Is Nothing Sacred? Open for Business on Thanksgiving

November 28, 2014

Black Friday crowdBlack Friday is upon us. Now that we’ve given thanks, we’ve turned our attention towards the Christmas, Hanukkah, Kwanza, and Festivus season and are positioned to empty our pockets in celebration of all things consumer. But some stores in recent years have tried to get a jump start on the season by opening their doors on Thanksgiving Day. It’s a controversial decision, but I presume the strategy is working, since each year, we seem to see more and more stores encroach upon the Thanksgiving holiday itself…not satisfied to keep to their own self-created holiday of Black Friday.

Retailers opening on Thursday argue that consumers are demanding the move, and in the hotly competitive environment of retail sales, they need the additional boost of profit that can be gained from opening early. Critics argue that the day should be reserved for both consumers and retail workers to spend time with their families. If you feel similarly, you may want to consider signing one of the numerous Change.org petitions available on the issue:

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I ran the following query in WestlawNext, using All State and Federal materials:

PROHIBITION OF TRANSACTING BUSINESS ON HOLIDAYS

From the overview screen, the first thing I notice is that there is a Key Number topic for Holidays, and within that, there is a subtopic for “Private acts and transactions” – 201k4

2014 HOLIDAYS > Private acts and transactions

I clicked on the link to 201key4 HOLIDAYS > Private acts and transactions

In the result list, I noticed the following cases and headnotes:

“Section of town code prohibiting between the hours of 9:00 a. m. and 2:00 p. m., except for works of necessity, all trades, manufacturers, and agricultural or technical employment on Memorial Day and Independence Day and, if either day is a Sunday, the next day thereafter is not unconstitutional.” People v. Pergament, 87 Misc. 2d 1098, 387 N.Y.S.2d 791 (Dist. Ct. 1976)

“Ordinance prohibiting all business and commercial activity on Memorial Day and Independence Day, with certain exceptions, was authorized by statute permitting municipalities to regulate business on those holidays and did not deny equal protection. General Municipal Law § 86.” People v. Leshaw, 63 Misc. 2d 364, 316 N.Y.S.2d 704 (Dist. Ct. 1970)

“The fact that a day is made a holiday by statute does not mean that business cannot be transacted on such day, except so far as that statute or some other statute imposes such restriction. Mo.R.S.A. § 15310.” Bullock v. Peoples Bank of Holcomb, 351 Mo. 587, 173 S.W.2d 753 (1943)

Clicking into Secondary Sources, I see an article from Corpus Juris Secundum, with this language:

“As a general rule, it is not compulsory to refrain from the transaction of private business on a holiday in the absence of statutory provision to that effect.

A prohibition against the transaction of public business, or the transaction of business in the public offices of the state or counties, on certain holidays does not prevent the transaction on such day of private business.40 C.J.S. Holidays § 5

And another Corpus Juris Secundum article states: “The statutory designation of a day as a holiday for commercial purposes or a provision that holidays will be considered as Sundays for all purposes relating to the transaction of business “in public offices” does not prohibit the transaction of judicial business on that day.”  40 C.J.S. Holidays § 7

We consistently see Holiday references coupled together with Sunday restrictions. In our result list, a California Jurisprudence article mentions that previously, a number of statutes prohibiting business operations on Sundays have been held invalid, at times due to explicit references to “the Christian Sabbath” in the text of the challenged statutes, or due to undue restraint of personal liberty, and arbitrariness or improper use of police power.  Cal. Jur. 3d Holidays § 13.  But “Sunday” and “Holiday” are not necessarily synonymous. Another document in our result list, from Ohio Jurisprudence indicates that while Sunday is, in a general sense, a “holiday,” the word “holiday” doesn’t necessarily include Sundays. 85 Ohio Jur. 3d Sundays and Holidays § 2

Because several of our cases indicated that ordinances were frequently the source of holiday business restrictions, I ran an alternative query in Secondary Sources:

STORE CLOSING ORDINANCE HOLIDAY

Some of our results with that query include:

3 Local Government Law § 14:27 Hours and days of business. This article says that generally, local regulation of hours or days of operation of business is not unconstitutional, such as requiring a barbershop to be closed on certain holidays and Sundays, but ordinances that “seek to compel all places of business regardless of their individual or generic characteristics to remain closed during designated hours sweep too broadly…”

6A McQuillin Mun. Corp. § 24:197.3 (3d ed.) Holiday Observance. This article notes that under the general welfare clause, you can only prohibit the operation of a lawful business when such business is “calculated to interfere with the peace, good order, and safety of the community.”

1C Ordinance Law Annotations Business Regulations § 20. “A prohibition against worldly employment or business on enumerated holidays is invalid as preempted by statute. Borough of Paramus v. Martin Paint Stores, Inc., 128 N.J. Super. 138, 319 A.2d 256 (App. Div. 1974).”

Finally, I decided to see if I could find any statutes or annotations in my own jurisdiction regarding holidays and business transactions.

I clicked into Statutes & Court Rules on the WestlawNext home screen. Then, I clicked on Minnesota. On the far right hand side of the screen, I clicked on the link to the Minnesota Statutes Index. From there, I clicked on the “H” in the alphabet, then to the entry for Holidays. In that topic, I clicked on the link to Public Business, Transacting: MN ST § 645.44.

M.S.A. § 645.44 is a definitions section. Subdivision 5 defines and lists legal holidays in Minnesota. On the right side of the screen when viewing the statute, there are links to topics under the Notes of Decisions. There are Notes of Decision for:

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