In the past few years there has been a rash of business men declining to pay their strip club credit card charges. For some unimaginable reason, a guy who racks up a $28,000 titty bar bill at New York’s Hustler Club doesn’t inspire a lot of sympathy. Are they victims of predatory vendors or are they morons with buyer’s remorse? Next to casinos, strip clubs are the businesses least likely to cut someone off as long as they are spending money. Of course, I’ve also known customers who take a pretty “law of the jungle” approach to their strip bar experiences—although usually for a few hundred to a couple thousand instead of $28K.
Journalists get too distracted by stripper-puns (“mammary mecca”? Really?) to provide us with a lot of facts, so I’m left with a few questions. What evidence does the club have that the customer knew what he was paying for? Did he sign for each round or only at the end of the night? How many drinks did he have? Did he have them all at the club? How drunk did he appear? And the obvious: Did he actually consume $28,000 in goods and services, or is that bill padded?
I can infer a few answers. A spokesperson from the club said “these guys think they can party like rock stars” so I am assuming he wasn’t sipping ginger ale all night. Because the credit card company is not involved in this suit, the club has probably collected, at the very least, a lot of legible signatures showing purchases that add up to $28,000, as credit card companies have a history of taking the customer’s side against strip clubs. And, since litigating is an incredibly expensive and risky way to avoid paying your bills, I’m going to go on ahead and assume that this wasn’t part of a master plan to score 20 champagne rooms without paying.*
So the big question is whether being really, super, totally drunk is good reason not to hold this dude to a fully implemented contract. Although this dude complains about a “nanny state,” a prohibition on predatory contracting and vending is not actually a brand new or scary-socialist concept. On the contrary, it is based on the very old, and very fundamental tenet that the two parties must have a meeting of the minds to form a contract, and for the minds to meet they both have to be working. There are probably relatively few $28,000 purchases I can make while obviously off-my-face drunk, outside of a bar or casino.
The leading case on buying expensive shit while drunk off your face turns out to be Matthews v. Baxter from 1873 (see? I told you it wasn’t a nanny state socialist thing). It seems to loosely state that a contract formed while drunk enough that you can’t understand a decision at all is voidable (although not void), so if you take steps to repudiate the contract at the first opportunity on sobering up, you can maybe get out of it. If not, suck it up, that counts as ratification. On the other side, if you reaffirm the contract when you’ve sobered up, congratulations, you are the proud, non-repudiable owner of 20 champagne rooms.
This gentleman has apparently taken the first opportunity to repudiate, but there is another problem: the exchange has been made and the product consumed. He can’t give back the booze, much less the services received. The Hustler club and the Hustler dancers who put up with his drunk ass for the night can’t be put in the position they were in before this dude came in, which is generally the desired result of voiding a contract. So in this case, the issue seems to slide a little. Instead of the capacity of the drunk dude to form a contract, we also have to deal with the good faith (or bad faith) of the vendor. And for sure, that makes sense. There are super quiet and composed drunks out there, and salespeople should be able to sell their shit to people who appear to able to make a decision without prying too deep into their BAC.
So back to the questions: was he all that drunk, and if he was, did Hustler know he was that drunk or seek to get him that drunk in order to get him drunker? When you are drunk enough that you aren’t really aware of what you are signing or agreeing to, someone else probably shouldn’t be using that situation to make a contract that is advantageous to them and disadvantageous to you, and that you probably would not otherwise agree to. That holds true generally, and makes a certain amount of sense to me. This also (at least in theory) doesn’t have to be an “all or nothing” thing. There is a possibility that he had the capacity for part of that bill. Maybe he had capacity to rack up $10,000 of that bill, but lost it around the $10,500 mark.
You may have noticed that I have hardly talked about strippers at all, which may be unexpected on a site called Tits and Sass, but that is because this is not primarily a stripper question. Despite the boob-puns that journalists love to trot out, the fact that there were naked chicks around doesn’t really alter this situation. I’m (predictably) not a big believer in the theory that boobs rob men of the ability to think, so I (also predictably) don’t adhere to a theory that all the boobs around somehow contributed to the customer’s inability to make decisions. I think the issue is largely about when the bar should have cut him off. But it does lead to a peripheral question of who shoulders the loss. I assume that the bar has already paid the dancers out whatever their share of that bill was. Do the dancers get to keep their money or do they have to return it to the club so that they can (in theory) give it back to the guy?
I say they should keep it. Strip clubs go through a lot of trouble to declare strippers are independent contractors. There are a lot of reasons but mainly (I think) to make them a source of income instead of a loss. Rather than having to pay strippers and then arrange commission, the club charges strippers and then arranges commission anyway. It is the single greatest “it sucks, but changing it sucks too” issue that permeates the industry. But the whole nature of the contract, as the club sells it to us, is that the entire “thing” the club is providing the dancers is this infrastructure. That includes literal structures, like the room and stage, but also the liquor license (in some cases), other licenses, privacy, security, and the ability to make change and process credit cards.
So, these nice ladies, who pay god-knows-what to the Hustler Club nightly for the privilege of working for them have already paid for these services. They already pay for the club to serve alcohol and presumably to train its bar staff how to properly serve (or not serve) the customers. If the bar doesn’t do that, does it badly, or does it really well but just has an unusually incapable bartender or unexpected circumstances, that is the bar’s problem. They cannot claim that this infrastructure is worth however much they collect from their dancers as house fees in a night and then say that their failure to provide that infrastructure in a way that is compliant with the law is the dancer’s problem.
I think my logic is sound, anyway. Now—go ahead and ask me if a strip club manager has ever responded to my logical “AHA!” moments by saying “Wow, Butterfly, you’re totally right. I will refund your stage fee right now. I had never thought of it that way before [ed. note: I know the answer to this one].”
*This might also be a good time to let y’all know that I am not a contract lawyer, I have no speciality in contract law, my research into this consisted of Google and so none of this constitutes legal advice. The only advice I am going to give here is that you do not experiment with my theories on this matter by going out and getting drunk and buying expensive shit without planning to pay for it.