51% and bar employees

[waltherone]

Hi all, my first post here, after seeing someone on glocktalk.com link to this forum... seems to be a TON of good info here and people who actually work with the system to know what they're talking about :)

I've got a question, that might only be answered by calling the DPS, but figured I'd post here in case someone else has already asked them before.

I'm well aware of and fully understand the 51% rule regarding businesses that serve alcohol for on premisis consumption.

I work in a bar/pool hall. My question is, how does this rule relate to after the establishment is closed?

We stop selling anything at 2am on the dot. After that, people have 15 minutes to finish their drinks, then we take them and throw them in the trash/pour them out and everyone must leave. From 2:15 till about 2:30 the door is still unlocked, because you can't lock the door with customers still inside.

Also, while obviously not good practice, since we often have fellow employees on their off days/employees from other stores in the company staying after hours to pick up paychecks and/or play pool(some of us used to stay there and use a pool table as a large "playing field" to play Yu-Gi-Oh card games ) we often leave the door unlocked almost right up until we all leave together around 3am.

Every now any then you'll get a couple of people wandering in thinking we're still open for some reason.

Obviously, being someone who carries daily and for obvious reasons, this makes me a BIT nervous, but there's not a lot I can do on it really, the doors WILL be unlocked till at least 2:15-2:30.

So my question is, does it matter if I start carrying once we've closed and are no longer serving? Or is the 51% rule just plain, straight forward, no exceptions "NO YOU CAN'T CARRY IN HERE?"

I'd hate for an unfortunate incident to happen like someone who was kicked out earlier in the night for fighting/over-intoxicated come back and start some crap and it get out of hand, and my gun be locked outside where it serves as a nice paperweight for the papers in the glovebox, ya know? There's only a couple male employees, the staff is majority female.

I've not carried in there before, but wanted some info on this particular topic. It'd be about 30 minutes per night of carrying, that's it. I don't want to commit a felony though :)

[seamusTX]

Welcome to the forum. One of our members is with TABC and I'm confident he'll answer your question eventually.

- Jim

[7GenTex]

I'm not an attorney, etc.............

But, I think you can carry all the time at work if the boss / owner authorizes under the "premises under your control" approach rather than a CHL approach. I have no idea if TABC has laws regarding/resticting "armed" employees at a licensed establishment - I would hope not.

[waltherone]

Welcome to the forum. One of our members is with TABC and I'm confident he'll answer your question eventually.

- Jim

Yeah I know the fellow you're talking about, read many of his posts on other things already on this forum :) Hoping he'll chime in soon.

As for the premises under your control, as far as I know TABC trumps them since they choose whether our license gets renewed each time or not. Hopefully some TABC employees can step up and verify that?

I'm figuring I WON'T be able to carry in there, even after hours, but I want to make sure, because if I CAN, bet your behind that I WILL

[seamusTX]

As for the premises under your control, as far as I know TABC trumps them since they choose whether our license gets renewed each time or not.

These conflicts in state law (there are many) can only be resolved by case law. I don't know how to search for case law as a general thing.

- Jim

[txinvestigator]

It is not a conflict in the law, and laws don't trump other laws. (as in an ACE trumps a 3)

I have never thought about this issue, but lets look at it.

Here is the law about 51% places;

Texas Penal Code
§ 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;

A couple of points there. It is clear that it matters not if the premises is open or closed. also, this section only applies to people who are carrying under the authority of their CHL.

Section 46.15 of the Penal Code lists when Unlawful Carrying Weapons does not apply. ONE of them is while carrying a CHL.

There are many others. One of the other times is on my own premises. When I am at home I am not carrying under my CHL, but rather this,

§ 46.15. NONAPPLICABILITY. (b) Section 46.02 does not apply to a person who:

(2) is on the person's own premises or premises under
the person's control unless the person is an employee or agent of
the owner of the premises and the person's primary responsibility
is to act in the capacity of a security guard to protect persons or
property, in which event the person must comply with Subdivision
(5);

And I do not have to carry concealed.


The same logic would apply to carry there by a person who is on the premises of a 51% place.


Working at a TABC licensed establishment, you also have this;

(b) Section 46.02 does not apply to a person who:

(8) holds an alcoholic beverage permit or license or
is an employee of a holder of an alcoholic beverage permit or
license if the person is supervising the operation of the permitted
or licensed premises.

When you carry in such a capacity, you ARE NOT carrying under authority of your CHL; therefore, the 51% rule is not applicable. The question is, are you in control of the premise or supervising the operation of the premise?

[seamusTX]

(b) Section 46.02 does not apply to a person who:
(8) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises.

That seems to nail it. Nitpickers could argue about the interpretation of " is supervising the operation..." after hours. I prefer the most permissive interpretation of the law, but DAs sometimes don't.

- Jim

[waltherone]

The question is, are you in control of the premise or supervising the operation of the premise?

Nope... thaaaaaaaat would be my girlfriend, so once again, she gets all the good stuff

So long story short, the manager on duty could carry, but can't grant someone ELSE the ability to carry, correct?

[txinvestigator]

The question is, are you in control of the premise or supervising the operation of the premise?

Nope... thaaaaaaaat would be my girlfriend, so once again, she gets all the good stuff

So long story short, the manager on duty could carry, but can't grant someone ELSE the ability to carry, correct?

The law does not allow one person to grant carry rights to others in this situation.

However, can you tell people to leave, control acces, etc?

[waltherone]

The question is, are you in control of the premise or supervising the operation of the premise?

Nope... thaaaaaaaat would be my girlfriend, so once again, she gets all the good stuff

So long story short, the manager on duty could carry, but can't grant someone ELSE the ability to carry, correct?

The law does not allow one person to grant carry rights to others in this situation.

However, can you tell people to leave, control acces, etc?

Well, yes, once we close, ANYONE on the staff is in the position to tell people to leave. Mind you I'm talking ONLY after the store is closed for the night, and after that, no non-employees have a right to be there anyways.

The door locks from the inside but you need keys to open it from EITHER side, so any time one of the employees needs to leave after the door's locked, whoever's in the vicinity of the door gets tossed the keys to let them out and relock the door.

All of this sounds sort of like grasping for straws though...the only ones with their OWN sets of keys to "control access" are the manager and the bartender. Anyone else is just borrowing keys to let someone out or lock the door once the customers leave, etc.

[srothstein]

Well, I was tied up for a couple days, and so, TXI answered the legal questions about the 51% rule. Yes, it does apply at all times.

But, as TXI also pointed out, there is an exception in the law for bars and such. Note that the law allows for the employee who is supervising the premises to be armed. To find out if this includes you, you would need to ask if you were supervising the premises. This is not the same as supervising the other employees. Basically, any employee who has any authority to tell a customer to leave if they get rowdy could be considered to be supervising the premises.

But, to be safe, we need to check the Alcoholic Beverage Code and the TABC Rules, which are contained in the Texas Administrative Code. TABC rules specifically say that the permittee/licensee may be armed, as those terms are defined in the Alcoholic Beverage Code section 1.04. That section defines the terms permittee/licensee as including any employee.

My opinion, which is not legal advice, is that any employee working and on duty, would be legally able to be armed.