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The Honolulu Advertiser
Posted on: Sunday, August 25, 2002

Shopper gets taste of trouble

By Lee Cataluna
Advertiser Columnist

From Mike Mickelwait's perspective, he was just sampling the cappuccino. He still can't believe the mess that ensued from that one cup of coffee.

From the store's perspective, he stole that cup of coffee.

Most supermarkets let you sample selected items before you buy. But the item has to be designated free for sampling, or else your "taste" comes under the same category as shoplifting items under your jacket or eating a Twinkie in the back aisle and hiding the wrapper.

On July 30, Mickelwait stopped by Star Market in Kane'ohe — same place he says he's shopped "off and on" for the last 23 years.

As he walked into the store, Mickelwait spotted a serve-yourself cappuccino machine. The sign said the price was 89 cents for a 12-ounce cup. Mickelwait said he tried the vanilla flavor, but hesitated to fill up the whole cup without tasting it first, so he poured about half an inch.

"It was very hot so I swirled it around in the cup for a while, drank it and found it not to my liking at all, so I tossed the cup into the receptacle provided under the machine," Mickelwait said. He then went on with his shopping, paid for his purchase and left the store.

A security guard stopped him in the parking lot and said Mickelwait drank the coffee and didn't pay for it.

"I tried to explain that I only sampled it, and offered to pay for it," Mickelwait said.

"Oh, no, we have to go upstairs in the back room."

Mickelwait was asked to sign two forms. The first was to ban him from all Star Market stores for a year. The second, which he refused to sign, would allow Star to collect a $75 civil penalty for the drink.

Then the police arrived.

Mickelwait said he was frisked and handcuffed and taken to the Kane'ohe station to be booked for theft in the fourth degree. He paid his $25 bail and was released.

He was in court a week later. Upon the advice of an attorney, Mickelwait entered a plea of guilty with "deferred acceptance of nolo contendere." The arrest will be expunged after a three-month probation period.

But that's not the end of it.

Mickelwait still faces the civil demand of $75. He is considering hiring an attorney to file suit. Mickelwait, 60 years old with no criminal record, and a Kane'ohe business owner for more than 20 years, says of the whole experience: "I can't believe it."

John Hiu, loss-prevention manager for Star Market, says store security personnel look at the overt act, not guess at the possible intention.

"(Mickelwait) might deem it as sampling but in business, it's considered theft if you don't pay for something," said Hiu. "It's a common occurrence when it comes to shoplifting incidents. Most people, they want to use the excuse of 'Oh, all I did was sample it,' but most stores running businesses don't have sampling unless it's particular items that are designated to be sampled."

There is no threshold as to the value of an item. The store will prosecute for losses under a dollar. According to Hiu, this sort of thing happens every day at every store at every location, and the "little" losses add up to big numbers.

As for attempts to pay for the "sampled" item in question, Hiu says that because of legal ramifications, payment can't be accepted once a security officer stops a suspected shoplifter outside the store.

"They could come back and sue us for false detainment. It is a criminal offense to detain someone against his will if we don't have justification to do it, so we have to follow through with charges." Also, the person could later say the store coerced them into payment.

Other Hawai'i supermarkets have basically the same policy. Cheryl Toda, spokesperson for Foodland, says: "Any item that is consumed in the store and is not paid for is considered theft and we may pursue prosecution."

At the same time, Foodland has tried to take control of the "unauthorized sampling" problem by getting store employees to offer samples from their departments.

"We would be happy to cut an apple, cut a banana, open a box of strawberries, offer grapes to sample," Toda says. "We would encourage them to ask."

At Times Supermarket, head of security Brian Iwaishi said he couldn't really comment on Mickelwait's case, but says Times' policies are the same. Iwaishi, however, tells his security staff to use their discretion in each incident.

"The people we train, I always tell them, you have to have compassion. Don't be foolish, but you have to have compassion."

As for Mike Mickelwait, after having some time to think about it, he has decided to go back to court and change his plea to not guilty.

The larger lesson here is: Don't sample anything unless you are sure it's OK to sample. Ask a store employee first. If your kid grabs a package of Ho-Hos off the shelf and starts chewing away before you can stop him, you're OK if you pay for what your kid ate BEFORE you leave the store. After that, it can get messy.

Lee Cataluna's column runs Tuesdays, Fridays and Sundays. Reach her at 535-8172 or lcataluna@honoluluadvertiser.com.