How to determine if an establishment is 51% or not

[srothstein]

As a point of inquiry, what IS the punishment range for not properly displaying the correct signing? I could not find it in the link you provided for common offenses. I am not trying to be a smart alec here, I am just curious.

Being an instructor and not directly in enforcement, I don't know the chart or how we settle cases other than what I posted. I also could not find one specifically on signage in the chart, which may mean that we don't do it very often or don't have a specific line for it. Offhand, I would guess they would use either the lower "place and manner" violation or one of the marketing practices rules, which is where signage usually falls. I will ask them this week and post it back here if I get an answer.

[CWOOD]

Thanks,
I'll look forward to it.

[srothstein]

Well, I had an interesting conversation today with some of the licensing people and a couple agents. Found out some interesting information on how you can easily determine if the premises is properly posted (after you go inside).

To start with, TABC asks each applicant what they sell total, alcohol, food, and other sales. They use this to determine the 51% (alcohol over total). This is done by projected sales on the initial application and actual sales on all renewals. Our auditors may check this information as they check the books for tax purposes. To the best of my knowledge, no one has ever asked them to check the amount of sales broken down by on and off premises for the locations authorized to sell for either. I will try to mention this problem to the Licensing Director and see what she says when I see her next (it seems to me that we are not doing the job correctly, but the Penal Code says as determined by TABC).

Since the Penal Code does say as determined by us, the next question is how you can know our determination. That one turned out to be very easy, and I had never known it before. Each permit or license issued has a note on it saying "SIGN=RED" or "SIGN=BLUE". If you look at the posted license, you can see what is proper. Note that all licenses are supposed to be posted in plain sight of the public. As an aside, I will note that when I went to check this in H.E.B. today, the license was not in clear view. When I asked about it, the manager asked who I was with. You may need to ask to see the license and may get some resistance from the manager, but by law he cannot stop you. Let us know if you have problems.

The bad part of this is that it requires you to go inside the location first. I suggest you disarm while you check the location, just in case. But that way you will know exactly what TABC has determined about the location. For those of you who did not know, there is a public inquiry system on the TABC web page ( http://www.tabc.state.tx.us ). This will allow you to see a list of licensees in any area, by city, county, zip code, type of license, etc. I am going to suggest to the IRD and Licensing Directors that it be modified to add the field for sign on it. I have no idea how hard that will be or how they will receive the suggestion, but I will try.

Now, on the other issue, the agents said they have filed cases against people for using the improper sign. They said they go with the general violation, which is not on the chart. It also means that there is no set range for the initial offer, and it depends on the supervisor working the settling of the case. Usually it has resulted in a suspension if the officer writes the case (supervisors know that there was almost always a verbal warning and request first). They also pointed out that if the permittee fights the case instead of settling, the punishment is anything the SOAH judge says. The judge can take into account any prior history, not just the same violations like the penalty chart does. That also holds for any case, even on the chart.

Hope that helps a little bit. I think the mod to the public inquiry system might not be too hard to get through. All we can do is try though.

[Zero_G]

Each permit or license issued has a note on it saying "SIGN=RED" or "SIGN=BLUE". If you look at the posted license, you can see what is proper.

Does 'SIGN=RED' mean 51% and blue not, or the other way around?

Is this in large enough print to be seen from a moderate distance?

And on the "unlicensed carry prohibited" signs - are they required to be the specific wording? The hockey rink close to us put generic red-slash "no guns" signs up when they started serving alcohol. Would that be a violation?

Keith

[jimlongley]

For those of you who did not know, there is a public inquiry system on the TABC web page ( http://www.tabc.state.tx.us ). This will allow you to see a list of licensees in any area, by city, county, zip code, type of license, etc.

Stephan, I have tried to get the info on this place a couple of times, but all I get is a blank pop-up or "No Record"

Lone Star Wines
140 E Exchange Ave # 108
Fort Worth, TX 76164

When my wife and I were up in Fort Worth for the St. Patrick's Day parade, I spotted the 51% sign prominently displayed in the front window, but never checked to see if they actually sell for on premise consumption. I took a pic of the place and then just kind of forgot about it until I saw your post. I think I'm doing all the right stuff on the web site.

Edited to add:

Well, I tried a different way and got this back, but I still don't know if they are supposed to be 51% or not. (expurgated for clarity)

LONE STAR WINES
140 E EXCHANGE AVE STE A201
FORT WORTH, TX 761068244
BG443613
Wine Percent: 17

[stevie_d_64]

Not to be a stick in the mud about this...

The original question as I read it:

"Is there an easy way to determine if an establishment is 51% or not?"

My knee jerk reaction to that question would be, "no"...From the context that I believe it is not our responsibility to be the ones to determine that status...

But...

I do believe we should adheir to the discovery and intent of said signage to be compliant to the law...

If the 51% sign is discovered to be incorrectly posted per the requirements in the law, then yes, there is a mechanism to give the owner a chance to remove it, or face penalties for not doing their part in accordance with the law...And I believe that is a fair process...

The posting of signs correctly or incorrectly, is though, our responsibility to comply with the law...And we do (and have done) a very good job of doing so over the years...And the law has been tweeked enough for issues to be resolved with less and less ambiguity in that time...

Our greatest impact is that we do do our business within the law, and if we are not allowed to carry into an establishment, I've seen a lot of people just take their businees elsewhere...No big deal, most of the time...

I thought it was, before I realized that some establishments were posting incorrectly those 51% signs...And most of them just did it, because it was in the owners package of TABC and other state required signage that was required to post...I don't even think a lot of them were doing so just to be malicious and restrictive to us...

I'm kinda glad Texas has this check and balance going on...Just look at the other states that don't define on-premises consumption, and just ban you from carrying at all in any establishment that serves any amount of alcohol...

[Zero_G]

All alcoholic beverage retailers must post one of two firearms signs.

The 51% sign is required to be posted on the premises of establishments where the possession of any concealed weapon is illegal. These are establishments that are licensed to sell alcoholic beverages for on-premises consumption whose alcohol sales constitutes more than half of their gross receipts. These signs have 51% in large red letters superimposed over the warning which notes that possession of a concealed weapon on the premises is a felony.

Establishments licensed to sell alcoholic beverages for off-premise consumption or establishments licensed to sell for on-premises consumption whose alcohol sales are 50% or less of total gross receipts are required to post a sign that warns that the unlicensed possession of a concealed weapon is a felony. The holder of a concealed handgun license may lawfully possess a concealed handgun on these premises.

This just really hit me - the way it was presented in my CHL class is that if the establishment was >51% in alcohol sales, it was off limits. However the actual wording is >51% for *on premises consumption*! You all may have had that figured out, but it was an eye-opener for me. Liqueur stores are not off-limits to CHL while carrying!

Keith

[stevie_d_64]

All alcoholic beverage retailers must post one of two firearms signs.

The 51% sign is required to be posted on the premises of establishments where the possession of any concealed weapon is illegal. These are establishments that are licensed to sell alcoholic beverages for on-premises consumption whose alcohol sales constitutes more than half of their gross receipts. These signs have 51% in large red letters superimposed over the warning which notes that possession of a concealed weapon on the premises is a felony.

Establishments licensed to sell alcoholic beverages for off-premise consumption or establishments licensed to sell for on-premises consumption whose alcohol sales are 50% or less of total gross receipts are required to post a sign that warns that the unlicensed possession of a concealed weapon is a felony. The holder of a concealed handgun license may lawfully possess a concealed handgun on these premises.

This just really hit me - the way it was presented in my CHL class is that if the establishment was >51% in alcohol sales, it was off limits. However the actual wording is >51% for *on premises consumption*! You all may have had that figured out, but it was an eye-opener for me. Liqueur stores are not off-limits to CHL while carrying!

Keith

You got that right...Ironic isn't it???

But it kinda makes sense in the long run...

[srothstein]

Each permit or license issued has a note on it saying "SIGN=RED" or "SIGN=BLUE". If you look at the posted license, you can see what is proper.

Does 'SIGN=RED' mean 51% and blue not, or the other way around?

Is this in large enough print to be seen from a moderate distance?

And on the "unlicensed carry prohibited" signs - are they required to be the specific wording? The hockey rink close to us put generic red-slash "no guns" signs up when they started serving alcohol. Would that be a violation?

Keith

Sorry for the lack of clarity, Keith. Yes, the red sign is the 51% sign and the blue sign is the unlicensed possession sign.

The permits are not too readable from any distance at all, being typed in normal (12 point or thereabouts) size type. You are supposed to be able to get to see it by asking though, but I have no faith in this since we regularly arrest people for not letting the agents inside to read it or do their inspection.

It does sound to me like the hockey rink is in violation of the TABC rules. check to be sure they don't have one blue sign posted near the main entrance, but you can ignore any other no guns signs that are not 51% or 30.06 compliant.

[srothstein]

Jim,

The BG is for drinking wine and beer on premise or off premise. I would bet that it is posted for 51% because we only ask about the alcohol sales and assume it is all for on-premise consumption. I did mention this (not checking the way alcohol is sold in places like this) to the new acting chief of enforcement today, and his initial reaction was that the off premise sales in places like that are so low that it doesn't matter.

Since he just took over, he is kind of swamped right now with other things. I will try to bring it up again later on and see what kind of response I get.

He did see the advantage to adding the sign information to the public query system though. Now to tackle the Licensing Director about that.

[jimlongley]

Stephan,

It looked to me as though the place was more for selling by the bottle for off prem, but I didn't go in and my bride was doing one of those "Now Jimmy don't pick a fight again . . . "

Jim

[CWOOD]

srothstein,

Thanks for following up. It is appreciated.

I really hope your suggestion of having establishment specific info on the web will do much to help us in our efforts of voluntary compliance.

Thanks again

[CWOOD]

Your advice about looking on the TABC license was put to use tonight.

The wife and I went to Alligator Grill in Austin for some 25 cent oysters. I was sure the place was not 51% and have never worried about it. I did, however go and look at the license and sure enough, right in the middle of it was:

SIGN-Blue

That was really good info. Thanks again.

[NcongruNt]

An update on this, which actually prompts more questions...

I talked to TABC today (using the extension for "compliance") regarding the lack of signage at La Zona Rosa. The gentleman I talked to didn't seem to make the distinction between 51% or not based strictly on sales, but rather whether the place was considered a "restaurant" or not. I explained to him my understanding of the law, and that because La Zona Rosa typically charges $30 or more per ticket, that it's questionable whether they actually receive 51% of sales from alcohol or not. I don't know anyone personally that drinks $30 in drinks at a given show. That combined with the fact that it's an all-ages venue strengthens the question as to whether the place is in fact 51%.

My impression was that there isn't as strict adherence to the actual sales figures when classifying an establishment as 51%, but more an assumption that if the place isn't a restaurant it's presumed 51%. I was never able to get a definitive answer from him, and my impression was that he did not have access to that kind of information. Is there any recourse here in getting a definitive answer? I'm not complaining about the gentleman who helped me - he was very helpful in answering the questions I had to the best of his ability. It seems that the system TABC uses doesn't address our concerns adequately.

As for the signage, I let him know that I saw absolutely nothing there on the premises - no 51% sign, no weapons signs. He inquired about specific locations (the main entrance, the front doors of the building) as well as the entire place in general. I let him know that there weren't signs in any of the specific places he mentioned, as well as the fact that I looked around the place in general and didn't see a single sign. He said he would set up an inspection to check.

srothstein: Do you know of a good way to find out about the 51% status without me having to go to the venue and specifically ask for the license (which I didn't see posted in plain view when I was there)? Also, does TABC keep records of the actual alcohol/non-alcohol sales totals of an establishment? I would hope there would be a way to find this out short of an investigation prompted by criminal charges.

[srothstein]

I do not know of a way for you to find out the actual license status for the 51% determination without physically looking at the permit. It can be checked by TABC without it being a criminal case if you just call the office (or I can ask one of the Austin guys in class about it tomorrow). They handle complaints as just an admin call and inspection unless the complaint is justified and there is a lack of cooperation, especially on things like this. They do start criminal investigations on complaints of crimes occurring though.

As for how we determine the 51%, you can see for yourself that we look at three areas. We ask for their alcohol sales, their food sales, and all other sales. We ask for projected sales on the initial license, and actual sales every year on the renewal. You can see the form on our web site at:
http://www.tabc.state.tx.us/forms/Lic/retailer.pdf (scroll down in the pdf to page 11 and look at question I ). I have some heartburn about the question since it does not distinguish between on and off premise alcohol sales for those places that sell both but the administration was not very receptive to my questioning that. They seem to think that the percent sold for off premise is too small to worry about. Any time the permittee is audited, these figures will be checked.

From what you are saying, I find it highly unlikely that La Zona Rosa is truly 51%.

As for the compliance employee you talked with, I am not surprised they were unaware of the differences. Compliance overall does a lot of things, but is mostly tax related and accounting. You might have gotten one of the people in an area that does not deal with this too often, such as our Ports of Entry part. They collect the tax on people bringing drinks in from Mexico and know that section well while not knowing much about the on premises consumption. Conversely, our enforcement agents know very little about the taxes on coming into the country with alcohol while they know the retailers and distributor laws pretty well.