For days, there has been much outrage on the blogosphere about a couple who refused to give a lesbian waitress a tip because they refused to support her “lifestyle.” Dayna Morales, an ex-Marine and server at Gallop Asian Bistro in Bridgewater, N.J., produced a receipt that said “I’m sorry but I cannot tip because I don’t agree with your lifestyle and how you live your life.” People flocked to the restaurant to leave big tips for Morales and she received national acclaim for donating the tips to the Wounded Warrior charity. Now the couple has come forward and claims that it is all a hoax. Worse yet, they say that they have proof.
Morales put the receipt on her Facebook page and it went viral. If the couple is telling the truth, this was a claim to victimization that quickly snowballed into an international story.
The New Jersey couple says that they saw the story and were flabbergasted. They say that they support same-sex marriage and voted against Chris Christie because he did not. More importantly, they left an $18 tip, which by the way appears the standard 20 percent since the entire payment for the meal was $111.55. They have the receipt as well as a credit card receipt for the amount of $111.55.
The restaurant is investigating but could not produce the original receipt. I am not sure the VISA bill would answer the question since it would not show the division of the meal and tip amounts. As for the original receipt, that would be highly probative. They say that their receipt shows both the original amount and the added tip. Notably, the receipt produced by Morales shows the amount of $93.55. IF the VISA shows $111.55, that would be pretty damning evidence.
The question is, if true, what is the potential liability for Morales beyond losing her job. As we have discussed with regard to the Stolen Valor Act, there is a first amendment protection for lying. However, you do not have a protected right to commit fraud. If the couple is telling the truth, Morales is wise to donate the proceeds. If she did not financially gain from the tips, a fraud claim can be more difficult to establish. That raises the possibility that even the donation to charity may not have been what it seemed. Again, this is assuming that the couple is the wronged party. We have not heard from Morales. There are also statutory provisions that might be stretched by prosecutor to fit the alleged crime like the following:
2C:21-4. Falsifying or tampering with records
a. Except as provided in subsection b. of this section, a person commits a crime of the fourth degree if he falsifies, destroys, removes, conceals any writing or record, or utters any writing or record knowing that it contains a false statement or information, with purpose to deceive or injure anyone or to conceal any wrongdoing.
It could also raise an interesting forgery case since she was allegedly forging the writing of the couple (though they were not named in the stories). Here is the New Jersey code provision:
2C:21-1 – Forgery and Related Offenses
a.Forgery. A person is guilty of forgery if, with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(1)Alters or changes any writing of another without his authorization;
(2)Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act or of a fictitious person, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
(3)Utters any writing which he knows to be forged in a manner specified in paragraph (1) or (2).
“Writing” includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, access devices, and other symbols of value, right, privilege, or identification, including retail sales receipts, universal product code (UPC) labels and checks. This section shall apply without limitation to forged, copied or imitated checks.
As used in this section, “information” includes, but is not limited to, personal identifying information as defined in subsection v. of N.J.S.2C:20-1.
b.Grading of forgery. Forgery is a crime of the third degree if the writing is or purports to be part of an issue of money, securities, postage or revenue stamps, or other instruments, certificates or licenses issued by the government, New Jersey Prescription Blanks as referred to in R.S.45:14-14, or part of an issue of stock, bonds or other instruments representing interest in or claims against any property or enterprise, personal identifying information or an access device. Forgery is a crime of the third degree if the writing is or purports to be a check. Forgery is a crime of the third degree if the writing is or purports to be 15 or more forged or altered retail sales receipts or universal product code labels.
Otherwise forgery is a crime of the fourth degree.
– See more at: http://statutes.laws.com/new-jersey/title-2c/section-2c-21/2c-21-1#sthash.ZaUqJKBx.dpuf
Then there is the question of the restaurant and whether, beyond firing Morales if the story is proven to be true, it could seek damages to its reputation etc. My guess is that it would not seek such a case even if it could make out the elements.
Finally, there are all those people who gave enhanced tips to support Morales. Theoretically, they could try a class action against the restaurant for its failure of investigation. The restaurant promised to match donations but did not, it appears, check the receipts or charges. It would be a tough case, however. This is particularly due to Morales’ promise to donate tips to a charity. Thus, the customers knew that they were giving money to charity, even if the impetus of the visit was allegedly fraudulent.
Then there is the couple. Morales told ABC that the wife of the couple insulted her when she first introduced herself. That basically says that the customers are bigots and would raise defamation potential. However, they were not named and have kept their names out of the press. Even for a defamation per quod case, it would be weak to establish damages.
The most immediate issue for Morales is criminal liability, though prosecutors could use their discretion in not pursuing the case. Fraud and forgery would be difficult due to the donation of tips as noted above. In a strange way, it is very similar to the Stolen Valor cases. Instead of benefiting socially by claiming to be a decorated hero, she allegedly made herself into a social hero under false pretenses. While we have seen various cases of prosecuted fraud for people collecting money under false claims that they are dying or have lost a loved one (here and here and here and here and here and here), these people are usually found to have pocketed the money. There is the question of whether she had any travel paid for by the media for hotels or flights etc. That would constitute a benefit for establishing the elements of crimes like fraud. Any book deals or movie deals, including early rights payments, would obviously be sufficient. State law actually contains a broad definition of benefit, including benefiting others:
“Benefit derived” means the loss resulting from the offense or any gain or advantage to the actor, or coconspirators, or any person in whom the actor is interested, whichever is greater, whether loss, gain or advantage takes the form of money, property, commercial interests or anything else the primary significance of which is economic gain.
In the end, if the story is proven true, Morales could walk with simply the ignobility of the disclosure of the hoax. I have written before that such social isolation and condemnation is sufficient in Stolen Valor cases where no money was accepted. For people who want to be heroes, the status as a social pariah is a heavy sanction. She allegedly not only undermined the claims of true discrimination victims but used the fight of equality to benefit herself. Morales would not require a criminal charge to feel the judgment of society in such a case.