Expert: Michael Troy - 2/24/2009

Question
QUESTION: Is violation of my Constitutional rights illegal?  Would it (or could it) warrant a lawsuit?

I was in a local Walmart store tonight and, upon checking out, I went to the cigarette lane to buy some cigarettes (along with about $100.00 worth of groceries, etc.).  I did not remember the kind of cigarette my daughter smoked so (actually talking to myself) said, "Oh, I need to ask my husband what kind she prefers" when the checker told me that I could NOT buy the cigarettes now.  I looked stupidly at her (I'm sure because this was the most stupid thing I had EVER heard.) and asked her what she had said.  Since I had let her know that the cigarettes were NOT for me but someone else, she could no longer sell them to me.  I looked at her like she was some kind of idiot and said "Okay...I changed my mind.  Just sell me the Marlboros in a box and that will be alright." But NO...she could not (or would not) sell me ANY cigarettes all because I happened to mention someone else.  I am 58 years old and not only that but regular customers there as I have lots of animals and go in there usually 4 or more times a week!  I spend a LOT of money in this store but that is not the issue (it should be a factor, tho).  I asked her to repeat herself and then asked to speak to a manager.  She called HER manager to the checkout and I was told the same thing - if I mention what I plan to do with the cigarettes - such as buying them for someone else, I will not be allowed to get them.  As far as I have heard, the ONLY requirement to buy cigarettes in Texas is to be of legal age and have ID.  I am not only 58; I LOOK old!  No question of my age - just a downright no.  I am not allowed to change my mind (that some people really do ALL of the time)and when her manager came over there, she was telling her how I said this (about asking HIM then they were for my mother, etc. like I was making up vicious lies about the whole Walmart association!)  I have never felt so stupid or felt so ridiculous in all my life.  Have we given Walmart SO much power that they now think they have the right to tell us how to think or what we can and cannot say at any given time?

I feel like my rights were not only violated but that Walmart was really infringing on MY privacy!  The next thing you know is they will be telling my husband he cannot buy sweets IF he happens to mention he has diabetes and THEY think it is in his best interests NOT to eat the sweets!  Nor can he change his mind and decide to get it for his family because they already know what his original intentions were.  What am I supposed to do?  Walk in there furtively like a criminal and pretend to be someone I'm not in order to buy cigarettes for my daughter?  She IS over 21 and, by the way, I do NOT even smoke.  Hate the things but if I didn't think others shouldn't smoke, I would not even sell the things!  Furthermore, if I want to be 20 dozen packs of cigarettes and have a smoking party, I do believe that is MY right and I do not have to ask Walmart's or anyone else's permission!

Based on what I have told you, do you think I have any basis for a suit against this store?  I have heard all the yea's and nay's against and for Walmart but, since they have never bothered me, have not paid much attention to them.  I am now beginning to see how "heady" power can be and the more they get, the more they want.  (When I got through shopping and got to the car where my husband is, he was as po'd as I was about all of this.  He is disabled - as I am - but he had to get out of the car to go back in and get the manager's name; the checker that I talked to and the district manager's number (which he could not get because they somehow "lost" it...it used to be posted there).  

If I have any rights here, what kind of lawyer would I look for and do you think they would do it on contingency?  I feel like Walmart should be made to respect other people's privacy and opinions and not be harrassed by them while shopping in their store!  

I hope this letter makes sense as I am still rather rattled and put out by the lack of respect and consideration of their customers that Walmart has!  I should be able to say whatever I want (within reason without hurting someone, etc) and not be "punished" because I said the wrong thing!  What IS this world coming to, anyway?

Thanks for your time.

ANSWER: Hi Linda,

I understand your feelings and agree this this is an incredibly stupid policy.

That said, a private store is free to refuse service for any reason, accept a few narrowly defined exceptions (for example refusing service based on the race of the customer).  I a company wants to have a policy not to sell to a customer because they believe it is for someone else, they are entitled to do so, although the law certainly does not require such a policy.

I hope this answers your question.

- Mike



---------- FOLLOW-UP ----------

QUESTION: Yes, that did answer my question but certainly did NOT give me any type of satisfaction!  Is there nothing I can do about this?  I really hate to keep shopping at a store that is so incredibly ignorant and obviously very ungrateful for their regular customers!  When my husband went back in to talk to these people (after I was so upset), he watched a man buy a carton of cigarettes then walk over to a younger girl (obviously too young to buy them herself) and give them to her.  So, that means the next time I am in there, I can buy cigarettes with my daughter with me then give them to her in front of them and they cannot touch me?

I realize that is very juvenile but I am still so mad about this, I WANT to do something!

Thanks.

Answer
Of course, you can choose not to shop there.  Also, once the sale is made, you can do anything (that is legal) that you want to do is fine, including hand them to your daughter.  Once the sale is complete, there is nothing they can do.  This is one reason it is a rather stupid policy to begin with.