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Brandon M.
Brandon M., Counselor at Law
Category: Employment Law
Satisfied Customers: 12573
Experience:  Licensed attorney
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a male customer called me a "dumb bitch" and then a "stupid

Resolved Question:

a male customer called me a "dumb bitch" and then a "stupid bitch" because I could not get his prescription ready and asked him to take it to another pharmacy. Is there anything I can do?
Submitted: 4 years ago.
Category: Employment Law
Expert:  Brandon M. replied 4 years ago.

Brandon M. :

Hello there.

Customer:

hello

Brandon M. :

Hello.

Brandon M. :

This person seems like a real charming fellow.

Brandon M. :

In which state did this occur?

Customer:

california

Brandon M. :

Terrific. I am licensed and practicing in California. In which county did this happen?

Customer:

merced

Brandon M. :

Ok, I am up toward Sacramento--I ask because there are sometimes local ordinances that may come into play. Is your pharmacy inside a hospital, or is it a retail pharmacy?

Customer:

retail pharmacy

Brandon M. :

Ok, there are really two parts to this question that need to be addressed. The first is how the law responds, and the second is what you can expect. It is not all good news, but I will discuss it all with you, good and bad.

Brandon M. :

Under California Penal Code sec. 415:

Any of the following persons shall be punished by imprisonment
in the county jail for a period of not more than 90 days, a fine of
not more than four hundred dollars ($400), or both such imprisonment
and fine:
(1) Any person who unlawfully fights in a public place or
challenges another person in a public place to fight.
(2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.
(3) Any person who uses offensive words in a public place which
are inherently likely to provoke an immediate violent reaction.


Brandon M. :

So it is actually a criminal offense to use offensive words in a public place which are inherently likely to provoke an immediate violent reaction. This is sometimes referred to as California's "disturbing the peace" law, or it's "fighting words" law.

Brandon M. :

So the question is whether someone calling you a dumb bitch or a stupid bitch in the context it was said is inherently likely to provoke an immediate violent reaction. If so, it is a criminal offense and law enforcement can get involved.

Brandon M. :

The challenge, frankly, is that law enforcement generally does not want to get involved with things like this. To prosecute the crime, it must be proven beyond a reasonable doubt that (1) the words were said, (2) they were offensive, (3) they were uttered in a public place, and (4) they can convince a jury that all of this, put together, is likely to provoke an immediate violent reaction.

Brandon M. :

I am not saying that the criteria are not met; I am saying that law enforcement is generally disinclined to get involved unless they have the evidence that they need to move forward.

Brandon M. :

So it is not that the law is not on your side when something like that happens--but realistically, it is difficult to get results.

Brandon M. :

In a retail setting, your pharmacy and store can forbid the person from entering the store again, and most retail places have a procedure and policy in place for combative customers. Usually, the better thing to do is to let the store know what happened and that you wish to exercise your right to not be subject to that abuse, requesting the person be banned from the store. Then, if they enter again, they can be arrested for trespass.

Brandon M. :

So even though I can't solve the entire problem under these circumstances, my hope is that you know the law so you have a better idea of how to move forward from here.

Brandon M. :

Does this all make sense?

Customer:

my problem is that the guy is trying to make problems for me at work by complaining to my supervisor. I have two witnesses who can attest to the fact he insulted me. I just don't want him to play the victim.

Brandon M. :

Do you deal with this person on a regular basis?

Customer:

no

Customer:

i am a licensed professional who needs to protect my reputation. I cannot have individuals insulting me and then threatening me or my license

Brandon M. :

Well, if someone curses you out, the potential legal protection is Penal Code 415, which makes it a law enforcement matter. It does not change the answer if the offender complains to your supervisor--they are either fighting words or they are not fighting words. The criteria of Penal Code 415 are either met or they are not. Sometimes in life, we encounter people who are just nasty, but it is illegal to utter fighting words--it is not illegal to be a nasty person.

If the person was engaged in a pattern of harassing conduct, if there was a credible threat of violence, or if there was actual unlawful violence, then it would be possible to seek a restraining order against the perpetrator. If the person is just a bad person who is looking for someone to take it out on, then that's life, but it isn't illegal.

Brandon M. :

If the person is making false statements about your work that would harm your professional reputation, then there could also be a civil lawsuit for defamation of character, but calling someone the names you mentioned aren't about your work.

Brandon M. :

I'm licensed as well--the California bar association takes complaints about my conduct and ethics. Getting a call from them is like getting a call from the proctologist. So please understand that I understand your position, but I do have a duty to give you correct information. It is illegal to utter fighting words, you can get a restraining order against someone if there is a credible threat of violence, and you can file a civil suit if your character or work product has been defamed, but just calling someone nasty names is not, by itself, actionable.

Customer:

name calling is not a big deal for me,but like I said it is my reputation that I care about. I am glad that there is a way that I can protect myself should this individual take it any further and cause harm to my reputation. thank you

Brandon M. :

Certainly. Did you have any other questions this evening?

Customer:

no and thanks for all the help.

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