    
george
New member
Username: george
Post Number: 333
Registered: 05-2003
Rating: N/A
Votes: 0 | | Posted on Tuesday, December 28, 2004 - 03:44 pm: | |
What everyone is missing is that California's laws are for the most part refering to gratuitites. While gratuities have been defined as that which is given without obligation or claim, Federal laws have defined tips as a sum presented by a customer also without obligation but as a gift or gratuity in recognition of some service performed for him, or with claim. Please note that while gratuities have been defined as that which is without claim, tips have been distiguished as that which is with claim. Tips under Federal law have been defined as the property of the person in recognition of whose service it is presented by the customer. While federal laws state that "tips" are the sole property of the tipped employee, California has stated that "gratuities" are to be the sole property of the employee or employees for whom it was left. Clearly California has attempted to obscure these distinct differences between tips and gratuities. Many of you will probably think my pointing out this discrepancy is petty, however, please hear me out.
As Californialaw has mentioned, Old Heidelberg has claimed that when a customer leaves a tip he or she leaves it not just for the waiter but for the busboy and the bartender. Such a proclamation is infering that the court has been authorized to determine that all customer's tips must be intended for the waiter, the busboy and the bartender. Federal laws clearly state that a tip becomes the property the person to whom it is presented by the customer clearly suggesting that the customer's actions in presenting a tip to an individual is the mechanism by which determines who the rightful owner of a customer's tip is. Such person, by virtue of the customer presenting a tip to him, is being recognized by the customer as the person in recognition of whose service the tip belongs. Clearly only customers may determine who a tip belongs to. His actions in presenting a tip to an indivudual is the action which entitles a person to the customer's tip. The courts in many states seem to believe that their actions may entitle persons to a customer's tip for they have proclaimed that dispite federal law any tip presented in a restaurant is to become the property of the waiter, the busboy and the bartender. Clearly many state laws are conficting with federal law for while many state laws have proclaimed that tips are the property of the waiter the busboy and the bartender etc., federal laws state that they are the property of the person to whom they are presented giving customer's the exclusive right to determine who will be the recipient of their tip.
The right to determine who will be the recipient of a citizen's tip is a constitutional right that all citizens are guaranteed by the 14th Amendment of the Constitution of the United States. Section 1 of the 14th Amendment reads;
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Federal laws along with the Constitution have clearly outlined that every citizen shall have the right to determine who will be the recipient of his tip. While federal laws have stated that generally a customer has the right to determine who shall be the recipient of his "gratuity" such a passage has no bearing on the undeniable constitutional rights of a customer to determine who will be the recipient of his tip. Please remember gratuities are defined as that which is given without obligation or claim. Only moneys given without obligation or claim can be regarded as gratuities.
Such is the case with moneys given by the waiter to busboys. When a waiter gives part of his tips to the busboy clearly if the tips were given with obligation, or because the employer reruired the waiter to give part of his tip to the busboy, such moneys could not be considered tips. Since the moneys are not tips but instead gratuities, there can be no claim the moneys are the property of the busboys. That's why federal laws have stated that tip pooling is where the waiters give part of "their" tips to the busboy. The only claim one can have to tips is the claim which comes from a customer's actions in presenting a tip to that individual. Since moneys voluntarily given by waiters to the busboys are clearly not moneys presented by the customer to the busboy, there is no claim on the part of the busboy or the court's that such gratuities are the property of the busboy.
Old Heidelberg has clearly disregarded this federal requirement for a customer's constitutioanal right to determine whether a tip is given to busboys and bartenders has been denied the citizens of California. California while, procaliming that tips are intended for waiters, busboys and bartenders, has deprived it's cititzens of the liberty to determine for themselves who shall be the recipient of their tip or if their tip is given with claim by declaring that moneys given in a restaurant are gratuities without claim to be determined by the courts governing such state. Such states are in direct violation of the 14th Amendment for clearly they are depriving their citizens of their constituional right to the liberty which would entitle them to determine for themselves who will be the recipient of their tip and whether or not their gratuity is given with claim. |