51 Rule Question

[JJVP]

If they only sell bottles of sealed alcohol and do not let you open the bottle in the store, if the license says the sign is red then the place is off limits to a CHL.

If they have the Red sign, they have the wrong sign,

GC §411.204. 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,

Not necessarily. They may be licensed for on-premise and a 51% location, but that doesn't mean they can't decide to only sell for out the door and not allow folks to consume on premise, even though they could drink it there legally.

Technically you might be correct, however I doubt that any business (bar) that is licensed to sell alcoholic beverages for on-premises consumption would not allow folks to consume on premises.

[ralewis]

If they only sell bottles of sealed alcohol and do not let you open the bottle in the store, if the license says the sign is red then the place is off limits to a CHL.

If they have the Red sign, they have the wrong sign,

GC §411.204. 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,

The large bold red print is the critical section. If the license says the sign is red, then the determination by TABC was that they do meet the 51% rule, regardless of what they actually do. This was the whole point of my post.

Thanks for the clarification for everyone and is basically what the TABC guy said when I called to inquire about Contenders in Cedar Park. They had both the "unlicensed" and "51%" signs posted. The guy told me all that matters is what the license says. Last time I was there, they had the right sign by the way.

[Keith B]

If they only sell bottles of sealed alcohol and do not let you open the bottle in the store, if the license says the sign is red then the place is off limits to a CHL.

If they have the Red sign, they have the wrong sign,

GC §411.204. 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,

Not necessarily. They may be licensed for on-premise and a 51% location, but that doesn't mean they can't decide to only sell for out the door and not allow folks to consume on premise, even though they could drink it there legally.

Technically you might be correct, however I doubt that any business (bar) that is licensed to sell alcoholic beverages for on-premises consumption would not allow folks to consume on premises.

True, but that is not the point. As Steve said, it doesn't matter what the owner of the location does, or what the owner THINKS he should be, if the TABC says they are a 51% location, and issue them that license, then they are a 51% location and you cannot carry there. Trust Mr. Rothstein when it comes to TABC matters, he is the expert on here.

[The Annoyed Man]

No. It is the responsibility of the business to properly post the 51% sign.

GC §411.204. 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.

Please see the use of the word "shall". That means it is NOT OPTIONAL. In addition:

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE
HOLDER. (a) A license holder commits an offense if the license
holder carries a handgun on or about the license holder's person
under the authority of Subchapter H, Chapter 411, Government Code,
and intentionally fails to conceal the handgun.
(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;
.
(k) It is a defense to prosecution under Subsection (b)(1) that the
actor was not given effective notice under Section 411.204, Government
Code.

That is exactly what I thought.

[cohiba550]

As of Sept. 1, 2009, the lack of a 51% sign is a defense to prosecution. Be careful, you can still be arrested but you will/should win your case.

If you are unsure and want to know if a business is a 51% location, just look at their liquor license and see if it says "sign = red" or "sign = blue." If it's blue, you're fine; if it's red it's a 51% location.

Welcome to the forum.

Chas.

I was in a place this past weekend that I know had to be at least 51% but no sign. Did not think to look around for the license, will remember in the future! Either way I was going to be there all day for an event so I left it locked in the tour pak of my bike.

[jeelliott71]

People really need to learn to read the law, and if you do not understand the wording, ask someone. People have copied word for word from the book and people are still debating this. Read the red words, that's why the poster put them in red!

[PSLOwner]

This is almost mind hurting.......

This should be a simple thing, why is it so confusing? Red, blue, fake signs, invalid signs...... come on, just make it easy on us.

[srothstein]

I post the law and the real specifics of the law because real life is never as simple as we would like it to be.

But we really can make this simple for day to day use. As a general rule, ask yourself what the average person goes to that location for. If they are going there primarily because of the alcohol, it is almost definitely a 51% location. If they are going there for a meal, it is almost definitely not a 51% place. If they are going for entertainment that they pay for, either a movie or a concert, then it is not likely to be a 51% location either.

We need to remember to look for the 51% signs just in case there has been a mistake made by TABC somewhere along the way, such as the charity theater mentioned in another thread (IIRC) that did not fill in their TABC application correctly and was legally 51% even if not physically so. But the above rule of thumb should work for most cases. Cops will probably go by it unless someone else complains to them about your pistol.

[Dragonfighter]

I post the law and the real specifics of the law because real life is never as simple as we would like it to be.

But we really can make this simple for day to day use. As a general rule, ask yourself what the average person goes to that location for. If they are going there primarily because of the alcohol, it is almost definitely a 51% location. If they are going there for a meal, it is almost definitely not a 51% place. If they are going for entertainment that they pay for, either a movie or a concert, then it is not likely to be a 51% location either.

If the sign says Bar, Pub or any euphemistic pseudonym, probably a no-go.

[jeelliott71]

We need to remember to look for the 51% signs just in case there has been a mistake made by TABC somewhere along the way, such as the charity theater mentioned in another thread (IIRC) that did not fill in their TABC application correctly and was legally 51% even if not physically so. But the above rule of thumb should work for most cases. Cops will probably go by it unless someone else complains to them about your pistol.

[/quote]


It doesn't matter if TABC made a mistake or not! It is not the CHL's responsibility to determine what the place should be. If a sign if there; NO GO! No sign; CARRY AWAY!
It is the business's responsibility to place the sign and the correct one! And they changed the law, and now it's defense for you if the wrong/no sign is there!

[Keith B]

It doesn't matter if TABC made a mistake or not! It is not the CHL's responsibility to determine what the place should be. If a sign if there; NO GO! No sign; CARRY AWAY!
It is the business's responsibility to place the sign and the correct one! And they changed the law, and now it's defense for you if the wrong/no sign is there!

This is incorrect. It is YOUR responsibility as a CHL to determine if a location is 51%, whether there is a sign or not, or even the wrong sign posted. If you carry into a 51% location and are caught, you are violating the law, right/wrong/no sign. The law that was changed last year only allows for a defense to prosecution if there is no sign, but that is AFTER you have been arrested and charged and the judge is ruling on your guilt. So, if it even has the potential to be a 51% location, you best check the liquor license to see if it says SIGN=RED before carrying.

[ScottDLS]

It doesn't matter if TABC made a mistake or not! It is not the CHL's responsibility to determine what the place should be. If a sign if there; NO GO! No sign; CARRY AWAY!
It is the business's responsibility to place the sign and the correct one! And they changed the law, and now it's defense for you if the wrong/no sign is there!

This is incorrect. It is YOUR responsibility as a CHL to determine if a location is 51%, whether there is a sign or not, or even the wrong sign posted. If you carry into a 51% location and are caught, you are violating the law, right/wrong/no sign. The law that was changed last year only allows for a defense to prosecution if there is no sign, but that is AFTER you have been arrested and charged and the judge is ruling on your guilt. So, if it even has the potential to be a 51% location, you best check the liquor license to see if it says SIGN=RED before carrying.

I would have to say based on the 2009 changes to the law that if a true 51% location didn't post properly, it is NOT the CHL responsibility to figure it out. Now if I was pretty sure the place was 51%, I would walk out. Defense to prosecution for 51% location not posted... now you have one AS OF 2009.

Could be arrested? Yes. So, every time I hear this argument I'm going to say that having a CHL was only "Defense" to UCW until 1997. So you "could be arrested". Take the ride. Pay for your defense. Sit in jail. Well I guess it could happen to anyone.

It even happend to "Handog" in the other thread and he didn't just have a defense. He was innocent. Still arrested, still took the ride, still sat in jail.

Wow, I'm wondering if I might get arrested for owning a handgun. It's not illegal, but I'm not sure if I want to "take the ride" if local DA or judge decides she doesn't like handguns and thinks "civilians" in Texas shouldn't own them. I mean I might be right, but do I really want to be the dreaded "test case".

[Keith B]

I would have to say based on the 2009 changes to the law that if a true 51% location didn't post properly, it is NOT the CHL responsibility to figure it out. Now if I was pretty sure the place was 51%, I would walk out. Defense to prosecution for 51% location not posted... now you have one AS OF 2009.

Could be arrested? Yes. So, every time I hear this argument I'm going to say that having a CHL was only "Defense" to UCW until 1997. So you "could be arrested". Take the ride. Pay for your defense. Sit in jail. Well I guess it could happen to anyone.

It even happened to "Handog" in the other thread and he didn't just have a defense. He was innocent. Still arrested, still took the ride, still sat in jail.

Wow, I'm wondering if I might get arrested for owning a handgun. It's not illegal, but I'm not sure if I want to "take the ride" if local DA or judge decides she doesn't like handguns and thinks "civilians" in Texas shouldn't own them. I mean I might be right, but do I really want to be the dreaded "test case".

You need to understand what the term 'Defense to Prosecution' means. This is not saying you didn't break the law. If you enter a 51% establishment without a sign, you ARE still breaking the law. The Defense to Prosecution means you have a good excuse for the DA or Judge to drop the charges of why you broke the law, because the business didn't post the sign and you didn't realize it was a 51% joint, but you still broke the law as written. You can still be prosecuted if they determine you actually knew it was a 51% place and carried there just because the business hadn't properly posted the sign.

In the case of handog, he DID NOT break the law and they determined even though arrested there was no violation and the Judge determined he hadn't broken the law (accidental per the Judge's words) so he was let go.

[ScottDLS]

I would have to say based on the 2009 changes to the law that if a true 51% location didn't post properly, it is NOT the CHL responsibility to figure it out. Now if I was pretty sure the place was 51%, I would walk out. Defense to prosecution for 51% location not posted... now you have one AS OF 2009.

Could be arrested? Yes. So, every time I hear this argument I'm going to say that having a CHL was only "Defense" to UCW until 1997. So you "could be arrested". Take the ride. Pay for your defense. Sit in jail. Well I guess it could happen to anyone.

It even happened to "Handog" in the other thread and he didn't just have a defense. He was innocent. Still arrested, still took the ride, still sat in jail.

Wow, I'm wondering if I might get arrested for owning a handgun. It's not illegal, but I'm not sure if I want to "take the ride" if local DA or judge decides she doesn't like handguns and thinks "civilians" in Texas shouldn't own them. I mean I might be right, but do I really want to be the dreaded "test case".

You need to understand what the term 'Defense to Prosecution' means. This is not saying you didn't break the law. If you enter a 51% establishment without a sign, you ARE still breaking the law. The Defense to Prosecution means you have a good excuse for the DA or Judge to drop the charges of why you broke the law, because the business didn't post the sign and you didn't realize it was a 51% joint, but you still broke the law as written. You can still be prosecuted if they determine you actually knew it was a 51% place and carried there just because the business hadn't properly posted the sign.

In the case of handog, he DID NOT break the law and they determined even though arrested there was no violation and the Judge determined he hadn't broken the law (accidental per the Judge's words) so he was let go.

I undertstand your point re: handog, but what about CHL in 1996? I believe this definition of "breaking the law" is subjective. If I clearly, legally, have a "Defense" at the time I commit an act, like carrying concealed on my person with CHL in 1996... am I "breaking the law"? In order to convict me at trial, the prosecution would have to refute my "Defense" beyond a reasonable doubt. This is part of the Texas PC. It's the same standard as for convicting someone of a crime without a "Defense", with the sole exception that IF you go to trial, the prosecution is not obligated to refute a "Defense" that you don't enter into evidence.

Carrying past a "gunbusters" is a "Defense" to 30.05...so is it legal? Texas law has this thing about prohibiting things, then providing a "Defense" in quite a few criminal statutes, so I'm just not comfortable agreeing that doing something with a clear "Defense" is illegal. If you can't legally be prosecuted for something without meeting the Constitutional "beyond a reasonable doubt" standard, then how is it illegal? Maybe it's semantics...

-Scott

[srothstein]

I undertstand your point re: handog, but what about CHL in 1996? I believe this definition of "breaking the law" is subjective. If I clearly, legally, have a "Defense" at the time I commit an act, like carrying concealed on my person with CHL in 1996... am I "breaking the law"? In order to convict me at trial, the prosecution would have to refute my "Defense" beyond a reasonable doubt.

I believe you have answered your own question. If the law specifically allows you to go to trial (a defense requires a trial to be effective) you must have broken the law, though perhaps in an allowable way.

If it was an exception to the law or the law was not applicable (such as unlawfully carrying is not applicable to a CHL), then you would not have broken the law.

I don't see anything subjective about the term breaking the law. All a defense does is shift the burden of proof around a little bit.