Can Hooters really ban San Diego Mayor Bob Filner?

Peter Weber
The WeekAugust 14, 2013
Attentive Hooter's waitresses at the Lake Forest, Calif., location.

The alleged harasser is getting some feminist-y pushback from a boob-themed restaurant. And yes, Glenn Beck is involved.

America likes its political scandals to include a helping of sex. Otherwise, Americans tend to ignore them.

In Virginia, for example, Gov. Bob McDonnell (R) is fighting for his political life amid revelations that he accepted more than $120,000 in dodgy gifts and loans from a political donor, while the frontrunner to replace him, Democrat Terry McAuliffe, is facing federal scrutiny over his electric-car company, GreenTech Automotive. The national response? Crickets.

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Serial sexter Anthony Weiner, on the other hand, is a national news sensation, despite the fact that he won't be New York City's next mayor. And then there's the tawdry tale of Bob Filner, the mayor of San Diego, who has been accused of sexual harassment by more than a dozen women, earning him a recall effort, politicians' near-unanimous calls for him to step down — and a ban from Hooters.

Yes, that's right: The original "breastaurant" is so outraged by how Filner, a Democrat, allegedly treats his female subordinates that San Diego area locations are threatening to deny him service. San Diego Republican Party executive director Francis Barraza, who apparently just happened to be stopping by for a quick meal at the cleavage-themed restaurant, posted the proof on Twitter:

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— Francis Barraza (@FrancisBarraza) August 13, 2013 Melissa Fry, a representative for Hooters West Coast franchiser HootWinc, confirmed to Slate's David Weigel that all four area locations are posting the sign, though she says it isn't for "a political move for us in any way, shape, or form." No, Fry says, Hooters is "strictly taking a stand for the fair treatment of women. At our franchise alone, we employ 1,100 beautiful, talented women."

The national chain isn't involved, but it is on board:

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— Hooters (@Hooters) August 13, 2013 Or, as some might say, women.

Of course, women's rights and Hooters arguably make for strange bedfellows. As Mediaite's Kate Kelly puts it, this is a bold stand for a restaurant chain that makes its female employees, when they are hired, agree with the statement that "the Hooters concept is based on female sex appeal." Kelly thinks this obvious irony makes Hooters' eighty-sixing of Filner "all the more interesting." The mayor is refusing to resign, Kelly notes, but "when a business based on the mentality of a creepy old man/teenage hormonal boy hybrid says you're too pervy for their 'breasturant,' perhaps it's time to reevaluate."

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Whatever its motivations — a stand for womankind or a publicity stunt — Hooters is getting across-the-board (and strange) accolades for refusing to serve Filner. "Good for Hooters!" says Andrew Sullivan at The Dish. "This is absolutely priceless and if I knew of a Hooters close by I'd go there for lunch tomorrow," says Taylor Marsh at her blog.

Even The Washington Post's Alexandra Petri — who says that one of her "life dreams is to start a single-entendre-themed restaurant called OWLS where your servers (who are mostly, but not all, women) wear bulky sweaters, thick glasses, and long pants" — is relieved that "no Hooters Girls will be forced to serve Mayor Filner." They may have men ordering food and drinks from their breasts all day, but "they will be spared that particular indignity, at least," Petri says.

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It's worth pointing out here that this Filner ban wasn't actually Hooters' idea. "The sign format was originally suggested (and created) by Glenn Beck," says Politico's Breanna Edwards. Anyone can download it from Beck's site, The Blaze. Beck encouraged people to do so on his radio show a week ago, saying "I think this sign should be in every establishment in San Diego."

"Take a stand for being a better person," Beck said. "Take a stand for treating women with respect."

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So Glenn Beck and Hooters are standing up for treating women with respect. Nice.

But Hooters may not actually be legally able to deny Filner service.

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The Civil Rights Act and other federal laws give blanket protection to restaurant patrons based on a series of criteria that don't appear to help Filner — race, color, religion, disabilities. But some states, like California, have their own, broader laws, explains Leanne Phillips at LegalZoom:

California's Unruh Civil Rights Act makes it illegal to discriminate against individuals based on unconventional dress or sexual preference. In the 1960s, the Unruh Civil Rights Act was interpreted to provide broad protection from arbitrary discrimination by business owners. Cases decided during that era held that business owners could not discriminate, for example, against hippies, police officers, homosexuals, or Republicans, solely because of who they were. [LegalZoom]

What about those signs in restaurants that say the owners reserve the right to refuse service to anyone? "The truth is that those signs... really have no meaning," says Wendy Rotelli at Restaurants.com. Restaurants are generally operated on private property, she explains, but "this does not make them subject to all the laws that protect private property owners." For most purposes, "they are considered public venues," and you generally have to act like a disruptive jerk — in the restaurant — to earn a one-way ticket out.

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The California Restaurant Association advises that bars and eateries can only refuse patrons service for good cause: "Good cause is established when there is evidence of improper, illegal, or immoral conduct by the customer that occurs on-premises and that is contrary to the public's welfare or morals." The "on-premises" part seems to work against Hooters. But while acknowledging that this is a murky legal area, the CRA lists several areas where "it is clear that a business owner cannot refuse service to customers." Among them:

Reputation: Establishment of the fact that persons of ill repute congregate in a particular establishment is not a reason to have them removed. However, acts of patrons that are criminal in nature such as prostitution, narcotic usage, pandering or sexual perversion are grounds for removal. [California Restaurant Association]

So, if Mayor Bob Filner wanted to patronize Hooters, he apparently has the legal right to do so, Glenn Beck–inspired sign be damned. Of course, a public official accused of being a serial sexual harasser would be stupid to show his face at a Hooters to begin with. And besides, Filner reportedly likes classier joints for his possibly coerced dates.

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