51% question

[kd5zex]

Where is this less conspicuous example located?

I don't know but I see a humidor!

[One Shot]

Sorry
Picture above is from Stonwerks, 1604 and Blanco, San Antonio.

Question. If the parking lot is included in the liquor license definition of "premises" for 51% establishments, why can't you buy liquor and take it out to the parking lot to drink? Also, what about parking lots used by multiple businesses?
Thanks

[FlynJay]

I would think that since the parking lot is specifically excluded in the definition of "premises" for 46.035, then you are okay to leave the gun in the car or driving through or walking on the sidewalk etc. It does not matter how it is defined elsewhere since it is specifically defined for 46.035.

[srothstein]

Sorry
Picture above is from Stonwerks, 1604 and Blanco, San Antonio.

Question. If the parking lot is included in the liquor license definition of "premises" for 51% establishments, why can't you buy liquor and take it out to the parking lot to drink? Also, what about parking lots used by multiple businesses?
Thanks

Well, legally, you can take your drink into the parking lot of a premise if the lot is not diagrammed off on the license application. Most people do not realize this, but it is true and the legal department at TABC has verified it for some agents.

I would think that since the parking lot is specifically excluded in the definition of "premises" for 46.035, then you are okay to leave the gun in the car or driving through or walking on the sidewalk etc. It does not matter how it is defined elsewhere since it is specifically defined for 46.035.

As I pointed out earlier, it is not illegal to have a gun in your car anymore, so it is not unlawfully carrying to have it in the parking lot in the car, no matter whether it is 51% or not or if you are a CHL or not. Understanding parking lots of licensed premises starts to get confusing when you take into account all of the possible permutations.

Basically, anyone can have a gun in their car anywhere. A Non-CHL is committing a felony if he steps out of the car with the gun in the parking lot of a licensed premise. A CHL is only committing a crime if he steps out of the car with the gun in the parking lot of a 51% licensed premise.

And in the case of a common parking lot for multiple stores (like a strip center), it is usually not part of the licensed premise since it has a different address than the store. Consider a mall as having one address for the mall overall, then the same address with a suite number for a store. Only the suite would be the licensed premise in most cases. Of course, it would take looking at the actual application to be sure.

[srothstein]

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.

I just wanted to clarify this. I am not sur eif it was the auditor you talked with that made it confusing, or just the way it appears here, but it is not quite clear.

The main license is checked for 51% of alcohol sales to see if it gets the 51% sign. ALL sales, including bowling lines or club door charges, count towards this calculation.

The FB license is only if more than 51% of sales are from food, but all sales count towards this calculation too.

So, if it gets 51% from drinks, 25% from food, and 24% from all other sales (the three categories asked for on the application) then it gets a 51% sign.

If it gets 51% from food, 25% from drinks, and 24% from all other sales, then it gets the FB certificate if they want it and apply (this is not a mandatory license to apply for).

And, if it gets 33% from drinks, 33% from food, and 34% from all other sales, it gets a regular "Unlicensed possession" sign and no 51% or FB.

Hope that helps.

[Liberty]

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.

I just wanted to clarify this. I am not sur eif it was the auditor you talked with that made it confusing, or just the way it appears here, but it is not quite clear.

The main license is checked for 51% of alcohol sales to see if it gets the 51% sign. ALL sales, including bowling lines or club door charges, count towards this calculation.

The FB license is only if more than 51% of sales are from food, but all sales count towards this calculation too.

So, if it gets 51% from drinks, 25% from food, and 24% from all other sales (the three categories asked for on the application) then it gets a 51% sign.

If it gets 51% from food, 25% from drinks, and 24% from all other sales, then it gets the FB certificate if they want it and apply (this is not a mandatory license to apply for).

And, if it gets 33% from drinks, 33% from food, and 34% from all other sales, it gets a regular "Unlicensed possession" sign and no 51% or FB.

Hope that helps.

Steve,
Thanks for making making the muddy waters so clear. You are indeed an golmine of excellent information.

[bayouhazard]

I would think that since the parking lot is specifically excluded in the definition of "premises" for 46.035, then you are okay to leave the gun in the car or driving through or walking on the sidewalk etc. It does not matter how it is defined elsewhere since it is specifically defined for 46.035.

I agree the law is clear for the 46.035 definition of premises. However if the sidewalk and parking lot are part of the premises for TABC then it might upgrade UCW to a felony on the sidewalk, regardless of 51% status.

[Zero_G]

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.

I just wanted to clarify this. I am not sur eif it was the auditor you talked with that made it confusing, or just the way it appears here, but it is not quite clear.

That wasn't the way the agent explained it to me, as I asked him specifically about the relationship to the 51% sign. He said the sign was based only on food and drinks, not merchandise. From your posts I assume you're intimately familiar with the regs and your info is accurate.

[FlynJay]

I would think that since the parking lot is specifically excluded in the definition of "premises" for 46.035, then you are okay to leave the gun in the car or driving through or walking on the sidewalk etc. It does not matter how it is defined elsewhere since it is specifically defined for 46.035.

I agree the law is clear for the 46.035 definition of premises. However if the sidewalk and parking lot are part of the premises for TABC then it might upgrade UCW to a felony on the sidewalk, regardless of 51% status.

If you were charged it would be under 46.035, since that is what prohibits carrying in a 51% establishment. Since that is the case you can be walking through the parking lot or along the sidewalk while carrying you are fine due to the very clear definition of "premises".

[srothstein]

That wasn't the way the agent explained it to me, as I asked him specifically about the relationship to the 51% sign. He said the sign was based only on food and drinks, not merchandise. From your posts I assume you're intimately familiar with the regs and your info is accurate.

I am one of the officers running the TABC training academy, so I have become more familiar with the rules than I ever thought I would have. This is a confusing area and I keep close eye on it due to my interest in guns. It is easy for the auditor, who, BTW, is not a peace officer but an accountant, to focus more on their part of the job, which is making sure the numbers are right and the store complies with the rules.

We are improving their training, putting new auditors through almost the exact same courses as officers get, but if they have been on for a while, they did not get the same training. And, without the prior legal training and experience with legal issues, it can be harder for the auditors to understand the way the laws are written and work. Even the new lawyers we hire have to get training for the alcoholic beverage code and how we work as an agency.

[bayouhazard]

I agree the law is clear for the 46.035 definition of premises. However if the sidewalk and parking lot are part of the premises for TABC then it might upgrade UCW to a felony on the sidewalk, regardless of 51% status.

If you were charged it would be under 46.035, since that is what prohibits carrying in a 51% establishment. Since that is the case you can be walking through the parking lot or along the sidewalk while carrying you are fine due to the very clear definition of "premises".

I agree and what I was also saying was an unlicensed person would be charged with UCW (46.02) which is usually a misdemeanor but the offense upgrades to a felony "on any premises licensed or issued a permit by this state for the sale of alcoholic beverages" regardless of 51% status. For the unlicensed person, I'm not sure if the TABC definition or the 46.035 definition of premises would apply. I can see the arguments for both. I also don't see anything in the statutes to suggest it matters whether the TABC business is open at the time.

[ELB]

I also don't see anything in the statutes to suggest it matters whether the TABC business is open at the time.

That's actually a good question. Here's a situation that combines that with some of the other issues raised in this thread (e.g. what "premises" are defined on the alcohol license).

I have seen a CHL class (not mine) held in a facility that rents out a large meeting room to whoever wants to rent it -- such as CHL instructors. What is interesting is that it adjoins, but has entrance to, a separate room that is used as a bar. The "bar" has an entrance to the outside which has red 51% signs on it. The large room has an outside exit, but it is more of the nature of an emergency exit, and is normally locked to the outside. The normal mode of entrance to the large room is...through the bar. The bar has other interior entrances that are not marked with the 51% signs, so it is possible, especially for a first time visitor, to enter the building from yet another outside (non-bar non-signed) entrance, wander around inside, find the bar, and then enter the large meeting room without ever encountering a 51% sign. It is not obvious to the casual wanderer in search of the large meeting room that the bar exists until the wanderer walks thru an interior dooer way and finds himself standing IN the bar -- especially when it is after-hours for most of that facility and the lights are off, except for the large meeting room. It is possible to enter the large meeting room from outdoors by using a non-bar entrance, wandering around, finding a long hallway, and entering the large meeting room from the back -- but you have to wander around quite a bit to find this out. BTW, don't ask me how I know this.

So if it is after hours, is the "51% rule" in effect? I didn't see anything in the AB code that said it wasn't...

If it is in effect, then, as I observed when looking up the "premises" definition in the AB code, it is entirely possible to have no idea one is potentially breaking the law -- until it is too late...either due to the fact that the 51% signs are not in place (yet the law still applies) or because you have no idea what actually constitutes the premises.

The more I think about it, the more screwed up this portion of the law is, and could really use some tidying up (like, say, eliminating any location-based rule about CHL carry).

[jamullinstx]

Steve,

I'm hoping you can clear up a few questions that I have. I've encountered several establishments in Austin that I think are bars, and thus subject to the 51% signage requirement. Of course they serve food, too, but I would consider them bars. In one case, in particular, there was no 51% sign on the entry door. It was mounted to the mirror behind the bar, behind several liquor bottles. I had to ask the waitress at my table (not at the bar) if the facility was a 51% establishment.

1. If no sign is on the door, but is on the bar and the place serves food, is it because the business has 2 entities within the same facility, one with the liquor license, the other with the FB license? What are the carry rules in such a place?
2. In places like TGIF or Romano's Macaroni Grill (just, for example) that I would classify as restaurants but which usually have a separate bar area, my understanding was that it was legal to carry into the restaurant portion, but not into the bar. Is that the correct interpretation. The bar is usually delineated with a wooden rail, or some such divider.
3. Finally, the code requires the establishment to post its 51% sign, but for the CHL holder it specifies that it is unlawful to carry in an establishment that receives 51% of its revenue from alcohol sales for consumption on the premises, without reference to the signage, or exemption from prosecution if the establishment fails to properly post. What's the scoop? Can the CHL holder rely on the signage for making a decision to enter, or not?

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.

I just wanted to clarify this. I am not sur eif it was the auditor you talked with that made it confusing, or just the way it appears here, but it is not quite clear.

The main license is checked for 51% of alcohol sales to see if it gets the 51% sign. ALL sales, including bowling lines or club door charges, count towards this calculation.

The FB license is only if more than 51% of sales are from food, but all sales count towards this calculation too.

So, if it gets 51% from drinks, 25% from food, and 24% from all other sales (the three categories asked for on the application) then it gets a 51% sign.

If it gets 51% from food, 25% from drinks, and 24% from all other sales, then it gets the FB certificate if they want it and apply (this is not a mandatory license to apply for).

And, if it gets 33% from drinks, 33% from food, and 34% from all other sales, it gets a regular "Unlicensed possession" sign and no 51% or FB.

Hope that helps.

[Captain Matt]

I'm not Steve, but here's my thoughts.

2. In places like TGIF or Romano's Macaroni Grill (just, for example) that I would classify as restaurants but which usually have a separate bar area, my understanding was that it was legal to carry into the restaurant portion, but not into the bar. Is that the correct interpretation. The bar is usually delineated with a wooden rail, or some such divider.

Washington is like that but in Texas I think the entire premises is 51% or not based on the license. If they're separate licenses in Texas I think it wouldn't be legal to bring a drink from the bar into the restaurant when they seat you.

3. Finally, the code requires the establishment to post its 51% sign, but for the CHL holder it specifies that it is unlawful to carry in an establishment that receives 51% of its revenue from alcohol sales for consumption on the premises, without reference to the signage, or exemption from prosecution if the establishment fails to properly post. What's the scoop? Can the CHL holder rely on the signage for making a decision to enter, or not?

The law says "intentionally, knowingly, or recklessly" so maybe you can convince a jury you didn't know and weren't reckless if the establishment looks like a restaurant, but if it's obviously a bar then you're probably out of luck.

[srothstein]

Steve,

I'm hoping you can clear up a few questions that I have.

I'll try.

I've encountered several establishments in Austin that I think are bars, and thus subject to the 51% signage requirement. Of course they serve food, too, but I would consider them bars. In one case, in particular, there was no 51% sign on the entry door. It was mounted to the mirror behind the bar, behind several liquor bottles. I had to ask the waitress at my table (not at the bar) if the facility was a 51% establishment.

1. If no sign is on the door, but is on the bar and the place serves food, is it because the business has 2 entities within the same facility, one with the liquor license, the other with the FB license? What are the carry rules in such a place?

TABC will only grant a license to one company per address. To get the FB (food) requires them to first have the MB (liquor) license. This would all be one premise. if they have a 51% sign at the bar, they are posting in violation of the rules and law. In the case you mentioned, the sign is not properly posted (supposed to be by the door and conspicuous). You might call the near by TABC office and let them know.

But, just because they do sell food does not make them an FB. It really does require the food to be more than 51%. As a general rule, you could go with if it looks like a bar or a restaurant, it probably is. For one business, like a restaurant or club, this is probably going to work out as you think. The weird cases, like bowling alleys and ice skating rinks have been discussed before and don't meet the rule of thumb. This is because these types of businesses are almost always using concessionaires for the bar. There is still one license per address but it may not be posted how we think it should be. I really do not know how a court would react to a case from a bowling alley being posted 51%.

2. In places like TGIF or Romano's Macaroni Grill (just, for example) that I would classify as restaurants but which usually have a separate bar area, my understanding was that it was legal to carry into the restaurant portion, but not into the bar. Is that the correct interpretation. The bar is usually delineated with a wooden rail, or some such divider.

In Texas, the law does not delineate the bar from the restaurant. If you can carry in the restaurant area, you can carry in the bar area too.

3. Finally, the code requires the establishment to post its 51% sign, but for the CHL holder it specifies that it is unlawful to carry in an establishment that receives 51% of its revenue from alcohol sales for consumption on the premises, without reference to the signage, or exemption from prosecution if the establishment fails to properly post. What's the scoop? Can the CHL holder rely on the signage for making a decision to enter, or not?

The biggest flaw in the law in this area is that it makes it illegal for a person to carry in a place that TABC determines to be 51%. It does not depend on the signs or notice and you are guilty even if the wrong sign is posted. Of course, the flip side is that you can ignore the incorrect 51 signs also.

The only way to know for sure if a license is 51% or not is to actually look at the license. If it is, there will be a line saying "SIGN=RED". If it is not 51% the line will say "SIGN=BLUE". If you want to call TABC, most of the time you can get the information on the phone. Looking in the public inquiry system on our web site will give you a few hints. If it has an FB as a subordinate license, they cannot be 51%. This, as I pointed out earlier, is only conclusive the one way though.

And finally, as Captain Matt said, there is the defense of not being intentional, knowing, or reckless, if it is not posted and not clearly a bar. But this is not something I would want to rely on as it takes convincing the jury on a very fine point and neither guns nor alcohol are well received by juries very often. It is easy to scare a jury with what "could have happened" if someone has a gun in a bar, even if we know it is just a story.


So, my final advice is to check by the doors for the sign and see if it looks like a bar. If it does not generally look like a bar and is not posted, you are probably ok.