Drive thru 51% store

[TVegas]

Something interesting came to my attention today and I hope some of you all may be able to help answer a few questions.

A friend was visiting a Double Quick today and saw a red 51% sign on an interior wall. This business is essentially a drive thru convenience store, but mostly just for alcohol. Must of what they sell is made to order daiquiris and other frozen drinks, but you can also buy beer and wine. They give you the drinks in cups that are taped shut so that they are technically not an open container. As opposed to driving up to a window, you actually drive through the building to place your order. While waiting inside the building, still in the car, my friend noticed the sign.

As far as I know, Double Quick does not allow any onsite consumption. It is not a bar, but rather a convenience store with a drive through that sells mixed drinks. It fills an interesting gray area between liquor stores, bars, and convenience stores.

The sign struck me as odd for a few reasons. I had previously bought something from inside this store, but I seem to recall only seeing the "unlicensed possession" signs. Additionally, I have always understood that the red 51% signs are for businesses that sell alcohol for onsite consumption, but the entire reason this business can exist is that they are selling you a sealed drink that you take home and then consume. However, I checked my TABC app and, sure enough, the location is licensed as a 51% business.

I now have two questions that I haven't been able to answer after looking online. First, how can this type of business be classified as a 51% business if there is no onsite consumption? Second, could someone actually have broken any law by carrying when they drove through the building, even if they never exited the vehicle?

Thanks in advance!

[G.A. Heath]

--IF-- they truly are a 51% location then they have to have on premises consumption, otherwise they are posting incorrect signage. I would contact the TABC and let them sort it out.

[WildBill]

I did not know selling mixed drinks for off-site consumption was legal in Texas.
I also think that a piece of tape on a cup lid would be considered an open container according to Texas law.
Maybe Mr. Rothstein can offer his expert opinion.

[srothstein]

Thanks Bill. I had heard of several of these type of stores while I was with TABC and there was no doubt in the legal opinions. It is illegal to sell mixed drinks to go. Some of the stores were claiming that it was not a mixed drink because they served it in a closed container and the legal opinion of TABC, as I recall, was that you could not claim a cup taped shut (or a sealed plastic baggie full, etc.) was a container. If they made the drink by mixing liquors then it was a mixed drink.

There are two ways around this. One is to get a manufacturer's license and make the new alcoholic beverage as "Steve's Long Island tea" or something and then bottle it and get a distributor to sell it. Of course, then the manufacturer cannot sell the drink retail.

The other is the way I think it is being done. The only Double Quick I could find in a quick search is located in Bryan. They are a 51% location according to TABC. They have a license to sell wine and beer for on or off premises consumption. And they sell these mixed drinks to go in a drive through like this. BUT, and this is an important but, they are not what you think they are. On their Facebook page, they answered the question of how they make the drinks by saying they are made with wine and not spirits. This complies with their license even though it may be a fraud if people do not know that it is made with wine. And there is still the legal question of the cup not being a closed container but it is a much smaller matter in this case since they can sell for off premises consumption legally.

Now, the second half is if you are breaking the law when you carry there. Penal Code section 46.035 says you are committing an offense when you go on the premises of a 51% location. If you are inside the building you are on the premises. That law does not include an exception for being in your automobile and is not tied to the violations in 46.02. So, yes, I think you are violating the law when you go through the Double Quick drive through if it is a real drive through like most of those are (you actually drive through the building). If it is a drive up window, like a bank teller's, then you are not breaking the law.

[ScottDLS]

Thanks Bill. I had heard of several of these type of stores while I was with TABC and there was no doubt in the legal opinions. It is illegal to sell mixed drinks to go. Some of the stores were claiming that it was not a mixed drink because they served it in a closed container and the legal opinion of TABC, as I recall, was that you could not claim a cup taped shut (or a sealed plastic baggie full, etc.) was a container. If they made the drink by mixing liquors then it was a mixed drink.

There are two ways around this. One is to get a manufacturer's license and make the new alcoholic beverage as "Steve's Long Island tea" or something and then bottle it and get a distributor to sell it. Of course, then the manufacturer cannot sell the drink retail.

The other is the way I think it is being done. The only Double Quick I could find in a quick search is located in Bryan. They are a 51% location according to TABC. They have a license to sell wine and beer for on or off premises consumption. And they sell these mixed drinks to go in a drive through like this. BUT, and this is an important but, they are not what you think they are. On their Facebook page, they answered the question of how they make the drinks by saying they are made with wine and not spirits. This complies with their license even though it may be a fraud if people do not know that it is made with wine. And there is still the legal question of the cup not being a closed container but it is a much smaller matter in this case since they can sell for off premises consumption legally.

Now, the second half is if you are breaking the law when you carry there. Penal Code section 46.035 says you are committing an offense when you go on the premises of a 51% location. If you are inside the building you are on the premises. That law does not include an exception for being in your automobile and is not tied to the violations in 46.02. So, yes, I think you are violating the law when you go through the Double Quick drive through if it is a real drive through like most of those are (you actually drive through the building). If it is a drive up window, like a bank teller's, then you are not breaking the law.

If you are in your car, how are you committing an offense under 46.035? You are not carrying under CHL because you don't need your CHL to carry in your car.

[WildBill]

Thanks Bill. I had heard of several of these type of stores while I was with TABC and there was no doubt in the legal opinions. It is illegal to sell mixed drinks to go. Some of the stores were claiming that it was not a mixed drink because they served it in a closed container and the legal opinion of TABC, as I recall, was that you could not claim a cup taped shut (or a sealed plastic baggie full, etc.) was a container. If they made the drink by mixing liquors then it was a mixed drink.

Thank you sir.
After reading your post I am reminded of a fast-food chain Mexican restaurant that does not have a full bar with hard liquor.
I noticed on their menu sign that they served "margaritas". Upon further investigation I found that they had bottles of "margaritas" made with wine, rather than tequila.
Perhaps the business in the original post opens a bottle of pre-made wine margaritas and daiquiris and pours them into a "go cup" for off-site consumption.

[srothstein]

Now, the second half is if you are breaking the law when you carry there. Penal Code section 46.035 says you are committing an offense when you go on the premises of a 51% location. If you are inside the building you are on the premises. That law does not include an exception for being in your automobile and is not tied to the violations in 46.02. So, yes, I think you are violating the law when you go through the Double Quick drive through if it is a real drive through like most of those are (you actually drive through the building). If it is a drive up window, like a bank teller's, then you are not breaking the law.

If you are in your car, how are you committing an offense under 46.035? You are not carrying under CHL because you don't need your CHL to carry in your car.

I apologize. You are correct and I was incorrect in my post above. I took a quick glance at the law to see if it included premises (as I thought it did). I did not read the whole law about you carrying under the authority of your CHL.

This makes the actual law even more confusing. If you are openly carrying in your car (well, after this becomes legal anyway), then you are carrying under the authority of your CHL since PC 46.02 requires concealed carry. In that case you would be committing the crime under 46.035 in a 51% location. If you are carrying concealed in your car, then you are not breaking 46.02 to require the CHL and are not carrying under that authority. There is no offense then for going into the drive through 51% location with the pistol.

[TVegas]

Thanks Bill. I had heard of several of these type of stores while I was with TABC and there was no doubt in the legal opinions. It is illegal to sell mixed drinks to go. Some of the stores were claiming that it was not a mixed drink because they served it in a closed container and the legal opinion of TABC, as I recall, was that you could not claim a cup taped shut (or a sealed plastic baggie full, etc.) was a container. If they made the drink by mixing liquors then it was a mixed drink.

There are two ways around this. One is to get a manufacturer's license and make the new alcoholic beverage as "Steve's Long Island tea" or something and then bottle it and get a distributor to sell it. Of course, then the manufacturer cannot sell the drink retail.

The other is the way I think it is being done. The only Double Quick I could find in a quick search is located in Bryan. They are a 51% location according to TABC. They have a license to sell wine and beer for on or off premises consumption. And they sell these mixed drinks to go in a drive through like this. BUT, and this is an important but, they are not what you think they are. On their Facebook page, they answered the question of how they make the drinks by saying they are made with wine and not spirits. This complies with their license even though it may be a fraud if people do not know that it is made with wine. And there is still the legal question of the cup not being a closed container but it is a much smaller matter in this case since they can sell for off premises consumption legally.

Now, the second half is if you are breaking the law when you carry there. Penal Code section 46.035 says you are committing an offense when you go on the premises of a 51% location. If you are inside the building you are on the premises. That law does not include an exception for being in your automobile and is not tied to the violations in 46.02. So, yes, I think you are violating the law when you go through the Double Quick drive through if it is a real drive through like most of those are (you actually drive through the building). If it is a drive up window, like a bank teller's, then you are not breaking the law.

Thanks for such a comprehensive response!

So do you believe that they are selling for offsite consumption, or are they selling for onsite consumption, but then turning a blind eye to every car that comes through and drives away?

[TVegas]

Thanks Bill. I had heard of several of these type of stores while I was with TABC and there was no doubt in the legal opinions. It is illegal to sell mixed drinks to go. Some of the stores were claiming that it was not a mixed drink because they served it in a closed container and the legal opinion of TABC, as I recall, was that you could not claim a cup taped shut (or a sealed plastic baggie full, etc.) was a container. If they made the drink by mixing liquors then it was a mixed drink.

Thank you sir.
After reading your post I am reminded of a fast-food chain Mexican restaurant that does not have a full bar with hard liquor.
I noticed on their menu sign that they served "margaritas". Upon further investigation I found that they had bottles of "margaritas" made with wine, rather than tequila.
Perhaps the business in the original post opens a bottle of pre-made wine margaritas and daiquiris and pours them into a "go cup" for off-site consumption.

They advertise having something like 50 flavors, so my guess is that they are either mixing entirely from scratch or they have a premixed wine and slush base that they add flavor to after you order (like how sonic does their slushes)

[TVegas]

Thanks Bill. I had heard of several of these type of stores while I was with TABC and there was no doubt in the legal opinions. It is illegal to sell mixed drinks to go. Some of the stores were claiming that it was not a mixed drink because they served it in a closed container and the legal opinion of TABC, as I recall, was that you could not claim a cup taped shut (or a sealed plastic baggie full, etc.) was a container. If they made the drink by mixing liquors then it was a mixed drink.

There are two ways around this. One is to get a manufacturer's license and make the new alcoholic beverage as "Steve's Long Island tea" or something and then bottle it and get a distributor to sell it. Of course, then the manufacturer cannot sell the drink retail.

The other is the way I think it is being done. The only Double Quick I could find in a quick search is located in Bryan. They are a 51% location according to TABC. They have a license to sell wine and beer for on or off premises consumption. And they sell these mixed drinks to go in a drive through like this. BUT, and this is an important but, they are not what you think they are. On their Facebook page, they answered the question of how they make the drinks by saying they are made with wine and not spirits. This complies with their license even though it may be a fraud if people do not know that it is made with wine. And there is still the legal question of the cup not being a closed container but it is a much smaller matter in this case since they can sell for off premises consumption legally.

Now, the second half is if you are breaking the law when you carry there. Penal Code section 46.035 says you are committing an offense when you go on the premises of a 51% location. If you are inside the building you are on the premises. That law does not include an exception for being in your automobile and is not tied to the violations in 46.02. So, yes, I think you are violating the law when you go through the Double Quick drive through if it is a real drive through like most of those are (you actually drive through the building). If it is a drive up window, like a bank teller's, then you are not breaking the law.

If you are in your car, how are you committing an offense under 46.035? You are not carrying under CHL because you don't need your CHL to carry in your car.

Ah, I didn't think about the MPA detail. Good point!

[brhalltx]

I don't think the MPA authorizes you to carry concealed on your person. So you'd be in violation if you carry on your person, probably not if you aren't.

[Teamless]

License #: BG461625
Processing your request. Please wait...
Trade Name: DOUBLE QUICK
Owner: PATEL, RAMESHCHANDRA K
Location Address:
4501 WELLBORN ROAD
BRYAN , TX 77801
Mailing Address:
4501 WELLBORN RD
BRYAN , TX 77801
County: Brazos Orig. Issue Date: 11/23/1999
Status: Current Exp. Date: 11/22/2015
***PENDING RENEWAL*** Wine Percent: 17
Location Phone No.: 9798462237

Subordinates:
Related To: Gun Sign: RED

[CleverNickname]

I don't think the MPA authorizes you to carry concealed on your person. So you'd be in violation if you carry on your person, probably not if you aren't.

Are you saying you think the MPA allows carry in the glovebox or some other concealed portion of a vehicle, but not concealed on someone's person? That would be incorrect AFAIK, please explain what in PC 46.02 would make that illegal.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person's own premises or premises under the person's control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.

(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

(a-3) For purposes of this section, "watercraft" means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

[TVegas]

I don't think the MPA authorizes you to carry concealed on your person. So you'd be in violation if you carry on your person, probably not if you aren't.

Are you saying you think the MPA allows carry in the glovebox or some other concealed portion of a vehicle, but not concealed on someone's person? That would be incorrect AFAIK, please explain what in PC 46.02 would make that illegal.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person's own premises or premises under the person's control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.

(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

(a-3) For purposes of this section, "watercraft" means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.