For seven years, Beverly Lemieux donned her blue waitress uniform and slung hash at a Smitty's restaurant in north Phoenix. Lemieux enjoyed the give and take with her customers at the popular supermarket eatery near Seventh Street and Cave Creek Road. She operated in the lovable-wise-guy manner of waitresses everywhere. And she always kept her customers' coffee cups filled.

A 62-year-old grandmother, Lemieux planned to work at the restaurant until she turned 65. "We loved Smitty's, all six kids of mine, though I know it's kind of silly to love a store," she says, adding how upset she was at the furor after two Smitty's employees at a west-side Phoenix store were accused last year of choking a suspected bad-check writer to death. (The pair recently were acquitted.)

Everything changed for Bev Lemieux on January 23, 1991, when she became booking number 091023059, charged with petty theft. How petty? Smitty's store security busted Lemieux for not putting 64 cents--the cost of a cup of coffee--into a cash register.

They didn't just fire her. Reports of the incident show that store officials asked Phoenix police to book Lemieux at the Madison Street Jail. The cops did just that, handcuffing the frightened woman and putting her in the back of a police car. Downtown, they tossed her in a holding tank with 20 other women, where she stayed for a few hours until a daughter bailed her out.

"I never knew anything about the justice system except for jury duty and a small-claims deal we did," says Lemieux. "I never even had one of my kids arrested. You feel degraded, like a criminal, and I really didn't do anything wrong. Here I am, 62 years old, and I'm being searched and photographed and thrown into a room with 20 other women. Some of those gals weren't very nice. I saw more dope in that cell than I saw in my whole life."

She adds, "I wasn't stealing the 64 cents. I did what waitresses always do when we get busy. You put the dollar or the change in your pocket and you stick it in the register later on when you have time. You hold onto tickets in case a coffee drinker decides to eat something. I had every intention of paying that coffee ticket with change from my pocket before I left the floor."

Was this a case of "absurd overkill," as Lemieux's attorney Mike Bernays puts it, or was Smitty's making an example of Lemieux to its other employees?

Months passed after Lemieux's January arrest. Her lawyer collected police reports, took witness statements and tried to convince city prosecutors that the episode was a waste of time and money.

"The Smitty's security agents say that Ms. Lemieux waited on one of them, wrote out a ticket for $.64 for a cup of coffee," Lemieux's attorney wrote to city prosecutor Mary Stoner on March 8, "and when the agent left a $1 bill on the table and left the restaurant, Ms. Lemieux picked up both the dollar and ticket and put them in her pocket. She continued waiting on other customers, one of whom ordered a cup of coffee. Ms. Lemieux put down the ticket she had used before for the new customer and was immediately arrested.

"The problem with the case is that Ms. Lemieux was not off shift yet and she tells me she was fully intending to report all sales to the register prior to going off shift. The Smitty's agents acted too quickly. No jury will convict the grandmotherly Ms. Lemieux on these facts."

Smitty's vice president of legal affairs and real estate, Stanley English, says he doesn't know much about the Lemieux case, but adds, "I don't know why the cops were called in on this one." English also says he can't place an exact dollar figure on employee theft. "But it's as much of a problem by some indications as shoplifting," he says. "A big, big problem."

Industry spokesperson James D. Walls Jr. made the extent of that problem clear during a recent seminar in Tennessee. "I'm talking about a $40 billion theft problem," Walls said. "We're not talking about some poor little soul in baggy pants and coat, shoplifting. I am talking about the viper, on the job, who proceeds to suck the very lifeblood out of your business, day by day by day."

In the Lemieux case, a written statement by one of the Smitty's undercover security guards who busted her clarified the store's position.

"The suspect has worked for Smitty's for approximately seven years," security guard Jan Salcido wrote. "It's conceivable that she has been committing theft in this manner for quite some time. A possible scenario would be five tickets per day, amounting to $5 per day, five days a week. That's $25 a week times X number of years."

Salcido admitted, however, during an interview with defense attorney Bernays, that her "possible scenario" was complete speculation. Bernays also collected several affidavits from Smitty's waitresses past and present. They agreed that Lemieux's style of sticking a buck in an apron during crunch time is normal.

"Beverly Lemieux worked for me as a waitress for a year and six months," chipped in Steve Rodgers, a former Smitty's restaurant manager who now works for another chain. "Beverly showed no indication of being anything less than an honest employee."

After several postponements, Lemieux nervously awaited an early-August trial date. She hadn't found a new job. "When you're older and a waitress, you find yourself bumping into younger gals who want the same job," she says. "Plus, I was a criminal. They ask you about your last job and you tell them you got fired for stealing. Good luck."

Strapped for cash, Lemieux signed up for Social Security payments three years earlier than she had planned. Being fired also cost Lemieux her health-insurance coverage. Since then, Lemieux says, she and her husband Carl haven't been able to afford coverage.

"I know we're old and we need insurance and all that," she says. "But what can you do?"

Finally, it was the day of trial. Lemieux, her husband and several of her children and grandchildren piled into a city courtroom and sat in the front row. Moments before jury selection got under way, prosecutor Jana Weldon approached defense lawyer Mike Bernays.

"I'm going to talk to my supervisor," she told him. "Hold on."
Ten minutes later, Weldon handed Bernays a piece of paper on which she had dismissed the case. The official reason? "No reasonable likelihood of conviction at this time."

Almost eight months and untold sleepless nights after her January arrest, Beverly Lemieux was a free woman. Lemieux's family smothered her in hugs and kisses.

One of Lemieux's daughters went to reclaim the $420 bond the family had posted to get the waitress out of jail. She then turned over the bond to attorney Bernays for his fee.

"What an incredible outlay of resources for all concerned," Bernays says. "It reminds me of a company town--`We'll book and we'll prosecute if you want us to.' We were lucky enough to have a decent prosecutor who saw the case for what it was, though the facts of the case were the same in March, when I wrote my letter, as they were in August. Bev has paid for that 64-cent mistake."

Smitty's wasn't untouched by this episode, at least in terms of money. The entire well-fed Lemieux clan has changed its store of choice from Smitty's to anything but. A possible scenario would be that the 64-cent bust will cost the store several thousand dollars each year from the Lemieux family.

"I go to Fry's these days," Bev Lemieux says. "I mean, we all went to Smitty's. Went. We got everything there and I was proud of the store. It's so stupid. I'm not a thief."

"They ask you about your last job and you tell them you got fired for stealing. Good luck.

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Paul Rubin
Contact: Paul Rubin