Virginia McDonald's Bars Under-21-Year-Olds from Eating Inside. Is That Legal?

WJLA (Ida Domingo) reports that a Virginia McDonald's put up a sign that states,

Due to repeated incidents of student violence, this McDonald's location is temporarily closed for dine-in service to anyone under 21 years of age. This decision was made to protect our staff, our guests, and our community.

According to the story,

To enter, customers must ring a doorbell to be allowed entry by an employee. A spokesperson for the franchise said student violence and disrespectful behavior occur at least once a week, causing frustration among staff and customers.

"The fighting is a problem and they're pretty brazen. The management tries to step in and these kids are pretty violent," said longtime customer Robert Hancasky, who said he has frequented this McDonald's for nearly 50 years. "They're just trying to stop the violence because it's not fair to any other customer who comes in for the sandwich, a hard-working person, they got to put up with a bunch of idiots."

Despite the restrictions, customers under 21 can still use the drive-thru, order via a mobile app for curbside pickup, and dine inside if accompanied by a chaperone.

I sympathize with the management's concerns, and with the concerns of the quoted customers. But my tentative thinking is that this violates Virginia public accommodations law, which provides,

A. As used in this section:
"Age" means being an individual who is at least 18 years of age.
"Place of public accommodation" means all places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, or accommodations.

B. It is an unlawful discriminatory practice for any person … to … deny [or attempt to deny] any individual … any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, or to segregate or discriminate against any such person in the use thereof, or to … display … any communication … to the effect that any of the accommodations, advantages, facilities, privileges, or services of any such place shall be refused … on the basis of race, color, religion, ethnic or national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, gender identity, marital status, disability, or military status.

C. The provisions of this section shall not apply to a private club, a place of accommodation owned by or operated on behalf of a religious corporation, association, or society that is not in fact open to the public, or any other establishment that is not in fact open to the public.

D. The provisions of this section shall not prohibit (i) discrimination against individuals who are less than 18 years of age or (ii) the provision of special benefits, incentives, discounts, or promotions by public or private programs to assist persons who are 50 years of age or older.

E. The provisions of this section shall not supersede or interfere with any state law or local ordinance that prohibits a person under the age of 21 from entering a place of public accommodation.

The McDonald's is a restaurant. It's denying 18-to-20-year-olds some of the "accommodations, advantages, facilities, [and] services"—namely, the option of in-store eating—of the restaurant. This seems to be prohibited. Some state laws have been read as implicitly excepting discrimination that judges view as minor and reasonable. But here the law explicitly authorizes some age classifications, which counsels against courts reading  in an implicit exception for other age classifications. And beyond that, I know of no cases that read these statutes as implicitly allowing classifications that treat some covered attribute as a proxy for a tendency to engage in bad behavior. The whole point of these laws is precisely to require individualized decisionmaking about bad behavior, rather than allowing the use of such proxies.

The store can of course ban particular patrons, of whatever age, for "violence and disrespectful behavior." But it can't exclude all 18-to-20-year-olds because some are violent and disrespectful.

There are of course plausible arguments to be made about

• whether laws banning discrimination in public accommodations are generally a good idea;
• whether laws banning discrimination in retail sales are generally a good idea (for instance, federal law, which bans discrimination based on race, religion, and national origin in places of public accommodations, doesn't apply to most retail stores, though it does apply to restaurants);
• whether laws banning discrimination in retail sales based on age are generally a good idea (most states don't ban such discrimination, and neither does federal law); or
• what the cutoff age should be, if these laws do exist.

But under the law as it is, it's hard for me to see how the reported actions by the Virginia McDonald's are legal.

Comments

[Don Nico]

I guess someone will have to sue.
And the McD will have to install CCTV with facial recognition and press charges against the kids.

[Supremacy Claus]

Volokh needs to work a shift at that McDonalds. The cruel lawyer has no pity for the victim of violent crime.

[Stupid Government Tricks]

Volokh is not a dictator, not even a policy maker. If you don't like the law, change it; don't shoot the messenger.

[Supremacy Claus]

Volokh was a major indoctrinator of young people into the lawyervscam. The lawyer takes our $trillion and delivers nothing of value. All national achievement has been despite not because of lawyer rent seeking scam. He is not an innocent messenger.

Beyond the scam, he is a national expert on the First Amendment. He has no problem with a common law based on the Catholic catechism, in some places plagiarizing it word for word.

[Stupid Government Tricks]

Whatever. Your target prioritization could use some work.

[AmosArch]

Based upon practically every other time the media talks about 'youths' in these type of cases guessing they could have tailored the ban a little more specifically but just cut across by age since the scorched earth approach as controversial as it is right now is much more politically correct.

[TextFirst]

Imagine how out of control the local predator population if a *McDonald's* needs to take these sorts of measures. It's the DMZ of loud dining. Parents literally say to their children, at other restaurants, "Don't do that, we're not at a McDonald's!" If this is indeed prohibited by law, then I guess their only option is to go drive through only and close the dining room entirely. Insane that it's come to this.

[Michael P]

This seems like a reasonable form of discrimination, as long as it's not applied unevenly on the basis of other protected classifications (especially race). I hope Virginia changes this law to allow minimum ages more broadly than the current one does.

[TextFirst]

I hope so, but as it stands now I think the OP's reading is correct.

[Joe_dallas]

The description of the type violence would indicate one race was more heavily involved.

[David Nieporent]

bookkeeper_joe saying the quiet parts loud.

[Life of Brian]

If this is indeed prohibited by law, then I guess their only option is to go drive through only and close the dining room entirely.

Or, perhaps more likely, just close altogether because margins were thin enough as it was and a good swath of people are likely to go somewhere else where they can actually sit down and eat.

Maybe a weird thing to say in the context of Mickey-Ds, but this is why we can't have nice things.

[TextFirst]

Yeah, it's awful. If the local authorities refuse to deal with crime and laws like this make it difficult to deal with indirectly then anybody who can move away will just leave and go somewhere civilized enough to have a McDonald's. Leaving behind predators and people too broke to move away, in an area where everything must shutter because the predators will pillage it. The outcomes for communities that suffer from that death spiral are never good. It also shows how the law is so much harsher on good actors than bad actors. These predators can get away with serious assaults without any consequences, but the law will come down on McD like a ton of bricks for attempting to solve the problem.

[Michael Ejercito]

I wonder why locals are unable to deal with crime.

[jb]

Probably because Trump started a huge crime wave in 2020 and is now diverting law enforcement resources to kidnap people writing op-eds he disagrees with instead of stopping crime.

[Sam Bankman-Fried]

PPP was insane—free cash with no oversight!!! What could go wrong?? My city had multiple rolling gun battles and when they eventually arrested and prosecuted them all had committed PPP fraud.

[Dr. Ed 2]

EV raises an interesting question -- and there is this: " The provisions of this section shall not supersede or interfere with any state law or local ordinance that prohibits a person under the age of 21 from entering a place of public accommodation."

Compared to New England, Virginia is shockingly lax in its beer laws -- not only does every gas station and grocery store sell beer, but beer is an option at per-item cafeterias that persons of any age can use. Hence while the statute explicitly says "entering", what about the venues which merely say "sell"?

That said, if they went with 18 and valid state ID, and electronically verified/copied the IDs the way the liquor stores do, they solve their problem except that they would have to install a "trap" entrance and I doubt that would pass code -- or allegations of false arrest.

[Dr. Ed 2]

I was right - the problem is coming out of the adjacent high school, which is International Baccalaureate, so they have students 18-20.

I had a suspicion and sadly, I was right:

Edison High School demographics:
Ethnicity Edison v. Fairfax County high school average
Asian 13.2% 19.3%
Black 18.0% 9.8%
Hispanic 36.3% 27.7%
White 26.5% 36.7%

I didn't say anything until I checked the demographics, which speak for themselves -- almost twice the county average for Black students, and 54.3% Black/Hispanic.

[River]

International Baccalaureate has nothing to do with the age of the students at the school. It is functionally a competitor to the more common Advanced Placement program. The students are still normal high school age, which for seniors will include some 18 year olds.

What International Baccalaureate does do is appeal to children of foreign diplomats and business people, which will tend to inflate the nonwhite demographics across the board, which explains the demographics, but not the conflict with the McDonalds management. To the extent that those non-white kids are associated with the IB program, they are the high academic caliber nerdy types who tend to be well behaved.

[Roger S]

So maybe the problem is race, as much as age.

[Frank Drackman]

It's the same old theme since 1619

[Phanatic]

In your head, in your head, they're still fighting

[Malika the Maiz]

In his head there’s multiple personalities…

[Frank Drackman]

Lots of (redacted) in your head, and I done tole you, lost my job, how I sposed to get money to pay dis rent? You think you can let me slide it on? I'll have it for you tomorrow, next day, I don't know.

[Michael P]

IB is often -- in this case, and in my own high school in Florida -- a magnet program to draw White and Asian students to a school that is otherwise very heavily Black and/or Hispanic. (Coincidentally, Edison High School is only two miles down the street from John R. Lewis High School.)

Compared to New England, Virginia is shockingly strict in its liquor laws: hard spirits are only allowed for sale at the distillery that makes them or at state-owned stores. Non-bar establishments that sell beer or liquor, whether they be grocery stores or convenience stores or restaurants, are governed by this anti-discrimination law. Sales and service of alcohol to any consumer are still prohibited if the buyer/recipient is either underage or already intoxicated.

[River]

I can't speak to Florida, but I am quite familiar with Fairfax County, having gone to one of the other IB schools in the county and tutored professionally in the area. In Fairfax County, IB is not a magnet program. TJHSST, which has also earned its mentions on this blog, is the magnet high school in the county. Every other high school has either AP or IB as its track for the more academically inclined students. It is standard tracking like you find in any decently sized high school. I would argue that IB is actually inferior to the AP program that most high schools have.

[Malika the Maiz]

“Compared to New England, Virginia is shockingly strict in its liquor laws: hard spirits are only allowed for sale at the distillery that makes them or at state-owned stores.”

Is New Hampshire not in New England now? Because there as well distilled spirits can only be sold at state-run liquor stores.

[BrotherMovesOn]

Nice police work and Well Done Dr. Ed!
I knew we could count on you to implicate the coloreds!

[Dr. Ed 2]

I merely documented demographics.

[Frank Drackman]

I try to stay away from places with lots of Demographics

[The Margrave of Azilia]

The answer is absurdly simple. This McDonalds should reorganize as a gun shop, then it will *have* to limit access for customers under 21.

[Eugene Volokh]

I appreciate that the comment was a joke, but note that Virginia law apparently follows federal law in setting the minimum age for rifle and shotgun purchases at 18.

[Dr. Ed 2]

Well, there is the Gun Free School Act.... 🙂

[Roger S]

Virginia probably requires age 21 to buy alcohol. Maybe McDonalds could randomly give a free beer to a diner, and require age 21 for that reason.

[Jerry B.]

Sell only handguns, then.

[Frank Drackman]

John Derbyshire talked about this in 2012

[Bill Poser]

I've seen stores (not in the same jurisdiction), typically near schools, that limit the number of minors in the store at the same time, the idea being to allow them to shop there but to enable the shopkeepers to keep an eye on them and to reduce the problems that are often created by groups. I wonder if that would be legal?

[Eugene Volokh]

If the restriction is targeted at minors, in the sense of under-18-year-olds, then Virginia public accommodation doesn't prohibit it ("The provisions of this section shall not prohibit (i) discrimination against individuals who are less than 18 years of age ...."). I can't speak to other states with confidence, but I expect that they likewise don't forbid age discrimination against under-18-year-olds. The problem for this McDonald's is that 18-to-20-year-olds aren't minors.

[Frank Drackman]

Brilliant answer EV!

[Kleppe]

Won't someone think of the violent teenagers?

[Supremacy Claus]

I support the return of the painful lash. It should first be applied to the lawyers and judges protecting, enabling, and empowering the violent thug. To deter.

[Stupid Government Tricks]

Seeing as how you'd be the one applying it, that makes you one of the judges, and you should be the first to be lashed.

[Supremacy Claus]

Judges and lawyers should be judged by a legislature owned algorithm, not by me. If the algorithm is wrong, let the legislature be civilly liable.

[Flight-ER-Doc]

Well, they can always just close the dining room to EVERYONE

[ObviouslyNotSpam]

I would suggest they first just revise the prohibition to apply only to under-18s. That might do the trick?

[Currentsitguy]

Theoretically they could install a slot machine and get themselves designated as a casino and ban access to minors.

[Malika the Maiz]

It’s interesting how many of the ostensible anti-collectivists here don’t mind the majority of 18-20 year olds being punished for the actions of a few. The party of personal, er, certain demographic group responsibility!

[Drewski]

There may be some local ordinance that authorizes them to do this. If not, then anyone affected probably has a decent case although perhaps not a lucrative one. It may be there's a large enough class and deep enough pockets for it to be worth. Perhaps someone will take it up on principle.

If they don't have an ordinance in their pocket, they probably should back off and start asking their township or county for one. They may be receptive enough that the business doesn't need to hire a professional. The Chamber of Commerce may be helpful there, too.

I wonder if the franchise cares about this though.

[Bored Lawyer]

In General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004), SCOTUS held that age discrimination in employment under federal law only means favoring the younger over the older, not the reverse. Even though the federal statute also bars discrimination on the basis of "age" without specifying younger or older. So under federal law, it would be legal for an employer to have a policy not to hire someone under 40 (or under 21).

Of course, this case involves Virginia law, not federal, and it's public accommodation and not employment. So this law could be construed differently.

[Michael P]

I think the bit explicitly allowing (limited) discrimination in favor of those 50+ means this law would be construed as only allowing what is in the text, at least based on age among adults.

[Speaking for normal people]

You seem patently wrong. We can't say that to protect the right to eat at some restaurant we must allow violence against some customers (who never as a group instigate it) and by others (who obviously as a group are readily identifiable)
Whose rights are you protecting ? Okay for the sake of fairness we must let the bastards in too

the Paradox of Tolerance: If a society extends tolerance to those who are intolerant, it risks enabling the eventual dominance of intolerance, thereby undermining the very principle of tolerance. If intolerant ideologies are allowed unchecked expression, they could exploit open society values to erode or destroy tolerance itself through authoritarian or oppressive practices.

This is more of lawyers eating at Le Bernardin and then defending the right of my children to be exposed to violence.

IT IS LEGAL

[Eugene Volokh]

I don't quite understand the argument. I'm not arguing that McDonald's shouldn't be allowed to exclude 18-to-20-year-olds. I'm pointing to a statute the Virginia Legislature passed, and asking whether under it, McDonald's is allowed to exclude 18-to-20-year-olds. As I read the statute, the answer is that, no, McDonald's isn't allowed to so act.

Do you read the statute differently? If so, can you explain how you would interpret the relevant language? After all, you too are opining on what "IS LEGAL" rather than just on what you think should be legal. Can you explain your reasoning?

[Purple Martin]

"Can you explain your reasoning?

Let me guess.........Ummm, No.

[Frank Drackman]

My Uncle Ray was a Cop in Atlanta (like Los Angeles, most people "From Atlanta" don't live in Atlanta, they live in East Point, Chamblee, Doraville, Tucker....)
Whenever things were slow and he needed a "Collar" he'd walk into the nearest McDonalds, Burger King, Church's, Popeyes, Wendys (they still haven't rebuilt that one on University Avenue the (redacteds) burned down in 2020) and have a literal Buffet of Violators to choose from.

[hobie]

I think the most McDonalds can do is bar hungry gay customers based on sincerely held beliefs. Anything else would be discrimination

[ReaderY]

One possible remedy this McDonalds might have would be to be to get a local ordinance passed banning 18-20 year—olds from entering businesses that post a sign prohibiting them. Since the state-law exception for local ordinances doesn’t seem to impose any limitations on the kind of ordinances localities can pass, it seems to be broad enough to let a locality pass an ordinance that is functionally a complete opt-out if it wants to. Such an ordinance would effectively nullify the state law within the locality and let this McDonalds’ and other local businesses do what they want.

[tuphat]

Virginia is a Dillon's Rule state: local governments have limited powers and must have express authorization from the state legislature to act. I don't think the county or city could do as you suggest under current state law.

[Drewski]

What do you think the legislature meant when they wrote, "The provisions of this section shall not supersede or interfere with any state law or local ordinance that prohibits a person under the age of 21 from entering a place of public accommodation," if they didn't intend to authorize such?

[tuphat]

I am not an expert and will defer to those who are, but I still think the county/municipality would need express authorization from the legislature to enact such a local ordinance. The provision you cite does not expressly provide such authorization, as I read it.

[tuphat]

FWIW -- As far as I can tell, the relevant statute was first enacted in 2020, so it's of relative recent vintage.

[tuphat]

The write-up would be more complete if it discussed the enforcement mechanisms behind the statute. § 2.2-3907 sets forth how a complainant notifies state AG of violation, state AG investigates, seeks formal or informal remediation, etc. and ultimately may issue a notice of right to sue to the complainant. Then, § 2.2-3908, Civil actions by private parties, takes over and provides among other things that a prevailing plaintiff may be awarded compensatory and punitive damages, plus attorney fees.

[Speaking for normal people]

WE the people would like to be able to buy fries without fearing for our lives or property and that of our little kids.
The law follows on that. Argue you all you want, you lawyers that eat at Maxine's.

[John O'Connor]

Sad. I live a mile from that McDonald's. In my opinion (and I have LOTS of data points) this is the best-run McDonald's I have ever encountered. Family-run, they keep the drive-thru moving and your order is right 100% of the time.

They did this because of kids coming down from Edison HS and causing trouble (there was a shooting in the bathroom). Ironically, there's a McDonald's that is actually closer to the big school, but I think they simply closed the dining area, causing kids to walk a quarter-mile further to this McDonald's.