51% question

[Kythas]

If there's a place that has a 51% sign by the door, but it has some tables outside on the sidewalk, would sitting at those tables be in violation of the 51% prohibition if I never actually walk in the door?

Mind you it's not an enclosed patio (though they do have one of those as well), just some tables outside the front of the restaraunt/bar by the sidewalk.

[WildBill]

Yes. The 51% applies to the entire premises, inside and out.

[Crossfire]

Interesting question, Kythas. If you are talking about an area where you could sit and be served alcohol, then I say yes. If this is just an area outside where you are waiting to get a table inside, and they do not serve alcohol there, then I say no.

I could be wrong, but that's the way I see it.

[Kalrog]

Let's see if I can channel Steve here. The answer is it depends. It depends on what the business put on their TABC application because the premises definition in there is different than the premises definition in the CHL statute. If the bar marked the outside tables as a part of their premises with TABC then according to TABC it is a part of the premises. And if there are tables there, I would consider it more of a patio than a sidewalk and so the CHL exemption for sidewalks and parking lots (etc) would not apply. So yes, in that situation it would be a part of the premises and the 51% rule would apply. But if the bar did NOT mark the patio as a part of the premises with TABC then you are good to go. You are always safe in the parking lot from 51% regardless of what was marked on the TABC application.

Confused enough yet? I am. This section of the law really needs a cleaning up.

[WildBill]

I was trying to channel Stephen, also. I should have waited for the master, but I couldn't resist.

As I recall, the TABC definition for premises for 51% establishments differs from that for 30.06. For TABC 51% rules, even the parking lot is part of the premises, and therefore, is off limits.

[Zero_G]

So extrapolating this to a situation I came across earlier this week- I went to pick my daughter up a bowling alley and was confronted at the door by a 51% sign. My daughter said the bar inside was in an enclosed room. So by what has been posted here, was I violating the 51% rule simply by being in the parking lot, let alone if I had gone inside the non-bar part of the bowling alley?

[boomerang]

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.

(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;

(f) In this section:
(3) "Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

[ELB]

So I got curious about what the law actually says, and went trolling thru the statutes. I have not checked the Administrative Code.

NOTE. IANAL!! Nor do I play one on TV! The following is presented for your amusement only. You have to decide what it means to you. YMMV. Etc.

Interestingly, I see nothing in the statutes I read that says which definition of "premises" rules. It seems by (my) logic, that since the Alc Bev Code does NOT deal with CHL holders, but the Government Code and the Penal Code do, that the definition of "premises" included in the Penal Code should be authoritative when dealing with the issue of where a CHL holder can have a concealed handgun. But I find the law does not always appear logical to me...

It is also interesting to note that an ABC licensee can, within limits, define what "premises" actually means for the purposes of the Alc Bev Code -- premises may or may not include the parking lot, or patio, or portions of the building, etc. If, then, the Alc Bev Code definition of premises prevails, then you actually don't know whethere you are legal or not until you go read the ABC license, by which point you may or may not have committed a crime, even if you left your gun in the car.

I dearly hope one of the bills this legislative session fixes all these ridiculous "no-go" zones for CHL holders. This far exceeds my support for an Open-Carry law or a not-having-to-show-my-CHL-to-a-peace-officer bill...

GOVERNMENT CODE
TITLE 4. EXECUTIVE BRANCH
SUBTITLE B. LAW ENFORCEMENT AND PUBLIC PROTECTION
CHAPTER 411. DEPARTMENT OF PUBLIC SAFETY OF THE STATE OF TEXAS
SUBCHAPTER A. GENERAL PROVISIONS AND ADMINISTRATION

Sec. 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) 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.

PENAL CODE
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS
CHAPTER 46. WEAPONS

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.

...

(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;

...

(f) In this section:

...

(3) "Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.
http://www.statutes.legis.state.tx.us/S ... .htm#46.03" onclick="window.open(this.href);return false;

ALCOHOLIC BEVERAGE CODE
TITLE 1. GENERAL PROVISIONS
CHAPTER 1. GENERAL PROVISIONS
Sec. 1.04. DEFINITIONS. In this code:
...
(19) "Premises" has the meaning given it in Section 11.49 of this code.
...
http://www.statutes.legis.state.tx.us/S ... 1.htm#1.04" onclick="window.open(this.href);return false;

ALCOHOLIC BEVERAGE CODE
TITLE 3. LICENSES AND PERMITS
SUBTITLE A. PERMITS
CHAPTER 11. PROVISIONS GENERALLY APPLICABLE TO PERMITS
SUBCHAPTER A. GENERAL PROVISIONS

Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.

(b)(1) Subject to the approval of the commission or the administrator, and except as provided in Subsection (c) of this section, an applicant for a permit or license may designate a portion of the grounds, buildings, vehicles, and appurtenances to be excluded from the licensed premises.

(2) If such a designation has been made and approved as to the holder of a license or permit authorizing the sale of alcoholic beverages at retail or as to a private club registration permit, the sharing of space, employees, business facilities, and services with another business entity (including the permittee's lessor, which, if a corporation, may be a domestic or foreign corporation, but excluding a business entity holding any type of winery permit, a manufacturer's license, or a general, local, or branch distributor's license), does not constitute a subterfuge or surrender of exclusive control in violation of Section 109.53 of this code or the use or display of the license for the benefit of another in violation of Subdivision (15) of Subsection (a) of Section 61.71 of this code. This subsection shall not apply to original or renewal package store permits, wine only package store permits, local distributor's permits, or any type of wholesaler's permits.

(c) An applicant for an original or renewal package store permit, wine only package store permit, local distributor's permit, or any type of wholesaler's permit may not take advantage of the right conferred by Subsection (b) of this section except as permitted in Section 11.50 or 109.53 of this code. [NOTE: The Section 11.50 exception seems to apply to certain businesses in operation prior to April 1971 -- perhaps extinct by now -- so I did not include it in this post. Section 109.53 seems to deal with who can have an ABC license WRT Texas citizenship, corporation status, subterfuges... way too long for me to read.]
...

(e) When a designation under Subsection (b) of this section is made by a wine and beer retailer or a beer retailer, selling primarily for off-premise consumption, or by a wine and beer retailer's off-premise permittee, no more than 20 percent of the retail floor and display space of the entire premises may be included in the licensed premises, and all the retail floor and display space in the licensed premises must be compact and contiguous and may not be gerrymandered. ...[there's alot more to this paragraph, if you think it is relevent to you, follow the link to read it...]
http://www.statutes.legis.state.tx.us/S ... .htm#11.49" onclick="window.open(this.href);return false;

Miscellaneous Provision of Interest...

ALCOHOLIC BEVERAGE CODE
TITLE 3. LICENSES AND PERMITS
SUBTITLE A. PERMITS
CHAPTER 11. PROVISIONS GENERALLY APPLICABLE TO PERMITS
SUBCHAPTER A. GENERAL PROVISIONS

Sec. 11.04. MUST DISPLAY PERMIT. All permits shall be displayed in a conspicuous place at all times on the licensed premises.

Sec. 11.041. WARNING SIGN REQUIRED. (a) Each holder of a permit who is not otherwise required to display a sign under Section 411.204, Government Code, shall display in a prominent place on the permit holder's premises a sign giving notice that it is unlawful for a person to carry a weapon on the premises unless the weapon is a concealed handgun of the same category the person is licensed to carry under Subchapter H, Chapter 411, Government Code.

(b) The sign must be at least 6 inches high and 14 inches wide, must appear in contrasting colors, and shall be displayed in a conspicuous manner clearly visible to the public. The commission or administrator may require the permit holder to also display the sign in a language other than English if it can be observed or determined that a substantial portion of the expected customers speak the other language as their familiar language.
http://www.statutes.legis.state.tx.us/S ... .htm#11.04" onclick="window.open(this.href);return false;

[srothstein]

Thanks to all trying to channel me. You have done well. The answer does depend on what is on the TABC license.

In the case of the bowling alley, it depends on if the bar is owned by the alley or a contracted business. If it is owned by the alley, then it is highly probable that the whole premises are on the license. It is also highly probable that the 51% sign is in error since I find it hard to believe any bowling alley gets more than 51% from the bar (even with the police league in the alley, I doubt it would make that much from drinking).

If it a contract or set up as a separate business, it is more probable that the bar itself was the 51% premise. But, they probably also listed the whole alley as the premise so that they can allow drinkers to take their drinks to the lanes (otherwise, the alcohol could not leave the bar area which would kill sales). In that case, the parking lot would be covered.

This is one of the flaws in the law where we really need to start working with other interests to get other codes reworded. While we, as gun owners, normally look primarily at gun issues, here is one example of how we need to look more into how the alcoholic beverage code regulates sales of alcohol and defines premises.

On a side note, I have made sure our liquor law classes (both for our agents and the ones we teach other departments) include the note that anyone can have a gun in their car on a licensed premise. After all, it is no longer unlawfully carrying, no matter if you have a CHL or if the premise is 51%. I hope that helps in the long run.

[TexCalhoun]

Okay, forgive me for asking a stupid question, but what does a 51% sign look like? I've tried looking them up on the internet, but haven't had any luck.

I guess I don't hang out in the right kind of bars.

[NcongruNt]

Okay, forgive me for asking a stupid question, but what does a 51% sign look like? I've tried looking them up on the internet, but haven't had any luck.

I guess I don't hang out in the right kind of bars.

Oldgringo posted this in another thread. It appears to be something txinvestigator originally posted.



And yes, the 51% sign seems to be about the most difficult image to find on the internet.

[One Shot]

A less conspicuous example:
Stonewerks, 1604 and Blanco, San Antonio

[pedalman]

Where is this less conspicuous example located?

[ELB]

This is one of the flaws in the law where we really need to start working with other interests to get other codes reworded. While we, as gun owners, normally look primarily at gun issues, here is one example of how we need to look more into how the alcoholic beverage code regulates sales of alcohol and defines premises.

Yes indeed!

On a side note, I have made sure our liquor law classes (both for our agents and the ones we teach other departments) include the note that anyone can have a gun in their car on a licensed premise. After all, it is no longer unlawfully carrying, no matter if you have a CHL or if the premise is 51%. I hope that helps in the long run.

This is very good indeed. Thanks!

[Zero_G]

I called TABC with specific questions about the bowling alley and learned some things I had not heard in CHL class or on this forum.

First, there is a way to tell if an establishment is 51% with the TABC on-line system. From the TABC website http://www.tabc.state.tx.us/default.htm, there's a link to the "Public Inquiry System". I found the easiest way to find the business was just to have it tell me all licensees in Webster, and fortunately the bowling alley was in the top 100. I wasn't having much luck with entering the name and address. Anyway, once you get the listing for the business, there are a series of codes listed as 'subordinates'. One of these codes, FB means they have a food and beverage permit. According to the Compliance agent I talked with, if they have a FB permit then they expect to sell more food than alcohol and should not be a 51% business. This is not 100%, but a good indicator.

Second, the 51% calculation is only on food and beverage sales, not anything else the establishment is selling. So the proceeds from lines of bowling don't count.

Third, I've heard it said that businesses sometimes display an incorrect sign because they are sent a pile of signs and put up whatever they get. The agent said that when they talk to the business owner about obtaining a license, they estimate the sales of food and alcohol and are given the correct sign at that time. They are also sent a sign from the state office when the license is granted based on their application. So in theory, they should only have the correct sign provided to them.

As far as the whole bowling alley being off-limits or if it is just the bar area, he said that depends on how the application was written. They can designate portions of the premises as the 'bar', but if they do that, then people can't buy a beer and take it out to the lanes. He said the 'premises' also include the parking lot, but if that's the case, you couldn't leave your gun in the car and go inside a 51% establishment, and I would have been illegal driving through to pick up my daughter.

Overall, the people at TABC were great to talk to and the agent called me back and said that it looked like the bowing alley had inappropriately posted the 51% sign and he would have an inspector go talk to the management there.