with this question. When you purchase a meal from a restaurant you are entering into a contract to pay for it. Usually that contract only covers the cost of the meal and applicable taxes, with tips being optional. They can ask you never to return if you don't tip, but they can't make you pay. Many places note in their menus that they will add a tip, usually 15 or 18%, for larger parties.

Is this legally enforceable? The bill will already have the tip on it. If I have terrible service: long waits, wrong orders, rude service, food spilled on me, can I just not include the the tip portion or am I responsible for paying it? Usually in such a case of bad service the manager would probably comp the whole meal, but say I had a complete jerk managing a terrible waitor. Have I legally stolen from the restaurant?

[Frylock]

No Lawyer Me, but I'm guessing that if there is a clearly posted policy that they'll be adding an amount to your bill, then by ordering, you're accepting a contract to pay that amount. This might mean you are responsible to pay it regardless of level of service.

However, arguably (there was a thread about this recently) you have a legal basis to refuse to pay the restaurant anything if the service is bad enough. You're not just paying for the food, you're paying for the service and the restaurant experience. If they fail to deliver this competently, they have failed to deliver the product you were trying to purchase.

If the manager's a total jerk and insists that you pay the tacked on gratuity, though, then you'll have to make your case in court, and that's probably not worth the effort.

Hopefully someone can cite some law on this. In the other thread, only British law was specifically cited, and I have yet to see any explicit Unistatian law on this one. (Are you in the U.S.?)

-FrL-

[Carlyjay]

What Frylock said.

I understand the distress this kind of policy might cause, but as a server I was grateful for the opportunity to "grat" large parties. Because as we all know, when you go out with a group of people and you get the bill, by the time everyone throws their money in, you're still short money. No one figures in tax and tip, and then either one poor sucker throws in more money because he's the only one with a conscience, or they just stiff the waiter.

Also, bear in mind. When you enter a restaurant, you are subject to that particular restaurant's policies. They have the right to refuse to serve you if, for example, your clothes don't match the dress code, or something. If you're a complete jerk, rightly or wrongly the manager is allowed to ask you to leave. By sitting down and ordering food/drinks in a restaurant that has a displayed policy, you are agreeing to abide by that policy.

Quick hijack:

People seem to think that Wal-Mart's "the customer is always right" policy is a universal belief or law, but it isn't. Obviously, treating the customer with 100% courtesy and respect and good service is the best business policy, but it doesn't give the customer the right to assume they MAKE the policies. Yes, we want you to choose our business over someone else's, so often we will bend over backwards to make you happy, but we don't HAVE to. And if you disagree with a business' policies, you as the customer do have the option, and the power, to choose to patronize a different establishment with procedures more to your liking.

The best option you have is to educate yourself on the policies of a business before entering into any sort of transaction with them.

/End of hijack.

[DSYoungEsq]

Offer: We will serve you the following foods and charge you the following prices. If you are a party of 6 or more, we will charge you a fixed gratuity.

Acceptance: Waiter, I'd like to order the duck confit, the caesar salad (no anchovies) and the lobster stuffed ravioli. And let me have the white chocolate bread pudding for dessert, please.


Offer, acceptance, consideration (I presume I need not spell out the consideration from both parties). Yep, we have a contract! :cool:

[Balthisar]

Perhaps the perceived problem with such practices is that they are generally not very obviously advertised. Small print on the bottom of the alcohol section on the penultimate page of the menu isn't really a very nice position to hide service charge information. On the other hand, any party of six or larger should automatically seek this information out because this is such a common practice for large parties.

If you don't like the practice, do what I do: just pay the service charge. It saves me more than 25% on what I would have left without such a policy in the first place -- that's win-win.

[spingears]

Is this legally enforceable? The bill will already have the tip on it. If I have terrible service: long waits, wrong orders, rude service, food spilled on me, can I just not include the the tip portion or am I responsible for paying it? Usually in such a case of bad service the manager would probably comp the whole meal, but say I had a complete jerk managing a terrible waitor. Have I legally stolen from the restaurant?Protest to manager and if not resolved, put him on notice that you will file a complaint with the credit card co. [IANAL] Otherwise pay the base bill in cash and walk out. It may result in a trip to court but the bad publicity would be bad for business. Call the media, they might find it of interest.

[DrDeth]

Offer: We will serve you the following foods and charge you the following prices. If you are a party of 6 or more, we will charge you a fixed gratuity.

Acceptance: Waiter, I'd like to order the duck confit, the caesar salad (no anchovies) and the lobster stuffed ravioli. And let me have the white chocolate bread pudding for dessert, please.


Offer, acceptance, consideration (I presume I need not spell out the consideration from both parties). Yep, we have a contract! :cool:

But when the duck is nasty, the salad does have anchovies, and there's no real lobster meat in the ravioli, have they held up there end?

And, you forgot: "We will perpare you this food, served at the proper temp, within a reasonable time period, and with the skills and grace expected of professional waitstaff. That means we won't be rude, or put our thumb in the soup, be too damn slow, won't stare down your date's dress too obviously, and will bring the food in a timely fashion".

Contracts go both ways. They have to hold up their end, too.

[DMC]

But when the duck is nasty, the salad does have anchovies, and there's no real lobster meat in the ravioli, have they held up there end?The server, certainly.And, you forgot: "We will perpare you this food, served at the proper temp, within a reasonable time period, and with the skills and grace expected of professional waitstaff. That means we won't be rude, or put our thumb in the soup, be too damn slow, won't stare down your date's dress too obviously, and will bring the food in a timely fashion".

Contracts go both ways. They have to hold up their end, too.You definitely have the right to dispute the check with the manager, but in the end, you owe what the check says, whether it's the original check, or the manager-altered version after a dispute.

[flight]

Perhaps the perceived problem with such practices is that they are generally not very obviously advertised. Small print on the bottom of the alcohol section on the penultimate page of the menu isn't really a very nice position to hide service charge information.
This is one of the considerations for it not being binding that I had considered, though I understand it is weak
Protest to manager and if not resolved, put him on notice that you will file a complaint with the credit card co.
There are many ways of resulving the issue. Here I am more concerned with the legality of the situation (though I admit that this is mostly academic as any manager worth his salt would reach an amicable solution with the customer).
Offer: We will serve you the following foods and charge you the following prices. If you are a party of 6 or more, we will charge you a fixed gratuity.

Acceptance: Waiter, I'd like to order the duck confit, the caesar salad (no anchovies) and the lobster stuffed ravioli. And let me have the white chocolate bread pudding for dessert, please.


Offer, acceptance, consideration (I presume I need not spell out the consideration from both parties). Yep, we have a contract!
These are exactly the reasons that I would think you would be obliged to pay. However, there is the additional consideration that the fixed gratuity may not be obvious (as mentioned by Balthisar), and that there may be some case law dealing with the idea of making a gratuity required. I could see it being the case that you cannot make that which everyone in the culture understands to be an optional payment a required one without explicitly informing people before they enter into the contract.

[Carlyjay]

But when the duck is nasty, the salad does have anchovies, and there's no real lobster meat in the ravioli, have they held up there end?

The server has held up their end of the bargain.

HOWEVER, there is no reason for you to pay for food that is terrible. Restaurants in general will respond gratefully should you bring something like that to their attention. If your food really is that bad, let the server and manager know, and you will likely get it for free. There's no need to fight the tip, it's the BAD FOOD you shouldn't be paying for.

If the service was abysmal, ask to speak to the manager. More will be done for you this way than if you simply stiff the waiter or jump right into seeking legal assistance. In general, if the service was really that terrible, your 15% gratuity will be waived.

If, however, you're just in a stink because you have to tip, that's another story.

And, you forgot: "We will perpare you this food, served at the proper temp, within a reasonable time period, and with the skills and grace expected of professional waitstaff. That means we won't be rude, or put our thumb in the soup, be too damn slow, won't stare down your date's dress too obviously, and will bring the food in a timely fashion".

Contracts go both ways. They have to hold up their end, too.

Agreed. Please see above.

[Frylock]

The server, certainly.You definitely have the right to dispute the check with the manager, but in the end, you owe what the check says, whether it's the original check, or the manager-altered version after a dispute.

Some citations of law would be good here, though I've had no luck in finding them.

I would expect that if food is served incompetently enough, then the terms of the contract have not been fulfilled.

-FrL-

[Musicat]

If you don't like the practice, do what I do: just pay the service charge. It saves me more than 25% on what I would have left without such a policy in the first place -- that's win-win.Hardly a win for the server, who lost out on what would have been a bigger tip.

[Will Repair]

But when the duck is nasty, the salad does have anchovies, and there's no real lobster meat in the ravioli, have they held up there end?

If you don't send the food back then you accept it.

(I am not a lawyer but I play one on the Internet.)

[DrDeth]

You definitely have the right to dispute the check with the manager, but in the end, you owe what the check says, whether it's the original check, or the manager-altered version after a dispute.

Cite? We really have to pay for inedible food, served improperly? :dubious:

[Gfactor]

Some jurisdictions do regulate autogratuity notices.

Restaurants
Tipping for good service is customary. Some restaurants may add a gratuity automatically. Restaurants must display a notice, in English, Spanish and Creole, on a sign or on the menu, indicating whether an automatic tip will be added, and if so, how the tip is calculated. It is illegal to discriminate against a person by adding a tip based upon the individual customer.
http://www.miamidade.gov/csd/Visitor_tips.asp

[Duggy Fizzle]

I think some people are missing a point. If the menu says, "a 15% gratuity will be applied to parties of six or more", then you will owe that money. If it says "a 15% gratuity will be applied to parties of six or more if you find your service acceptable" then you could refuse to pay it. I think some people are confusing what is expected of the staff, and the actual terms of the contract they just entered into.

Of course its reasonable to expect decent service, but if you agree to the terms of the "contract", then you legally have to pay. You may have a civil case if the service is bad, but you could be charged criminally with theft if you don't pay it. If you really feel the service was that bad, then pay the bill (with the gratuity added), and take them to small claims and tell the judge. I know it doesn't sound like its worth the effort, but that's the way it is.

[ThisSpaceForRent]

Hardly a win for the server, who lost out on what would have been a bigger tip.

When I was a waiter in a fine dining establishment we had on the bottom of the menu:
Parties of 6 or more may be charged a 18% service charge.


It was the servers option to add the gratuity or "roll the dice"...I typically let the guest decide, usually payed off in the long run.

tsfr

[DSYoungEsq]

But when the duck is nasty, the salad does have anchovies, and there's no real lobster meat in the ravioli, have they held up there end?

And, you forgot: "We will perpare you this food, served at the proper temp, within a reasonable time period, and with the skills and grace expected of professional waitstaff. That means we won't be rude, or put our thumb in the soup, be too damn slow, won't stare down your date's dress too obviously, and will bring the food in a timely fashion".

Contracts go both ways. They have to hold up their end, too.
None of that is in the contract. A sales contract involves the selling of an item for money (food for your money). Now, you can complain to the restaurant about the food, the service, etc., and they may do something. But the contract is pay x$ for the widgets (food, in this case).

People always want to have things their way; you don't want to pay an automatic gratuity? Go eat somewhere else. :rolleyes:

[DSYoungEsq]

Case law. On a gratuity. Get real. :smack:



Now, if you wanted to go to, say, small claims court, or if you were fighting a charge of theft brought by the restaurant, you might attempt to establish lack of a contract because you weren't reasonably on notice about the provision. However, I doubt you'd get very far. It's usually pretty prominently displayed at the bottom of the menu, at least as prominently as the warning about eating undercooked food items.

And, as someone has noted, there may be state laws or local regulations that affect the practice, though with the exception of a very few localities (Santa Cruz, CA comes to mind), I cannot conceive of them prohibiting the practice.

[DMC]

Cite? We really have to pay for inedible food, served improperly? :dubious:Certainly (http://www.moga.mo.gov/statutes/c500-599/5700000030.htm), unless you and the establishment agree to a change. It's known as "theft of service" and can actually be a felony in many places when the dollar amount is high enough.

[Gfactor]

None of that is in the contract.

I agree, although, we mustn't forget the perfect tender rule.

Here is the UCC version:

§ 2-601. Buyer's Rights on Improper Delivery.

Subject to the provisions of this Article on breach in installment contracts (Section 2-612) and unless otherwise agreed under the sections on contractual limitations of remedy (Sections 2-718 and 2-719), if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may

(a) reject the whole; or

(b) accept the whole; or

(c) accept any commercial unit or units and reject the rest.
§ 2-602. Manner and Effect of Rightful Rejection.

(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.

(2) Subject to the provisions of the two following sections on rejected goods (Sections 2-603 and 2-604),

(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and

(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this Article (subsection (3) of Section 2-711), he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but

(c) the buyer has no further obligations with regard to goods rightfully rejected.

(3) The seller's rights with respect to goods wrongfully rejected are governed by the provisions of this Article on seller's remedies in general (Section 2-703). (Emphasis added.)

http://www.law.cornell.edu/ucc/2/article2.htm#s2-601

This means you can send the food back as soon as you discover it isn't what you ordered (or what was advertised). You shouldn't be required to pay for that food. You can't eat it, and then on your way out, refuse to pay (under 2-601 and 2-602, anyway), and you can't refuse to pay (under 2-601 and 2-602) for bad service. These sections apply to goods. I suppose you could argue that the delivery was not as promised under some circumstances.

As DSYoungEsq points out, though, you won't find many published cases dealing with this specific issue.

[DrDeth]

Certainly (http://www.moga.mo.gov/statutes/c500-599/5700000030.htm), unless you and the establishment agree to a change. It's known as "theft of service" and can actually be a felony in many places when the dollar amount is high enough.

So you're saying that if I order steak, and they serve me Kal-Kan dogfood straight out of a can, and dump it over my head to boot- I still have to pay for what I ordered no matter what I was served??? :dubious: Your cite onlu mentions if I refused to pay for the "property or services" - if they do not give the the correct property or the correct services, how is that a violation of this code?

"appropriates property or services of another with the purpose to deprive him or her thereof," If I don't eat the food, what property have I deprived them of?

This cite:
http://www.thesite.org/homelawandmoney/law/yourrights/restaurantrightsthebill
Food quality
If the problem is the quality of the food rather than the service and it is so poor as to be a breach of contract, again you are entitled to reduce the bill or refuse to pay. However, if you are going to do this you need to tell the waiter at the time the food is served or if you first taste it. The restaurant is entitled to have the opportunity of putting good the problem. .....They must make clear, or show as prominently as the food prices, any minimum charge or service charge. If these charges aren't there and on your menu and you were not otherwise told, you can refuse to pay. They are not part of your contract. If they are displayed you must pay then unless they are unreasonable for the standard of the restaurant. "
If the restaurant fails with any of these obligations if runs the risk of a prosecution by the Trading Standards Departments

[Excalibre]

I think some people are missing a point. If the menu says, "a 15% gratuity will be applied to parties of six or more", then you will owe that money. If it says "a 15% gratuity will be applied to parties of six or more if you find your service acceptable" then you could refuse to pay it. I think some people are confusing what is expected of the staff, and the actual terms of the contract they just entered into.

Of course its reasonable to expect decent service, but if you agree to the terms of the "contract", then you legally have to pay. You may have a civil case if the service is bad, but you could be charged criminally with theft if you don't pay it. If you really feel the service was that bad, then pay the bill (with the gratuity added), and take them to small claims and tell the judge. I know it doesn't sound like its worth the effort, but that's the way it is.
Cite? If two people contract to do something, and one person doesn't complete their half, the other person, at least in some circumstances, is certainly free from the obligation to perform their half. I'm no expert, but that's pretty obvious if you think about it. If I contract to buy someone's car in three months, and they don't deliver the car, I'm certainly not obligated to pay and then sort it out later in court.

[DrDeth]

This means you can send the food back as soon as you discover it isn't what you ordered (or what was advertised). You shouldn't be required to pay for that food. .
So then, as I said- if the food is inedible, or not what ordered, you don't have to pay for it (assuming you don't eat it)?

I think if the services were so bad as to constitute a breach on contract on their end, you'd have the same right to refuse to pay the service charge?

[Random]

I mostly agree with DSYoung and Gfactor (as I almost always do), and disagree with a couple of the usual suspects who often post misinformation to
legal threads (ditto).

But I'm not sure that is clear that this is a pure sale of goods contract covered by Article II of the UCC. (Generally, Article II only applies to the sale of goods, not services.) At best, it's a contract under which the restaurant is supplying a blend of goods and services.

I don't have time to verify this right now, but I believe that the resolution of the issue depends on what part of the deal predominates. For example, a dentist who installs a filling is not covered by Article II. A merchant who bags your goods and delivers them to your house is. Don't know where a restaurant falls, but a high end place is arguably providing more services than goods. And if the 15% tip is viewed as a deal between the diner and the server (as opposed to the restaurant), it's clear that Article II does not apply.

But I agree that the obligatory 15% gratuity is part of the contract under the circumstances described. Whether a performance faiulure by the restaurant (or, perhaps more to the point, the server) is a breach of the contact that is material enough (in other words, sufficiently significant) to excuse the diner from paying the gratuity is a different, fact-dependant question.

[Carlyjay]

Cite? We really have to pay for inedible food, served improperly? :dubious:

Inedible food? No. If you send it back because it is inedible. But don't eat it, THEN tell the server "this was inedible!" pointing to the tiny crust left on your plate, and expect to get it, and the service, free.

[DMC]

So you're saying that if I order steak, and they serve me Kal-Kan dogfood straight out of a can, and dump it over my head to boot- I still have to pay for what I ordered no matter what I was served??? :dubious: Your cite onlu mentions if I refused to pay for the "property or services" - if they do not give the the correct property or the correct services, how is that a violation of this code?Can we leave the absurd hypotheticals out of a GQ thread? I answered your question correctly, and now you want to change the question you asked. As for your amended question, no I can't imagine any court would require you to pay, unless you had ordered dogfood.This cite:
http://www.thesite.org/homelawandmoney/law/yourrights/restaurantrightsthebill
Food quality
If the problem is the quality of the food rather than the service and it is so poor as to be a breach of contract, again you are entitled to reduce the bill or refuse to pay. However, if you are going to do this you need to tell the waiter at the time the food is served or if you first taste it. The restaurant is entitled to have the opportunity of putting good the problem. .....They must make clear, or show as prominently as the food prices, any minimum charge or service charge. If these charges aren't there and on your menu and you were not otherwise told, you can refuse to pay. They are not part of your contract. If they are displayed you must pay then unless they are unreasonable for the standard of the restaurant. "
If the restaurant fails with any of these obligations if runs the risk of a prosecution by the Trading Standards DepartmentsAside from the fact that that's a UK site, so it's not a valid reflection of the various statutes that apply to you (unless you are vacationing there), it states that you have to complain up front, and let the restaurant attempt to fix the problem at their discretion. In practice, all restaurants that I've ever dealt with are pretty damned amenable to correcting any problems, especially if they are valid problems and not just some Joe Asshole trying to get out of paying.

[Carlyjay]

I'm confused. It's been said several times now that if your food is terrible, and your service is terrible, you should IMMEDIATELY bring that to the attention of the nearest waiter/manager. Most --if not all-- restaurants will immediately either void the inedible food from your bill or make you a new dish, or both.

If you eat the whole thing and THEN complain, that's not good. But the same question keeps being asked over and over, and this response is being generally ignored. So my question is:

If your food and service were so bad, why are you not bringing this to the attention of the management, rather than waiting until you are given the bill to complain?

[Random]

To those that are trying to create a debate, through nonsense hypotheticals and other tactics:

There's no debate that I see here, at least not about the two factual questions asked bythe OP. We've had at least 3 lawyers comment already, and I believe we all agree on these main points.

Question 1: Is a mandatory gratuity that is disclosed to the diner ahead of time a binding, contractual obligation?

Yes. While a state law banning such a result may possibly exist somewhere, no one's identified such a law.


Question 2: If the service is terrible, to a degree that the restaurant/server have materially failed to perform their obligations under the contract, may the diner legally refuse to pay the gratuity?

Yes, in general. The antecedent breach of the contract by the server/restaurant, if not corrected, may excuse the diner from paying the service charge. So the diner complains before eating the food, and the service deficiences are significant, and the restaurant fails to correct the problem, the diner may legally refuse to pay the full service charge.

However, various state theft of services laws might apply and, while you probably would prevail on such a charge if the court believes your story about the bad service, that doesn't make you immune from arrest and the associated hassle.

Whether a particular type of server inadequacy is sufficiently material to constitute a breach of the contract is a question of fact that's unanswerable in this thread and forum (assuming that we ignore the nonsense hypotheticals that would never come up in real life.) That issue is probably better suited for IMHO.

[DrDeth]

I answered your question correctly, and now you want to change the question you asked. .

My original question was "Cite? We really have to pay for inedible food, served improperly? " You said "Certainly". Gfactor sez "This means you can send the food back as soon as you discover it isn't what you ordered (or what was advertised). You shouldn't be required to pay for that food." Do you now want to change your answer of "Certainly" to "No"? Or do you still maintain that we have to pay for inedible food? It is true that I used a hypothetical- but all I did was list an example of inedible food, not change my premise. Ok, sure- it was an extreme example, but it's the point was- "does inedible food have to be paid for?"

Gfactor- could Implied Warranty apply?
http://www.law.cornell.edu/uscode/html/uscode15/usc_sec_15_00002301----000-.html
(3) The term “consumer” means a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).
http://www.ftc.gov/bcp/conline/pubs/buspubs/warranty.htm#understanding
Implied Warranties
Implied warranties are unspoken, unwritten promises, created by state law, that go from you, as a seller or merchant, to your customers. Implied warranties are based upon the common law principle of "fair value for money spent," There are two types of implied warranties that occur in consumer product transactions. They are the implied warranty of merchantability and the implied warranty of fitness for a particular purpose.

The implied warranty of merchantability is a merchant's basic promise that the goods sold will do what they are supposed to do and that there is nothing significantly wrong with them. In other words, it is an implied promise that the goods are fit to be sold. The law says that merchants make this promise automatically every time they sell a product they are in business to sell. "

There is also the implied warranty of fitness of food:
http://www.netlawlibraries.com/jurinst/ji_009.html
"JURY INSTRUCTION 9.56
IMPLIED WARRANTY OF FITNESS OF FOOD
When food is purchased, there is an implied warranty that it is reasonably fit for human consumption.

[Food is not reasonably fit for human consumption when it contains a foreign substance, which is likely to cause injury to the consumer.]

[Food is reasonably fit for human consumption although it may contain a bone or other substance which is natural to that type of food and might reasonably be anticipated by the consumer. Only those substances which are not natural to the type of food concerned may be classed as foreign substances. It is for you to decide from the evidence whether there was a foreign substance in the food involved in this case at the time it was [sold to] [and] [consumed by] the plaintiff.]

This warranty is known as the implied warranty of fitness of food. | TOP |

http://www.mrsc.org/mc/courts/supreme/023wn2d/023wn2d0890.htm

"[1] FOOD - SALES - THEORY OF ACTION - NEGLIGENCE OR IMPLIED WARRANTY. In an action by purchasers of sausage for damages sustained in the consumption thereof, held that the complaint was broad enough to base liability upon negligence of the manufacturer and breach of implied warranty of wholesomeness of food sold for human consumption on the part of both the manufacturer and the retailer. "

Does that law- "the implied warranty of fitness of food" trump a state statute that you must pay for the food?

[Gfactor]

But I'm not sure that is clear that this is a pure sale of goods contract covered by Article II of the UCC. (Generally, Article II only applies to the sale of goods, not services.)

I worried about this too. But consider what the consequences are. If the UCC does not apply, common law probably does. There's probably a lot of variation between jurisdictions in the common law perfect tender rule, but in this case, I think its application is customary. If I order something and it isn't prepared to my specifications, I get to complain and have it fixed. If it isn't, I'm not liable for it. There is no written agreement, and much of the agreement is implied by conduct and practice.

You might say: "How much is the deep fried butter?" but you'd never say: "I offer to purchase the Cecilburger Deluxe ("food") at the advertised price and specifications, subject to the following terms and conditions:

Seller warrants:

1. No spittle or other unadvertised ingredients. The food delivered will not contain any substance not described in the product description visible to consumers from the consumer side of the counter at seller's store. The food preparation will comply with all legal requirements, as will the food delivered.

Conditions precedent to buyer's performance:

2. Time is of the essence. Buyer's performance of this contract is conditioned on seller's timely performance. The parties understand that buyer is on his lunch hour, the point of which is that he eat lunch within one hour. Therefore, seller must deliver the meal within a time that meets industry standards and is commercially reasonable. Seller must provide reasonable assurances of timeliness if buyer asks for it. Willful ignorance of buyer's request is bad faith.

3. Perfect tender. Buyer has ordered the food the way he wants it. Buyer's performance is conditioned on seller's delivery of the food as ordered. Seller has a right to cure defects, but this right is subject to paragraph 2.

* * *


This is part of the script, and as such, it is part if the deal, or am I missing something?

::Reaches to the holster that holds White & Summers; finds it empty:: :(

[DMC]

My original question was "Cite? We really have to pay for inedible food, served improperly? " You said "Certainly". Gfactor sez "This means you can send the food back as soon as you discover it isn't what you ordered (or what was advertised). You shouldn't be required to pay for that food." Do you now want to change your answer of "Certainly" to "No"? Or do you still maintain that we have to pay for inedible food? It is true that I used a hypothetical- but all I did was list an example of inedible food, not change my premise. Ok, sure- it was an extreme example, but it's the point was- "does inedible food have to be paid for?"Your original request for a cite was in response to my comment that unless you and the establishment had resolved the dispute by changing the ticket, that yes, you had to pay for the food. This started with your hypothetical where the "duck was nasty" and the "salad had anchovies", etc. While you might not like anchovies on your salad, and while I can't imagine a restaurant not making it right, it's not what I would consider "inedible". You'll notice that I did say that you could work out something between you and the restaurant. If you don't do so, then yes, I maintain that you are responsible for the food. I also noted that I couldn't imagine a court finding you guilty if it was indeed as horrible as you stated in absurd hypothetical. I'm simply citing statutes, not stating whether you would get convicted under those statutes, nor whether they would be overridden by other statutes. If you have a cite that says you could legally not pay even if the restaurant doesn't agree, I'll happily read it.

In the real world, I know of no restaurant that won't attempt to make something right, if it was truly wrong in the first place, whether through fixing the problem, comping the item (or more), or letting you off the hook without it costing you a penny. Even fast food restaurants do this. On ther other hand, I do know of many people who use similar arguments to attempt to not pay or pay less, but without merit. I also know many people who claim that if it wasn't for the mandatory 18% on parties, they would have tipped more, when in fact, many of these same people either don't tip at all, or tip below 10% when I am with them in smaller parties.

While I'll happily sympathize with anyone who is truly the victim of abhorrent service and poor food, yet still can't get a satisfactory resolution from the management. I just am not aware of a single instance in which that's the case, so am finding it hard to sympathize.

[Gfactor]

Does that law- "the implied warranty of fitness of food" trump a state statute that you must pay for the food?

Couple things:

1. These are products liability (tort) warranties. If your food hurts you, as a general rule, you won't be expected to pay for it. And that's what these are about--food that is unfit for human consumption. That doesn't mean it came with bacon when you ordered it without. It means it had sharp things in it, or maggots. There are cases that get closer to the line. My brother once found what he thought was a worm in a pop bottle. My dad (a lawyer) sent a demand letter, and he got $500.

Similar warranties exist under the UCC (merchantability and fitness for a particular purpose), but as Random has pointed out, the UCC only applies to the sale of goods, and there is a question about how prepared food would be classified.

None of these warranties will get you very far with food you simply didn't like though.

[DrDeth]

In the real world, I know of no restaurant that won't attempt to make something right, if it was truly wrong in the first place, whether through fixing the problem, comping the item (or more), or letting you off the hook without it costing you a penny. Even fast food restaurants do this.


While I'll happily sympathize with anyone who is truly the victim of abhorrent service and poor food, yet still can't get a satisfactory resolution from the management. I just am not aware of a single instance in which that's the case, so am finding it hard to sympathize.

As to your first point here, we are in agreement. Most restaurants will try to "make it good". I know of one case where I sent a letter to the mgt of Stuart Andersons, and got no response at all. (The food was not inedible, just substandard, and the restroom was filthy beyond beleif, which is scary at a restaurant). However, in every other case where I have made a reasonable complaint, I have been "made good"- often better than I had cause to expect. In fact, in the Tipping threads the OP alludes to, I am always suggeststing that dudes make their complaint known- not just stiff. Stiffing is rude, if not illegal.

As to poor service, a group of fellow employees ate the a Spagetti Factory which had the "mandatory service fee for groups". Half of us were served timely, the rest after an unexplained gap of nearly 15 minutes. Complaints got no where. In fact, the gap may not have been the servers fault, but there was no explanation at all. Odd.

But as I said- reasonable complaints work 95% of the time. I have had my entire meal comped (for very poor service), free dessert, free drinks, a coupon for my next meal "on the house" and so forth. In nearly all of these cases, the MGT offer was fair or more than fair.

Only in the case of Dennys, where we we surpised by a roach (towards the end of the meal, it ran off the dessert plate the pie was on), and they just waved us off when we went up to pay (and wouldn't look us in th eeye), could I think maybe I was owed more, and that's mainly 'cause I despise roaches. I still eat at Denny's- just not that one. :eek:

Note that I make no legal opinions here. I am just questioning others. Nor do I know who is a lawyer (other than a couple) and who is not, and whether or not they are admitted before the Bar in the correct juristiction (and I am not sure which is the juristiction as it seems like the OP isn't asking for legal advice so much as a hypothetical) or whether or not this area is their speciality (I know a Judge very well, but he gives very little legal opinions, even "curbstone" as he specializes in Workers Comp, not Criminal or Tort law).



Now, various lawyers (and I am not sure who is and isn't- I am not)- what is the final consensus? It seems like Random has done an excellent job on tips, but is there 100% consensus?
How about meals? Meal that is not "edible" (and you don't eat)- legal responsibility to pay or not?

[DrDeth]

Couple things:

1. These are products liability (tort) warranties. If your food hurts you, as a general rule, you won't be expected to pay for it. And that's what these are about--food that is unfit for human consumption. That doesn't mean it came with bacon when you ordered it without. It means it had sharp things in it, or maggots. There are cases that get closer to the line. My brother once found what he thought was a worm in a pop bottle. My dad (a lawyer) sent a demand letter, and he got $500.
.
How about you ordered the ceasar salad without anchovies, the salad did come with anchovies, and you are allergic to anchovies? I mean- it's unfit for you, but hardly for the great mass of humanity. I mean, you have to make "NO ANCHOVIES" very clear, sure, but once you do?

[Giles]

How about you ordered the ceasar salad without anchovies, the salad did come with anchovies, and you are allergic to anchovies? I mean- it's unfit for you, but hardly for the great mass of humanity. I mean, you have to make "NO ANCHOVIES" very clear, sure, but once you do?
Presumably you haven't got what you ordered, just as if you ordered the steak and and they gave you the chicken. So the restaurant has not performed its side of the bargain. (And I think it's immaterial whether you are allergic to anchovies, you don't like anchovies, or you normally like anchovies but just chose not to have them on this occasion).

It would be different if you could easily separate the anchovies. So if you ordered salad without dressing, and it came with dressing, but wasn't mixed with the salad (e.g., it was in a separate container, and you were expected to add it to the salad yourself), then the restaurant would have performed its side of the bargain, because you could just put the dressing to one side, and eat the salad without it.

[Duggy Fizzle]

Cite? If two people contract to do something, and one person doesn't complete their half, the other person, at least in some circumstances, is certainly free from the obligation to perform their half. I'm no expert, but that's pretty obvious if you think about it. If I contract to buy someone's car in three months, and they don't deliver the car, I'm certainly not obligated to pay and then sort it out later in court.

What makes you think the restaurant didn't fulfill their half of the deal? They delivered food, you ate it. Contract completed. My point was, the contract didn't say anything about the gratuity being added for satisfactory service, it was being added because there are six or more people. Period.

Using your example: Of course you wouldn't be obligated to pay if he didn't deliver the car. However, if he delivered a car that didn't run, then you would have to pay, because he fullfilled his end of the bargain. Is it what you expected or wanted? Probably not. But this is an expensive example of something a person would buy without a somewhat detailed written contract. If someone delivered a non-working car to you, you could put the money into escrow and then not release it until he fixes the problem. That way if it goes to court, it shows that you are at least willing to pay.

[Random]

I worried about this too. But consider what the consequences are. If the UCC does not apply, common law probably does.

****

This is part of the script, and as such, it is part if the deal, or am I missing something?

Yup, I agree with this. The does-the-UCC-apply issue is academic, barring some very unusual state law. Either way, we're going to get to the same result -- the one that you've described and I summarized in my second post.

::Reaches to the holster that holds White & Summers; finds it empty:: :(

Ahh, White and Summers. I knew it well. These days, I'm more of a Hawkland guy, though. (Or Brady, for Articles III and IV)

[Random]

Now, various lawyers (and I am not sure who is and isn't- I am not)- what is the final consensus? It seems like Random has done an excellent job on tips, but is there 100% consensus?
How about meals? Meal that is not "edible" (and you don't eat)- legal responsibility to pay or not?

1. I believe that GFactor and DSYoung are also lawyers. (Sorry about the truncation, DS, but I don't want those PhD students mad at me)

2. Same analysis applies to meals. If the meal is truly, subjectively inedible in some material fashion, the restaurant has breached its contract and you are not obligated to pay for it. (Again, barring any individual state's weird laws on the subject, and ignoring the practical issue of what a cop might do if called by the restaurant.)

[Random]

What makes you think the restaurant didn't fulfill their half of the deal? They delivered food, you ate it. Contract completed. My point was, the contract didn't say anything about the gratuity being added for satisfactory service, it was being added because there are six or more people. Period.

Using your example: Of course you wouldn't be obligated to pay if he didn't deliver the car. However, if he delivered a car that didn't run, then you would have to pay, because he fullfilled his end of the bargain. Is it what you expected or wanted? Probably not. But this is an expensive example of something a person would buy without a somewhat detailed written contract. If someone delivered a non-working car to you, you could put the money into escrow and then not release it until he fixes the problem. That way if it goes to court, it shows that you are at least willing to pay.


I disagree with pretty much all of this.

Even if there's no express term of the contract where the restaurant promises to serve food that's edible, uncontaminated and safe, that term is an implied part of the contract. Granted, if the patron eats it, that's some evidence that the food was acceptable, but not necessarily conclusive. If you eat 95% of the pie, and only realize that there was a roach baked in as your fork lifts the last bite, you still have a contract claim (or defense).

Next, service that's at least minimally competent is similarly an implied term. Objectively competent, that is. "Satisfactory" is more of a subjective issue, and each diner's subjective satisfaction is not an implied term, IMO.

Finally, I disagree with your car contract conclusion. We'd need to know more about the circumstances, but more likely than not, the delivery of a non-working car would be a breach. The parties don't necessarily need to recite "the car shall be good, running condition" in order for there to be a breach. I repeat: we'd need to know more about the circumstances in order to come to any firm conclusions on this -- I'm not saying that it would always be a breach. I am saying that you're wrong when you categorically assert that the car buyer "would have to pay" even if the car didn't run.

[Duggy Fizzle]

I disagree with pretty much all of this.

Even if there's no express term of the contract where the restaurant promises to serve food that's edible, uncontaminated and safe, that term is an implied part of the contract. Granted, if the patron eats it, that's some evidence that the food was acceptable, but not necessarily conclusive. If you eat 95% of the pie, and only realize that there was a roach baked in as your fork lifts the last bite, you still have a contract claim (or defense).

Next, service that's at least minimally competent is similarly an implied term. Objectively competent, that is. "Satisfactory" is more of a subjective issue, and each diner's subjective satisfaction is not an implied term, IMO.

Finally, I disagree with your car contract conclusion. We'd need to know more about the circumstances, but more likely than not, the delivery of a non-working car would be a breach. The parties don't necessarily need to recite "the car shall be good, running condition" in order for there to be a breach. I repeat: we'd need to know more about the circumstances in order to come to any firm conclusions on this -- I'm not saying that it would always be a breach. I am saying that you're wrong when you categorically assert that the car buyer "would have to pay" even if the car didn't run.

Are you kidding? Let's try to keep this a real world scenario. If you find a roach as you are finishing a pie, there isn't a restaurant in the world that won't comp your meal - and then some.

On your next comment, I know that satisfaction is an implied term, but the menu isn't asking you to to pay the gratuity on a large party, its telling you that you will be required to pay it no matter the manner in which the food reaches your table. Again, in the real world any manager will take care of things if service sucks. In this country, tipping is a well established custom and is not required. However, if a certain restaurant (not that I've heard of) has a sign stating that "all meals will have a gratuity added", then that custom doesn't apply anymore - it is legally enforcible. You aren't being forced to enter the "contract". If the menu says a chicken dinner cost $10, don't you agree that you are required to pay $10?

Finally, a non-working car doesn't necessarily mean a breach-of-contract. I've known plenty of people who've bought non-working cars to fix them up. That's why I mentioned it'd be pretty unusual to buy a car without some specific details in the purchase agreement. Besides, its not the seller's fault if a buyer doesn't thouroughly inspect a car prior to purchase. I just used the car example because it represents something where you have certain expectations, but they fall short. Did you want a Chevy and they delivered a Chevy? Then pay up. Did you want a Chevy and they delivered a Ford? Then they haven't fulfilled the deal. "oh, you didn't say you wanted it to run. Caveat Emptor.

[Gfactor]

If the menu says a chicken dinner cost $10, don't you agree that you are required to pay $10?

Not if it arrives cold, or an hour late. And not if the chicken delivered varies substantially from the chicken that I ordered.

Finally, a non-working car doesn't necessarily mean a breach-of-contract.

That's why Random said we'd need to know more about the circumstances in order to come to any firm conclusions on this -- I'm not saying that it would always be a breach.

It really depends on the circumstances. The UCC and other laws govern the sale of vehicles. Warranties are made unless disclaimed; representations are made by salespeople; understandings are reached about the purpose for which the vehicle is being purchased; sometimes special disclosures are required. In short, we don't have enough information from your example to make any judgments.

[DSYoungEsq]

1. I believe that GFactor and DSYoung are also lawyers. (Sorry about the truncation, DS, but I don't want those PhD students mad at me)Truncate away to your heart's content. I never use the silly title in actual fact, and only used it as a screen name on AOL when it also acted as an email address for my work.


AS I have iterated before, regarding the main question in the thread, if you don't like a policy of a restaurant, don't eat there.

As a similar example, there was a restaurant out in the Avenues of San Francisco, very good, fish restaurant. Went there with a bunch of friends to eat one evening. Found out just as we were about to order that they didn't accept credit cards. Had to sneak out to get cash from an ATM. Never went back there.

[Random]

You're either misunderstanding or deliberately misstating what I wrote.

If you find a roach as you are finishing a pie, there isn't a restaurant in the world that won't comp your meal - and then some.

Irrelevant. The point is, you were wrong when you said, without acknowledging any exceptions, that the diner must always pay the restaurant if he eats the food (because the restaurant has supposedly satified all of its contractual obligations by simply delivering a plate with food on it.)



On your next comment, I know that satisfaction is an implied term,....

a) I didn't say this.

b) In fact, I said exactly the opposite -- that satisfaction was not an implied term.

c) So, if you think you "know" this, you're wrong.




...but the menu isn't asking you to to pay the gratuity on a large party, its telling you that you will be required to pay it no matter the manner in which the food reaches your table. Again, in the real world any manager will take care of things if service sucks.

a) No. As both I and others have said, there's a point where the service is so bad, that you don't have to pay, because the server/restaurant has a violated an implied duty to be minimally competent. So you don't have to pay "no matter [how] the food reached your table. You were wrong.

b) It doesn't matter if a restaurant will supposedly always take care of situations when "service sucks". That just avoids the question. If it never comes up, and therefore the diner never has to pay when service is bad, what was your point in claiming that "you will be required to pay... no matter [how] the food reaches your table"?

c) If you were right about satisfactory service being an implied term, how do you reconcile that belief with "you will be required to pay... no matter [how] the food reaches your table"?


In this country, tipping is a well established custom and is not required.

Yes.

However, if a certain restaurant (not that I've heard of) has a sign stating that "all meals will have a gratuity added", then that custom doesn't apply anymore - it is legally enforcible. You aren't being forced to enter the "contract".

Yes. That would, indeed, be a legally enforcable contract if the diner is (or should be) aware of the sign and orders a meal. Assuming that the "gratuity" amount is also listed on the sign, that is.


If the menu says a chicken dinner cost $10, don't you agree that you are required to pay $10?

Always? No. For reasons that I have already made very, very clear.



Finally, a non-working car doesn't necessarily mean a breach-of-contract.

Yes. As DSYoung has already pointed out, I said this. Indeed, I said this twice. I guess you missed it. Twice.

But you didn't say this. You said "if he delivered a car that didn't run, then you would have to pay, because he fullfilled his end of the bargain." You didn't say "sometimes", or "under some circumstances". You included no qualifications at all.

In fact, as I said, and as DSYoung agreed, the truth is that there are many, many circumstances where delivering a non-working car would be a breach of contract.

Therefore, you were (again) wrong.

Caveat Emptor.

Not necessarily the law these days. In fact, as an absolute concept, it almost never is the law.

[Random]

Correction. I cited DS when I meant to refer to the last post by GFactor.

Apologies.

[Excalibre]

Not necessarily the law these days. In fact, as an absolute concept, it almost never is the law.
I have always wondered why, in legal threads in GQ, so many people who lack any particular training in the law are so willing to make statements about it and present them as the truth, based on absolutely nothing except guesswork.

[Random]

I have always wondered why, in legal threads in GQ, so many people who lack any particular training in the law are so willing to make statements about it and present them as the truth, based on absolutely nothing except guesswork.


Indeed.

The persistent ones amaze me the most. There can be 3 lawyers in the thread, with cites where appropriate, and some people still argue nonsense.

It's a shame, because it dilutes the good information, and unknowing readers might rely on the nonsense.

[Campion]

I have always wondered why, in legal threads in GQ, so many people who lack any particular training in the law are so willing to make statements about it and present them as the truth, based on absolutely nothing except guesswork.
You'd be surprised, IRL, how many lawyers do that as well. :)
It's a shame, because it dilutes the good information, and unknowing readers might rely on the nonsense.Random, one of the reasons that I admire you is you persist in attempting to correct the record and provide helpful information even in the face of repeated, persistent, unrepentant ignorance. Me, I don't have the patience.

[Gfactor]

You'd be surprised, IRL, how many lawyers do that as well. :)

Oh my, yes.

[Balthisar]

The persistent ones amaze me the most. There can be 3 lawyers in the thread, with cites where appropriate, and some people still argue nonsense.
Actually, there's a lot to be said for this. It's possible that even with a sustaining cite, a layperson's statement could nudge the same lawyer's memory of some conflicting citation. As it is we have lawyers in this thread from Illinoi, Ohio, and the fair state of Michigan, all with different written laws and different court precedents. The issue of common law was also brought up, and barring an actual statute or specific ruling to serve as precedent, "common law" often needs interpretation, no? (Remember always that a jury is composed of laypersons and not legal scholars, so in many cases they may decide something contrary to law.)

[DrDeth]

Actually, there's a lot to be said for this. It's possible that even with a sustaining cite, a layperson's statement could nudge the same lawyer's memory of some conflicting citation. As it is we have lawyers in this thread from Illinoi, Ohio, and the fair state of Michigan, all with different written laws and different court precedents. The issue of common law was also brought up, and barring an actual statute or specific ruling to serve as precedent, "common law" often needs interpretation, no? (Remember always that a jury is composed of laypersons and not legal scholars, so in many cases they may decide something contrary to law.)

Right. And there are several other issues. Many times- such as this thread- the lawyer posters have not ID'ed themselves as such. Sure, I know that some of them are, but most of us can't really be expected to look at every posters screenname and think "Hey that guy is a real lawyer, I shouldn't disagree with him."

Next- we only know (at best) who has claimed to be a IRL lawyer. Other than perhaps Gfactor and Bricker who are both SDSAB and perhaps are vetted to a certain amount, we only know what dudes claim. Sure, they post pretty good cites and opinions at times, but so could a sharp law student, paralegal or lawclerk. The SDMB certainly isn't going to get into the business of vetting who is and who is not a IRL lawyer. I am not saying that anyone who has claimed to be a lawyer isn't one, but still- do we really want a "rule" based upon what a poster claims his occupation is?


Then as was said- where is that lawyer admitted to the Bar? Il, Oh & Mi are fine states, but differ quite a bit from CA- for example. Of course, some law is the same across all 50 states, sure.

Then we get into the issue of- does that Lawyer really practice in that field. I brought up my friend- who is not only a member of the Bar in CA, but a Judge. However, his specialty is Worker's Comp, which has pretty different case law and practice. He has made it very clear that he doesn't consider himself able to practice Criminal law anymore. Those "sharp law students, paralegals and law clerks" even though not admitted to the Bar- may well know more than a full-fledged attorney-at-law who has almost only practiced in one field for his career.

Next- when two lawyers disagree, what happens then? Us non-lawyers have to agree to both sides? :confused:

Now, I admit, that when a dude comes here and asks for a real Legal opinion, the non-lawyers shouldn't give one- but really he shouldn't be asking in the first place. No IRL lawyer is going to give IRL legal advise here, not without scads of caveats, anyway.

Thus, we are left with legal hypothetical. However, as was said her by the real lawyers- there's no case law here. Thus, even the experts have to guess- educated guesses, sure.

But let's face the facts- let's say that notice about tips is on the menu. And, you claim you have not rcvd adequate service and don't want to pay it. Assuming you make a polite dispute to Mgt- Does anyone here seriously claim that 95 restaurants out of a 100 won't give in- even reluctantly? Then that 5%- how many will really call the police if you refuse to pay it? Now, I know police officers very well- if they were called out on this, they'd try very very hard to talk both sides down, and they'd be very reluctant to make an arrest. Some might even require the owner to make a citizens arrest. (In CA, it seems the police must actually witness a misdemeanor to make an arrest on that charge). Then, let's say the PO does make the arrest- how many DA's will really bring criminal charges on such a minor matter? So, that's why it's going to be hard to answer the OP's request- as DSYoungEsq wisely said "Case law. On a gratuity. Get real " . Does any of our experts here think such a "crime" would even get as far as a formal arrest, let alone charges and a conviction? :confused:

Now, in Civil Court- the MGT sues the patron for the 15%, or the patron sues for a refund- then that's different again, sure. I wouldn;t be shocked if either of these got into Small Claims- very petty matters get there sometimes.


(is DMC a lawyer? :confused: ) I can't find my Program and you can't tell the players without one. :p

[DSYoungEsq]

For what it is worth, I am an attorney at law, admitted to the bar in the state of California, and have been since 1986. I don't practice now, and haven't for some time, having moved to Ohio and changed occupations.

Not that it matters on simple, basic contract law. :dubious:

[DrDeth]

For what it is worth, I am an attorney at law, admitted to the bar in the state of California, and have been since 1986. I don't practice now, and haven't for some time, having moved to Ohio and changed occupations.

Not that it matters on simple, basic contract law. :dubious:

I am not in any way doubting you. And your username does make one think that you are a lawyer. :D Not to mention you many well thought out posts.

However, do you not agree that on "simple, basic contract law" a sharp law student, paralegal or law clerk may be capable as a Bar admitted lawyer who is either out of practice, out of state or our of his field?

[Contrapuntal]

Some jurisdictions do regulate autogratuity notices.

It is illegal to discriminate against a person by adding a tip based upon the individual customer.

http://www.miamidade.gov/csd/Visitor_tips.aspPlease tell me that this is just poorly worded, and that it is not an anti-discrimination ordinance.

[Gfactor]

Here is the complete tipping ordinance:

Sec. 8A-110.1. Tipping policies.
(1) Definitions.
(a) Business shall mean any food service establishment in which tipping ordinarily occurs or which has a tipping policy.
(b) Permit shall mean to allow, permit, accept, request or require.
(c) Status shall mean the race, color, religion, ancestry, national origin, age, sex, sexual orientation, pregnancy, disability, marital status or familial status of an individual or any person associated with that individual.
(d) Tip shall mean any gratuity or service charge associated with a business's provision of any goods or services.
(e) Tipping shall mean the custom, policy or practice of permitting tips.
(2) Nondiscrimination in Tipping. No business shall permit any tip based upon an individual's status.
(3) Posting of Tipping Policies. Each business shall provide notice of (A) whether the business includes an automatic tip in its bill, and if so, the amount or method of calculation of the automatic tip; and (B) the following language: "IT IS ILLEGAL IN MIAMI-DADE COUNTY FOR ANY BUSINESS TO CONDONE IN ANY MANNER TIPPING BASED ON THE RACE, COLOR, RELIGION, ANCESTRY, NATIONAL ORIGIN, AGE, SEX, SEXUAL ORIENTATION, PREGNANCY, DISABILITY, MARITAL STATUS OR FAMILIAL STATUS OF THE PERSON OR PERSONS GIVING OR RECEIVING THE TIP. If you have a complaint, you may call the Miami-Dade County Consumer Services Department Hotline at (305) 375-3677." This notice shall be posted conspicuously, either on a sign or in a statement on the business's menu or price listing in the same form and manner as the other items on the menu or price listing, and written in a legible manner in English, Spanish and Creole.
(4) Provisions Cumulative. The provisions of this section shall be cumulative and in addition to and not in derogation of any and all other provisions or laws prohibiting discrimination or regarding notification of tipping polices.
(5) Applicability. The provisions of this section shall apply throughout the incorporated and unincorporated area of Miami-Dade County, Florida.
(Ord. No. 99-163, § 1, 12-7-99)http://library4.municode.com/mcc/DocView/10620/1/192/195/198?

[DrDeth]

I had heard that it was thought in some areas of this nation that certain "races" would stiff or even walk without paying, and that certain "coffee-shop" type restaurants would require that that ethnicity pay a certain tip or even pay up front.

[Random]

You'd be surprised, IRL, how many lawyers do that as well. :)

Really? Can you maybe cite me to a thread where that has happened? :)

(note: this is a very rare example of a smilie use by me. In fact, it may be unique. Collect and trade with your friends!)


Random, one of the reasons that I admire you is you persist in attempting to correct the record and provide helpful information even in the face of repeated, persistent, unrepentant ignorance.

Gosh!

Me, I don't have the patience.

Someone has less patience than I do when dealing with idiotic law posts? Is this actually possible?

[Random]

Next- we only know (at best) who has claimed to be a IRL lawyer. Other than perhaps Gfactor and Bricker who are both SDSAB and perhaps are vetted to a certain amount, we only know what dudes claim. Sure, they post pretty good cites and opinions at times, but so could a sharp law student, paralegal or lawclerk. The SDMB certainly isn't going to get into the business of vetting who is and who is not a IRL lawyer. I am not saying that anyone who has claimed to be a lawyer isn't one, but still- do we really want a "rule" based upon what a poster claims his occupation is?


This is the only part of DrDeth's post that I care to respond to.

If I'm not a lawyer, I must be pretty amazing, considering the following:

1) I've been able to fool all the other board lawyers about my status, in hundreds of legal posts over the last 6 years. (not counting AOL).

2) I've been able to fool the over 100 board members who I've met in person, including at least two who are lawyers and one who is an experienced paralegal.

3) I somehow scammed one board administrator who once asked for for legal advice, and a second admin who my law firm has done business with, and who has met me at my law office.

4) My public user profile contained, until a couple months ago, my office e-mail address, which contains the domain name of my law firm, and that address is still the one that board staff can see. Dozens of board members and several staff members have e-mailed me using that address. (and, yes, before anyone asks, the large number of idiots that proliferate on this board had something to do with my removal of the public e-mail link.)

[Duggy Fizzle]

But let's face the facts- let's say that notice about tips is on the menu. And, you claim you have not rcvd adequate service and don't want to pay it. Assuming you make a polite dispute to Mgt- Does anyone here seriously claim that 95 restaurants out of a 100 won't give in- even reluctantly? Then that 5%- how many will really call the police if you refuse to pay it? Now, I know police officers very well- if they were called out on this, they'd try very very hard to talk both sides down, and they'd be very reluctant to make an arrest. Some might even require the owner to make a citizens arrest. (In CA, it seems the police must actually witness a misdemeanor to make an arrest on that charge). Then, let's say the PO does make the arrest- how many DA's will really bring criminal charges on such a minor matter? So, that's why it's going to be hard to answer the OP's request- as DSYoungEsq wisely said "Case law. On a gratuity. Get real " . Does any of our experts here think such a "crime" would even get as far as a formal arrest, let alone charges and a conviction? :confused:

Now, in Civil Court- the MGT sues the patron for the 15%, or the patron sues for a refund- then that's different again, sure. I wouldn;t be shocked if either of these got into Small Claims- very petty matters get there sometimes.
(

Exactly.

It seems as though I had too much difficulty in trying to express myself, but DrDeth sums up well what I was trying to say. My apologies.

Any restaurant that seriously failed servicing a customer would bend whatever rules they had to make things right. However, I guess what I was saying is - if they really wanted to be pricks about it, they could be. And even if they were pricks, it would never make it to a jury or bench trial (i.e. a criminal matter), so arguing about it is pretty much moot.

[Random]

On reflection, one thing I said isn't true. When I made that profile change a couple months ago, I didn't keep my office address in the profile (the part of the listing seen by staff). I changed it to a personal e-mail address.

But it uses my real, very unusual last name, which would allow anyone with even half a brain to verify my identity.

[Random]

This thread has exhausted whatever patience I allegedly have with the Nonsense Law Poster Crew.

Also, I think it's now apparent to everyone who might read this thread that some posters are speaking sense, and others are speaking nonsense.

[DrDeth]

This is the only part of DrDeth's post that I care to respond to.

If I'm not a lawyer, I must be pretty amazing, considering the following:
)

My freind- in no way shape or form was I doubting that you are a Lawyer. I have not said that. I believe you. But that still doesn't mean the the Staff at the SDMB are going to get into the business of verifing and confirming posters claims as to the IRL occupations. Same with Police Officers, Doctors, CPA's or any Profession. We simply accept you are who you say you are, and why should it be elsewise? Ihave never doubted that you are who you claim to be.

Nor would I even want to verify your IRL ID- that "crosses a line" IMHO. You are Random, a Charter Member. Other than SDSAB, Moderator and Adminstrator- all the rest of us are either Guests, Members or Charter Members. We don't have "Members who are verified by the SDMB to be IRL CPA's/Doctors/Nurses/Military/Lawyers/and so on" nor should we, I think. Do we really want to go there? :confused:

I thank you for your patient and well-educated thoughts, here as in other threads. Please do not consider my general thoughts a personal attack, they were not so, nor were they intended to be taken that way.

[Duggy Fizzle]

I think much of the disagreement here comes from people considering that the service and food were horrible. Let's clarify the question...

Let's all assume the food was brought to the table exactly as it was ordered, and the service was quick and attentive. Do the customers still have a right to fight the 15% added gratuity on parties of six or more if it is clearly stated on the menu?

[Frylock]

I think much of the disagreement here comes from people considering that the service and food were horrible. Let's clarify the question...

Let's all assume the food was brought to the table exactly as it was ordered, and the service was quick and attentive. Do the customers still have a right to fight the 15% added gratuity on parties of six or more if it is clearly stated on the menu?

I would be very very suprised if they did have that right.

-FrL-

[glee]

I think much of the disagreement here comes from people considering that the service and food were horrible. Let's clarify the question...

Let's all assume the food was brought to the table exactly as it was ordered, and the service was quick and attentive. Do the customers still have a right to fight the 15% added gratuity on parties of six or more if it is clearly stated on the menu?

I think much of the confusion here comes from non-lawyers making claims.
Are you going to reply to post 44?

The original question was "If I have terrible service: long waits, wrong orders, rude service, food spilled on me, can I just not include the the tip portion or am I responsible for paying it?"

How does your completely different scenario post 'clarify' this?

[amarone]

According to this (http://www.tbhmr.com/News/ABA09242004.htm), a "gratuity" is optional by definition and cannot be forced. On the other hand, a "mandatory service charge" can be imposed.

[Random]

I think much of the disagreement here comes from people considering that the service and food were horrible. Let's clarify the question...

Let's all assume the food was brought to the table exactly as it was ordered, and the service was quick and attentive. Do the customers still have a right to fight the 15% added gratuity on parties of six or more if it is clearly stated on the menu?


Ahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh!

[DrDeth]

Ahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh!


Counselor, I concur. ;)

Read the thread dudes. (hint, the answer was given, it's "NO")

[psychloan]

I had heard that it was thought in some areas of this nation that certain "races" would stiff or even walk without paying, and that certain "coffee-shop" type restaurants would require that that ethnicity pay a certain tip or even pay up front.

If you go to discussion boards for waiters (or for pizza delivery people), you will see that there is a strong perception that all races are not equal when it comes to tipping. No doubt it's this sort of prejudice (postjudice?) that motivated the Dade County ordinance.

[flight]

I want to take a moment to thank the posters who have taken the time to answer my question, particularly [Random[/b].
Question 1: Is a mandatory gratuity that is disclosed to the diner ahead of time a binding, contractual obligation?

Yes. While a state law banning such a result may possibly exist somewhere, no one's identified such a law.
Excellent. That was exactly what I wanted to know.
Question 2: If the service is terrible, to a degree that the restaurant/server have materially failed to perform their obligations under the contract, may the diner legally refuse to pay the gratuity?

Yes, in general. The antecedent breach of the contract by the server/restaurant, if not corrected, may excuse the diner from paying the service charge. So the diner complains before eating the food, and the service deficiences are significant, and the restaurant fails to correct the problem, the diner may legally refuse to pay the full service charge.
OK, a little fuzzier. No one has a question that the wrong food, or terrible food does not require payent so long as you don't eat more than a bite or two. This was brought up several times, but was never in doubt. The service is the question, and specifically how it relates to required tipping.

To be a little more specific than before, once a gratuity is automatically added for a large group, is the gratuity still a separate fee for the service, or inseperable from the meal?

For example: if I have a wonderfully prepared meal but after I finish the last scrumptious bite the waitress shits on my table and curses us out, would I have a legal leg to stand on in denying to pay the gratuity portion of the bill, as they failed to provide a bare minimum of service, while still paying for the food? Would the gratuity be considered part of the entire bill to be contested as a whole only? This wasn't completely clear from your explanation.

Oh, and to the many people who mentioned this, I know that almost any restaurant would do what is necessary to make things right without involving the authorities. That is why I specifically mentioned it in the OP. This is more of a specific question on how the law sees the issue rather than how to go about practically handling it.