Culhane v. State

George Rose Smith, Justice.

The two appellants, Michael J. Culhane and Edith Millwood, employees of a K-Mart discount store in Springdale, were arrested and charged with a misdemeanor for refusing to leave a WalMart discount store in Springdale after being asked by the store manager to leave. Ark. Stat. Ann. § 71-1803 (Repl. 1979). From their convictions in muncipal court they appealed to the circuit court, where they were found guilty and fined $50 each. Their present appeal comes to us under Rule 29 (1) (a) and (c).

As will be seen from the fact, the real dispute is between K-Mart and Wal-Mart. It concerns their rival methods of determining each other’s prices. Both sides agree that comparison shopping is a common practice among retail stores in the area. Wal-Mart has a written rule, posted in its Springdale store, that comparison shoppers for competitors will be asked to leave the store if they attempt to write down Wal-Mart prices. K-Mart apparently does not have such a policy and permits its prices to be written down.

There was proof that one method of comparison shopping is for the shopper to go into a store, memorize a few prices, go outside and write them down, and continue that maneuver again and again. Wal-Mart has no objection to that procedure. On the day of the arrest, however, the two K-Mart employees went into the Wal-Mart store with clipboards and began writing down prices. They were not creating any sort of disturbance. When they refused to leave, the store manager called the Wal-Mart general office and was instructed to enforce the company’s policy. When the two shoppers again refused to leave, a police officer was called, who explained that he would have to give them a citation for violating the law if they did not leave. The two maintained their position and were arrested. A test case was apparently being made, for the two told the store manager that if they had to go to court they would inform the news media, which they did.

The appellants, in seeking to avoid the application of the statute to their case, make three arguments. We first quote the language of the statute:

Any person who enters a public place of business in this State, or upon the premises thereof, and is requested or ordered to leave therefrom by the owner, manager, or any employee thereof, and after having been so requested or ordered to leave, refuses so to do, shall be guilty of a trespass [and subject to certain penalties]. Section 71-1805.

It is first argued that the statute was impliedly repealed by Section 2004 of the 1975 Criminal Code, which reads: “A person commits criminal trespass if he purposefully enters or remains unlawfully in or upon a vehicle or the premises of another person.” Ark. Stat. Ann. § 41-2004 (Repl 1977). The Code section, however, is a general statute encompassing many possible situations; the statute now in question is specific, applying to only one situation. In such a case a general law does not impliedly repeal the specific law unless there is a plain conflict between the two. Winston v. Robinson and State, 270 Ark. 996, 606 S.W.2d 757 (1980). Here we discern no such conflict. Quite the contrary, the earlier statute might have been incorporated in the Criminal Code without any inconsistency or any doubt about the legislative intent.

The appellants’ second point, their principal one, is that the statute is so overly broad that it violates the First and Fourteenth Amendment, because it may interfere with federally protected rights. It is argued that the law might be used to discriminate among a store’s customers on the basis, say, of race or religion.

That argument in this instance is fanciful, not realistic. We are not dealing with attempted discrimination. The real parties in interest are K-Mart and Wal-Mart; the statute applies alike to both of them. The possibility of true discrimination in commercial establishments was dealt with by Congress in the Civil Rights Act of 1964, which prohibits discrimination or segregation on the ground of race, color, religion, or national origin. That law could not apply here, however, because it is specifically limited to certain types of establishment, including lodging places, eating places, and places of entertainment. 42 USCA § 2000a (1981). To the extent that the federal law does apply, of course it supersedes conflicting state statues. Hamm v. City of Rock Hill, 379 U.S. 306 (1964).

It is argued, however, that our statute might be used as a tool restricting someone’s constitutional rights. That, however, is true of many criminal laws. We have, for example, a statute that applies only to stores and creates a presumption of shoplifting when a person conceals unpurchased merchandise. Section 41-2202 (2). Perhaps that law could be used in a selective and discriminatory manner by a storekeeper, but that possibility does not invalidate the statute.

We considered a similar contention in State v. Weston, 255 Ark. 567, 501 S.W.2d 622 (1973), where it was argued that our statutory definition of criminal libel was so lacking in precision, so overbroad, as to be unconstitutional. What we said there is pertinent here:

Counsel for the appellee do not suggest in their brief any definition of libel that would, in their opinion, withstand an attack based upon the First Amendment. The formulation of such a definition could hardly give effect to the intention of the legislature. That is, the more precise and inflexible the definition becomes, as by making it a libel to falsely charge another with being a liar or a thief, the more likely it is that the statutory language would fail to encompass many, many instances of slightly different language that the legislature would also make punishable if it were practical to do so. Thus the alternative to the general language now contained in the statute would be an enactment so specific that it would necessarily discriminate between utterances so similar as to be equally culpable.

What the appellants ignore is the fact that K-Mart and Wal-Mart both have private property rights that are being protected by the statuté. The Supreme Court’s latest decision on this point is persuasive. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). There the Lloyd company owned a huge enclosed center or mall that contained many stores, sidewalks, parking facilities, and other components that made the mall far more like a public place than is a single store such as a Wal-Mart. On that basis the plaintiffs brought an action for a declaratory judgment to sustain their asserted right to distribute within the center handbills protesting the draft and the Vietnam war, even though all handbilling was prohibited by Lloyd. The Court upheld the prohibition, saying:

Respondents’ argument, even if otherwise meritorious, misapprehends the scope of the invitation extended to the public. The invitation is to come to the Center to do business with the tenants. . . . There is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve.

In the same way, Wal-Mart invites the public to come to its store to shop and make purchases. The Lloyd case means that Wal-Mart could prohibit a person from exercising in its store what would be a protected right of free speech if asserted on a public sidewalk. That being true, Wal-Mart certainly can prohibit a competitor from remaining in the store not to enjoy a constitutional right but solely to gather information enabling the competitor to take business away from Wal-Mart.

A third argument, closely related to the second, is that K-Mart’s comparison shoppers were exercising their constitutional right to receive information. On this point their brief asserts that the First Amendment guarantees their position, as a matter of free speech: “That is, because the commercial speech to be received is the price of the items as posted in the store, the only place the right can be exercised is on the property. Criminal prosecution of the appellants for assertion of the right is not merely an abridgement of the right, it is a total extinguishment.”

This argument fails to recognize the basic premise that the right to receive information is properly invoked when the public would otherwise be denied those benefits of free communication that are embedded in the First Amendment. In the principal case recognizing the right to receive information, the Supreme Court relied upon that right as a basis for striking down a state law that made it unprofessional conduct for a pharmacist to advertise the prices of prescription drugs. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). K-Mart, however, is not seeking to gain information that would otherwise be denied to the consumer; Wal-Mart’s prices, like K-Mart’s own prices, are posted for everyone to see. K-Mart is obviously not attempting to protect the public, only to further its own competitive position in the market. It can, however, neutralize any advantage that WalMart gains from the statute by adopting an identical policy in its own stores.

Affirmed.

Hays, J., concurs. Hickman, Purtle, and Hollingsworth, JJ., dissent.