Is it legal to kick someone out of a store or restaurant just because he or she smells bad?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Yes, businesses serving the public have the freedom to eject prospective customers just because they smell bad. In fact, they can kick people out just because they are not wearing shoes or a shirt. Stores and restaurants do not have to do business with anybody if they don’t want to. Granted, they cannot discriminate on the basis of disability or race or other categories recognized under the Equal Protection Clause of the Constitution.[i]  But, being dirty and smelling bad (no matter how anyone measures the badness of smell) are simply not protected by law the way race and disability are.

There are some contract claims that could arise if a customer is told to leave after he has started to make a purchase. Under contract law, people have legal obligations to each other if one has offered something and the other has accepted the offer and done something to rely on that offer. Making payment is usually the action that shows that the buyer is relying on the seller to fulfill the order. So, at the point when a customer has already ordered food or merchandise and has paid for it, the business has a contractual obligation to return the money or provide the order.

If it is a sit-down restaurant and the customer ordered the food expecting to stay there and eat it, but was then told that he could only have the food to go, the customer could claim that he was entitled to get his money back on the grounds that the contract was breached by the business which, in giving him takeout food instead of an in-restaurant experience, was changing the terms of the deal without getting the customer’s agreement.

There isn’t necessarily anything tangible to be gained by having this understanding of the legal analysis; the dispute isn’t worth enough to take to court and there wouldn’t be any change in the business’s practices just because of one lawsuit. Nevertheless, knowing how the law would apply to this kind of transaction can help a person decide in advance how to control the communications and the result.

Since a deal is normally not solidified until the money is handed over, the customer should not pay that money until he has clearly been assured of what he will get for it. If the situation is one in which the goods or services are provided first and money is paid after that, the merchant takes the first risk not the customer. In that case, the merchant is the one looking for the assurance that the customer will uphold his end of the deal.

Think about the scene in the sit-down restaurant again. A dirty smelly customer comes in, is seated, looks at a menu, and maybe even orders. It is conceivable that at this point the manager of the restaurant could think that this customer might not be able to pay. If the restaurant hasn’t served the food yet, and the manager asks the customer to leave, the customer can indicate that he does have the money to pay for the meal. At that point, the manager might just admit that the customer has to leave because he smells bad. Still, the legally-informed customer can continue to handle the whole thing like a contract negotiation thereby saving his dignity while giving the restaurant one more chance to get its money. The customer can recommend to the manager that a change of seating might satisfy the restaurant’s concern about his smell and still enable the restaurant to make this sale.


[i] See http://topics.law.cornell.edu/wex/equal_protection for an introduction to equal protection with links to state and federal constitutional sources.

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17 Comments »

  1. katyisme said

    This is very interesting. I would have thought that you couldn’t throw someone out based on how they smell (although I have heard of the no shirt no shoes thing before) but I guess it makes sense that the retailer has the right to refuse service to anyone.

  2. Recently in my town a woman was thrown out of a restaurant because her service animal “smelled bad,” according to the reports. I understand many of the rights and also limitations with certain states based on service dog “trained” or “in training,” but I immediately thought about the 14th amendment and the ADA. I would love to see this woman take on this corporation. Also, here in Florida service animals “in training” are afforded the same rights as a “certified” animal. As a disabled law student I hate discrimination.

  3. Kelnon said

    The store has no right to discriminate against customers. Private business owners simply made this law up. A store owner has no right to customers, and the customer by no means becomes the store owner’s private property. Businesses are for profit only, and as long as they are paid money for their merchandise, there is no reason for them to refuse service to anyone, unless customer(s) are committing crimes against the store and its attending personal while in the store. When a store kicks someone out for bad smell, it’s usually done out of the need and desire of the store owner and its personal to bully, harass and perpetuate violence. Sometimes it can be followed by the imposition of some hateful political propaganda on the customer.

    Be careful reporting this to the police, as they can add insult to injury in a case like this because they usually start siding with the store, and turn it around on the victim. So you can come out of all this seriously injured. Although, justice is on the side of the customer, and the store usually loses in fair trial.

    • jason melendez said

      i have a customer that stinks not smells, smells so bad that after he leaves you could still smell him 10 minuntes later. i would tell him to leave just so other customers wouldn’t have to suffer. No amount of money is worth smelling , that God awefull stinch. So I will send him to your house and you can help him with what ever he needs. See if you can stand the smell..

      • Mel said

        Love this reply. Exactly what I was thinking

  4. Greg said

    Since there is no such thing as legal discrimination, the store has no right to discriminate against anyone unless they’ve done something illegal. Store owners, who claim that they do have the right to kick you out for no reason, are simply trying to misguide you, and convince you of a lie. There is no such law at all. They just pulled it out of their behinds. Harassment and bullying are crimes, even though not arrestable, but the customer can sue the store and win the lawsuit. Such businesses are self-sacrificial, and are not afraid of losing customers or the business itself, and this is what makes them dangerous. Sometimes, you can even be violently assaulted by the clerk, if you hesitate to leave and, are confused about what is happening, especially if it never happened to you before. This is the battle of good and evil, and the businesses who enforce such laws are obviously scum.

    Some stores can be involved in human trafficking especially in big cities, so be careful walking into stores, particularly the ones that act as if they have rights to you. It’s possible that the reason why they act like this is because they are involved in some serious criminal activity besides the harassment and bullying of customers. They might just drag you into the back room when there are no other customers in the store and abduct you. Supposedly, it happens quite often.

  5. Mila said

    Kicking people out of the store for no reason is terrorism!

  6. Kamend said

    The employee that kicks a customer out of the store is usually a clerk and not the owner, and it’s usually done when there are no other customers at the store. The real reason behind why the clerk would throw someone out is because they are jealous of the customers. Clerks are normally paid very low wages, and harbor a lot of resentment towards customers who seem to have money. This is quite obvious that it is done out of hate.

  7. Kelnon said

    Store is not as private as you would think. It’s open to the pubic as opposed to your house. You do not need permission to enter the store. And the problem is that cashiers, who kick people out for no reason, confuse the concept of the store with that of the house. They definitely have mental issues. Be careful while exiting the store when asked to by the cashier because they might assault you physically because you couldn’t come up with the correct response or argument to this dilemma. This is a real crime and discourages people from going into private businesses. Something like this can never be the right thing to do. It is a crime.

  8. Protect The Homeless said

    It sounds like homelessness is not among protected classes so restaurants can refuse to sell food to homeless customers even when they smell fine and when there is an ability to pay?

    http://www.eater.com/2015/5/8/8573603/mcdonalds-refused-service-homeless-man-england

    http://kfor.com/2015/10/09/restaurant-owner-regrets-denying-homeless-man-service-apologizes-in-wonderful-way/

    http://kdvr.com/2016/01/11/womans-facebook-post-goes-viral-about-homeless-man-getting-kicked-out-of-denver-restaurant/

  9. abw said

    A store owner can refuse business for any reason. If someone smells bad, comes in drunk, is excessively rude, or makes a scene, that customer can be asked to leave. The store is absolutely not required by any law to allow any customer to stay.

    You do not need permission to enter a store? Really? Do the same rules apply at Costco where a membership is required? By your definition, I’m a customer, so I should just be able to walk in without a card because that is my right. No… they can require a membership and turn people away who are not authorized to come in.

    No store is required to provide service to anybody.

    Greg and Kelnon, both of you are so incredibly clueless about this and show your ignorance. Show me any law proving what you say is true.

  10. brayden morris said

    as someone who works in a convenience store i have had many of the customers you all are talking about usually the smell is so bad i just try and hurry them out of the store but there are several who i cannot handle the stench. its not even them being in the store its not even me being uncomfy anymore its the question, why would i make my other customers suffer that? i get paid to, they do not. so why would they come back?

  11. almers said

    a server was so stubborn to listen to me that i didnt want the missing veges in my order anymore i was halfway done and the missing veges still wasn’t there after wating for several minutes, she annoyed me so much which caused an argument between me and my wife.i told her now you just spoiled everything but still wont stop. i asked for the manager coz she just wont stop.eventually the manager came only to find out that he was going to kick as out of the restaurant….. i was embarrassed ! i want to sue this bastards ! please help

  12. PZM said

    The law clearly states you can refuse service to:
    Patrons who are unreasonably rowdy or causing trouble
    Patrons that may overfill capacity if let in
    Patrons who come just before closing time or when the kitchen is closed
    Patrons accompanied by large groups of non-customers looking to sit in
    Patrons lacking adequate hygiene (e.g. excess dirt, extreme body odor)

    • Really? There is a law that clearly states this? Where is it written and what jurisdiction does it cover?

  13. Syed Ali said

    I went to a GameStop, and one of the employees kicked me out literally after a minute because I wasn’t buying anything. I went to the store to check if they have any new games and check the prices on their pre-owned consoles, but as I said, they kicked me out after 2 minutes. I was also with my friend who bought some items and had no problem with them. Is this illegal?

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