TexasCHLforum.com

OK, once again, the law says the signage is irrelevant and the ban is based on what TABC decides. Important note here that I don't know if I said before or not, but the ban is not even based on what the store actually sells, but is based on what TABC decides about the sales.

When a person applies for a new TABC license/permit, they are asked to estimate their sales. The categories are broken down into food, alcohol, and other. If the alcohol totals more than the food and other, the 51% determination is made. After the first year, the renewals ask for the actual figures from the previous year instead of an estimate.

Now, here is the problem. When TABC set up this system, no one expected wineries to be able to do what they can legally do now. Texas has what is known as a three tier system for alcohol sales. The first tier is the manufacturer. The second tier is the wholesaler. The third tier is the retailer. No one is legally allowed to own or have any financial ties to more than any one tier. For example, you cannot legally sell beer in a bar if you also own the local distributorship.

But, in the last few years, there have been many changes in the way alcoholic beverages are made and sold. Some of the changes were forced through court suits. Wineries are a big change that came about through law suits. For example, a SCOTUS case decided that an out of state winery could directly ship to a consumer in this state. Note that this violates the three tier system we had set up. As a result of this lawsuit, there was a second lawsuit allowing in state wineries to directly ship to consumers in this state. This was based on it being unfair to treat out of state wineries differently than out of state wineries.

Through the changes in the retail market and lawsuits, we now have wineries where the manufacturer is all three tiers and sells directly to consumers for both on and off premises consumption. They can also sell to other retailers as the distributor under some conditions.

TABC applications and most places accounting systems do not yet differentiate between the off premise consumption sales and the on premise consumption sales. This is a flaw that has been pointed out to the agency and the project is being worked on. I do not know when this will be changed.

So, in the meantime, we now have the problem for CHL's that TABC would probably determine that a store that sold wine for both on and off premises consumption was a 51% store if that was all they sold. To further confuse things, most of these stores also sell things other than alcoholic beverages, such as wine racks, wine coolers (the refrigerator not the drink), and cheese or other snacks.

Until we get the changes completed, it is up to the CHL to carefully check for signs and maybe even read the license to be sure. While it is true the lack of signs is no exception to a CHL, there is a strong possibility that they would be able to serve as a defense. It is also probable that the officer would not know the premises were 51% without the signs either.

And be careful, because the law says recklessly carries. If it looks like it is a bar, or might sell more than 51% alcohol, don't carry there until you do check the license.