From ABA Journal eReport
HERE'S A TIP: NOT LEAVING ONE IS LEGAL
N.Y. Prosecutor Finds a Difference Between Surcharge and Gratuity
BY STEPHANIE FRANCIS WARD
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,

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

Ultimately, the case boiled down to language. Soprano's restaurant

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,

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

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

even if it's a fantasy scenario of many servers.
"You might have a decent civil suit against them, but whatever you would

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

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."