Restaurants with bars. (Chili's etc)

[srothstein]

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]

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).

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

Thats the same you learned in the police academy Odin. There are others also.

We never were taught about a particular case law relating to this subject that spelled out those things, that's why I was asking. I know what the reasonable suspicion and probable cause factors are for intoxication, but if there is a case law that spells something out (like Terry Vs Ohio for example) then it's open to less objection from the defense.

I can see a defense attorney picking apart those factors and making excuses as to why his client showed those symptoms but wasn't intoxicated. I testified in a DWI case in Nov where the defendant not only was clearly drunk and failed all 3 SFST's, he blew a 0.15 and a 0.16. It ended in a mistrial because one juror wouldn't vote to convict. The case is being re-tried in Jan and we'll do the whole thing again (the guy is a 2nd time DWI). The defense subpoenaed everyone from the officer who waited on the tow truck (no contact with the defendant on the scene) to the guy from the company who made the Intoxilyzer.

It was a defense of bull but the defense certainly did pick apart everything possible. The judge was less lenient with the defense in areas where there was established case law. That's why I was wondering if this situation (defining intoxication) was defined in case law. Having a case law on your side is better than just a "based on my training and experience" statement from an officer because it shows that you followed established and accepted practices when making your determination.

[kauboy]

He told you it is an administrative case, and the TAC and the TABC laws specify what adminstrative actions can be taken. That includes "punishment" even tough they are not penal code crimes.

I know what he told me, but after looking, I still can't find anything in the Government Code or Alcoholic Beverage Code that talks about a penalty for not displaying a required sign.
I really don't mean to sound like a jerk about this. I just want to see it in the Code so I have something to point to if a bar doesn't post it when they should. I don't like the idea that I have to magically know whether or not the Alcoholic Beverage Commission has determined whether or not they meet "51%".

[Odin]

He told you it is an administrative case, and the TAC and the TABC laws specify what adminstrative actions can be taken. That includes "punishment" even tough they are not penal code crimes.

I know what he told me, but after looking, I still can't find anything in the Government Code or Alcoholic Beverage Code that talks about a penalty for not displaying a required sign.
I really don't mean to sound like a jerk about this. I just want to see it in the Code so I have something to point to if a bar doesn't post it when they should. I don't like the idea that I have to magically know whether or not the Alcoholic Beverage Commission has determined whether or not they meet "51%".

Like many laws, it's vague and open to creative interpretation.

Some cities (like McKinney, where I live) don't allow 51% type establishments. They allow restaurants that serve alcohol but not "bars" so the establishment has to sell a lot of food. But there are certain establishments that are probably cooking the books to remain in compliance, because I know of one "sports bar" type of place that sells very little food compared to their massive alcohol sales and they are still in business. So if the TABC audits them and finds that they are making 51% of their sales in alcohol is the establishment now required to post a 51% sign, or do they get shut down or what? What if you were carrying in there when they were making 51% of their sales in alcohol even though they weren't supposed to be (and weren't posted)? Too many what if's.

It would be easier if the code said that CHL holders can't carry if the place is 51% posted and place the burden on the establishment to post the sign, just like the 30.06 signs work. Leaving it up to the CHL holder to determine if a place is 51% or not is ludicrous because the CHL holder has no way of knowing that.