Get Out - and Stay Out! Can a Public Place Really Bar a Person?
The Lawyer Referral Services gets calls from time to time from people upset and incredulous when they have been told by store managers or casino bouncers that they were not welcome to come back anymore, though no police were called or charges made. In some cases, the reasons seemed obscure. So we asked our friend attorney Scott Quigley to shed some light on this particular unwelcome mat with an answer to a representative question.
Q. My friend and I were recently kicked out of a local restaurant and told by the manager that we can never come back. I have no idea what the problem was: we had only ordered a couple glasses of wine and were having a good time just like everyone else. It’s a public place – can they really bar us from coming? Don’t they have to charge us with something, or get a court order?
A. In Maine, the answer to the question is usually, “no, they cannot really bar you from coming,” but the practical answer is a bit more complicated. In spite of signs in stores and restaurants that say things like “we reserve the right to refuse service to anyone,” most businesses that open their doors to the public cannot exclude you from the public portion of their property for no reason at all. If private property is open to the general public, the owner has to have justification to ask a person to leave (and not come back). That justification would generally have to be because the person was being disorderly, causing a disturbance, or, in legal terms, “causing an actual or threatened breach of the peace.” Things like cheating or shoplifting would be justification as well.
Once there is a reason to ask a person to leave, however, there is no need to charge you with something or obtain a court order. Once a patron receives a legally justifiable order to leave, they are required to leave or they will be committing the crime of criminal trespass and can be arrested.
That leads to the practical answer, which is a bit more complicated in the short term than the legal answer. Lawyers rarely deal with this issue until a person has been asked to leave, refused, and then been arrested and/or charged with criminal trespass. As much right as you might have had to be in the restaurant, you probably did not want to get arrested to test that right, and that is likely what would have happened had you refused to leave (assuming there was not something along the lines of a big bouncer who could just pick you up and throw you out).
Had the police been called, the officer would not likely have had the time to sort through the legal complexities of whether your order to leave was a lawful order nor would he/she necessarily have to, as the standard for police officers to make an arrest is lower than the standard required for the District Attorney’s Office to obtain a conviction. The officer would likely have listened to the manager’s story about you being drunk (you would have admitted to the officer that you had a couple glasses of wine) and disorderly (you would have admitted that you were just “having a good time”), not known who to believe, told you to just leave in order to diffuse the situation, and then he/she would have certainly thought their own order for you to leave was a lawful one (even though the same analysis applies to the police officer’s order—it has to be legally justifiable). If you refused, you would have been arrested. The fact that you might not later be convicted of the crime of criminal trespass would not really help you that night while you were sitting in jail.
Another wrinkle is that a lot of businesses that are open to the general public are not really open to everyone: to legitimately be there in the first place, you have to be part of the group of people that were “invited.” For example, bars, casinos and nightclubs are not open to people under a certain age. Some restaurants and nightclubs do not “invite” people who are not dressed appropriately. A coffee shop invites people who are going to order coffee, not just sit at a table for hours and not buy anything. That said, if you are part of the population that is invited into the business, you cannot usually be excluded for no good reason at all.
So, if you find yourself being kicked out of a business for no good reason, it is likely the best practical solution for you to simply leave and be polite while doing so. Afterward, if you really want to go back to a place that doesn’t want you there, contact a lawyer in order to deal with your access to the premises in the future.
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This information is presented as a public service by the Lawyer Referral Service of the Maine State Bar Association. Contact LRIS at 800-860-1460 for referral to an appropriate attorney in private practice, or for information regarding other resources.
LEGAL DISCLAIMER The information contained in this article is a general response to the question and does not constitute legal advice. If you require legal assessment of a situation, advice, or representation, consult an attorney who practices in the area of law involved. For more legal information, go to www.lawyer4me.org.
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