**** 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.