The antebellum law presented itself in a neutral framework yet obscured the fact that African Americans were not included among the right-holders protected by the right of access to businesses that held themselves out as open to the public. The post-Civil War period brought in an era of confusion and turmoil as social groups attempted to work out the new relations between the races, experimenting with options from full, equal, and integrated access to segregation to outright exclusion. The Jim Crow era constituted property rights in a manner that both established and perpetuated a racial caste system, while suppressing the contradiction between segregation laws and emerging conceptions of absolute private property rights. The civil rights era again revolutionized social relations in the 1960s.
Id. at 147576.
The purpose of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) is to eradicate unfair or deceptive business practices and prevent fraud. Among the unfair or deceptive business practices barred by the UTPCPL is the fail[ure] to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made.
Singh v. Wal-Mart Stores, Inc., No. CIV. A. 981613, 1999 WL 374184, at *10 (E.D. Pa. June 10, 1999) (citations omitted); see also Pa. Stat. Ann. tit. 73, § 2012 (West 1993).
The only purpose of the 1964 Civil Rights Act was arguably to implement that aspect of the common-law rule [that only innkeepers, common carriers, or places of entertainment (in some states) had a duty to serve the public without unjust discrimination] while overturning the pieces of the common-law rule that held that segregation was a reasonable regulation of private property open to the public and that separate facilities were equal.
Singer, supra note 31, at 1337.
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.
Id. at 2000(a)(b).
In the case of an alleged act or practice prohibited by this subchapter which occurs in the State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a state or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) of this Section before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.
193. On February 10, 1999, Ms. Campbell visited the Wilson, North Carolina Cracker Barrel on Highway 264. She was with six family members-three other adults and three minors. The Campbells were the only African Americans in the restaurant. The restaurant was not crowded.
194. When they arrived, Ms. Campbell requested a large table in the non-smoking section. The hostess, a white woman, said, If you want to be served, you will go to the section where we take you.
195. Though there were three large, non-smoking tables available, and one large smoking table available, the hostess seated the Campbells at a small table in a corner of the smoking section, behind a partition. Ms. Campbells family were [sic] forced to squeeze together in order to fit at the assigned table.
196. The white server was rude to them. He rushed them and spoke curtly in a demeaning tone while taking their food and drink order.
197. The Campbell party then waited for approximately one half-hour before they were served their drinks. When Ms. Campbell reminded their [sic] of her request for ice, he took all the drinks, not just hers, back to the kitchen. The Campbells did not receive their drinks again.
198. The Campbell party waited for approximately another hour and were not served any food or drinks. The server did not come back to their table during this time, even though he checked the other tables in the section. Meanwhile, in the time during which the Campbells waited, a white party of approximately seven customers arrived, were served dinner and desert [sic], ate their food, and left the restaurant.
199. After approximately one and a half hours, the Campbells had still not been served their drinks or food. They decided to leave. They asked a white female hostess if they could see the manager. She returned with a young black man to speak with them. They asked him when their food would be ready. After checking with the kitchen, he returned to the [sic] Ms. Campbells table and informed them that the kitchen had not yet started to prepare their order. The Campbells then left the restaurant.
200. The next day, Ms. Campbell telephoned Cracker Barrels Corporate Headquarters in Lebanon, Tennessee. She spoke with Cracker Barrel counsel, Michael Zylstra. He told Ms. Campbell that Cracker Barrel was a private restaurant, and that it reserved the right to serve whomever it wanted. When Ms. Campbell told Mr. Zylstra that she was going to begin to record the phone conversation, he refused to speak further.
Id. ¶¶ 193200.
which makes actionable the deprivation of service, as opposed to an outright refusal of service, better comprehends the realities of commercial establishment cases in which an aggrieved plaintiff may have been asked to leave the place of business prior to completing her purchase, refused service within the establishment, or refused outright access to the establishment. It is thus in harmony with the promise of § 1981(b), which guaranties all persons equal rights in the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
Factors relevant to the determination of whether conduct is markedly hostile . . . include whether the conduct is (1) so profoundly contrary to the manifest financial interests of the merchant and/or her employees; (2) so far outside of widely-accepted business norms; and (3) so arbitrary on its face, that the conduct supports a rational inference of discrimination.
Callwood, 98 F. Supp. 2d at 708; see Christian, 252 F.3d at 871.
[t]here are no allegations that [plaintiff] ever found the cartridges for which he was looking and that he was prepared to buy such cartridges before he left the store. In addition, there are no allegations that [plaintiff] had the air rifle cartridges in hand when confronted by [the security guard]. The allegations simply establish that [plaintiff] was browsing about the store. The allegations in no way show that [plaintiff] suffered an actual loss of a contract interest; rather, the allegations only establish that [plaintiff] suffered a possible loss of a future contract opportunity.
Id.; see also Evans v. Holiday Inns, Inc., 951 F. Supp. 85, 90 (D. Md. 1997) (plaintiffs failed to state a claim where defendant evicted them from the motel after requesting plaintiffs to reduce the noise level in their room). Fennessy explains that it is not yet clear whether the courts of New Jersey will hold that exclusions from retail stores are unlawful under the New Jersey Law Against Discrimination. See Fennessy, supra note 42, at 606. Kennedy emphasizes plaintiffs legal difficulty in proving the absence of probable cause for the stop and search. Kennedy, supra note 2, at 334.
Retail discrimination is often disguised . . . and it is usually more difficult to determine whether or not the exclusion [from the retail establishment] occurred on the basis of race. For example, consider a situation where the merchant suspects and excludes minority customers who, while browsing through the store, surreptitiously watched and discussed the location of the stores security personnel. From the merchants perspective, these customers were excluded based upon their suspicious actions and not their race. If the minority customers were not shoplifters, however, but were simply noting to each other the common minority experience of being watched and followed by store security, then the exclusion may have been based upon race.
Fennessy, supra note 42, at 602.
Thomas and Nancy Clark, two black individuals, live within five or six miles of the Maryland Inn. On July 5, 1988, a desk clerk denied them a room, telling them that the motel did not rent to local residents. The Clarks filed a complaint with the Prince Georges County Human Relations Commission alleging racial discrimination. The commission sent two testers to the motel, one black and the other white. The desk clerk asked the black tester for identification, then told him he could not stay in the motel because he was a local resident. Although the white tester used a local address when registering, the clerk on duty rented him a room without asking for identification or questioning his reasons for staying at the motel.
No. 912091, 1992 WL 187297, at *1 (4th Cir. Aug. 6, 1992). The Fourth Circuit Court of Appeals affirmed the district courts denial of defendants motion for judgment notwithstanding the verdict. Id. In Bentley v. United Refining Co. of Pennsylvania, the jury awarded plaintiff $5,000 in compensatory damages and $100,000 in punitive damages. 206 F. Supp. 2d 402, 403 (W.D.N.Y. 2002). Following the jury verdict for the plaintiff, however, the district court granted defendants motion for judgment as a matter of law finding that plaintiff was not denied service and that the six to seven minute delay he experienced did not alter a fundamental characteristic of the service to which he was entitled. Id. at 405, 406. The court found that, [d]espite the delay, plaintiff maintained his position in line and completed his intended purchases. Id. at 406.