Author Topic: 51% sign  (Read 3792 times)

0 Members and 1 Guest are viewing this topic.

1952Sniper

  • SKS Guru
  • **
  • Posts: 17247
  • Stay thirsty my friends...
51% sign
« Reply #15 on: July 31, 2006, 10:18:58 AM »
Quote
Watch yourself Sniper! entering a 51% establishment with a concealed weapon is a felony even if the sign is NOT posted! the 51% sign is required by law to be posted correctly, but even if it's not there at all you can still be charged and convicted.

I may be wrong, but I don't believe that is correct.  A licensee cannot possibly know how much of the business's revenue is generated from alcohol sales.  The only way to know is if it's posted.  Otherwise, a licensee could inadvertently commit a felony through no fault of his own, by simply entering an establishment that he doesn't know is a 51% business.

Can you please point to the section in law that says that?  The section of law which covers licensed concealed handguns refers to a legal notice requirement (in the form of the 30.06 sign).  The only other section of law that addresses carrying a firearm in a bar says:

Quote
46.03. PLACES WEAPONS PROHIBITED.  (a) A person commits
an offense if the person intentionally, knowingly, or recklessly
possesses or goes with a firearm, illegal knife, club, or
prohibited weapon listed in Section 46.05(a)

How can a licensee "intentionally" or "knowingly" commit a felony if he has no idea the place derives 51% or more of its sales from alcohol?

My CHL instructor was very clear to us in our class that if it's not posted, you can assume it's not a 51% business.  And that the law protects you from criminal charges.  That's the whole point of the sign requirement.

galahad

  • Life Member
  • SKS Guru
  • *****
  • Posts: 26283
  • The old fart in TEXAS
    • Survivor's SKS Boards
51% sign
« Reply #16 on: July 31, 2006, 11:53:45 AM »
Quote from: 1952Sniper
Otherwise, a licensee could inadvertently commit a felony through no fault of his own, by simply entering an establishment that he doesn't know is a 51% business.
And this would surprise you?  Considering that we have tens of thousands of "inadvertant felons" across the country for crimes that run the gamut from guns to roses it sure wouldn't surprise me.


"I would rather suffer from too much freedom, than not enough."  Heimdhal
"Free people need free markets - or they aren't free."  Gibson_GM

1952Sniper

  • SKS Guru
  • **
  • Posts: 17247
  • Stay thirsty my friends...
51% sign
« Reply #17 on: July 31, 2006, 01:54:33 PM »
Quote
And this would surprise you?

Well, Texas's laws don't tend to be as stupid or silly as many States.  Especially when it comes to gun laws.  When I took the CHL course several years ago, I intentionally grilled my instructor on all types of hypothetical scenarios, in an attempt to make sure I fully understood how the laws worked.  And I couldn't find any gray areas or ambiguities that jumped out at me.  I even specifically asked him about this 51% (30.06) sign, and his clear indication to me was that if the sign is not posted, you cannot be charged with a felony for simply entering the premises with a properly concealed handgun.  All legal responsibility falls on the business owner to properly notify you.

UNBLVR

  • Board Supporter
  • SKS Guru
  • *****
  • Posts: 11021
  • I AIN'T RIGHT
    • http://www.geocities.com/hardtailss/index.html
51% sign
« Reply #18 on: July 31, 2006, 03:08:12 PM »
Quote
PC 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
(a)...

(b) A license holder commits an offense if the license holder intentionally,
knowingly, or recklessly carries a handgun under the authority
of Subchapter H, Chapter 411, Government Code, regardless of
whether the handgun is concealed, on or about the license holder's
person:
(1) on the premises of a business that has a permit or license issued
under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if
the business derives 51 percent or more of its income from the sale or
service of alcoholic beverages for on-premises consumption, as determined
by the Texas Alcoholic Beverage Commission under Section
104.06, Alcoholic Beverage Code;

(2) on the premises where a high school, collegiate, or professional
sporting event or interscholastic event is taking place, unless
the license holder is a participant in the event and a handgun is used
in the event;
(3) on the premises of a correctional facility;
(4) on the premises of a hospital licensed under Chapter 241,
Health and Safety Code, or on the premises of a nursing home licensed
under Chapter 242, Health and Safety Code, unless the license
holder has written authorization of the hospital or nursing home
administration, as appropriate;
(5) in an amusement park; or
(6) on the premises of a church, synagogue, or other established
place of religious worship.
(c) A license holder commits an offense if the license holder intentionally,
knowingly, or recklessly carries a handgun under the authority
of Subchapter H, Chapter 411, Government Code, regardless of
whether the handgun is concealed, at any meeting of a governmental
entity.

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor
was not given effective notice under Section 30.06.


Quote
(g) An offense under Subsection (a), (b), (c), (d), or (e) is a Class A
misdemeanor, unless the offense is committed under Subsection
(b)(1) or (b)(3), in which event the offense is a felony of the third
degree
.

Effective notice under Section 30.06 is not required to prohibit entrance to a 51% establishment and it is a felony offense to do so...whether posted or not.

I will carry in any restaurant whether it's posted as 51% or not.  The law was written for bars, night clubs, and ice houses.







Joe
People should not be afraid of their governments. Governments should be afraid of their people.
...V

cvasqu03

  • Board Supporter
  • SKS Guru
  • *****
  • Posts: 4630
51% sign
« Reply #19 on: July 31, 2006, 03:11:17 PM »
Quote from: UNBLVR
...I will carry in any restaurant whether it's posted as 51% or not.  The law was written for bars, night clubs, and ice houses.


Not really a good idea to post your intentions to break the law in writing in a public forum.  

Just my  2 cents.
I am the one they call Cesar.

UNBLVR

  • Board Supporter
  • SKS Guru
  • *****
  • Posts: 11021
  • I AIN'T RIGHT
    • http://www.geocities.com/hardtailss/index.html
51% sign
« Reply #20 on: July 31, 2006, 03:12:54 PM »
Quote from: cvasqu03
Quote from: UNBLVR
...I will carry in any restaurant whether it's posted as 51% or not.  The law was written for bars, night clubs, and ice houses.


Not really a good idea to post your intentions to break the law in writing in a public forum.  

Just my  2 cents.

I appreciate the thought...but restaurants are not 51% establishments.  This more or less applies to the ice house down the street that sells hamburgers, or has a Thursday "steak night".





Joe
People should not be afraid of their governments. Governments should be afraid of their people.
...V

J and R

  • SKS Gunsmith
  • *
  • Posts: 1172
    • HTTP://www.jandrgunparts.com
51% sign
« Reply #21 on: July 31, 2006, 05:09:04 PM »
Quote from: UNBLVR

I will carry in any restaurant whether it's posted as 51% or not.  The law was written for bars, night clubs, and ice houses.


Joe


You forgot 90% of all strip clubs.  I guess you could carry in the BYOB clubs though.  Since the establishment does not make any money from alchohol.
Insanity = conducting the same action again and again and expecting a different result.

Now selling AMMO

J&R Gunparts and Accessories
http://HTTP://www.jandrgunparts.com

1952Sniper

  • SKS Guru
  • **
  • Posts: 17247
  • Stay thirsty my friends...
51% sign
« Reply #22 on: July 31, 2006, 05:40:11 PM »
Quote
Effective notice under Section 30.06 is not required to prohibit entrance to a 51% establishment and it is a felony offense to do so...whether posted or not.

That's up to a jury.  The prosecution would still have to prove that you did so knowingly.  The "knowingly" clause is very important.  If you don't know it's a 51% establishment and had no reason to believe it was, then the jury would have an easy time letting you off the hook, provided there were no evidence that you intentionally carried in that establishment to cause harm.

racer32

  • Board Supporter
  • SKS Sniper
  • *****
  • Posts: 713
51% sign
« Reply #23 on: July 31, 2006, 05:46:03 PM »
Sniper, 30.06 posting and 51% posting are two totally different and separate parts of the law. Joe gives the cite correctly for a CHL holder's requirement to not carry in a 51% business. Notice the law does NOT say anything about signage or any defense to prosecution if the establishmnet is not posted.  This is an issue that needs to be addressed by the legislature to remove ambiguity and confusion on the part of BOTH CHL-holders and business owners.

The posting requirements for 51% establishments aren't in the CHL handbook AFAIK. They are in the Government Code. ALL 51% establishments are required to post the signs. Quite often they are not posted correctly, or not posted at all. A call to the TABC will either get the improperly posted signs removed, or if it is a 51% establishment, posted in the correct location. Posted or not, the CHL-holder is responsible for not carrying in a 51% establishment.

From Texas Gov't Code:

   
Quote
411.204[0]. NOTICE REQUIRED ON CERTAIN PREMISES.  (a) A
business that has a permit or license issued under Chapter 25, 28,
32, 69, or 74, Alcoholic Beverage Code, and that derives 51 percent
or more of its income from the sale of alcoholic beverages for
on-premises consumption as determined by the Texas Alcoholic
Beverage Commission under Section 104.06, Alcoholic Beverage Code,
shall prominently display at each entrance to the business premises
a sign that complies with the requirements of Subsection (c).
   (b)  A hospital licensed under Chapter 241, Health and Safety
Code, or a nursing home licensed under Chapter 242, Health and
Safety Code, shall prominently display at each entrance to the
hospital or nursing home, as appropriate, a sign that complies with
the requirements of Subsection (c) other than the requirement that
the sign include on its face the number "51".
   (c)  The sign required under Subsections (a) and (b) must
give notice in both English and Spanish that it is unlawful for a
person licensed under this subchapter to carry a handgun on the
premises.  The sign must appear in contrasting colors with block
letters at least one inch in height and must include on its face the
number "51" printed in solid red at least five inches in height.  
The sign shall be displayed in a conspicuous manner clearly visible
to the public.
   (d)  A business that has a permit or license issued under the
Alcoholic Beverage Code and that is not required to display a sign
under this section may be required to display a sign under Section
11.041 or 61.11, Alcoholic Beverage Code.
   (e)  This section does not apply to a business that has a food
and beverage certificate issued under the Alcoholic Beverage Code
.

Added by Acts 1997, 75th Leg., ch. 165, 10.01(a), eff. Sept. 1,
1997.  Amended by Acts 1999, 76th Leg., ch. 62, 9.16(a), eff.
Sept. 1, 1999;  Acts 1999, 76th Leg., ch. 523, 1, eff. June 18,
1999.


These laws (Beverage Code) are very convoluted and spread out in many places, but section (e), above, seems to make an inference that if there is a food and beverage permit in effect, that the establishment ISN'T a "51%" business. Another section of the code, below, provides for the monitoring of all on-premises businesses.

From Alcoholic Beverage Code:
Quote
104.06. MONITORING OF GROSS RECEIPTS.  (a) On the
issuance and renewal of a license or permit that allows on-premises
consumption of any alcoholic beverage the commission shall
determine whether the holder receives, or for the issuance of a
license or permit is to receive, 51 percent or more of the gross
receipts of the premises for which the license or permit is issued
from the holder's sale or service of alcoholic beverages for
on-premises consumption.
   (b)  The commission shall:                                                    
      (1)  adopt rules for making a determination under
Subsection (a);  and      
      (2)  require a holder of a license or permit to provide
any information or document that the commission needs to make a
determination.
   (c)  If the commission makes a determination under
Subsection (a) that a holder of a license or permit receives 51
percent or more of the gross receipts of the premises from the sale
or service of alcoholic beverages, the holder shall comply with the
requirements of Section 411.204[0], Government Code, and shall
continue to comply with those requirements until the commission
determines that the holder receives less than 51 percent of the
gross receipts of the premises from the sale or service of alcoholic
beverages for on-premises consumption.

Added by Acts 1997, 75th Leg., ch. 1261, 20, eff. Sept. 1,
1997.  Amended by Acts 1999, 76th Leg., ch. 62, 9.22, eff.
Sept. 1, 1999.


Going back to other sections and licensing rules, one finds that a food and beverage permit will be revoked if the business receives more than 50% of its gross receipts from alcohol sales. It seems to me that if the premises is primarily a food establishment that just happens to have a bar in it, it shouldn't have a "51%" sign. I'm not 100% certain on this, but I believe that if the bar was licensed as a separate premises any alcohol sold couldn't be taken out of the bar area.  In that case, as long as the OP doesn't go into the bar area with his weapon he wouldn't be in violation of the law.

Here's a little on food & beverage permits from Beverage Code Chapter 28:
Quote
28.18. FOOD AND BEVERAGE CERTIFICATE.  (a) A holder of a
mixed beverage permit may be issued a food and beverage certificate
by the commission if the gross receipts of mixed beverages sold by
the holder are 50 percent or less of the total gross receipts from
the premises.
   (b)  An applicant or holder of a food and beverage
certificate shall have food service facilities for the preparation
and service of multiple entrees.  The commission shall adopt rules
as necessary to assure that the holder of a food and beverage
certificate maintains food service on the premises for which a food
and beverage certificate has been issued.
   (c)  The fee for a food and beverage certificate shall be set
at a level sufficient to recover the cost of issuing the certificate
and administering this section.
   (d)  On receipt of an application for a renewal of a mixed
beverage permit by a holder who also holds a food and beverage
certificate, the commission shall request certification by the
comptroller to determine whether the holder is in compliance with
Subsection (a).  In determining compliance with Subsection (a), the
comptroller shall compare the permittee's gross receipts tax
reports with the permittee's sales tax reports for the premises.  If
the comptroller does not certify that the holder is in compliance
with Subsection (a), the commission may not renew the certificate.
   (e)  A certificate expires on the expiration of the primary
mixed beverage permit.  A holder of a mixed beverage permit who is
denied renewal of a certificate may not apply for a new certificate
until the day after the first anniversary of the determination of
the comptroller under Subsection (d).
   (f)  Section 11.11 does not apply to the holder of a food and
beverage certificate.

Added by Acts 1995, 74th Leg., ch. 1060, 6, eff. Aug. 28[0], 1995.  
Amended by Acts 2001, 77th Leg., ch. 853, 2, eff. Sept. 1,
2001;  Acts 2001, 77th Leg., ch. 1045, 2, eff. Sept. 1, 2001.
Welcome to Chinese Restaurant.
please try your Nice Chinese Food With Chopsticks the traditional and typical of Chinese glorious history. and cultural
BAMBOO CHOPSTICKS
PRODUCT OF CHINA

J and R

  • SKS Gunsmith
  • *
  • Posts: 1172
    • HTTP://www.jandrgunparts.com
51% sign
« Reply #24 on: July 31, 2006, 06:00:23 PM »
There are a few resteraunts in the houston area that will only let you have drinks bought at the bar in the bar area.  If you try to leave with it they will tell you that it is not allowed in the resteraunt area.  I am assumeing this is because the bar and resteraunt have two seporate licenses.  Thus the bar area is off limits.  

Honestly though if you plan on drinking leave you gun at home right next to your car keys.
Insanity = conducting the same action again and again and expecting a different result.

Now selling AMMO

J&R Gunparts and Accessories
http://HTTP://www.jandrgunparts.com

UNBLVR

  • Board Supporter
  • SKS Guru
  • *****
  • Posts: 11021
  • I AIN'T RIGHT
    • http://www.geocities.com/hardtailss/index.html
51% sign
« Reply #25 on: July 31, 2006, 07:47:40 PM »
Quote from: 1952Sniper
Quote
Effective notice under Section 30.06 is not required to prohibit entrance to a 51% establishment and it is a felony offense to do so...whether posted or not.

That's up to a jury.  The prosecution would still have to prove that you did so knowingly.  The "knowingly" clause is very important.  If you don't know it's a 51% establishment and had no reason to believe it was, then the jury would have an easy time letting you off the hook, provided there were no evidence that you intentionally carried in that establishment to cause harm.

It's up to us as license holders to know the law...quite clearly a bar, ice house, etc is an establishment that gets more than 51% of their revenue from on-site consumption.

I'd say the "knowingly" part would only apply if you were to walk through an entrance to a hospital, for instance, that was not posted...but every other entrance was.





Joe
People should not be afraid of their governments. Governments should be afraid of their people.
...V

engineer2001

  • SKS Gunsmith
  • *
  • Posts: 1213
51% sign
« Reply #26 on: July 31, 2006, 11:04:57 PM »
Quote from: 1952Sniper
My CHL instructor was very clear to us in our class that if it's not posted, you can assume it's not a 51% business.


You had an instructor?  I just applied early last month for a GA concealed carry permit, and I've never even been to a shooting range, much less taken any classes.  I shoot at paper targets in cow pastures or in the backwoods in the mountains.  I took a hunter's safety course when I was about 12 where we took a paper test about safety and watched a video, but that's it - no real training.  Was the training a choice of yours, or was it required in order to get your permit?
engineer2001
I pity da foo.

KOOLmike

  • I Think I'm Special
  • SKS Guru
  • *
  • Posts: 7907
51% sign
« Reply #27 on: July 31, 2006, 11:11:41 PM »
Some states don't require a class, some do.
Freedom is free when you let people be!

Wood: The Original FDE

Stolen Norinco SKS, Factory /26\, Serial Number 10107962, Stolen 9/4/2010 in Blue Springs, MO. Reward if found!

racer32

  • Board Supporter
  • SKS Sniper
  • *****
  • Posts: 713
51% sign
« Reply #28 on: August 01, 2006, 10:40:10 AM »
Quote from: engineer2001
Quote from: 1952Sniper
My CHL instructor was very clear to us in our class that if it's not posted, you can assume it's not a 51% business.


You had an instructor?  I just applied early last month for a GA concealed carry permit, and I've never even been to a shooting range, much less taken any classes.  I shoot at paper targets in cow pastures or in the backwoods in the mountains.  I took a hunter's safety course when I was about 12 where we took a paper test about safety and watched a video, but that's it - no real training.  Was the training a choice of yours, or was it required in order to get your permit?


TX requires you to take a 10-hour long class for initial license, then a refresher when you renew. My class was one of the most boring days I've ever spent.
Welcome to Chinese Restaurant.
please try your Nice Chinese Food With Chopsticks the traditional and typical of Chinese glorious history. and cultural
BAMBOO CHOPSTICKS
PRODUCT OF CHINA

1952Sniper

  • SKS Guru
  • **
  • Posts: 17247
  • Stay thirsty my friends...
51% sign
« Reply #29 on: August 01, 2006, 11:00:03 AM »
Quote
It's up to us as license holders to know the law...quite clearly a bar, ice house, etc is an establishment that gets more than 51% of their revenue from on-site consumption.

I would agree that there are some establishments that are obvious.  But others, not so much.

A local joint I like to go to on occasion is the Floore Country Store in Helotes, TX.  It's an old country store that has an outside stage.  They have entertainers like Willie Nelson, Lyle Lovett, and many other country/western acts perform there.  You buy a ticket to get in, but once you're in you just find a spot to sit at one of the picnic tables.  You can go into the store for food (hamburgers and such) and buy beer/wine.  I honestly don't know if they're a 51% establishment or not.  They do make a lot of money from ticket sales and food, but then again, people buy a lot of beer there too.  And their beer ain't cheap.  I could see it going either way.  I wouldn't want to commit a felony by carrying there if they are a 51% establishment, but since they don't have a 51% sign, I can't know if I'm committing a felony or not.  And I do feel the need to carry, since the crowd can get pretty rowdy, and the shows end pretty late, and it's a long walk to a wooded area where you park in the grass.

It's a catch-22.  Should we CHL holders just start leaving our guns at home any time we go anywhere that serves alcohol, in case it "might" be a non-marked 51% establishment?  I refuse to do that.  

It is my responsibility to know the law, but it is also the business owner's responsibility to mark his property as such.  I'm not a mind reader and I doubt any jury would expect me to be.