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Mandatory gratuities in CA restaruants

San Diego, CA |

Is it unlawful to charge a gratuity for restaurant service in CA when not stated on the menu? Or even if it is? If so, can a patron decline to pay it?

Attorney Answers 4

Posted

Is this homework? If it's not in the agreement (e.g. menu) prices, which you accept by ordering) - no, it cannot be added later without consent.

If it's homework, Avvo is not for homework.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

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Asker

Posted

Why would you think this was homework? I posed a legitimate question brought on by a real and disagreeable experience in a lounge where none of us were advised beforehand that there would be a mandatory gratuity charged. We got bad service and a rude response from the owner upon complaining. I am offended by your homework remark. I merely wanted to know if this is legal because if it isn't I intend to file a complaint with the appropriate agency.

Posted

You accept the gratuity term by placing an order, and you become contractually liable for that gratuity amount.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney. Sarkis Sirmabekian 818-473-5003.

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Michael Charles Doland

Michael Charles Doland

Posted

... if it is stated in the menu.

Sarkis Sirmabekian

Sarkis Sirmabekian

Posted

Correct... if it is stated in the menu. Thank you Mr. Doland.

Michael Charles Doland

Michael Charles Doland

Posted

The answers of Mr. Sirmabekian are so consistently accurate I assumed it was a technical glitch. Respectfully,

Asker

Posted

Mr. Sirmabekian's response, "You accept the gratuity term by placing an order, and you become contractually liable for that gratuity amount." Next time please read the question before answering. I asked if it was, " unlawful to charge a gratuity for restaurant service in CA when NOT stated on the menu" How can there be a contract when one of the parties has not even been advised of its existence must less of the terms thereof? Think about it.

Sarkis Sirmabekian

Sarkis Sirmabekian

Posted

Perhaps you should reread your own question: "Or even when it is."

Asker

Posted

"Or even when it is." was a subordinate part of the question, not the essential part. If an attorney feels he only willing to address one part of a 2 part question and the lesser part at that, then he should indicate it in his answer like ony willing to go part way on this. At least Mr Doland's response albeit accompanied with uncalled for arrogance did address the most important part of my original question. Thank you Mr. Doland.

Posted

Multistate contracts question

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Asker

Posted

Mutistate schmultistate. There IS not contract if all parties have not been informed of its existence. That would be like saying I contracted to pay you a specific consultation fee when I never consulted you.

Posted

I agree with Mr. Doland and wish to add a bit of extra information. There does not appear to be a clear California case on point. (If any other attorney knows of one, please post it). Amazingly, in New York, one court ruled that a mandatory "TIP" was not mandatory. However, if you agree, or if it says on the menu or it is announced before you order that a "Seating Fee" or "Service Charge" of a certain percentage will be added to the total of the bill, then the extra fee is probably owed. There probably is not a case on point in California because the amount is probably not worth fighting over. Also, keep in mind that in the New York case, the restaurant called the police and the patron was arrested for' theft of services'. [Ouch!] Even though the customer won, it probably cost many times the restaurant bill to win in court. All the best.

*Scott G. Nathan has been licensed to practice law in California since 1983. The information presented here is general in nature and is not intended, nor should it be construed as legal advice for any particular case or matter. This posting does not create any attorney-client relationship with Scott G. Nathan or my law firm. For specific advice about your particular situation, you should consult with an attorney immediately.

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Asker

Posted

I understand that service and seating charges are legitimate, again as long as the patron has been advised before ordering. However, on the bill the fee was clearly stated as a "Gratuity charge", not a "service charge" and the patrons were not advised of this charge ahead of time. And since a gratuity and a service are not the same things, thus my original question. In addition, if the restaurant characterized the charge as a gratuity when they meant service they are the ones who are out of luck because I do know that if it is a gratuity, they must turn it all over to the employee/s involved in the service and may not keep any of it.

Asker

Posted

PS: Mr. Nathan, I find it very interesting that you would consider a New York court ruling that a "TIP" was not mandatory..." amazing. Perhaps the court understood that if a wait person was not motivated to give good service because they were assured of a tip anyway, that they many times would not bother which seems to be the case. The web is littered with such anecdotes--slacker, overly tipped waiters vs frustrated and dissatisfied patrons.

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