Can Restaurants Deny Service To Trump Supporters? [e261]

March 23, 2016

Nasir and Matt talk about the story out of Texas that Mexican restaurants were reportedly attempting to ban Trump supporters from eating at their restaurants.

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and add our legal twist to that business news.
My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: Today, we’re talking politics.

MATT: I wanted to bring up one thing first. I don’t know if you do this one purpose but I think this is the third March we’ve done the podcast. I think all three years we’ve recorded on the same time when Dayton is playing.

NASIR: Dayton’s playing right now?

MATT: In about five minutes they’re starting up.

NASIR: Oh, okay. Well, I’ll pull that up, too. San Diego State didn’t make it this year which is a pretty big deal.

MATT: No, they didn’t. Long story short, they had some bad losses at the beginning of the year. They lost their conference tournament the final so they lost the automatic bid and so they were on the bubble. I’m not going to say they should have made it but there might have been one or two teams. There’s definitely at least one, maybe two teams that made it that San Diego State should have made ahead of but that’s kind of how it works.

NASIR: I mean, I heard they should have won the championship. They were favored in that game, right?

MATT: Oh, yeah, their conference is terrible so they should have but, yeah, your Dayton Flyers are…

NASIR: Dayton Flyers, all my high school buddies are not surprised that I have no idea.
Well, anyway, let’s talk something I could actually discuss – not sports but politics.

MATT: Yeah, this is an interesting one. You realize this was a fake thing that happened, right?

NASIR: Yeah, not to talk actual politics but I was kind of hoping it was real but, okay, fine.

MATT: When you first told me about it, I assumed it was real then I started looking into it and realized it was fake after I read a couple of stories.

NASIR: Yeah.

MATT: But I think this was in the San Antonio area, is that right? Or was it all spread out through Texas?

NASIR: I feel like it was just in the area because it was one person that was doing it but I’m sure it may have happened in other places but these are the two stories that we picked up.

MATT: Basically, what was happening is someone was going around, putting up these signs at Mexican restaurants and I’ll read this one because it’s kind of humorous at the end. “We stand with our fellow Mexican restaurants and their efforts against hateful speech. We will also no longer be serving people who display support for the views of the presidential candidate, Donald Trump. You can’t have your taco and eat it, too. Standing together.” And then, the logo of this restaurant…

NASIR: Taco Cabana.

MATT: Yeah, and there was another one, not the exact same sign but a similar thing at another Mexican café, Mama Margie’s. Somebody I guess was going around, putting these signs up. Before the story kind of broke, people thought that these Mexican restaurants had band together and were going to outright disallow anyone who was a Trump supporter to eat at their fine establishments.

NASIR: There was a lot of confusion because some people were saying that, no, some employee did it or whatever. But this Mama Margery’s in San Antonio, apparently, they had some video footage of someone else coming in from the parking lot, putting the flyer up, and taking a picture. In a Twitter response on their company account was like, “The message was not approved by Mama Margery’s.” By the way, it doesn’t sound like a great Mexican restaurant but okay.

MATT: It’s Margie, I think.

NASIR: Is it Margie? Oh, well, maybe that’s why.

MATT: I don’t know if that makes it better.

NASIR: Oh, yeah, but it says, “I’m in the business of tacos, not politics, which is way yummier!” which is a fine response.
Yeah, it was fake, but then it really begs the question of can you do that? I mean, we’ve all seen that sign that says, you know, “No shirts, no shoes, no service” or “We retain the right to refuse service to anyone.” Is that true? I mean, can they refuse service to anyone? Probably not, right?

MATT: You do see the signs. I thought more about that when I was prepping for this recording. Yeah, you do see the signs up there about we reserve the right to refuse service to anyone which isn’t the case when you think about it. We’re talking about public accommodations here – restaurants, hotels, things of that nature.

NASIR: Yeah. I mean, pretty much stores, malls, and it’s just how you think of a public accommodation. We’ve talked about public accommodation, too – even Facebook could be considered a sphere of public accommodation. So, it doesn’t necessarily have to be a physical location.

MATT: Yeah. And so, what laws are out there to kind of enforce this? We have the Civil Rights Act, obviously, and that prohibits discrimination of public accommodation places based on protected classes such as race, color, religion, national origin. Along the same lines, the ADA is kind of the same sort of thing – protects against people disabilities as well which I guess some would argue that, if you support Trump, that could be a disability.

NASIR: Some would argue. I’m not arguing that. I mean, I’ll let you be the person defending everyone.

MATT: No comment on that.

NASIR: Oh, okay.

MATT: So, none of these list political affiliation as a protected class which would prohibit discrimination against that. So, we’ll get into another aspect of that in specific cities in a bit here but, on its face, you know, there’s no protection for political affiliation.

NASIR: Yeah. And so, let’s take a step back for a second because I think the real reason why I think this is an important topic is because this same legal issue is being brought up in another context and that is you guys probably recall when a particular baker refused to bake a cake for a gay couple that was getting married. The baker was like, “Well, what about my religious freedoms?” and the gay couple was like, “Well, you’re discriminating against us.” The problem with that concept is there are federal classes that are protected – like you said, gender, race, national origin, et cetera. But, technically, right now, there is not a specific protection for sexual orientation on a federal level though there are some that argue, I think there are some arguing that, because of the recent changes, there might be a trend that it will become a protected class but no one has ruled that yet. But then, some states have that. So, famously – I don’t know about famously – California was one of the first ones at least to have it in their constitution for protecting class for sexual orientation amongst other things like family status and things like that. In many other states as well, city ordinances as well have protections for sexual orientation. And so, in that particular case, it would depend upon whether there’s protections for that. And then, you had another instance where the baker refused to put I guess Bible verses or something to that effect that was basically condemning homosexuals.

MATT: Anti-gay Bible verses, yeah.

NASIR: In that case, the baker said, “Well, I don’t want to participate in that kind of speech. We have a policy that we don’t do that for anyone, whatever the speech is.” And so, in that case, they were allowed to…

MATT: It wasn’t discrimination, yeah.

NASIR: Yeah, it wasn’t discrimination.

MATT: Just to go back on that, there is I think about 20 states that have protection with sexual orientation. You mentioned California, obviously. New York as well. Those are the two that are kind of the driving forces. But, with this Trump issue, is there discrimination? I mean, one way you might be able to look at it would be – and I was trying to find the numbers for what people support him in terms of demographics, I couldn’t really find anything that great but I would assume that, you know, based on some of the things he said, there are certain races and certain genders that are probably not supporters of him.

NASIR: And that brings a good point. Even if you’re not so-called discriminating against a particular race or gender, making arbitrary kind of decisions at random or in such a way may result in discrimination because what if you’re not applying it consistently or by, like you said, if you prohibit Trump supporters and most Trump supporters are of a certain race, it may be argued that you’re actually discriminating on the race, not Trump supporters. It could be argued.

MATT: Right. So, that’s one way to look at it.
This was in Texas and we’ve talked about federal law, we’ve talked about state laws. There actually are some laws I think actually just cities, these are like city ordinances.

NASIR: Yeah.

MATT: That banned discrimination based on political affiliation in public accomodations and I think the one that’s obvious or that you would expect is in Washington DC and there actually is a ban. I think it’s called the DC Anti-Discrimination Law which does ban discrimination based on political affiliation.

NASIR: And that actually makes sense, you’re right, because otherwise it could get pretty nasty, I’m sure, just based upon your party affiliation. But the irony of that kind of law, there was a kind of question posed. Does that mean that now you can’t discriminate against Nazis in public or members of the KKK because it’s considered a political affiliation and so forth? And so, the answer is that, in those cases, probably not. You know, even California doesn’t expressly bar political affiliation but you still can get into trouble because, apparently, there was an ACLU lawsuit against a restaurant that excluded a patient for wearing a Swastika. So, just because there’s not that particular law doesn’t mean that you can’t necessarily discriminate.

MATT: I think, if you’re a business, if you own a restaurant and you just have a whole group of people from the KKK come in fully dressed.

NASIR: Fully dressed, yeah.

MATT: I don’t know what you’re really supposed to do in that situation.

NASIR: Well, I think, in most cases, you can just assert your rights anyway and kick them out and just deal with the blowback because you’ll probably win the hearts of the mass public. I don’t know.

MATT: Yeah, I think, generally speaking, you’ll have a pretty positive response or PR in the media there, I would think or I would hope.

NASIR: Yeah. Well, you’ve heard about, I mean, it’s been in the news, of course, all these people being kicked out of the campaign rallies, right? At Trump’s rallies. And I’m sure it happens at others. Interesting enough, these campaigns are actually considered public accommodation. And so, I can’t see it making sense that you can’t prohibit people that aren’t supporters of you because, again, that’s a political affiliation. If they’re protesting and causing any kind of disruption, I think the law’s on Trump’s side in that respect, that’s why it’s so easy for the police to actually get involved and being the ones that remove some of these protesters. But what’s a little problematic from Trump’s perspective, if you have people from a certain minority group that is targeted and consistently removed from your rallies, especially if they’re removed without actually causing a fuss or protesting, that’s where someone – Trump or anyone else that does it – could get into trouble.

MATT: Yeah. I mean, there’s freedom of speech, obviously, and then you can’t say everything you want in public. There are exceptions to the freedom of speech so it’s not like you can go out there and just go crazy.
So, let’s say these restaurants in Texas, let’s say this was real and they all kind of did or a group of them did band together to not allow anyone that was a Trump supporter into their restaurant. You think they could, assuming that they could enforce, I guess it’d have to be people that were obviously supporting Trump – like, wearing Trump shirts or buttons or what-have-you – you think they’d be vulnerable to a lawsuit at that point?

NASIR: I think they’d be vulnerable to a lawsuit just because it’s so…

MATT: Of course.

NASIR: You know where I’m getting at. It’s just so kind of outrageous for people to accept it – that there is going to be a Trump supporter that’s like, “This is not acceptable.” But the likelihood of losing such a lawsuit is probably low – unless there is like a local statute that says something otherwise, especially in Texas. In California, even without a local statute, I’d be a little concerned. But, in Texas, I’m not aware of any statute that protects that kind of political affiliation and most likely it’s fine. I bet, I mean, I’m sure, if it was a democrat – if it was like Clinton supporters or whatever – it might be a little bit different, depending upon, but I think, generally, in either case, they’re probably okay.

MATT: Yeah.

NASIR: Would I or you sign off on it? Probably not.

MATT: Yeah.

NASIR: If we were their attorneys, we’d probably do a little bit more research and try to figure out if they’re insistent on that.

MATT: Yeah, that’s the thing. I agree with you completely but, if you’re that restaurant, you’re just asking for a lawsuit. You will most likely be sued. Now, you know, whether anything happens from it, there is probably going to be a lawsuit, but I’m with you on what you just said.

NASIR: Yeah, and, by the way, this kind of discrimination, I know it seems like who’s going to say, “Blacks can’t go to my restaurant,” but there’s still lawsuits and actual things happening like, last year, an African American man says he was asked to pay for his meal before dining at a Washington State restaurant – unlike other white diners around him. He filed a $100,000 discrimination lawsuit against such a claim which I think is rightfully so, right?

MATT: Yeah.

NASIR: I mean, it’s pretty straightforward and it’s like, in this day and age, it seems obvious but whatever the person’s reasoning – and, most likely, it wasn’t the owner that asked him to do this, it was some employee – I’m making assumptions here – this employee could cost you a bunch of money unless you really have control of the culture and atmosphere that you’re trying to present your establishment with.

MATT: Yeah, that was ridiculous. It made me just think about that pizza place in Indiana. I was looking to see… It appears to still be open.

NASIR: Which pizza place? I forgot.

MATT: Memories Pizza, remember the one that wouldn’t allow gay people to eat there or gay couples?

NASIR: Oh, yeah.

MATT: I’m kind of surprised, especially because it was in a small town so any downfall in business or downturn in business might shut that place down, but it appears to still be open.

NASIR: Yeah, I’m looking, too. For some reason, when I had searched in Google, it autocompletes and it says a GoFundMe. It looks like they have a GoFundMe campaign, too.

MATT: Yeah, it happened right after.

NASIR: Oh, we covered that before?

MATT: Yeah.

NASIR: I don’t know what it was when we first covered it but how much do you think they raised?

MATT: Oh, I don’t know, it was a lot at the time – more than I expected then. What was the final number?

NASIR: It’s $845,000. I mean, they might as well close, right?

MATT: Yeah. I mean, it’s probably more than they make a year.

NASIR: And there was people that donated 14 days ago, 15 days ago.

MATT: So ridiculous. Well, if I remember correctly, the restaurant wasn’t the one that did the GoFundMe. It was just some supporters that shared the same ideology.

NASIR: Ideology?

MATT: Ideology.

NASIR: Yeah, you’re right. He says, “My name is Lawrence Jones and I’m one of the television opinion contributors on Dana’s show. So, show producers are in direct contact with the family to ensure that they never feel like they are being left out with what’s going on. Thank you for your generosity.”
By the way, I have to give an update with this Dayton Flyers game. It’s a nail-biter, 6-6 so far.

MATT: So, I think the first year we did this, you predicted… did you predict one perfect bracket that someone would do and last year you predicted two?

NASIR: Yeah. No, this time, three and a half, and I say half because we’ll find out that the fourth person that did it actually copied the third person so we give him half.

MATT: Well, I think there was a bunch of upsets yesterday. I think yesterday’s number of upsets was more than the whole first round last year. My point is, if you didn’t get it last year, you’re probably not going to be right this year

NASIR: Well, yeah, I mean, if you believe in probabilities. But, if you believe in, like, basic math, then yeah, of course, I’ll be wrong. But, if you have faith in the world…

MATT: I thought I had a couple of conversations in my life where it was literally just math. Like, all I was basing my point on and they were arguing with me, I was like, “This is literally just a hard number. There’s no argument. It’s A and B and that’s all it is,” and people will still argue against you. It’s completely objective. It’s just literally numbers. It’s a calculation and they’ll still say, “Well, no, it’s blah blah blah.”

NASIR: Not to get off-topic too much but it is a fascinating kind of concept that, you know, conceptually, it’s like, yeah, even if randomly choosing, eventually, someone will get it right. But because of the number of possibilities in the course of the tournament, you’re right, it’s nearly impossible. That’s why I’m still willing to give a billion dollars to the person that gets it right.

MATT: You double down every year and increase the number you predict.

NASIR: Yeah, every year I just put the billion dollars away. I’m like, “Well, this is for the tourney.” Actually, I didn’t even fill out a bracket this year – not that I did last year or the year before.

MATT: There wasn’t as much talk this year about it, it seems like. I don’t know. I think it’s just because of the Warren Buffet thing.

NASIR: Yeah, and also everyone has Trump fever.

MATT: Yeah, election year, that’s probably it.

NASIR: Yeah, exactly.

MATT: Nice circle back to the topic there.

NASIR: By the way, this guy I’m looking at as a commentator on March Madness, he looks like Jared from Subway – not a compliment.
All right. Well, thanks for joining us!

MATT: Keep it sound and keep it smart!

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

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