An Army of Davids
Posted by Jay on Friday, 5 March 2010
I don’t have much to add to Michael’s post other than that, after speaking with Ms. Pummill, I believe that your many calls, emails and letters to the City Attorney’s office in support of the Linkery and our business practices made it very clear to them that action against us was not in your interest.
I’m incredibly grateful to be a part of a community that is so supportive in word and deed, and we are all grateful to be able to serve people like you. Thank you very much.
Now I have a lot of thank-you emails to write :-).
Jay
March 5th, 2010 at 1:39 pm
Hooray! Good work everybody. Folks, read this NYT article about the history of tipping in the US and the Linkery, “At the Linkery, the staff, surprisingly, has embraced the no-tipping policy more readily than some of the restaurant’s customers.”
http://www.nytimes.com/2008/10/12/magazine/12tipping-t.html?_r=1&scp=1&sq=the+linkery&st=nyt
March 5th, 2010 at 1:52 pm
Thank goodness the lawsuit was dropped
March 5th, 2010 at 2:40 pm
To misquote Monty Python, how’d you know my name was David?
Congrats again, I’ll be hoisting a pint of Cult Porter [or reasonable facsimile thereof] ASAP.
March 5th, 2010 at 5:42 pm
Awesome! I just heard about this and was trying to find out where I could write a strongly worded letter in support of the Linkery. We love the restaurant, are adamant supporters of using local food products, and think that not having to worry about figuring out a tip is fantastic. There are so many other things the City Attorney could be spending time doing that actually helps San Diego instead of attacking local business.
March 5th, 2010 at 11:01 pm
The Linkery is ridiculous, no tipping policy, yet they tax everyone 18%. The Linkery is just like the government, placing all those “fees” on us, which in reality they are just taxes!!!
I’m glad that I’m not dumb enough to visit this rat hole!!!
March 6th, 2010 at 4:31 pm
Dear Mr. Porter,
Probably a good idea that the City Attorney has apparently backed off at this time - if I was you, I’d still send a letter to the Office confirming who you spoke with and what you were told.
That said, I looked at your policy and advertising, and at the City Attorney’s letter. Besides your citation to the State tax code, a few things came to mind:
1. Bus. & Prof. Code 12024.2 - cited in the letter - actually regulates “commodities” under the overall statutory scheme that is policed by the Dept. of Food & Agriculture, in a division of the Code entitled “Weights and Measures.” “Commodities” as best I can tell are only defined at Bus. & Prof. Code sec. 58605. ” ‘Commodity,’ except as otherwise provided in Section 58747, means any agricultural, aquacultural, horticultural (including floricultural), vermicultural, viticultural (including wine)or vegetable product which is produced in this state, any fish or seafood, or any class, variety, or utilization of that product, either in its natural state or as processed by a processor or as processed by a producer for the purpose of marketing that product. It includes bees, honey, and milk as defined in Section 32511. It does not, however, include timber or any timber product.” The reason I mention all this is two-fold: (a) why didn’t the City Attorney allow the Food & Ag. Dept. to examine this first? “Commodities” are Food & Ag.’s domain; (b) and besides that, I never think of a “restaurant meal” as a “commodity” like other items packaged for sale where weight and measure - as they affect price - are concerned.
2. The City Attorney’s letter also cited Bus. & Prof. Code section 17500, the generic state “false advertising” law. However, when the accusation pertains to “price” issues, section 17500 is more specific: the government must prove that a price-related violation is “part of a PLAN or SCHEME [my emphasis] with the intent not to sell that personal property or those services, professional or otherwise, so advertised at the price stated therein, or as so advertised.” Since you disclosed the service fee up-front, that was a pretty lousy “plan/scheme” you contrived - meaning, reasonably arguably, no “plan/scheme” at all.
3. Bus. & Prof. Code sec. 17509(a) - which the City Attorney letter did NOT cite - I think better addresses the issue at hand because it specifically addresses services required to be purchased with product sales; it reads in pertinent part: “17509.(a) Any advertisement, including any advertisement over the Internet, soliciting the purchase or lease of a product or service, or any combination thereof, that requires, as a condition of sale, the purchase or lease of a different product or service, or any combination thereof, shall conspicuously disclose in the
advertisement the price of all those products or services.” When you disclosed the 18% service charge up front, you complied with this section, and there’s a rule of law that says a specific law trumps a general law, so this law controls. I guess folks can debate how “conspicuous” your disclosure is or was.
Anyhow, my thoughts. Take care.
Bill Newsome
Former Head Deputy,
City Attorney’s Consumer Protection Unit
(1985-1999)
March 6th, 2010 at 8:57 pm
Great news! I actually just looked up your blog for more information so I could write a letter to the City Attorney. I’ve only been to The Linkery once, but I’m a fan of a preset service charge, easier to budget.
March 9th, 2010 at 12:42 am
Awesome. Great News