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Do Drive-Thrus Discriminate Against Non-Drivers?

Tags Legal SystemPrivate Property


CNBC reports today that a blind man is suing McDonalds for refusing him service at the drive-thru window. The man, Scott Magee of Louisiana, could not access the inside of the restaurant because it was after hours when the dining room was closed. Magee — who cannot drive a car — claims he attempted to purchase food at the drive-thru window on foot and was refused. 

Most restaurants that keep their drive-thru windows open later than their dining rooms have long employed a policy of refusing service to people on foot. They have long stated this policy is due to a fear of pedestrians being hit by cars in the drive-thru lanes. 

Naturally, then, this policy discriminates against any number of people including people under 16 years of age, anyone without a drivers license, deaf people who cannot communicate through the drive-thru intercom, and drunk people unwilling to endanger the public by driving. 

The overall advantages to society, on the other hand, are significant. By remaining open later — but with a closed dining room — businesses with late-night drive thrus can continue to offer food to the public while providing a more secure environment for employees. This allowed more access to food for people who work odd hours and late nights, while also providing additional opportunities to employees who might want to work more hours and earn more money. Longer hours mean more employees, and thus more wages paid out to people, while also (hopefully) meaning more revenues and profits for the owners of the restaurants. 

As with any enterprise anywhere on planet earth, this set up suffers from physical and financial limitations. Resources are not limitless, and the heterogeneity of human beings means that it is rarely economical to provide a service that can be convenient to everyone, everywhere at all times. 

In this case, safety considerations related to the drive thru mean that people who cannot drive cannot purchase food at McDonalds when the dining room is closed. 

The organization that is in the best position to make decisions about this matter is, of course, each independent McDonald's restaurant which must consider local demand, local demographics, local crime, and local costs of obtaining materials. 

Moreover, it is in the restaurant owner's (or the franchiser's) interest to provide service at a walk-up window if that could be found to be economical. It's a safe bet, however, that it is not economical — according to both the owners and franchisers — because if it were economical, the owners would have already installed and staffed a walk-up window. 

The Effects of Public Accommodation

Unfortunately, though, we live in a world that subscribes to the "public accommodation" theory which holds that private property is not really private property, but must be regulated down to the minutest detail in order to cater to certain interest groups.

In this case, the plaintiff is claiming that the restaurant is not properly accommodating people who cannot drive. 

If the case goes to trial, there are at least two outcomes that could result. The court could reject the case, or the court could order the store owners to provide a walk-up window or some other accommodation that would surely require staff time and resources at the very least. 

As a result of a mandate to provide new accommodations, the restaurateur could comply. This would mean devoting more staff time to address the issue, and it could also mean physical renovation of the restaurant itself. This would need to be paid for by reducing wages, deferring new hires, deferring maintenance or improvement of the building itself, or reducing profits to the owners. Practically speaking, this latter option means the franchisee — and all the employees — may be looking at a reductions in their standards of living, and that of their families. 

In other words, the resources used for the additional "accommodation" must come out of someone's pocket. 

Similarly, the restaurant owner might be able to go around the court order by simply deciding to stop operating the drive-thru window at a time when the dining room is closed. This would end charges of "discrimination" since people who cannot drive would then be able to buy food at any time that other people could buy food. 

But again, this result also deprives many people of their free choice and their ability to access food. In this case, people who work late or long hours, and employees looking for more hours or a chance to get a foot in the door by working the drive-thru night shift will be deprived of these opportunities. 

Outcomes like these always play out when states interfere in private businesses to ensure public accommodation. 

All of these effects could be avoided, of course, by simply respecting the property rights of the restaurant owner. 

In this case, it will be difficult to argue bigotry, as if often argued in cases calling for greater accommodation. The motivation in this case can likely be measured quite easily in dollars. 

If the case goes to trial, however, a government lawyer known as a "judge" will decide whether or not the private firm in this case shall be required — under the threat of retribution by the state — to renovate the premises or provide additional staffing to address the demands of the single plaintiff. 

To Expand Choices for Consumers, Encourage Business Owners to Expand 

It is unknown what the judge's decision will be, but why should a state agent be in a position to make these decisions in the first place? If he decides in favor of the blind man, the restaurants owners, employees, and all their families will be negatively impacted. 

If the judge rules in favor of the restaurant, then people who cannot drive will be denied Big Macs at 1 AM unless they hire an Uber driver first. 

If it is a concern of the state that there are too few establishment that service people who cannot drive late at night, it would seem that the proper response would be to encourage entrepreneurs and small businesses to expand their operation and open new businesses with new types of services and choices. It is likely that at least some entrepreneurs will find a business model that supports the idea of a late-night walk-up window. On the other hand, slapping yet another business down with yet another regulation may appear to expand choice in the short term, but it will only result a higher barriers to entry for entrepreneurs, a higher cost for doing business, and the creation of fewer businesses and less competition overall. 


Contact Ryan McMaken

Ryan McMaken (@ryanmcmaken) is a senior editor at the Mises Institute. Send him your article submissions for the Mises Wire and Power and Market, but read article guidelines first. Ryan has a bachelor's degree in economics and a master's degree in public policy and international relations from the University of Colorado. He was a housing economist for the State of Colorado. He is the author of Breaking Away: The Case of Secession, Radical Decentralization, and Smaller Polities and Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.

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