Judge rules tip is not part of bill

Today's New York Times reads:

As it turns out, a tip is just a tip, even if you put "mandatory" in front of it.

Charges were dropped yesterday against a Long Island man who was arrested last week for failing to leave a required 18 percent gratuity at Soprano's Italian and American Grill in Lake George, N.Y.

The Warren County district attorney, Kathleen B. Hogan, said that she had determined that the man, Humberto A. Taveras, could not be forced to pay a gratuity.

Ms. Hogan said, "A tip or gratuity is discretionary, and that's what the courts have found."

Although there are good policy reasons for not prosecuting this case, I believe the prosecutor is dead wrong. As I wrote:

In People v. McDonald, 689 N.Y.S.2d 600, 604, (N.Y. City Crim. Ct. 1999), the court wrote: "PL 165.15(2) proscribes thefts of restaurant services, as well as thefts of lodging services." However, all the theft of services cases I came upon held the defendant liable, if at all, for the food or beverages consumed. Thus, services seems to mean the tangible food or beverages consumed.

Thus, at issue is whether a restaurant patron owes money for the services a waitress renders. Ordinarily, you and I are under no duty to leave a tip. A tip is something extra we provide as a reward for services rendered. But, for parties of eight or more, the the 18% would not be a gratuity, since according to the menu, parties of eight or more must pay the it. Thus, the 18% is best understood as a surcharge - and a non-negotiable one at that.

The 18% "tip" is the same as the charge for a slice of pizza. Parites of 5 or more must pay it. If you don't like it, don't eat there.

While I'm glad New York is not wasting scare resources prosecuting this case, I do feel bad for the restaurant owners and police officers. I expect they will be sued - a suit they would win, but only after much expense.

Comments

[Aaron]

Is this a lawyerly parsing of the language chosen by the restaurant? In my state, the courts have held that there is no such thing, for example, as a "non-refundable retainer", as a retainer is by definition unearned and thus refundable. (Hence the non-refundable "engagement fee".)

Perhaps the problem here is that the restaurant chose to declare an oxymoronic "mandatory gratuity" instead of a "mandatory service fee"?

[Federalist No. 84]

Perhaps the problem here is that the restaurant chose to declare an oxymoronic "mandatory gratuity" instead of a "mandatory service fee"?

Yes, I agree. Even writing about the topic was difficult. For example, "He was required by law to leave a tip." That statement is self-contradictory!

I think the restaurant lost here because - in trying to show some class - it was unclear. When you're dealing with people who don't have the class to leave a proper tip, it's best to clearly tell them what they must do.

[Jody Sultan]

Hello. This exact situation happened to me last night. I have been researching it, and thus, I ended up here. I am a waitress at a very popular family owned and operated ( my family) restarant/bar in downtown Washington, D.C. Last night, a group of seven people came to the restaurant, and I was their server. The night was typical. They drank 4 pitchers of beer, they had appetizers, and all ate dinner. The table and I got along very well. They were all from Canada, and we spoke about where, why they were in D.C, ect. They were thrilled that I checked their I.D.'s (they were in their upper 20's, but some looked young.)They told me I was their "favorite person" and it made them feel "so young." Anyway, they stayed for about 1 1/2 hours. When it came time for the bill, I opted to include the 20% gratuity. It CLEARLY states on the front of our menus "20% mandatory gratuity will be added to parties of 6 or more." I used to never include it, thinking I was insulting people. However it only takes one 10%, or less, tip on a very large check to change your thinking. I have never had any table complain about it, and nor did this particular table. Just a note- when I dropped the check at the table, I said "Thank you so much for coming, I hope you to see you again soon. Also, the gratuity is included, so you don't have to worry about that part." I said it with a smile, kind of making people think you did it as a favor to them to make figuring out the bill easier. They said thank you, and I walked away. I checked back in about ten min. to see if they had credit cards for me to run, or needed any change. They said no, they were fine. I saw they had a pile of cash, but loked as though they were still counting. They continued their conversation, and I realized they were going to sit and chat for a while, so I offered then refills on their drinks (the free ones, not the beer!) I got 7 sodas for them, After I dropped the check! I was near the front door a few minutes later, when they all paraded by me. I thanked them for coming, and all was well...until a minute later when I went to clear the table. In the center was the pile of money, neatly stacked. I picked it up and counted it. The check (including gratuity) was $228.68. (about $35 of that "my tip")However, only $200 was on the table. I immediately ran to the door. (only 30 seconds had passed, they couldn't be far) but they were like 2 blockes away. They must have ran! I started to go after them, but I had other tables to take care of. So, my bartender, also the manager, ran after them. When he returned, he said they refuse to tip me. They said "20% was too much for just bringing them food and drinks" The nerve of some people. They also said they thought the service was bad. Mind you, they didn't have any complaints while they were in the restaurant. They acknowledged seeing the line on the menu, but didn' think twice about it. Anyway, the manager didn't want to start anything, and let them go. I was floored! We got along great. I was left less than 5%. The restaurant is very small. They took up a large part of my section, that could have held other parties. That's the trade off though. I knew I was going to get a pretty big tip from them. Can you believe it? They didn't even have the common courtesy to complain. They were going to just short me and run! Reaading about all this has got me thinking. Maybe I should change the wording on the menu to "mandatory service charge" Would that make it illegal for them to do what they did? I'm sorry for this being so long, but I wanted to get in all the details. Let me lnow what you think, out there, both the dining patrons, and the serving public. Thank you.

[Mike]

The people who stiffed you were no-class bums. But there's nothing to do about it - other than let the anger consume you. It's unlikely to happen to you again. I waited tables for almost two years, and in that time, was stiffed just twice.