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ELB wrote:

twomillenium wrote:... Since the vendors are not in control of the whole and 51% of the revenue of the whole is not from at the sale of alcoholic beverages sold and consumed on the premises then the 51% sign could not be legally displayed for the whole. ...

Actually it doesn't work that way. It is the revenue of the vendor holding the license that determines the color of the sign and where people can take their drink, not the revenue of the whole venue if there are different vendors. srothstein explains it here when explaining why the whole Majestic is subject to the 51% restriction even though the Majestic itself does not have an alcohol license: http://texaschlforum.com/viewtopic.php? ... 61#p692855.

I guess that is why restaurants have a red 51% at the bar area and the diners can still carry into restaurant while drinks from bar are being served out side of bar area????

twomillenium wrote: I guess that is why restaurants have a red 51% at the bar area and the diners can still carry into restaurant while drinks from bar are being served out side of bar area????

It depends on the restaurant. If the bar and restaurant are two separate business entities, then it's possible the holder of the liquor license makes more than 51% of their revenue from the sale of alcohol for on-premise consumption and thus the whole restaurant is the premise per the license. However, most restaurants own the bar themselves, so a 51% sign posted is possibly done in error and they really are NOT a 51% location due to the amount of food vs. alcohol they sell. You can always check a location here and see if they are a BLUE (carry allowed) or RED (carry prohibited) location http://www.tabc.state.tx.us/PublicInquiry/Status.aspx

ScottDLS wrote:They are not going to be able to make the whole zoo 51% because regardless of the ABC definition of the licensed premises, the 46.035 definition doesn't include the walkways, parking areas, etc.

I think this is an interesting case that will take the courts to decide. The problem is that there are two different definitions of premises. One is in the Alcoholic Beverage Code and covers the license and the signs. Under this law, the premises includes all physical property. This means the signs are properly posted at the entrance to the zoo. But, the law for carrying defines premises as we are all familiar. It clearly says it is the buildings only.

There are two possible scenarios for this. The first is that the sign is properly posted at the zoo entrance, as the license and law requires. If you are caught inside a building inside the zoo, I do not see any possible defense for you. Sorry, but I do not see the court saying it has to be on the building too.

The second is the same postings but you are caught carrying while walking around the grounds. I can see a strong defense here based on the Penal Code definition. Unfortunately, I am aware that there is a fairly extensive case history that applies the ABC definition to the parking lots. We made many arrests for carrying weapons in parking lots. I do not know if the passage of CHL has changed this in case law. I am pretty sure I would not want to be the test case and I am sure there will need to be one if the legislature does not act.

Alcoholic Beverage Code, Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.

srothstein wrote:The second is the same postings but you are caught carrying while walking around the grounds. I can see a strong defense here based on the Penal Code definition. Unfortunately, I am aware that there is a fairly extensive case history that applies the ABC definition to the parking lots. We made many arrests for carrying weapons in parking lots. I do not know if the passage of CHL has changed this in case law. I am pretty sure I would not want to be the test case and I am sure there will need to be one if the legislature does not act.

Alcoholic Beverage Code, Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.

I don't understand how the parking lot is prohibited unless one is allowed to carry drinks into the parking lot-- are you talking about a festival grounds or an area closed off for an event? The violation would be for the person carrying drink out of the bar, not for someone driving through the parking lot with a gun, right?
"Any adjacent premises if they are directly or indirectly under the control of the same person." So a guy owns a bar and the adjacent ice cream shop in a strip mall. Carry in the ice cream shop and parking lot is prohibited?

srothstein wrote:

ScottDLS wrote:They are not going to be able to make the whole zoo 51% because regardless of the ABC definition of the licensed premises, the 46.035 definition doesn't include the walkways, parking areas, etc.

I think this is an interesting case that will take the courts to decide. The problem is that there are two different definitions of premises. One is in the Alcoholic Beverage Code and covers the license and the signs. Under this law, the premises includes all physical property. This means the signs are properly posted at the entrance to the zoo. But, the law for carrying defines premises as we are all familiar. It clearly says it is the buildings only.

There are two possible scenarios for this. The first is that the sign is properly posted at the zoo entrance, as the license and law requires. If you are caught inside a building inside the zoo, I do not see any possible defense for you. Sorry, but I do not see the court saying it has to be on the building too.

The second is the same postings but you are caught carrying while walking around the grounds. I can see a strong defense here based on the Penal Code definition. Unfortunately, I am aware that there is a fairly extensive case history that applies the ABC definition to the parking lots. We made many arrests for carrying weapons in parking lots. I do not know if the passage of CHL has changed this in case law. I am pretty sure I would not want to be the test case and I am sure there will need to be one if the legislature does not act.

Alcoholic Beverage Code, Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.

This is what I was trying to explain as well. While you may beat the rap, you may not beat the ride.

One Shot wrote: I don't understand how the parking lot is prohibited unless one is allowed to carry drinks into the parking lot-- are you talking about a festival grounds or an area closed off for an event? The violation would be for the person carrying drink out of the bar, not for someone driving through the parking lot with a gun, right?
"Any adjacent premises if they are directly or indirectly under the control of the same person." So a guy owns a bar and the adjacent ice cream shop in a strip mall. Carry in the ice cream shop and parking lot is prohibited?

I will jump in here. When the TABC issues a license they have the owner define the area that will be the 'premises' where drinking is allowed. They can designate all or a portion of the parking lot if they want people to be able to carry out of the bar and drink there.

So, unless you know what has been defined by TABC and the owner as 'premises' for the business, then you may be in violation of the TABC definition of premises if you are carrying a gun outside the building. But as stated above, there is a conflict with Texas Penal Code 46.035 and you may have a defense to prosecution if you are outside of the building in a parking lot or on a sidewalk even if it is included in the licensee's premise.

Keith B wrote:

One Shot wrote: I don't understand how the parking lot is prohibited unless one is allowed to carry drinks into the parking lot-- are you talking about a festival grounds or an area closed off for an event? The violation would be for the person carrying drink out of the bar, not for someone driving through the parking lot with a gun, right?
"Any adjacent premises if they are directly or indirectly under the control of the same person." So a guy owns a bar and the adjacent ice cream shop in a strip mall. Carry in the ice cream shop and parking lot is prohibited?

I will jump in here. When the TABC issues a license they have the owner define the area that will be the 'premises' where drinking is allowed. They can designate all or a portion of the parking lot if they want people to be able to carry out of the bar and drink there.

So, unless you know what has been defined by TABC and the owner as 'premises' for the business, then you may be in violation of the TABC definition of premises if you are carrying a gun outside the building. But as stated above, there is a conflict with Texas Penal Code 46.035 and you may have a defense to prosecution if you are outside of the building in a parking lot or on a sidewalk even if it is included in the licensee's premise.

To me the conflict is quite clear. 46.035 is what a CHL would have to be charged in for carrying in the parking lot. Premises is very specifically defined for that section to exclude the parking lot. Therefore you are not violating the law at all (better than a DEFENSE).

Steve R mentioned that (I believe pre-CHL law) people were arrested for carrying in parking lot. However, I assume that they were arrested under 46.02 for carrying at all....then the felony enhancement was added for carrying where alcohol sold. Premises could be defined by ABC code because there was no other definition in Chapter 46.

Currently, premises is defined specifically in 46.035 and referred to in 46.02 to exclude sidewalks, driveways, parking lots. If it were interpreted otherwise you could be arrested for parking at a bar with your gun in the car.

srothstein wrote:

ScottDLS wrote:They are not going to be able to make the whole zoo 51% because regardless of the ABC definition of the licensed premises, the 46.035 definition doesn't include the walkways, parking areas, etc.

I think this is an interesting case that will take the courts to decide. The problem is that there are two different definitions of premises. One is in the Alcoholic Beverage Code and covers the license and the signs. Under this law, the premises includes all physical property. This means the signs are properly posted at the entrance to the zoo. But, the law for carrying defines premises as we are all familiar. It clearly says it is the buildings only.

There are two possible scenarios for this. The first is that the sign is properly posted at the zoo entrance, as the license and law requires. If you are caught inside a building inside the zoo, I do not see any possible defense for you. Sorry, but I do not see the court saying it has to be on the building too.

The second is the same postings but you are caught carrying while walking around the grounds. I can see a strong defense here based on the Penal Code definition. Unfortunately, I am aware that there is a fairly extensive case history that applies the ABC definition to the parking lots. We made many arrests for carrying weapons in parking lots. I do not know if the passage of CHL has changed this in case law. I am pretty sure I would not want to be the test case and I am sure there will need to be one if the legislature does not act.

Alcoholic Beverage Code, Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person.

I think it's somewhat clearer that the criminal code chapter 46 (SINCE CHL), doesn't apply in the case of walkways, parking lots, and non-"buildings". The premises definition in 46.035 is specifically referred to throughout the chapter. Otherwise anyone carrying that parks at a 51% location and leaves CCW in the car is subject to prosecution. I don't believe that was the legislative intent or the plain wording of the law.

46.035
...
(3) “Premises” means a building or a portion of a building. The term does not
include any public or private driveway, street, sidewalk or walkway, parking lot,
parking garage, or other parking area.
...

I also think there may be a weaker argument, that you could still carry in the other zoo buildings where alcohol is NOT sold under the 51% TABC license. My logic is that the premises of the business is defined as the building, or portion of the building where the alcohol is sold...the 46.035 definition, not the TABC licensed area definition. In that case, the snake house, where no beer is sold is not a premises. This is easier in the case where an outside vendor has the alcohol concession like the Kimball, than perhaps the Waco zoo where the zoological society has the TABC license.

srothstein wrote:... We made many arrests for carrying weapons in parking lots. ...

These were arrests of people without CHLs ?

And in the parking lot of...what, places that served alcohol, places that only sold alcohol, both?

By his admitting " I do not know if the passage of CHL has changed this in case law. I am pretty sure I would not want to be the test case and I am sure there will need to be one if the legislature does not act." might mean he has not checked changes to law in over 20 years. I know for a fact, in Real Estate law, that some of the laws in effect 20+ years ago could get you into trouble now.

Laws change and evolve constantly, I would not put a lot of weight in laws written decades ago, unless they were researched for changes to current dates.

twomillenium wrote:By his admitting " I do not know if the passage of CHL has changed this in case law. I am pretty sure I would not want to be the test case and I am sure there will need to be one if the legislature does not act." might mean he has not checked changes to law in over 20 years. I know for a fact, in Real Estate law, that some of the laws in effect 20+ years ago could get you into trouble now.

Laws change and evolve constantly, I would not put a lot of weight in laws written decades ago, unless they were researched for changes to current dates.

And you don't know that the law has changed that either, so unless you can find recent case law (none I am aware of), then we don't know how it would be ruled. Again, 46.035 would be your argument for defense against an arrest and/or conviction.

ScottDLS wrote: I also think there may be a weaker argument, that you could still carry in the other zoo buildings where alcohol is NOT sold under the 51% TABC license. My logic is that the premises of the business is defined as the building, or portion of the building where the alcohol is sold...the 46.035 definition, not the TABC licensed area definition. In that case, the snake house, where no beer is sold is not a premises. This is easier in the case where an outside vendor has the alcohol concession like the Kimball, than perhaps the Waco zoo where the zoological society has the TABC license.

I think the issue would be if the TABC license ways you can consume on the all of the property, including the snake house, then the building per 46.035 would be legally a premise. Again, no case law, so until we get one then we don't know for sure.

Keith B wrote:

twomillenium wrote:By his admitting " I do not know if the passage of CHL has changed this in case law. I am pretty sure I would not want to be the test case and I am sure there will need to be one if the legislature does not act." might mean he has not checked changes to law in over 20 years. I know for a fact, in Real Estate law, that some of the laws in effect 20+ years ago could get you into trouble now.

Laws change and evolve constantly, I would not put a lot of weight in laws written decades ago, unless they were researched for changes to current dates.

And you don't know that the law has changed that either, so unless you can find recent case law (none I am aware of), then we don't know how it would be ruled. Again, 46.035 would be your argument for defense against an arrest and/or conviction.

Might be a good practice to read whole post, even the last nine words.

twomillenium wrote:

Keith B wrote:

twomillenium wrote:By his admitting " I do not know if the passage of CHL has changed this in case law. I am pretty sure I would not want to be the test case and I am sure there will need to be one if the legislature does not act." might mean he has not checked changes to law in over 20 years. I know for a fact, in Real Estate law, that some of the laws in effect 20+ years ago could get you into trouble now.

Laws change and evolve constantly, I would not put a lot of weight in laws written decades ago, unless they were researched for changes to current dates.

And you don't know that the law has changed that either, so unless you can find recent case law (none I am aware of), then we don't know how it would be ruled. Again, 46.035 would be your argument for defense against an arrest and/or conviction.

Might be a good practice to read whole post, even the last nine words.

Yeah, I read it and I stand by my post. Steve and I both know what the law says now and changes made. BUT, until there is a test case that incorporates the change, then you don't know how it will be treated in a court of law.

I didnt see any signage but i hear its etched on the glass. They did have pd and metal detectors. Glad i left it in the car.