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Wednesday, May 30, 2007

What do y'all think?

Here is a hypothetical for those legally minded readers (though I think there are only 2 readers left since we haven't posted much lately):

Sammy is a bus-boy at a local restaurant. The restaurant has a standing policy that any tips given to bus-boys are not to be kept by the individual bus-boy, but are to be placed in a jar. The money in the jar will be counted at the end of each week, then divided among all bus-boys according to hours worked during that week.

Sammy receives a five dollar tip from a customer who was particularly happy with the cleanliness of her table. Instead of leaving the tip on the table, the delighted customer hands the tip directly to Sammy and says, "This is for you."

Sammy, feeling that he truly earned this tip and shouldn't have to share it, places the five dollar bill in his pocket. A manager watches Sammy place the five dollar bill in his pocket instead of placing it in the tip jar. The manager calls the police to report a theft.

The state law defines theft as follows:

A. A person commits theft if, without lawful authority, the person knowingly:
1. Controls property of another with the intent to deprive the other person of such property; or
2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use; or
3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or
4. Controls property of another knowing or having reason to know that the property was stolen.

Is Sammy guilty of theft or merely violating a company policy?

7 comments:

J&B Wangsgaard said...

I would wonder whether he had the necessary mens rea in order to be guilty of theft.

Craig Pankratz said...

Could the five dollars be the property of anyone other than the bus boy before he puts it into the community jar?

I can see him being guilty of theft if he stole money from the jar, but after a woman hands him $5 and says, "This is for YOU"?

What is Arizona ownership law?

My gut tells me your client violated business policy and could be fired, but charging him with theft is going too far.

Mark Osler said...

That's the stupidest prosecution I have ever heard of.

Campbell Warner said...

Sorry for belaboring a point already made, but I agree with both Craig and Mark. First of all, this seems to be a big waste of the state's time, money, and judicial resources. Second of all, this "offense" is stretching the law past its intended application. (Whatever happened to construing penal statutes strictly, anyway?)

At worst, all he did was violate company policy. I think Craig hit the nail on the head when he referenced the "This is for you" statement. That statement alone seems to take the $5 out of the tip category and into the outright gift category. When you also consider the fact that the patron gave the money directly to Sammy instead of leaving it on the table, I think that it's even more likely that this was not meant to be a tip in the way most of us would define it.

No matter what, this is, indeed, a stupid prosecution (and, as a future prosecutor and law-and-order sort of person, I'm more likely than not to side with the state in a lot of cases). As John Stossel would say, "Give me a break."

Garlic Boy said...

I used to work at a luxury resort. Company policy was that no one except for food and beverage employees could accept tips. A lot of people were insistent with the valets and I saw a few of the boys "begrudgingly" accept tips. I can't believe they stole all that money from those rich people!

J&B Wangsgaard said...

Hey! I feel special that we made your "people in our neighborhood" links. I hope the pregancy is going well!

Lulucarrot said...

David, New post guys! Are you and Cam okay? We haven't heard anything from you lately.