Author Topic: Clarification requested for 46.035 (b)(1) aka "51% sign", please  (Read 971 times)

LDP

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Sec. 46.035.  UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
        (b)  A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:
                (1)  on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;

        (f)  In this section:
                (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 have a few questions to clarify this vague and unclear topic, if you don't mind.

1) If a business has a small building with a 51% sign inside where the sign is not visible from the outside, is a licensed holder committing an offense if he/she carries concealed while sitting at a table on the front lawn (consuming various food items served from the building)?
My point of confusion here is the word "premises" explained in (f)(3) to mean "building". And just like our CHL instructor pointed out, it supposedly really truly means only the physical building or a part of it.

2) IIRC, the 51% sign is supposed to be posted by the entrance instead of hidden inside a building. Allowing a licensed holder to enter without a warning and then displaying the sign to indicate that the licensed holder is carrying illegally on the premises seems like entrapment.
Which authority oversees the signage placement? As in: to whom can one report this violation of 411.204 (a)?

Thank you in advance for any useful answers.
L

TexasLawShield

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Re: Clarification requested for 46.035 (b)(1) aka "51% sign", please
« Reply #1 on: August 31, 2018, 04:54:28 PM »
LDP,

To address your first question, generally, a seating area of a bar or restaurant will be included as part of it’s premises. Texas Penal Code § 46.035(f)(3) defines “premises,” as “a building or a portion of a building.” While the term specifically does not include a driveway, street, sidewalk, or parking areas, it would most likely include the seating area of a business’s front lawn or front patio. This would be especially true for a 51% business when alcoholic beverages are consumed on the patio or front seating area. Even though there are not four walls and a roof, the seating area could still be considered “a portion of a building.”

In regards to your second question, you are correct in that Section 411.204 of the Texas Government Code requires the 51% sign to be posted at the “entrance” of the building. Specifically, the statue requires, the sign to be prominently displayed and has sizing and color requirements as well. Under Texas Penal Code § 46.035(K), an LTC holder who is not given effective notice under the statue has a defense to prosecution for the crime of Unlawful Carrying of Handgun by License Holder under Texas Penal Code § 46.035(b)(1). Unfortunately, it is possible that failing to see a posted sign, may not be a strong enough argument to prove that effective notice was not given. Other factors, such as having been to the location before or recognizing that the location serves more alcohol than food, would be considered. Also, remember that a property owner can give you oral notice that LTC holders may not carry on their property.

It would be best practice for an establishment to post the 51% sign so that it is visible before you enter the seating area, but that is not always practical for the owner. If you would like to report a violation of Section 411.204, you may file a report with your local Texas Alcoholic Beverage Commission (TABC) office. The TABC provides a complaint form on their website at: https://www.tabc.texas.gov/forms/other.asp. You can also email your complaint to the TABC at complaints@tabc.texas.gov


LDP

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Re: Clarification requested for 46.035 (b)(1) aka "51% sign", please
« Reply #2 on: September 04, 2018, 05:49:11 PM »
Thank you for the exhaustive answer, that is exactly what I was looking for.
L