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kauboy wrote: Its not a misunderstanding. The law gives no punishment for not posting a required sign. The TABC may take it into their own hands, but Texas law does not address a punishment.

It must be a misunderstanding. TABC cannot possibly take things into their own hands and cannot make a case for something that is not a violation of the law. Any case we make can be tried before a judge if the person disagrees with TABC.

I am not as intimately familiar with the Alcoholic Beverage Code or our regulations as I would like to be or as our agents are, but one possible way I can see to charge them is under Alcoholic Beverage Code Section 11.041. This is the law that says they must display the "possession unlawful unless CHL" if they are not required to display the 51% sign. The way I read this, they must have the correct sign. There are other clauses which provide for penalties for any violation of the ABC.

One common problem with our laws is that they get spread through many different codes. If we are looking for CHL laws, we normally look in the Government Code and Penal Code, but there are sections that refer to them in things like the Alcoholic Beverage Code and Parks and Wildlife Code. It can be hard to track down every aspect of any subject.

Odin wrote:

srothstein wrote:And while I am posting on clarifying laws, there are well established rules for public intoxication. While seeing any of the normal things can constitute suspicion and further investigation, probable cause has been ruled to require three of the following:

1. Bloodshot or glassy eyes
2. Unsteady on the feet or swaying
3. Slurred speech
4. An odor of intoxicants emanating from the person (not the clothes).

What case law is this information derived from? I don't recall reading a specific case that established those parameters.

I don't know which case it is from, or if it is from a single case or a group of cases. I know this is how we are taught to testify and that it has always held up in court for me that way.

kauboy wrote:

Braden wrote:Not to get this thread back on topic or anything silly like that, but my understanding is that a business that gets more than 51% of its revenue must, by law, post the sign. If they do not, we have absolutely no way of ever knowing what percentage of their revenue comes from the sale of alcohol. What are we supposed to do? Go ask the manager how much alcohol he has sold that day?

Yes, they are required to. But, there is no penalty for them if they don't post it. We still have to use the divine wisdom that a CHL apparently grants us(:roll:) to know whether they meet 51% or not. If they do, and you carry, regardless of sign presence, you will still be charged if "made".

I just wanted to correct a persistent misunderstanding of the laws. A permittee who is required to display a 51% sign can be punished for failure to do so. TABC has the authority to take action under an administrative case (civil action) for failure to post or improper posting of any of the required signs. Just call the local district office to file a complaint on the permittee. The agent's have 30 days to make an initial visit and 60 days to complete the handling of any complaint.

Most of the time, they will try for voluntary compliance and give the guy the right signs. Repeated refusal to post properly can result in fines, suspension of permit, or even revocation of the permit. But, I have to admit that this is probably not going to be seen as a high priority for building a case.




And while I am posting on clarifying laws, there are well established rules for public intoxication. While seeing any of the normal things can constitute suspicion and further investigation, probable cause has been ruled to require three of the following:

1. Bloodshot or glassy eyes
2. Unsteady on the feet or swaying
3. Slurred speech
4. An odor of intoxicants emanting from the person (not the clothes).

An officer cannot give a breathalzyer test for PI or carrying while intoxicated. The rules on the machines are that they can only be used for operating motor vehicles (including boats and planes). Officers can use one of the portable breath testers, but it is not a final test and only counts as probable cause help like the above observations.

HankB wrote:

srothstein wrote: For any officer to arrest you for unlawfully carrying by a CHL, based on the carrying while intoxicated law, he would need to be able to show either

1. a factual alcohol concentration (blood, urine, or breath test) OR
2. A. that you were not in possession of the normal use of physical or mental faculties AND
B. that this lack of use was due to the introduction of an intoxicant.

The officer can show this by giving a field sobriety test or by simple testimony of your actions.

There is an "implied consent" law which applies to driving a motor vehicle, i.e., by the act of driving, you consent to being tested for being drunk.

But AFAIK, there is no such "implied consent" law for walking down the street, sitting in a restaurant, etc.

So first, WHY would anyone who's NOT driving consent to a field sobriety or other test, and second, is there any case law that says declining to submit to a test that is NOT required by law is evidence of guilt?

(To re-iterate, I do NOT believe actual drunks ought to drive cars, carry guns, fly airplanes, or do anything else that endangers others. I'm just curious about what the LAW says you MUST do in the way of taking a drunk test if you're not driving a car.)

To be honest, I have no idea why any person would consent to talk with a police officer about a crime they are committing when they do not have to. Lucky for me, most criminals are stupid. I have always recommended that people learn to just say no when asked to consent to a search or give evidence against themselves. It does mean you are going to have a record of minor criminal charges (tickets and the like) because you got the cop made when he could have given a warning if you cooperated, but it also means it is much harder to get a record for the real crimes.

And AFAIK, there is no way a jury is supposed to take any cooperation or lack of cooperation into its factoring, but they are humans and almost always will. How many times have you thought someone must be guilty or hiding something because of the way they acted, even without proof? Juries are humans and do the same thing.

I was asked by a friend to respond to this thread because I currently work for TABC. This was in response to the original question about bars within restaurants, but seeing how the thread has changed slightly, I will try to respond to both main questions.

To get the correct answer on the bar versus restaurant question, I went to our licensing and enforcement divisions to verify the information. I was told that there are two different things to consider - whether or not it is a hotel or a separate building.

If the permitted premise is a hotel, all bets are off and almost anything can happen. The hotel rules have gotten fairly complex and allow things that are not allowed elsewhere. In this case, it is possible for a hotel to have a restaurant that serves drinks that is not posted as 51 and a bar that is posted as 51% if it is in a separate room. This is true because almost all hotels set up the food and bar as separate businesses, and the room service and mini-bars make it even more confusing.

But looking at the places like Chili's, it is much simpler to determine. Assume a restaurant is in one building and has a bar as part of the restaurant. It is possible for the bar permit to draw off the food portion of the building for a separate permit. This can only happen if the two businesses are not related however, such as a restaurant subcontracting out the bar. If it is one owner, then they can only get one permit.

The real trick is if the bar is separately permitted, then it cannot serve or sell any food in the restaurant. For the restaurant to serve would require it to have a separate permit. And if the restaurant does have a separate permit, it would need a separate bar with a separate liquor service and all, because the bar cannot sell drinks to the restaurant for resale.

The last part is because the state of Texas has what is called a three tier system for alcohol and it strictly separates the manufacturer, wholesaler, and retailer tiers. A person or business who has a retail on-premise permit cannot sell for resale and cannot sell off their premises. No business can have both a wholesaler permit and a retail on-premise permit.

Thus, if it is not a hotel, it is generally safe to assume that if it is a place like Chili's which sells food and alcohol, the bar is not going to be legally a 51% place for you to worry about. If the bar is in a hotel, it should be posted by the doors to the bar if they are going to have the 51% rule. If it is not a separate room, it is safe to carry there since it would be harder for anyone, including the police, to determine exactly where the premises are for the rule to apply to.

In answer to the second main question, the law is clear on what constitutes carrying while intoxicated. In Chapter 46, it says that it is illegal to carry under the authority of the CHL while the person is intoxicated. There is no general definition of intoxicated in the Penal Code and none in the chapter on weapons. The general rules of construction for the penal code would say that if it is in general use, you could use the general definition, or if it is defined elsewhere in a manner that is not in conflict with the general definition, to use that definition.

Chapter 49 is in the same title as chapter 46 and has a definition of intoxicated. Since this definition is more strict than the general definition (drunk) but not in true conflict with it, the court would use it as a guideline. Thus, intoxicated means to have an alcohol concentration of .08 or higher OR to not have the normal use of their mental or physical faculties due to the introduction of some intoxicant (alcohol, drug, illegal substance, or any other substance, which could include legal and normally used drugs).

For any officer to arrest you for unlawfully carrying by a CHL, based on the carrying while intoxicated law, he would need to be able to show either

1. a factual alcohol concentration (blood, urine, or breath test) OR
2. A. that you were not in possession of the normal use of physical or mental faculties AND
B. that this lack of use was due to the introduction of an intoxicant.

The officer can show this by giving a field sobriety test or by simple testimony of your actions. It is important to note that the law does not require the use or possession of YOUR faculties, but of normal ones. This is much easier, since all I need to do then is show that you were not acting in a socially acceptable and normal fashion. Then I need to show that this is because of the intoxicant. One great example of this was the arrest of a woman in a bar for P.I. because she was standing on the table top, taking her blouse and bra off, and screaming that she would have sex with every (not any but every) man in the bar. This was probable cause that she was intoxicated since this is not considered to be normal use of mental faculties. Her defense could be that it was not due to the alcohol but due to her being manic. I have yet to hear anyone admit to behavior like this in court as being normal or caused by anything other than intoxicants though.

So, it is not illegal to carry after having one or two drinks, unless you lose possession of what faculties society deems to be normal very easily.