Possibly different rules since it’s a mall, where presumably vendors have to sign contracts about what they can sell?
The mall is a private business and can set whatever conditions they want on vendors. This includes telling them they can’t sell things. The vendor is free to sell the item elsewhere.
The mall likely has some language in their leases that stipulates that “offensive” merchandise, or anything that they don’t like, can not be sold on their premises.
That said, I am forced to wonder who is going to compensate the store lessee for the confiscated shirts.
Depends on the contract the kiosk owner had with the Mall. The sale of the shirts may have violated the terms of the rental contract. The article says that the kiosk owner could come and pick up the shirts.
Since the mall isn’t run by the government, it’s private property. The owners have the right to determine policy.
From the link:
- Screws said the kiosk owner could pick up the confiscated shirts later but probably would have to pay a fine.*
I assume the vendor has a contract with the mall that may have a clause dealing with what types of merchandise may be sold, and the consequences of selling non-approved merchandise. Not sure such a contract would allow for the immediate confiscation of said merchandise, though.
There does not appear to be any intent to permanently deprive the owner of his property, so this probably can’t be called theft. If there is no controlling contractual provision, it might qualify as a tort–trespass to chattel, which would entitle the owner to damages.
Thanks Oakminster and others.
I guess the real question boils down to “Does the mall have the right to sieze the property even for a second?”
While the mall certainly has a right to say what and what cannot be sold, does it have the right the take possession of something, simply because it disagrees with the item sold?
Could they have said, “Stop selling and stop displaying the shirts” and let the owner handle it from that point?
From the article, they did tell the kiosk owner that. Instead of removing the t-shirts, he just put them behind other ones. The next day, a Chamber of Commerce shill bought 2 of the offending t-shirts, indicating the kiosk owner was not complying with the mall’s rules, and then the mall seized the shirts.
Where does a mall get the right to seize merchandise or impose fines?
From their lease agreement.
What do you wanna bet the shirts become more popular now, and the seller sets up a kiosk elsewhere?
Some locals should arrange for a flash mob to show up at the mall wearing those shirts.
Excellent! If I were the marketer of these shirts, I would give a bunch to my friends and have them walk around the mall sporting buttons that read “ask me where I got this shirt”.
I don’t know the facts of the case entirely, but I’m not entirely sure that, even with a private agreement between two parties, the aggrieved party can self-help their way into a confiscation of someone’s property because of a contract breach.
I thought they had to get a court order to have the shirts removed and they had no legal right to grab them. This is the part for which I thought they left themselves open to losing a court case to the owner. They are offering them back, but that doesn’t mean this was originally handled in a legal way.
The mall is private property and can limit what can be sold there, what people can do there, and what they can wear. If people showed up at the mall with that shirt, the mall owner could tell them to leave. Normally, when you enter a mall, there’s a sign that tells you some basic rules which stipulate that the mall is private property and you can be kicked out.
According to Federal law and possibly state law, you cannot be asked to leave for reasons of race, religion, gender, or creed. But, you could be asked to leave if you are wearing a t-shirt that the mall owners found objectionable.
There may be state and local statutes that could protect the vendor from this type of action since the mall itself is a publicly accessible commercial area (i.e. they allow the general public in there). That’s why statutes prohibiting discrimination can override the owner’s right to refuse service based upon race. Once you open up to the public, your commercial rights to run your business as you please can be regulated.
"Four years ago, a kiosk vendor was kicked out of Valley View Center for selling a shirt with a nearly identical image – another body in a trunk, in a slightly different style. "
I am guessing that, based on the earlier case, the police and mall were both pretty sure they had a legal standing before they acted.
And since we already ban things because we basically just don’t like them, I don’t expect to see any real end to stories like this.
But generally enforcing a contract is something for the courts to do. If I violate my rental agreement, my landlord can evict me. He cannot show up at my apartment and start carrying my stuff out onto the street.