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HERE’S A TIP: NOT LEAVING ONE IS LEGAL
ABAJournal ^ | September 24, 2004 | Stephanie Francis Ward

Posted on 11/10/2004 12:29:27 PM PST by billorites

A $2 tip on a $77 restaurant bill may be cheap, but it isn’t criminal. So says a New York state district attorney, who declined to press charges against a man who refused to leave a restaurant’s required gratuity of 18 percent for large parties.

Humberto A. Taveras’ arrest on Sept. 5 came under New York’s theft of services law, which carries misdemeanor charges. With a party of eight, the Long Island man dined at Soprano’s Italian and American Grill, a Lake George, N.Y., restaurant that applied the tip policy to parties of six or more.

(Ironically, The Sopranos, HBO’s television series, had a recent episode involving a dispute over a gratuity for a large party of mobsters. That dispute ended in the macabre, with the waiter being killed in the argument.)

Ultimately, the case boiled down to language. Soprano’s restaurant described the policy on its menu as a "gratuity," which by definition means "discretion," says Kathleen B. Hogan, the district attorney of Warren County, who ultimately decided to drop charges against Taveras.

She mentions a Southern District of Indiana ruling in which a judge found that a tip or gratuity was strictly within the customer’s discretion and payment could not be forced. U.S. v. Indianapolis Athletic Club, IP90-1783C.

Had the service been written as a surcharge rather than a gratuity, Hogan probably would have prosecuted the case.

"It really did turn on the word," she says, adding that under restaurant policy, the tip should have been nearly $14. "It’s not like they didn’t leave any tip. They just left a smaller tip than you would want."

That’s for sure, say attorneys who represent the restaurant industry. On average, those interviewed for this article say they tip at least 20 percent.

"The whole reason so many restaurants do have notice is because this historically is a problem," says R. Rogge Dunn, a Dallas lawyer and former pizza restaurant assistant manager. "You get a large group that splits the tab, and some people are chintzy on the amount they’re going to leave."

Al DeNapoli, a Boston lawyer who represents the hospitality industry, says this is the first time he’s heard of someone being arrested for poor tipping.

"I’m surprised it was pushed this far, but there are people who are bad tippers all the time," he says. "Whether this is the case here, I don’t know."

Hogan says Taveras was unhappy with the service and said it did not warrant an 18 percent tip.

DeNapoli, who waited tables as a law student, says that not tipping, even when service is bad, may not be the best solution for disgruntled diners. Servers’ salaries depend on tips, he says, and they often share the money with busboys and dishwashers. Instead, DeNapoli advises you to speak with management about the situation or to "talk with your feet" and stop patronizing the restaurant.

Having someone arrested for poor tipping may also not be the best solution, even if it’s a fantasy scenario of many servers.

"You might have a decent civil suit against them, but whatever you would win in that case would be far outweighed by the adverse publicity," Dunn says. "My advice would be to look at the bottom line, and let it go."

Lake George is a resort town, and according to Hogan—herself a former waitress who always tips 20 percent—the publicity they’ve received from the incident concerns many restaurant owners there. Some of them, she says, changed their language from "mandatory gratuity" to "service charge" on large party bills.

"They want to make sure their employees are getting compensation," Hogan adds, "and make sure they’re following what obviously is the law in a federal case."


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Comment #21 Removed by Moderator

To: billorites
…says that not tipping, even when service is bad, may not be the best solution for disgruntled diners…

There have only been a couple of times when I stiffed a waiter/waitress. Both times they deserved it, IMO.

Once was in Las Vegas and when the check came it had a $5-something charge on it that we couldn’t figure out what it was for. Everything else was accounted for. I don’t know if the $5 was the “tip” already figured in or what, but every time I tried to flag down the waiter he ignored me. Finally just left the exact change and walked out.

That particular restaurant also had the distinction of serving the saltiest food I’ve ever tasted.

Just make sure to check (twice!) and make sure you don’t leave anything behind. Don’t go back either.

22 posted on 11/10/2004 12:42:26 PM PST by Who dat?
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To: SpyGuy
I have a better idea. Have restaurateurs pay their employees a fair market wage and eliminate tipping. If the customer gets poor service they should bring it up with the manager.

That's the way they do it in Australia.

23 posted on 11/10/2004 12:43:27 PM PST by Doe Eyes (Fat, drunk, and stupid is no way to go through life.)
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To: Cactuspete

You obviously haven't ever been in the restaurant business. Granted, there are those who could care less about their customers, but waiting tables (especially on busier weekend nights) is one of the most taxing, stressful things one can do. It's not as easy as "delivering food to the table"


24 posted on 11/10/2004 12:43:34 PM PST by pkp1184
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To: Redbob
A 20% tip is ridiculous when a beer or glass of wine is $5 or more, and takes no more than a minute to deliver

$5 or moreYou must live in a blue state.

Bars I frequent (granted some of them are in metal buildings with shuffleboard tables inside) would go out of business with $5 beers

As far as tipping goes, I might get my first drink in no more than a minute but if I don't tip the young lady the next one will be a long time coming.

25 posted on 11/10/2004 12:43:46 PM PST by tx_eggman ("There is no safety for honest men but by believing all possible evil of evil men." --Edmund Burke)
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To: billorites
Most people forget that the word "tip" is an acronym. Tips used to be given BEFORE service was rendered. Why?

To Insure Promptness

26 posted on 11/10/2004 12:43:49 PM PST by Rutles4Ever ("...upon this rock I will build my church, and the gates of hell shall not prevail against it.")
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To: andyk

A gratuity is by definition something that is NOT owed - it is something given by freely by choice.

ALL gratuties are optional.

If a restaurant wants to charge an extra fee for large parties, then they need to state so plainly and then it cannot be treated as a tip for IRS purposes.


27 posted on 11/10/2004 12:44:07 PM PST by Notwithstanding (TeeRayZuh - the other Gabor sister.)
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To: bedolido
I don't like mandatory tipping. But he knew when he came in and should have paid it.

That may have been his initial intention. Maybe his claim about poor service was accurate.

28 posted on 11/10/2004 12:44:35 PM PST by AndyTheBear (Disastrous social experimentation is the opiate of elitist snobs.)
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To: billorites
"The whole reason so many restaurants do have notice is because this historically is a problem," says R. Rogge Dunn, a Dallas lawyer and former pizza restaurant assistant manager. "You get a large group that splits the tab, and some people are chintzy on the amount they’re going to leave."

They put it that way so they can get 20% for lousy service.

29 posted on 11/10/2004 12:45:00 PM PST by WildTurkey
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To: billorites

My issue with this case is why is the DA wasting the taxpayers money on a disputed $14?


30 posted on 11/10/2004 12:45:37 PM PST by spyone
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To: SpyGuy
If the customer gets poor service they should bring it up with the manager.

I have done that on more than one occasion. Normally, we leave 15 % or more depending on the service.

There was one occasion we waited for 45 minutes for the wait staff to come to our table after we were seated. Another 30 minutes before the waiter came back to take our order. The restaurant was NOT crowded at all. As the waiter wanted to take our order, I asked to see the manager. He would not come to the table, so we left. He tried to stop us as we walked out, but I told him I will spend my money at other restaurants.

31 posted on 11/10/2004 12:45:43 PM PST by Arrowhead1952 (****We won - - - you lost - - - - GET OVER IT!!****)
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To: pkp1184

But that's not the customer's problem. Take it up with the employer.


32 posted on 11/10/2004 12:45:56 PM PST by Rokurota (.)
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To: billorites

I've always wondered who decided that tips are 20 percent for men and 15 percent for woman. Frankly, dining out is a treat for people on a budget. Then to top it off at 15-20% seems excessive unless the waiter/waitress was exceptional. The waiter/waitress is hired to perform a job. If the waiter/waitress is performing their job, then why tip? I was under the impression that the act of tipping was for something performed beyond the job hired to do. Tipping and whoever decides the amount have gotten way out of line.


33 posted on 11/10/2004 12:46:19 PM PST by lilylangtree (Veni, Vidi, Vici)
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To: billorites

I come from a family that is very generous when it comes to tips.

However, when a restaurant tacks on a service charge, that is all they get. We often get together as a family at restaurants, and that means 12-16 people. Normally, one of us picks up the tab (it rotates informally), and everyone else leaves tips. I'm know it hits over 30% most of the time, since every couple at the table tips pretty generously.

But, any restaurant that tacks on a service charge gets no tips at all. We pay the service charge, and the waitstaff gets no more. That's our way of telling them we don't like mandatory tipping.


34 posted on 11/10/2004 12:46:27 PM PST by MineralMan (godless atheist)
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To: billorites

My wife was a waitress for years, so i tend to tip well. Of course, she also taught me not to reward bad service. I hate the mandatory for large parties because you sometimes end up paying extra for bad service. But, even with a mandatory 15%-18%, if the service was really good, I often add a little extra.


35 posted on 11/10/2004 12:47:36 PM PST by trebb (Ain't God good . . .)
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To: billorites

Usually, I would tip 15%.

Now, I have started tipping more than 15%. In the 20-25% range.It makes up for the cheapskates around and always seems to make the wait help very happy.

I also try not to be curt or overdemanding. Waiting is tough work. Those that do it well, I let them know that they are very good at it.

A friend of mine has been known to ask to see the cook after an excellent meal, and makes sure that the cook is complemented in front of other guests. Seems to make their day, too.

I may be having a bad day, but it is never an excuse to take it out on those who are serving you.

A little kindness, mixed with some extra generosity, does everyone a whole lot of good.

Bon Appetit!!


36 posted on 11/10/2004 12:48:37 PM PST by exit82 (Righteousness exalts a nation...... Proverbs 14:34)
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To: billorites
I remembered on a business trip, there was six of us and that was just enough to kick in the gratuity charge. When we walked into the restaurant, the lady who served us mentioned that mandatory 15% gratuity and she was kind of nasty about it. My boss remarked that it must be the max limit and she walked away. We got crappy service the whole time. Also, one of the company executives was with us as well. After the meal, it was decided that we will not patronize the establishment again. I would object to the charge if the service was crappy but I can also see the charge so the servers don't get stiffed either.
37 posted on 11/10/2004 12:48:43 PM PST by CORedneck
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To: Gerasimov

Exactly. I'll tip according to how I felt about the quality of service. If they were horrible, rude and/or anti-sociable.

I will literally leave no tip if, they don't like it then they can go ahead and get a new job.

I've been known to leave 30% tips before for outstanding service.


38 posted on 11/10/2004 12:49:44 PM PST by kx9088
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To: billorites
Of course, some places are more conducive to leaving tips.

39 posted on 11/10/2004 12:50:18 PM PST by TheBigB (Happy Birthday to me! Happy Birthday to me! :))
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To: bedolido

"Mandatory tipping" is a contradiction in terms.


40 posted on 11/10/2004 12:50:29 PM PST by Publius6961 (The most abundant things in the universe are hydrogen and stupidity.)
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