Lehigh Students Arrested for Failing to Leave Tip

Lehigh students Leslie Pope and John Wagner believe that they now know why tipping is mandatory at the Lehigh Pub in Bethlehem. After they received what they called horrendous service, they paid the bill with no tip. They ended up in jail for the $16.35 tip.

The students were with six friends at the pub, which charges an automatic 18 percent gratuity for parties of six or more.

They claim that they had to get their own utensils and napkins for a waitress that left to take a smoke, beg for refills on sodas, and wait an hour for salad and wings.

The restaurant took the $73 for the meals and drinks and then called the police.

Lehigh Pub thereby succeeded in pursuing $16 in exchange for publicizing to the nation what customers think of its service. So much for a rational actor theory.

For the story, click here.

54 thoughts on “Lehigh Students Arrested for Failing to Leave Tip

  1. Word of mouth travels fast and as long as one isn’t required by law, to visit Lehigh Pub when passing through Bethlehem ……

  2. I presume that they deducted if off of the bill and paid the amount plus tax. Wow something wrong here. The steal mill is at work here. Not that Andrew Carnaige would have objected to skipping a tip either.

  3. According to the article: “The menu clearly states, ’18 percent gratuity added to check of parties of 6 of more’

    It seems to me that paying something labeled “gratuity” or “tip” is optional, not required. The restaurant can add it in if they want, but no patron contractually agrees in advance to pay it simply because the restaurant will be adding it to the bill. If the restaurant had stated they would be adding a “service charge”, I think it would present a different question, but when labeled “gratuity”, I fail to see how this can be considered a theft of services.

  4. Well I have never seen such disgruntled people in all of my born days. Cheap skate children they are depriving me of my hard earned money.

  5. The relevant question is what the patrons had agreed to. The restaurant used inconsistent words — “mandatory” and “gratuity” — but this does not necessarily create ambiguity. If I had been a patron, I would have understood “mandatory” as the operative word, and “gratuity” to be inaccurate. I think, pace Alan, that the students did agree in advance to pay the 18 percent.

    This is not necessarily to condone the restaurant’s calling the police. The article does not make clear whether it was before or after they left the restaurant that the students told the restaurant that they were withholding the “gratuity” because of poor service. This makes no difference legally, but, if the students did so before they left, then the restaurant was stupid for not apologizing and forgiving them the “gratuity.”

  6. The menu states: “18 percent gratuity added to check of parties of 6 of more,” There is no indication that the gratuity is mandatory. I think the students have a libel suit against the restaurant for claiming theft of services. But then, IANAL.

  7. Nal:

    When you start proofing the menus referenced in stories on the blog, I have to throw down the flag. Don’t I give you enough business?

  8. Nal:

    You’re right that the menu apparently did not include the word “mandatory”; I got that word from the article’s summary. But I believe that a reasonable person would construe the phrase, “18 percent gratuity added to check of parties of 6 of more,” to mean that it is mandatory. You couldn’t read it to mean “18 percent gratuity added to check of parties of 6 of more, unless you are dissatified with the service.”

  9. Henry,

    Emphasis added but if you don’t like the definition you can take it up with Webster’s.

    gra·tu·ity\grə-ˈtü-ə-tē, -ˈtyü-\, n.
    : something given VOLUNTARILY OR BEYOND OBLIGATION usually for some service; especially : tip

    Pay attention to the fact that “voluntarily” and “obligation” are words with specific legal definition and use.

    Given that is the definition of gratuity, a reasonable person most certainly could consider any gratuity optional contingent upon satisfaction.

  10. Nal: The menu states: “18 percent gratuity added to check of parties of 6 of more,” There is no indication that the gratuity is mandatory. I think the students have a libel suit against the restaurant for claiming theft of services. But then, IANAL.

    jonathanturley: Nal: When you start proofing the menus referenced in stories on the blog, I have to throw down the flag. Don’t I give you enough business?


    LOL :-) Srsly, a match made in heaven. Keep up the good work, both of you.

  11. Henry:

    I believe that a reasonable person would think a gratuity is still a gratuity even if it’s added to the check. A reasonable person would think that the 18% calculation was performed as a courtesy for the mathematically challenged.

  12. Personally, I define “reasonable” (and “good taste”, while we’re at it ;^) ) and when I read that “gratuity added to check” line on menus, I take it to mean, “We’re going to add this gratuity item to the check, but there’s nothing we can do to enforce it other than make a stink. It’s voluntary, but we’re going to twist your arm because we think we can get away with it.” If they wanted to say “mandatory additional service charge” that would be different, but they choose not to say that, so too bad for them. (Additionally, I wonder if those “added to check” tips actually get disbursed to the restaurant staff properly at most places…)

  13. Mandatory tips can lead to poor service. Better for the business just to pay the wait staff 18% more, and fire them for poor service. Plenty of eager people looking for work these days.

  14. Many of us are missing the point of just because it is on the menu does not make it a legal document.

    Would it be different if on the menu it had a place for you to sign to the agreement of a gratuity? I think then it may become legally binding. Just because it is on the menu means nothing. Let us replace the words “18 percent gratuity added to check of parties of 6 of more,” with “mandatory purchase of Micheal Jackson CD added to check of parties of 6 of more”.

    Who here would still feel they are bound by the menu to purchase that CD?

    If this is how it worked every politician in the US would own a restaurant.

  15. Nal,

    I stay mostly off your side of the blawg…..

    Keep it up and I’ll start posting on your side more often than not…..

    Does not Buddha et al deserve at the least a gratuitous honorable tongue in cheek mention?

    Buddha’s liver has been offered more than once, don’t you know!

  16. I saw this story on the local NBC affiliate last night and my first thought was “boy has the world gone crazy?” but then I figured the bar needs to coerce people in to paying the wait staff because the service is so bad (based on what I heard from the story).

    I think restaurants and wait staff should remember that “TIPS” is an acronym for “To ImProve Service”. If the service is not good then no “tip” should be left (regardless of the menu statement). If the service is above the norm then a tip should be left (i.e. “to improve service”).

    Of course the students saying that they would pay the “mandatory gratuity” should either go somewhere else or get separate checks!

  17. Stiff Waiter,

    Keep it up and I’ll start posting on your side more often than not…..

    Bring it on. The competition makes me sharper.

    The Buddha is self-destructing his liver, but he does deserve a shout-out. So does Elaine. And Deborah. And Vince. And everybody else I’ve not mentioned. Vince holds a special place, and thankfully, the evidence of why has been culled.

  18. I think that Nal’s 4:44 comment is plausible, as is TomD.Arch’s 5:06 comment — as is my opposing 4:28 comment. In other words, reasonable people can differ on this. As a lawyer, however, I can say that Mack is wrong in his 5:30 comment. Contracts do not have to be signed, or written, to be enforceable; they can be oral. (Real estate contracts are an exception.) Requiring a patron to sign would help the restaurant’s case by preventing the patron from claiming that the notice about the “gratuity” was not prominent enough for him to have noticed it, but it is not necessary to make it mandatory, if the words of the notice state that it is mandatory.

  19. Henry is right on contract law.

    And all discussants should be aware that tips are wages under federal Fair Labor Standards Act (FLSO).

    In a good definition, Wiktionary says “Tip wage credit: An employer benefit provided in Section 3(m) of the Fair Labor Standards Act of 1938, as amended, (the “Act”) which allows employers to pay tipped employees significantly less than the minimum hourly wage required by the Act. The provision permits employers to classify tips received by tipped employees as employer-paid wages, and to use those wages as part payment of those employees’ minimum hourly wage. An employer benefit provided in Section 3(m) of the Fair Labor Standards Act of 1938, as amended, (the “Act”) which allows employers to pay tipped employees significantly less than the minimum hourly wage required by the Act. The provision permits employers to classify tips received by tipped employees as employer-paid wages, and to use those wages as part payment of those employees’ minimum hourly wage.”

    So the so-called gratuitous “tip” has long since stopped being a free gift of gratitude. It is part of the price of a meal, since it is used as part of the wait staff wages.

    If the diner leaves no tip, the owner must pay the full minimum wage, since there will be no credit. But the staff is entitled to no more than minimum by law.

    Fair labor standards act violations are notoriously under reported, and the Act is cumbersome to enforce.

    I hope this helps to broaden the discussion.

  20. Tangentially, on waitressing (and art). I couldn’t find the video online, so here’s the lyrics.
    Thanks to The Dallas Observer’s Unfair Park blog for posting them in their entirety.

    “Well it’s not silly
    When she brings you your chili
    To grab a cracker
    And distract her…with a crunch
    A cracker crunch
    ‘Cause you’ll only see her once
    Only this one time at lunch
    And she might as well see you too
    Ahhh…it’s the last time
    You’re passing through
    And it’s not rude
    When she takes away your food
    To touch her fingers
    And let them linger awhile with your loneliness
    A cracker crunch
    ‘Cause you’ll only touch her once
    Only this one time at lunch
    And she might as well touch you too
    Ahhh…it’s the last time
    You’re passin through
    So it’s not strange
    When she brings you your change
    To bend down and kiss her
    And whisper you’ll miss her…forever
    A cracker crunch
    ‘Cause you’ll only love her once
    Only this one time at lunch
    And she might as well love you too
    Ahhh…it’s the last time
    You’re passin through

    A waitress asked me what I did
    I told her I tried to make art.
    She asked me if I made any money.
    I said no…I have to “teach” to do that.
    She asked me what I taught and where.
    I told her.
    She told me that she liked art, but that she
    couldn’t draw a straight line.
    I told her if she could reach for something and pick it up, she could draw a line that was straight enough.
    She said she wasn’t interested in that kind of drawing…but had always like horses.
    I said I did too, but they are hard to draw.
    She said yes that was very true…said she could do the body ok, but could never do the head, tail or legs.
    I told her she was drawing sausages, not horses.
    She said, “no…they were horses.”

    Terry Allen, “The Beautiful Waitress” from ‘Lubbock on Everything’.

  21. MacK,

    A menu is an offer to sell and an invitation to contract for food and services as is opening your doors and advertising you are a restaurant open to the public. Commercial sales transactions, including providing food, are indeed a form of abbreviated contract and governed by local law and/or the UCC. As the menu would be the conveyance mechanism for the terms of service and items they will prepare, a menu is most certainly a document with legal impact. One cannot have a contract, even abbreviated ones, without the simple terms of the object of the contract and the related price term. A menu is simply a list of what they offer and how much it costs. The simple fact is they used the word gratuity improperly. If it was a surcharge for large parties, call it that. But a gratuity is optional by definition because it is outside the scope – beyond the obligations – of the contract. It is literally part of the word’s definition.

    There is also no “reasonable” disagreement about the meaning of gratuity. Some of you are simply wrong. You mistake your personal preferences for what a word actually means. Did any of you having a problem with this learn English as a second language? I could understand that. But aside from the OED, Webster’s has kinda been in the dictionary business a while and are widely considered authorities on etymology. If you want to make up definitions to words, well, knock yourselves out. I’ll stick with actual English.

  22. I agree the word “gratuity” unambiguously means an amount one is not required to pay. Note further that if the menu had hypothetically contained the somewhat contradictory terms “mandatory gratuity” or “required gratuity”, that would create an ambiguity in the terms of the contract, and that ambiguity would have to be construed against the restaurant who wrote the words and had an obligation to make them clear. Again, however, the reported language of the menu was not ambiguous and there was no obligation for the diners to pay amounts described as “gratuity”.

  23. Ahhh, thanks Vince.

    One cannot know all of the law. I appreciate the information in re tips. All of my actual restaurant experience, both legal and otherwise, consists mostly of dining. I am one of the few in the country who has never had a food services job and I’ve never done labor law.

    I still say it’s an abuse of the word. Plain and simple. Clearer language on the menu would have eliminated this issue. On plain logic and linguistics, that’s a ridiculous law. “We’re going to start calling ducks farggleblasts.” What? Let alone practically enforceable.

    Now Byron, I’d like to take a minute to tie this in to our discussion about functionality. You stay focused on size. This is a perfect example of size being the wrong metric. Enforceability and accomplishment of the goal of the legislation. If the goal was to provide the minimum wage to restaurant wait staff, this is simply a retarded way to do it that only benefits corrupt employers (yeah, I know, that never happens) and encourages abuse. If the goal was to provide the minimum wage to restaurant wait staff, they should have made it illegal not to pay wait staff below minimum wage and play that bullshit shell game they set up in it’s place.

    And I bet a dollar if you look into the history of the FLSO, a restaurant industry lobbyist had a hand in writing it. Poorly worded menus (yeah, if it’s not beyond obligation, it’s – duh – NOT A GRATUITY) and ridiculous unenforceable laws that not only do not accomplish their stated and desired goal, but instead encourage abuses? You should be more concerned about that kind of malfunction that how big it is. Because if you are not

    But size didn’t cause this problem.

  24. Buddha,

    You are right that there is also no “reasonable” disagreement about the meaning of gratuity. But “gratuity” is not the only word in the contract, and it must be interpreted in context. Other words in the contract include, “18 percent gratuity added to check of parties of 6 of more,” and “added,” standing alone, is also not ambiguous; it doesn’t mean “added if you don’t object to the service.” Reasonable people, therefore, can differ as to how to interpret the entire contract; some might say that patrons should recognize that, in this context, “gratuity” should not be taken literally. Alan, though, has a point that any ambiguity should be construed against the restaurant, so your conclusion may be the better one, but you should not reach it simply by singling out one word.

  25. I’m not sure exactly what the patrons were charged with, nor do I have a definitive version of the PA Code, but I did find this:


    § 3926. Theft of services.
    (a) Acquisition of services.–
    (1) A person is guilty of theft if he intentionally
    obtains services for himself or for another which he knows
    are available only for compensation, by deception or threat,
    by altering or tampering with the public utility meter or
    measuring device by which such services are delivered or by
    causing or permitting such altering or tampering, by making
    or maintaining any unauthorized connection, whether
    physically, electrically or inductively, to a distribution or
    transmission line, by attaching or maintaining the attachment
    of any unauthorized device to any cable, wire or other
    component of an electric, telephone or cable television
    system or to a television receiving set connected to a cable
    television system, by making or maintaining any unauthorized
    modification or alteration to any device installed by a cable
    television system, or by false token or other trick or
    artifice to avoid payment for the service.

    (4) Where compensation for service is ordinarily paid
    immediately upon the rendering of such service, as in the
    case of hotels and restaurants, refusal to pay or absconding
    without payment or offer to pay gives rise to a presumption
    that the service was obtained by deception as to intention to

  26. And a lack of focus on one word, that lack of precision combined with a legal mangling of the actual meaning of a word, is what caused this issue.

    So I’ll stick with precision in defining words. Obfuscation of meaning is the enemy of truth.

  27. I’m not sure if it’s intentional, but as an Australian, so many of Prof Turley’s posts on this site have me wanting to respond with;

    “Only in the USofA”.

  28. Anonmously Yours 1, November 19, 2009 at 3:09 pm

    As a Lehigh Alum, IMHO, it has never had good service.


    This is not the real Anonmously Yours or should I say I did not post this. Oh, Professor…..

    I will say a self respecting Texan would have stiffed them for the whole bill. We certainly would have never gone to a school that had a name of lehigh. It would be General Robert E. Lee, Commander of the Union Army of the South. We know how to spell Lee, just in case you wanted to know.

  29. Buddha Is Laughing,

    And what lotta said, Prof. & nal.

    You guys go together like Abbott and Costello.

    Or at least like the Three Stooges. Not enough for the Rat Pack though.

  30. I got a BS, MS, and PhD at Lehigh. One thing I can say is that they charged a 22.4% tip!!

    I wonder how many times they did that. It’s gonna be hilarious when the Lehigh Pub owes some thousands of dollars in back taxes.

  31. Wow! This is one long thread over a measly $16.35! I have to agree with Buddha that the meaning of words are important and this restaurant’s claim cannot stand. I am also amazed that the police would jail someone over this amount of money, when the bill is in dispute. Professor Turley, as usual, was spot on when he said this restaurant really got some great publicity over $16.00!

  32. fwiw, twenty years ago, servers in Dallas made $2.13/hr. + tips. i don’t believe it’s changed much.

    My favorite waitress, Jeri, is 75 years old and pulling the breakfast shift. For 30 years now.

  33. If the “gratuity” was mandatory because it appeared on the check,thus supposedly supporting the theft charge, wouldn’t the server/cashier/calculator be guilty of attempted theft for adding a charge which was greater than the menu specified 18 percent?

  34. I must side with Buddha on this. The meaning of gratuity is clear. While it is common for restaurants that cater to crowds of students to add on what is generally called a service charge for parties of a particular size, in this instance the menu statement is too ambiguous to be enforceable. Had it read: “For parties of six or more a service charge of 18% will be added to your bill, in lieu of gratuity” then I think the charge will become a legal (contractual) obligation.

    Secondly, the restaurant in fact overcharged this fee by 5%. This alone should negate their claim of theft of service, since the stated menu charge was not strictly followed. How can the restaurant then claim that the implied contract was violated, when they in fact were also in violation?

    Thirdly and most importantly, this was a monumentally stupid thing for this restaurant to do from a business perspective. They are in a College town, primarily servicing a college crowd. Could they have created worse publicity for themselves, or more suspicion of their operation, given the bogus 23% “gratuity” charge?

    Although my means are and always have been modest, I am a large tipper. This is because I supported myself through college working tip related jobs. Nevertheless, I will not tip well for minimum service poorly delivered. I will generally “undertip” for poor service, or not tip at all for horrendous service. I will also clearly express my feelings to both the offending waitstaff and/or the restaurant’s management, since merely tipping poorly sends no clear message and one would hope people could learn and improve from their mistakes.

    Coming from NYC, where “in” restaurants are plentiful, it was easy when I was young to be intimidated by snooty management and waitstaff. Dining with more sophisticated friends, taught this working class reared child, not to be intimidated when paying my hard earned money for dining. Many in the restaurant business fail to understand that its’ volatility and high failure rate is related to not providing both good service and good food. My own rule of thumb is that any place that makes me feel at all uncomfortable when dining, is one I will never return to despite its popularity.

  35. I have read all of the entries on this thread and have to agree with Buddha. The word “gratuity” has a specific meaning, regardless of the restaurant’s unilateral intent. In essence restaurants wish to charge more for larger groups, but for purely marketing reasons do not wish to advertise that groups of six or more will pay 18% more for the same food than groups fewer in number. A gratuity is a gift given as a sign of appreciation for good service. The restaurant’s interpretation of its menu/contract offer is that tips are optional unless groups of six or more are together, in which event they are required to pay an 18% tip regardless of the quality of the service. The students were arrested because they were students and this is a college town. The case should be thrown out. The students may also have an action under Pennsylvania’s deceptive trade practices statute. This would actually be a case to have some fun with.

  36. I hate gratuities because then it’s like the restaurant/server assumes a tip is deserved just for waiting on tables.

    A tip is something earned for a very good job, not just because the server makes a few bucks an hour. It’s not my job to pay their salary. They want a good tip, then work for it!

    I’ve been a server (while in college) and I was good at my job. And when I worked at a place that charged a gratuity, I never added it and always ended up with a larger tip than I would have with just a gratuity.

    The tip amount should always be up to the customer, not the restaurant!

  37. To Mike (and others) yes, but gratuity, as well as service charges/autogratuities also have a specific definition under the US code, as interpreted by the Labor Department.




    Note that it’s clearly stated that service charges and autograts are NOT the same as conventional tips and aren’t treated the same way. While this distinction has more to do with the so-called “tip credit”, it’s clear that autograts are an accepted variation of a mandatory service charge and, in this case, would be considered a “compulsory charge for service”, since it’s clearly stated that it’s going to be added. Parsing dictionary definitions is one thing, the Labor Department’s interpretation of the US Code is another.

    The problem, as some have stated, is the problem of the use of the word gratuities. Some definitions even include the word “gift”. The problem is, a gratuity isn’t a gift. If it were, it wouldn’t be taxable income. The usual use of the word gratuity in IRS parlance is for military gratuities, which are NOT taxable up to a certain amount.

    And to Sally, something that you might not have thought about (or apparently your restaurant) is that you might have actually been doing something illegal in a way by not applying the service charge. If a restaurant imposes a service charge on any portion of their clientele, they need to ALWAYS do it in order to avoid charges of discrimination.

    Tips does NOT stand for “To Insure Prompt Service”. I wish people would stop saying this. It’s been debunked for quite a few years now by non other than Snopes.com. The word has its origins centuries ago and it isn’t an acronym, unless you want to make it one yourself, which doesn’t mean that it IS what you say it is. As a server, I might very well say that it stands for “To Insure Proper Salary”.

    Here’s an interesting article on the practical ramifications of gratuities vs. tips and how confusing using the term gratuity as a synonym for tips can be:


    The ideal thing would be for Webster’s especially to consider redefining both the terms tip and gratuity, at least for the American market (as you see below, some dictionaries have actually entered the 21st century). In Europe, if I give Johan 2 Euros to round up the bill, it’s a gratuity because, a. it’s not taxable and b. it *is* a gift, not payment for services rendered because a service charge has already been added which covers the wages for the server providing the service. Here in the states, if I give John an extra $2 on top of an autograt, it’s still considered taxable income and not a gift (fair or not, it’s still considered part of the “transaction”). and when I give John a “tip” it’s for services rendered, a cost that I haven’t incurred through the menu price because of the wage structure here in the States.

    Most of the time, when the IRS is discussing “gratuities” it’s in the nature of a true “gratuity”, i.e. non-taxable as in the case of a military death benefit “gratuity”. but even THEY occasionally slip and use the term gratuity when talking about tips. Hence the confusion. And not all dictionaries define gratuity the same way, so we can’t rely on Webster’s ancient definition as the only authority. here’s the one that seems to reflect the modern world the best:


    gra·tu·ity (grə to̵̅o̅′i tē, -tyo̵̅o̅′-)

    noun pl. gratuities -·ties

    a sum of money, often a percentage of the total billed, given to a server, porter, etc. for a service or favor; tip

    And another from Merriam-Webster:

    [count] 1 formal : an amount of money given to a person (such as a waiter or waitress) who has performed a service : tip ▪ A 15 percent gratuity is automatically added to the restaurant bill.
    2 Brit : an amount of money given to a retiring soldier or employee

    and another, from the Free Dictionary:

    gra·tu·i·ty (gr-t-t, -ty-)
    n. pl. gra·tu·i·ties
    A favor or gift, usually in the form of money, given in return for service.

    Note that none of these addresses the issue of “voluntary” or “obligation”.

    “So You Want To Be A Waiter” blog


  38. I bet if they dig a little deeper they will find the Pub/restaurant is failing to comply with minimum wage laws for their service staff, hence the mandatory tip.

  39. Absolutely absurd! The definition of Gratuity is: a “a favour or gift, usually in the form of money” therefore it is OPTIONAL. For the authorities to even answer to a call like this, let alone persue it is absurd!

  40. Jodie, as I mentioned in an above reply, gratuity has a different legal meaning than the standard dictionary one. In the service industry, a gratuity (read tip) is regulated by US code. A gratuity cannot be considered a “favo(u)r” or “gift” because it is actually payment for services rendered in lieu of salary. It is taxable income according to the Internal Revenue Service.

    I can walk up to the same server and give him or her $500 for no other reason that I like them personally and he or she does not have to report it as income. However, if I give that same server the same amount of money as part of a commercial transaction, it then becomes INCOME. It is no longer a gift or favo(u)r.

    It clearly states on the menu that 18% is to be added to the bill. This is the same as noting a price of a menu item. Once you enter into an agreement to dine at the restaurant, the restaurant is obligated to honor the price. The same holds true for the guest. They must honor the terms stated on the menu as well. If they disagree with the imposition of a service charge/gratuity/tip, they are obligated to walk away from the transaction. Also, as I pointed out above, once you note that an autograt is to be imposed given a certain set of conditions, you MUST apply it to every single transaction that meets those conditions. Otherwise, you are susceptible to legal action as a possible civl rights or discrimination charge. You can’t pick and choose whom you wish to apply it to.

    Having said that, the restaurant was wrong in not removing the autograt in the face of a claim of poor service. A tip/gratuity is STILL payment for services rendered and if the service wasn’t rendered properly, it’s fair for the guest to ask modify the payment. This was handled improperly by both the restaurant AND the guests. Most restaurants will bend over backwards to accommodate all but the most unreasonable requests, even when the guest is clearly in the wrong. They created an unnecessary PR disaster for themselves.

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