Do You Have the Right to Deny Service?

Wine ServerWe’ve all seen signs stating that “We Reserve the Right to Deny Service.”  Do you have the right to deny service in California?  It may be a little murkier than the sign would make it appear. For example, discrimination is outlawed, right?  Well actually,  you generally have the right to discriminate as long as the subject of that discrimination does not belong to a “protected class,” age, race, religion, gender, etc. and that is the reason for your discrimination. So then its OK to refuse service as long as its not based on discrimination against a protected class?  Well, not so fast.  There was a 1951 California Supreme Court decision (Stoumen v. Reilly) which stated:

“Members of the public of lawful age have a right to patronize a public
restaurant and a bar so long as they are acting properly and are not
committing illegal and immoral acts. The proprietor has no right to
exclude or reject a patron except for good cause, and if he does so
without good cause, he is liable in damages. Civ. Code secs. 51, 52”

Ironically, that case involved discrimination against gay customers but in a time (1951) when they were not a protected class.  Nevertheless, the context of the Court’s statement involved denial of the customers based on who they were rather on a concern about what they might do in the bar.  In a further twist, in that case the Department of Alcoholic Beverage Control (“ABC”) was suspending the bar’s license because it wouldn’t deny access to these customers. The bar appealed and the Court held that it was improper for the ABC to suspend the bar’s license for “maintaining a disorderly house” based on patronage by a particular class of patrons without regard to conduct in the bar.  The Court’s statement about “no right to exclude or reject a patron except for good cause” may be what is called “dicta,” i.e., not a holding upon a contested point – rather a statement made in the course of the court’s reasoning in arriving at a holding.  Such statements don’t typically have the force of law but may be nevertheless be an indicator of how a Court may decide the issue if it were directly before it. Thus, not heeding this Supreme Court statement may involve some risk.  A violation of the Civil Code sec. 52 (cited by the court) is $4,000 + attorney fees – and this amount is unlikely to be covered by your insurance.

The safer course would be to base your decision to deny entry to a customer on a “good cause” concern about what his/her actions might be once there.  What constitutes “good cause” is a bit vague. Clearly, behavior which risks bodily injury or harm to property would constitute good cause.  However, disruptive behavior that disturbs other customers would likely suffice.  The key word is “behavior.”  Moreover, good cause means that you have some reasonable basis (i.e., evidence) for your concern.  It is prudent to proceed cautionsly when exercising your “right to refuse service.”

photo under license from Crestock Creative Commons

About William Adams

Attorney at Norton, Moore, & Adams, LLP.
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