Question about public/private property

[Zilbandy]

In another newsgroup, there is an argument over whether fast food
establishments such as Taco Bell and McDonalds are private property or
public property. Most of us agree that it is private property, but is
there a good legal site that would clarify the matter?

--
Zilbandy <z...@zilbandyREMOVETHIS.com> Tucson, Arizona USA
Dead Suburban's Home Page: http://zilbandy.com/suburb
PGP Public Key: http://zilbandy.com/pgpkey.htm
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

[Stuart Bronstein]

Zilbandy <z...@zilbandyREMOVETHIS.com> wrote:

> In another newsgroup, there is an argument over whether fast
> food establishments such as Taco Bell and McDonalds are private
> property or public property. Most of us agree that it is private
> property, but is there a good legal site that would clarify the
> matter?

Certainly it's private property. However the law imposes limits on
the owner's power to use private property in various ways.

So to answer your question properly, you have to describe exactly
what is going on with the private property before it can be
determined whether the owner has rights.

--
Stu
http://DownToEarthLawyer.com

[Mike Jacobs]

On Wednesday, July 3, 2013 2:59:21 PM UTC-5, Zilbandy wrote:
> In another newsgroup, there is an argument over whether fast food
> establishments such as Taco Bell and McDonalds are private property or
> public property. Most of us agree that it is private property, but is
> there a good legal site that would clarify the matter?

_Of_course_ they're private property. What, did you
think the government owns all the fast food joints?
Chain restaurants are either owned by large,
international corporations, or by individual
franchisees who pay a license fee to those
international corporations for use of their
trademarked business model, under the supervision
of the international corporation the franchisee
signed on with.

But what I think you really mean is, are such
places considered a public _forum) for purposes of
First Amendment law. Some private shopping
establishments, such as enclosed malls, have been
considered as such in some cases, based on the
degree to which the common areas of the mall take
the place of a public street or town square, even
though the mall itself and all the stores in it,
are private property -- the mall is typically owned
by (you guessed it) a corporation, or some other
kind of limited liability entity, and that
corporation leases space to the various individual
merchants whose stores attract customers to the
mall. In circumstances where a court has found a
particular mall to be a public forum, the mall
owners cannot prevent the exercise of First
Amendment rights by citizens in the common areas of
the mall.

But even then, the categorization as a "public
forum" would not extend to the premises of an
individual store. That store owner still has the
basic property right to bar any person from his
property, and anyone who tries to enter that store
after being banned would be trespassing and subject
to civil or criminal prosecution. I would think the
same rationale extends to a free-standing,
individual fast-food joint as well as one which is
part of a mall.

Finally, even if by some chance the individual fast
food joint in question had taken on enough of the
characteristics of a public forum to be deemed one
by a court, that is a highly fact-specific matter
-- in other words, "it depends" on the unique
situation, and no blanket answer can be given to
your question.

Hope that helps.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a
private communication.

Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685

[nos...@isp.com]

On 3 Jul 2013, Zilbandy wrote:

> In another newsgroup, there is an argument over whether
> fast food establishments such as Taco Bell and McDonalds
> are private property or public property. Most of us agree
> that it is private property, but is there a good legal site that
> would clarify the matter?

This is just a P.S. to the excellent responses to you by Messrs.
Jacobs and Bronstein to underscore often important corollaries to Mr.
Jacobs implying and to Mr. Bronstein's saying quite correctly that the
law imposes various limits on the power (as he also said more
precisely: rights) of an owner of private property.

In contrast, you apparently embed in your question (and I guess that
your interlocutors the other newsgroup to which you refer embedded in
their postings) a not clearly articulated assumption that the
"private" component of property leased or owned by a private rather
than by a governmental entity necessarily means that the private owner
or tenant may do anything s/he or it wishes with that property.

Unlike apparently many lay persons, however, law students and
attorneys and judges, etc, have learned and act in relation to real
property matters as if "ownership" by a private party entails a
so-called "bundle of rights" rather than (for the most part) a
completely unqualified right to do whatever the "private" (so-called)
"owner" wishes.*
------------------------------------------
* The parenthetical "so called" can be important because,
among other things, a tenancy very often is the functional
equivalent of "owning" even if only for the duration of the
lease and some of the franchisees of the business you
mention are located on governmentally owned land (e.g.,
those that are part of a state or interstate highway or
in a portion of a publicly owned park) leased to the privately
owned food selling/service business.

More general limitations, which those of a "Libertarian" or, for some,
just plain selfish bent sometimes complain about on the grounds that
they undermine a "private" owner's rights, are zoning laws (generally
speaking, one is not permitted to own and operate a pig sty or
smelting factory in an area zoned solely for residential use) and,
privately owned businesses engaged in or which in some material way
affect interstate commerce are prohibited by law from discriminating
against those wishing to be customers or other patrons on the basis of
their color, race, religion or national origin.

In sum, therefore, including but not limited to the considerations
mentioned by your other respondents, saying without more (and even if
correctly) re. some law related question or controversy that some
business establishment is "private property" often is an attempted
basis for resulting but not always acknowledged question begging or,
at least, is only the beginning rather than the end of inquiry.

[Barry Gold]

On 7/3/2013 12:59 PM, Zilbandy wrote:
> In another newsgroup, there is an argument over whether fast food
> establishments such as Taco Bell and McDonalds are private property or
> public property. Most of us agree that it is private property, but is
> there a good legal site that would clarify the matter?

I think you have confused or conflated several different concepts:
1. Public vs. private property
2. A public forum
3. A public accommodation

A fast-food establishment is private property, unless it is owned by a
government entity. I have never heard of a city, county, State, or
Federal government owning a fast-food establishment(*), although it's
not impossible. That's the only way I can think of for a FFE to be
public property.

It is conceivable that a FFE might become a public forum -- that is, a
place where any member of the public can speak -- under the right
circumstances, but again, I can't think of any actual example of this
happening. Let's say you have a McDonald's that rents space in a
shopping mall. Under certain circumstances, the mall itself might
become a public forum. That might allow members of the public to stand
in the common areas of the mall, *outside* the boundaries of the
McDonald's store, and say what they want to(@). But even then, you
would not automatically be allowed to go *inside* the restaurant and
yell at the people eating their Big Macs there.

A public accommodation is a place or business that is open to and used
by the general public, even though it may be private property. That
would include the vast majority of restaurants, hotels, retail stores,
and recreation facilities. There are limits on what restrictions a
public accommodation can put on the people who use its services. A few
examples:
. Under the Civil Rights Act of 1964, a PA cannot discriminate on the
basis of race, religion, color, or national origin. They can still
"reserve the right to refuse service to anyone" based on disruptive or
offensive behavior, or because they don't like the clothes you wear, or
almost anything _except_ those "suspect classes". An Arab in an aloha
shirt can be told to leave for wearing the aloha shirt, but not for
being an Arab.
. Some states (e.g., CA, CO) have expanded the list of "suspect
classes" to include sexual orientation, age.
. Under the Americans with Disabilities Act (ADA), a PA cannot refuse
to serve somebody because of a disability (e.g., being in a wheelchair
or having a colostomy).
. Some states have rules that a PA cannot discriminate against women
who wish to breastfeed their babies in public.

The vast majority of FFEs _are_ Public Accommodations, and subject to
those rules.

Now... which of those concepts were you asking about?

(@) Subject to appropriate restrictions on "time, place, and manner."
FOr example, you can't go in to make a speech at 11PM if the mall closes
at 10PM. And if the usual sound level in the mall is 80dB, you can't go
in there with an amplifier that raises your voice to 100+dB because that
is disruptive to the normal use of the mall.


(*) It is possible that a FFE might stand on land that is owned by a
government (e.g., a McDonald's on a military base, selling to the
various soldiers and possibly families there), but even then it's likely
that the FFE is renting the space it occupies, and as such acquires the
usual rights of a private property owner to control who comes on the
premises and under what circumstances.