There is a curious case out of Brooklyn where William Powell, 27, fell into a habit of not charging for drinks for customers who could not afford it at his IHOP. The sodas added up to $3,000 to be specific and the owner was not pleased. Powell described himself as “the modern-day Robin Hood.” It would not be surprising if the owner fired Powell, but instead he called the police and now Powell is facing a grand larceny charge.
Store owner Akrell Cox became suspicious when he found Powell’s beverage sales were at six percent of the overall receipt compared to 17-20 percent for other employees who with the same shift and schedule. Cox then reviewed surveillance footage and saw that Powell not charging for sodas.
Powell insisted that “I am not stealing, I am serving the ones in need. I take from the rich and give to the poor.” His free soda policy lasted for six months. Police say that he was simply trying to “get bigger tips.” Perhaps, but is this really a criminal matter?
The state law defines larceny as “A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.”
Despite the spin on the tip angle, Powell was not pocketing the money or consuming the sodas. Many restaurants give waiters liberty in waiving such charges. Just as the practice may have benefitted Powell in tips, it also likely benefitted the restaurants in happy and repeat customers. A defense under the state law is “that the property was appropriated under a claim of a right made in good faith.”
Should this be a larceny charge?
@SteveGroen
I like that guy! I am going to go to his website.
Squeeky Fromm
Girl Reporter
Girl Reporter: Mistah Sotomayor is an Arkansas Razorback fan. As Marcellas Wallace said, “Yeah, we cool.”
My favorite Waffle House video is this one:
https://www.youtube.com/watch?v=1BOvdOmVjlU
Although the subject matter is grave, the presenter is really funny and it’s hard not to like the video (at least it was for me).
OK, here is something that may help explain “food deserts” in the hood. Watch at your own peril:
https://www.youtube.com/watch?v=g6cT8y0mtvw
Squeeky Fromm
Girl Reporter
@Darren
I help my mother run her business, and several friends. I advise them to never fight unemployment, even if the employee is fired for cause. That is a sure fire way to draw a lawsuit, particularly if the employee is black. Unemployment tax is cheap insurance.
Squeeky Fromm
Girl Reporter
This how you end up with ‘food deserts’ in poor neighborhoods.
Poor employees and customers socialize the business, and eventually run out of other people’s money, and leave a vacant building behind, which they then vandalize.
Then they complain about capitalism and racism.
“This how you end up with ‘food deserts’ in poor neighborhoods. …..Poor employees and customers socialize the business, and eventually run out of other people’s money, and leave a vacant building behind, which they then vandalize.”
Intriguing hypothesis. What data is there to support it?
Apparently ‘socialize’ is used as a metaphor. What does it mean for customers to ‘socialize’ a business?
Presumably employees ‘socialize’ a business when they steel from it. Are there other ways employees ‘socialize’ a business? Anybody have any stats on employee theft, by neighborhood?
If this hypothesis explains food deserts in urban neighborhoods, why don’t we have alcohol/half-pint wine deserts, carry-out/bodega deserts, no-contract cell phone deserts, or pay-day loan deserts?
Also, if the employee is charged with a crime related to their employment and the employer terminates their employment it makes it very difficult for the ex-employee to successfully file an unemployment compensation claim.
A business having many unemployment recipients will eventually need to pay a higher premium for all workers. It is less costly to avoid such claims.
Darren writes, “if the employee is charged with a crime related to their employment and the employer terminates their employment it makes it very difficult for the ex-employee to successfully file an unemployment compensation claim.”
In this state, if the employee is discharged for misconduct (whether or not charged as a crime), it may take an appeal to an administrative judge, but UC will be denied.
Just some numbers to maybe help put this into perspective
Assuming the $3000 was revenue, divided by six months (26 weeks) they guy diverted $115 per week, or $23 of revenue per day, assuming a five day/shift week.
But in that case, the actual amount diverted on a cost basis was only $4.14 per day. (18%cost x $23)
Another thing to look at is the 6% portion of beverage sales compared to the 17-20% comparison figures.
For ease of calculations, let’s use 18% as the amount he should have booked. That is inside the 17%-20% range, If $3,000 is the difference, then he booked $1,500 in beverage sales, when everybody else booked $4,500 on average.
If $1,500 is 6% of his sales, then gross sales were $25,000, which assuming 26 weeks and a 5 shift week = $961 sales per week, and $192 in sales per day or shift on average.
The point of this is, that the $3,000 seems to be a revenue number, not a cost number. If it was a cost number, you have to inflate the above numbers by a factor of 100/18 or 5.6. His shift revenues would increase to $192 x 5.6 or 1,075.00 in sales per shift or .$5,382 per week,
That seems high to me for an IHOP, particularly in a poorish neighborhood. If he was booking $5,382 per week, and his tips were 15% on average, then he would be making $807 in tips plus salary each week. If he was booking $5,382 in sales per week, and diverting $115 per week, then his diversion would be 2% of sales.
Squeeky Fromm
Girl Reporter
It is a common legislation where multiple counts of theft may be at the state’s discretion either aggregated or prosecuted separately. The aggregation option may be sought where the defendant acted with the same “scheme, plan, or design” to further the thefts.
In the aggregation factor it is typically used as a prosecution aid or to total the losses in order to achieve a threshold needed to seek a higher level of crime, such as a felony.
Separate prosecutions are usually the case where a particular item stolen has an enhancement in of itself; such as for firearms, public records, or access devices.
Darren – the enhancement might be easier to defeat in a jury trial. By proving that they had to aggregate to get to the felony level, they might just get an acquittal on the felony.
Thanks for the info on aggregation. I readily admit I should have known that, and I think I may have years ago, but apparently it wasn’t stored on a secure server.
Another scenario..
Let’s say the guy was, as the police contend, trying to increase his tips.
What was the guy being paid and what if any benefits? Is the answer such that the man was receiving a fair wage/benefit package per the community standards? If not, then who is taking from whom? Yeah, yeah..he really had a choice I taking the plush jobs the first place….?
Is the owner pursuing this worker because of the drinks and not tracking the other goods going out the door with other employees? The guy gets caught giving away drinks (maybe for tips) but sees the
“spoilage” going out the door for personal unreimbursed use.
None of this really obviates the fact that the guy did something illegal. However, are there mitigating circumstances? Is the owner using the guy as an example of the draconian measures he is willing to pursue!
Would venture to say that the drink issue is a pittance when compared to that which ends up in the bin outback. Not from customers….what is not used.
We’ve taken to telling servers that we’ll pay the menu price but only bring a much smaller portion if there is not “half order” provision and are not hungry enough for full order. Don’t even let “sides” of cooked vegetables touch my plate, and we’ll split a salad.
As I refused to eat Brussels sprouts, my beloved dog didn’t help either, I made a big mistake. My mother told me of the starving children in China..my response? “If you’ll pack them, I’ll pay the postage.” Probably would have been better if I had smashed them and dropped them in my shirt.
Renegade writes, “Would venture to say that the drink issue is a pittance when compared to that which ends up in the bin outback. Not from customers….what is not used.”
Very good point that I hadn’t thought of, but maybe only for sentencing purposes. I don’t know that it’s relevant otherwise.
Thanks, Steve! I don’t know. There is also Squeeky’s math to consider. I don’t know if cases like this consider the theft to be in the cost of raw material, or the theft of the profits. I would think it would be both. The owner was not reimbursed for the raw material costs, as well as losing out on the profit of the sale.
Why not compound it another layer, and say that due to the loss of profit from loss of raw material, the owner was unable to pay the proper amount of income tax to the state and fed!
That ought to get some bureaucrats moving.
Me, I’d sentence him to own and operate hot dog and pretzel cart while complying with all business rules and regulations in that jurisdiction for two years. Then again, that may be considered cruel and unusual punishment. I think this guy would see the light- it’s not like he wasn’t working. He just had some good intentions that lead to… unintended consequences.
Robin Hood didn’t take from the rich. He took from the King (govt.) and gave to the poor.
It would make more sense economically to just fire him, rather than having him charged criminally, which will require the manager to take time off from work if he demands a jury trial. Thus I think the restaurant is trying to make an example of him as a deterrent to other employees. Of course in doing so, the restaurant is alienating the former employee’s satisfied customers. I do think it is an interesting question of whether the loss to the restaurant is calculated based on the actual cost of the sodas that he gave away, or the cost plus profit. The profit part is speculative because these customers may have chosen to drink water rather than purchase the sodas. If the restaurant deducts the sodas on its tax returns as a theft or loss, it can only deduct the cost, not the hoped for profit on something that may or may not have actually sold.
Tin – this could easily be written off as a promotional cost. I think the problem is that it is a franchise and he is on the hook for what the profit should be, not what it is. He should have caught this a lot earlier.