How to determine if an establishment is 51% or not

[NcongruNt]

Is there an easy way to determine if an establishment is 51% or not? The reason I ask, is that I went to a show at La Zona Rosa, a relatively famous club/music venue in Austin. Normally, I'd assume that such a place is well over 51%, but La Zona Rosa is notorious for charging high ticket prices, as well as being an all-ages venue, and it's quite within the realm of possibility that they aren't a 51% establishment.

All of that being said, there was absolutely no signage indicating 51%, nor a 30.06 or even a gunbusters or simple "no weapons" sign anywhere I could find in the place. After the show, I went to the TABC site and found they had a MB (Mixed Beverage) license, but nothing indicating whether they are 51% or not. Is there a way to find this out?

I was looking around on the TABC website, and found this in the FAQ:

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.

As there were no signs at all, it seems that they are in violation of TABC rules. I'm going to give TABC a call to let them know that they're not posting signage, and perhaps I can get an answer from them then. It would be nice if there was a resource where I can simply look it up. Maybe there is and I've missed it - If so, someone let me know.

[lrb111]

If that's what is on their site then you may have found the reason that some places post 51% signs, when they are not. Your quote leads one to beleive it's either/or, but it's not.

There is a third scenario, that isn't in your quote. That is a restaurant that also sells alcohol for on premises consumption, and gets most of it's income from other than alcohol sales. (food) They are not required to post anything.

Maybe srothstein will pitch in, he is our resident expert on this.

[fiftycal]

I believe anyplace that sells beer, wine or hard liquor has to post the "unlicensed possesion of a weapon...". And anytime you see a place that may have to have a "51%" sign and doesn't or that has a "51%" and should not, you can use this handy website to give TABC the heads up.

http://www.tabc.state.tx.us/enforce/CompInv.htm

It's been ten years and TABC and the industry should be up on what sign needs to be posted. Unless you audit a places books before you go in, how can you reasonably "know" if it is a bar or not?

[NcongruNt]

If that's what is on their site then you may have found the reason that some places post 51% signs, when they are not. Your quote leads one to beleive it's either/or, but it's not.

There is a third scenario, that isn't in your quote. That is a restaurant that also sells alcohol for on premises consumption, and gets most of it's income from other than alcohol sales. (food) They are not required to post anything.

Maybe srothstein will pitch in, he is our resident expert on this.

Hey, I'm just quoting the full answer as copied directly from the FAQ. The full quote, including the question is this:

# I have seen two types of signs posted in retail establishments regarding concealed weapons. What is the difference between the two?

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.

In this case, it is definitely not a food establishment. They do not sell food at all. The FAQ question did not make mention of restaurants being special or different in any way, and it seems to me that they would fall under the less than 50% like everyone else.

[lrb111]

In this case, it is definitely not a food establishment. They do not sell food at all. The FAQ question did not make mention of restaurants being special or different in any way, and it seems to me that they would fall under the less than 50% like everyone else.

Interesting, and you maybe right about that place. I was speaking to a side issue, I suppose, of places wrongly posting 51%. From the FAQ it appears they have to post something, when in fact there are cases where they do not have to post anything.

[CWOOD]

The direct answer to your intial question is "NO"... there is not easy way to tell if a place is a 51% establishment or not...at least not as you are approaching the door.

You are correct in saying that TABC regulations state that 51% establishments must post the 51% sign. Be aware of two things however:

1. There is no punative enforcement of this regulation. Many places post the wrong sign, or no sign when they should. TABC will correct the error if they are advised of it by the public, but there is no great penalty to the business to act as a deterrent to incorrect posting.

2. Whether the place is properly posted or not, it is still YOUR responsibility to not carry in a 51% establishment. Rule of thumb is that if food is the primary business you 'probably' can carry and if they sell alcohol by the drink and they do not sell significant amounts of food, you probably should not carry...and THERE IS A GREAT PENALTY to act as a deterrent to incorrect carrying.

If you are in doubt about a particular establishment, you can call or email TABC and they can tell you its 'percent' status. Unfortunately, their computer database is not set up to post such things on the net...which would be helpful.

As for the ticket price for admission, remember that frequently, that money goes to the band and not the club, so that probably is not a factor in determining the 'percent' status.

Finally, remember that it is not the presence or absence of a sign that creates the violation if you carry into the wrong place. It is the nature of the income stream for the business...whether or not that business is properly...speaking of 51% postings.

[NcongruNt]

As for the ticket price for admission, remember that frequently, that money goes to the band and not the club, so that probably is not a factor in determining the 'percent' status.

Actually, TABC law states gross sales. I don't think it matters how big the band's cut is, as a ticket sale would be considered a gross sale to the venue, and any percentage the band gets would come out of a net figure.

[jimlongley]

As for the ticket price for admission, remember that frequently, that money goes to the band and not the club, so that probably is not a factor in determining the 'percent' status.

Actually, TABC law states gross sales. I don't think it matters how big the band's cut is, as a ticket sale would be considered a gross sale to the venue, and any percentage the band gets would come out of a net figure.

Either way, it seems to me that ticket sales should not be counted toward sales of alcohol for consumption on premise unless they come with a free drink, and even then it could be argued that the "free" drink is a perquisite of the ticket purchase rather than a sale of a drink.

[NcongruNt]

As for the ticket price for admission, remember that frequently, that money goes to the band and not the club, so that probably is not a factor in determining the 'percent' status.

Actually, TABC law states gross sales. I don't think it matters how big the band's cut is, as a ticket sale would be considered a gross sale to the venue, and any percentage the band gets would come out of a net figure.

Either way, it seems to me that ticket sales should not be counted toward sales of alcohol for consumption on premise unless they come with a free drink, and even then it could be argued that the "free" drink is a perquisite of the ticket purchase rather than a sale of a drink.

Precisely. This is why I think it's possible that the place isn't 51%. I don't see why there's no teeth to the requirement by TABC to post. This seems to make posting a voluntary act, which promotes laziness to the detriment of CHL holders. If we cannot carry and are going to be punished for doing so in such an establishment, I think it would be prudent to have a strict requirement of posting the required signs, outlining that we cannot do so. If there were a fine associated with not posting TABC-mandated signs, I bet we'd have very little problem in this area.

[dpatterson]

At first glance I would not think the ticket sales would count towards the Revenues so your place would be 51%....

A few questions though... Is this place open all the time regardless if a Concert is scheduled?

I have been to Concerts in Bars... The entry for the night was the cost of a Ticket for the concert. The Bar would have still been 51%.

But I have been to some venues where they are open all the time but do not hold concerts all the time.... Seems like a gray area....

[srothstein]

Well, since you asked, I will chime in.

As was posted already, there is no easy way for you to know if a location is truly 51% or not. There is also no easy way for the D.A. to know. They will usually go by the TABC audits and TABC determination, so you should be OK if you also go by that.

IF TABC determines the location to be 51%, then the signs saying so are required.

IF the owner claims it to be 51%, he can post the signs until TABC audits and finds them incorrect.

While it is true that the law says you are responsible for the actual state of the premises, in real world practice, I would bet that it is going to be based on the presence of signs. If the signs are obviously wrong, then you can semi-safely ignore them (the semi being if a cop wanted to arrest you anyway, you could challenge it and win),

Now, three misconceptions that need to be corrected.
First, what is considered in the 51%? The Penal Code says 51% of its income. An accountant could decide income on the basis of gross sales or gross profit, or even net profit. The problem with using net profit, and some parts of gross profit is how you decide which charges to say are from what part of the gross sales. This is easier if there is a specific agreement like 50% of the admission is the band's. But, I believe that TABC does use the easiest way and uses the actual gross receipts to determine this. In a case like this, the admission would be a part of the gross receipts. It is my understanding that if a business makes 10% of its gross income from food, 40% from the admission price, and 50% from the sale of drinks, then they would not fall under the 51% rule. I will need to check with our auditors to be sure, but that is my understanding.

Second, and one I know for sure. There are only two signs to be posted. If the business is licensed for the sale of alcoholic beverages at all, either for on premise or off premise consumption, then they must post one of the two signs. Lrb111, if the restaurant sells one alcoholic beverage at all, it must post one of the two signs. This is based solely on the Penal Code, which says that it is a felony to carry on a licensed premise without a CHL, or with a CHL if it is under the 51% rule. It is required to be a licensed premise if they sell any alcohol at all for consumption.

Third, CWOOD, there is a punishment for posting the wrong signs. It is an administrative violation through the TABC license process, for which they can be fined or even have the license revoked. As a general rule, we try to get the correct signs posted instead, but if it is a continuing problem, the agent can file the case. As with most laws, TABC tries for voluntary compliance instead of punishment, but they have a pretty strict punishment chart too. Look at http://info.sos.state.tx.us/fids/16_0037_0060-3.html for the standard punishments for the most common violations.

[jimlongley]

The problem with using net profit, and some parts of gross profit is how you decide which charges to say are from what part of the gross sales. This is easier if there is a specific agreement like 50% of the admission is the band's. But, I believe that TABC does use the easiest way and uses the actual gross receipts to determine this. In a case like this, the admission would be a part of the gross receipts. It is my understanding that if a business makes 10% of its gross income from food, 40% from the admission price, and 50% from the sale of drinks, then they would not fall under the 51% rule. I will need to check with our auditors to be sure, but that is my understanding.

Thanks Stephan, that's a much clearer way of saying what I was trying to express, that the ticket sales would not count as part of the 51%, but against it.

cf Billy Bob's in Fort Worth. They post a (not really compliant) 30.06 sign while claiming to be the "World's Largest Honky Tonk" (which is not really in dispute). Now usually a HT is a beer joint with live bands, juke boxes, lots of beer and a little food, and BB's fulfills all that, and they certainly sell a lot of beer (I've witnessed that) but I would be willing to bet that they generate more (gross or net) of their receipts from the gate and rodeo admissions as well as the food and other entertainment, and that's why they don't have 51% at the door.

[lrb111]

Well, since you asked, I will chime in.


Second, and one I know for sure. There are only two signs to be posted. If the business is licensed for the sale of alcoholic beverages at all, either for on premise or off premise consumption, then they must post one of the two signs. Lrb111, if the restaurant sells one alcoholic beverage at all, it must post one of the two signs. This is based solely on the Penal Code, which says that it is a felony to carry on a licensed premise without a CHL, or with a CHL if it is under the 51% rule. It is required to be a licensed premise if they sell any alcohol at all for consumption.

Thanks Stephan. Got it.

[CWOOD]

srothstein,.
Thanks for chiming in. You added greatly to this discussion. The first part of your response, I think, reinforces my comments that TABC should be asked about the status about a particular location...in advance. Also, that there is not a certain way to tell, as you approach the front door what the status is and that one should either use the rule of thumb and be very careful or err on the side of caution and consider not carrying.

It is obvious from your discussion of accountants, etc. that much of this discussion would take place after someone has been arrested...which, I think, we would all like to avoid.

Well, since you asked, I will chime in.
Third, CWOOD, there is a punishment for posting the wrong signs. It is an administrative violation through the TABC license process, for which they can be fined or even have the license revoked. As a general rule, we try to get the correct signs posted instead, but if it is a continuing problem, the agent can file the case. As with most laws, TABC tries for voluntary compliance instead of punishment, but they have a pretty strict punishment chart too. Look at http://info.sos.state.tx.us/fids/16_0037_0060-3.html for the standard punishments for the most common violations.

As for the part of your comment referring directly to me, I stand by my comments that there appears to be no punative enforcement for posting the wrong sign or not posting the correct 51% sign. This is obvious by looking at all the places that have the wrong sign or fail to have the 51% sign when they should. There is a little restaurant near my home that as BOTH the 51% sign AND the "Unlicensed possession" sign side by side. I am certain that they are attempting to voluntarily comply. There have been reports of liquor stores and even a random WalMart posting 51% signs. Again, I am sure that they are genuinely attempting to voluntarily comply.

The scenerio of a "continuing problem" is another matter. I am sure that if a place regularly and repeatedly ignores the counsel of a TABC agent to correct chronic problems, that enforcement can and will and should get punative. Perhaps I should have made that distinction, but frankly it didn't occur to me as a response to the original posters inquiry.

Let's all remember, that the original poster asked if there were "an EASY way to determine if an establishment is 51% or not".

The answer is NO.

Eventually it is going to take an act by the Legislature to solve this problem. It will probably follow a high profile event...higher profile that Billy Joe Shaver. If they made it an element of the offense that the sign was properly present and that the defendant ignored its warning, this would solve the problem. I don't think it will happen anytime soon as there are more pressing issues affecting more people which need to be addressed first.

I think that most CHL's and probably most TABC clients would prefer to follow the law but currently, in many cases, it is guesswork. I agree with the concept of voluntary compliance. I think most of us here strive to voluntarily comply with the CHL law...it just shouldn't be so difficult to do so....sort of like the "premises of a court or offices of a court" thing ...but that is a topic for another thread.

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.

Again, thank you for your helpful and and informed comments.

[dihappy]

As a point of inquiry, what IS the punishment range for not properly displaying the correct signing? ... I am not trying to be a smart alec here, I am just curious.

Again, thank you for your helpful and and informed comments.

Ditto