TexasCHLforum.com

Posted: **Thu Dec 02, 2010 8:41 am**

Recently the wife wanted to go to Hooters for some wings. Being unsure of the restaurant's 51% status, I called and asked the Manager (Hooters Webster). She responded that yes they were a 51% location and that concealed handguns were not permitted. Upon arrival in the parking lot I disarmed in the truck (which I hate to do because of the potential MWAG call and ND problems). While entering the premise I noted a "No guns allowed" sort of sign but not a 30.06. While in the restaurant I looked for a 51% sign but didn't see one, nor did I see a blue sign.

Is there a way to check through TABC's website if a premise is 51% or not?

Thanks

Posted: **Thu Dec 02, 2010 9:07 am**

sailor2000 wrote:Is there a way to check through TABC's website if a premise is 51% or not?

While I cannot answer that, my general thought process, when I got to restaurants that serve alcohol, is firstly, is it more a bar or a restaurant.
Hooters, Buffalo Wild Wings, Twin Peaks and other Sports bar/Restaurants, I assume are all NOT 51% as they sell ALOT of food.
Other's like Outback, Chili's, Applebee's, etc, I am almost 99% sure when I think of going there, that they are not 51% as they specialize in food, more than alcohol.

When I get to ANY restaurant however, I go loaded, and just check the signs as I walk in the door.
If blue, Im good to go. If I do not see any, I am good to go.
Until i personally see the red 51% sign, I carry away.

If you call them, and say " can I carry a gun in your restaurant", most people do not know the laws, and will say "no" just instinctively.

Posted: **Thu Dec 02, 2010 9:14 am**

, it's sorta' like, "don't ask, don't tell".

Posted: **Thu Dec 02, 2010 9:50 am**

Hooters are NOT 51% locations. This is confirmed by the TABC database by searching on the name Hooters. All locations in Texas show to have an FB (Food and Beverage) license in the subordinates field. Having a FB license means they are not 51%. That is the only way you can tell on the website. If a location doesn't have this entry, then the only other methods are call the TABC and inquire, or go to the location and look at their physical license and see if it says SIGN=RED or SIGN=BLUE. Red is 51%, Blue is <51%. They should also have one of the two signs posted conspicuously per the TABC rules, but as you can see, that doesn't always get done.

Posted: **Thu Dec 02, 2010 2:09 pm**

The business is required to post signs if they are a 51% establishment.

Sec. 104.06. MONITORING OF GROSS RECEIPTS. (a) On the issuance and renewal of a license or permit that allows on-premises consumption of any alcoholic beverage the commission shall determine whether the holder receives, or for the issuance of a license or permit is to receive, 51 percent or more of the gross receipts of the premises for which the license or permit is issued from the holder's sale or service of alcoholic beverages for on-premises consumption.
(b) The commission shall:
(1) adopt rules for making a determination under Subsection (a); and
(2) require a holder of a license or permit to provide any information or document that the commission needs to make a determination.
(c) If the commission makes a determination under Subsection (a) that a holder of a license or permit receives 51 percent or more of the gross receipts of the premises from the sale or service of alcoholic beverages, the holder shall comply with the requirements of Section 411.204, Government Code, and shall continue to comply with those requirements until the commission determines that the holder receives less than 51 percent of the gross receipts of the premises from the sale or service of alcoholic beverages for on-premises consumption.

Sec. 411.204. NOTICE REQUIRED ON CERTAIN PREMISES. (a) A business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, and that derives 51 percent or more of its income from the sale of alcoholic beverages for on-premises consumption as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code, shall prominently display at each entrance to the business premises a sign that complies with the requirements of Subsection (c).

You have a defense if they do not post the correct signage. It is on page 42 of your CHL handbook.

(k) It is a defense to prosecution under Subsection (b)(1) that the
actor was not given effective notice under Section 411.204, Government
Code.

So if there is no big red 51% signage on the door or hanging at the bar, your good to go for carrying.

Posted: **Thu Dec 02, 2010 2:22 pm**

texasjeep44 wrote:The business is required to post signs if they are a 51% establishment.

Sec. 104.06. MONITORING OF GROSS RECEIPTS. (a) On the issuance and renewal of a license or permit that allows on-premises consumption of any alcoholic beverage the commission shall determine whether the holder receives, or for the issuance of a license or permit is to receive, 51 percent or more of the gross receipts of the premises for which the license or permit is issued from the holder's sale or service of alcoholic beverages for on-premises consumption.
(b) The commission shall:
(1) adopt rules for making a determination under Subsection (a); and
(2) require a holder of a license or permit to provide any information or document that the commission needs to make a determination.
(c) If the commission makes a determination under Subsection (a) that a holder of a license or permit receives 51 percent or more of the gross receipts of the premises from the sale or service of alcoholic beverages, the holder shall comply with the requirements of Section 411.204, Government Code, and shall continue to comply with those requirements until the commission determines that the holder receives less than 51 percent of the gross receipts of the premises from the sale or service of alcoholic beverages for on-premises consumption.

Sec. 411.204. NOTICE REQUIRED ON CERTAIN PREMISES. (a) A business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, and that derives 51 percent or more of its income from the sale of alcoholic beverages for on-premises consumption as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code, shall prominently display at each entrance to the business premises a sign that complies with the requirements of Subsection (c).
You have a defense if they do not post the correct signage. It is on page 42 of your CHL handbook.

(k) It is a defense to prosecution under Subsection (b)(1) that the
actor was not given effective notice under Section 411.204, Government
Code.
So if there is no big red 51% signage on the door or hanging at the bar, your good to go for carrying.

While you are technically correct, one thing to remember is this is a 'defense to prosecution', but not a guarantee you won't be prosecuted. For example, if the prosecutor can convince the Judge or Jury that you well knew it was a 51% location when you entered, even without the sign, then you could be in hot water and be convicted of carrying in a 51% establishment.

So, I would still be very cautious if you suspicion an establishment is 51% even without the sign unless you have proof it is not.

Posted: **Thu Dec 02, 2010 3:40 pm**

Keith B wrote:
....
While you are technically correct, one thing to remember is this is a 'defense to prosecution', but not a guarantee you won't be prosecuted. For example, if the prosecutor can convince the Judge or Jury that you well knew it was a 51% location when you entered, even without the sign, then you could be in hot water and be convicted of carrying in a 51% establishment.

So, I would still be very cautious if you suspicion an establishment is 51% even without the sign unless you have proof it is not.

Two points.

First. Charles Cotton has said in a previous post that by case law all the 46.15 Non-Applicability Provisions are considered a "Defense to Prosecution" vs. an exception to the law. That means carrying at all with a CHL or even carry by a Peace Officer is a "only" Defense to Prosecution.

Second. The Defense provided under 46.035 can't be negated by proving that you "knew" it was a 51% location. The Defense is that you were not given effective notice under section GC 411.204 (by posting of a 51% sign). If you present evidence of your Defense at trial, the prosecution must prove "beyond a reasonable doubt" that the Defense didn't exist.

Posted: **Thu Dec 02, 2010 4:40 pm**

No offense to those in the resteraunt industry but I wouldnt trust what a manager said when it came to law, especially when it comes to CC.
Hell, I dont trust any LEO's on gun laws for that matter, either.
The rest (signs and tabc registrations) have already been covered.

Posted: **Thu Dec 02, 2010 5:16 pm**

Keith B wrote:While you are technically correct, one thing to remember is this is a 'defense to prosecution', but not a guarantee you won't be prosecuted. For example, if the prosecutor can convince the Judge or Jury that you well knew it was a 51% location when you entered, even without the sign, then you could be in hot water and be convicted of carrying in a 51% establishment.

So, I would still be very cautious if you suspicion an establishment is 51% even without the sign unless you have proof it is not.

If the establishment isn't following the law by posting their business with a 51% sign how are you to know they are a bar? If I don't post a 30.06 sign or a no tresspassing sign, or a fence or a gate, or purple paint on my property how are you to know I don't want you there.

By the same reasoning the following section will be used by judges and prosecutors only if a business is not posted and somehow they get caught with a gun. Seems they would be better served by staying home instead of going someplace that sells alcohol.

(h-1) *[as added by Acts 2007, 80th Leg., R.S., HB 2300.] It is a defense to
prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at
the time of the commission of the offense, the actor was:
(1) a judge or justice of a federal court;
(2) an active judicial officer, as defined by Section 411.201,
Government Code; or
(3) a district attorney, assistant district attorney, criminal district
attorney, assistant criminal district attorney, county attorney, or assistant
county attorney.

I doubt very seriously that the prosecutor would pursue a case against an individual when the business is clearly in violoation of the state law by not having the proper signage up.

Posted: **Thu Dec 02, 2010 7:11 pm**

When I get to ANY restaurant however, I go loaded, and just check the signs as I walk in the door.

Agree.

If they do their part in accordance with the law, I will do mine in accordance with the law.

Posted: **Fri Dec 03, 2010 12:02 pm**

I'm trying to find out if a location has a red or blue...But for some reason the site will not work for me. Can someone check?

Name: Josabi's
Address: 17200 State Highway 16 N, Helotes TX 78023

Does the site work for anyone else?

Posted: **Fri Dec 03, 2010 12:19 pm**

pbwalker wrote:I'm trying to find out if a location has a red or blue...But for some reason the site will not work for me. Can someone check?

Name: Josabi's
Address: 17200 State Highway 16 N, Helotes TX 78023

Does the site work for anyone else?

Direct link for TABC license lookup

They don't have an FB license, so we can't tell from the TABC website if they are 51% or not.

License #: MB680713
Trade Name: JOSABI'S
Owner: JOSABI'S INC.
Location Address: 17200-01 HWY 16 NORTH
HELOTES , TX 780233442
County: BEXAR Orig. Issue Date: 1/11/2008
Status: Current Exp. Date: 1/10/2011
Wine Percent:
Location Phone No.: 5122976185
Subordinates: LB
Related To:

Posted: **Wed Jul 19, 2017 7:04 pm**

Lookup the status of the business at this URL. If the sign is red, then it is >51%

http://www.tabc.state.tx.us/PublicInquiry/Status.aspx

Posted: **Thu Jul 20, 2017 8:51 am**

texasjeep44 wrote:
Keith B wrote:While you are technically correct, one thing to remember is this is a 'defense to prosecution', but not a guarantee you won't be prosecuted. For example, if the prosecutor can convince the Judge or Jury that you well knew it was a 51% location when you entered, even without the sign, then you could be in hot water and be convicted of carrying in a 51% establishment.

So, I would still be very cautious if you suspicion an establishment is 51% even without the sign unless you have proof it is not.

If the establishment isn't following the law by posting their business with a 51% sign how are you to know they are a bar? If I don't post a 30.06 sign or a no tresspassing sign, or a fence or a gate, or purple paint on my property how are you to know I don't want you there.

By the same reasoning the following section will be used by judges and prosecutors only if a business is not posted and somehow they get caught with a gun. Seems they would be better served by staying home instead of going someplace that sells alcohol.

(h-1) *[as added by Acts 2007, 80th Leg., R.S., HB 2300.] It is a defense to
prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at
the time of the commission of the offense, the actor was:
(1) a judge or justice of a federal court;
(2) an active judicial officer, as defined by Section 411.201,
Government Code; or
(3) a district attorney, assistant district attorney, criminal district
attorney, assistant criminal district attorney, county attorney, or assistant
county attorney.
I doubt very seriously that the prosecutor would pursue a case against an individual when the business is clearly in violoation of the state law by not having the proper signage up.

It kinda sort depends on your behavior, doesn't it. If you walk into an unposted eatery with a bar, open carrying, and instead of choosing a table and sitting down, you belly up to the bar and start ordering beer after beer after beer, I'm pretty sure of where you'll be spending the night.

ALSO, once you see the red 51% sign, it is on YOU to leave immediately. This happened to me once. I walked into what appeared to be a restaurant, which was kind of small, and sat down at a table to order. As I craned my head around to take in the surroundings, I saw the red sign on the wall over the bar, posted kind of up in a corner near the ceiling where it wasn't readily apparent. I paid for my iced tea and left. Had I stayed, once I saw the sign, I would have been in violation.

Posted: **Thu Jul 20, 2017 9:21 am**

ScottDLS wrote:Two points.

First. Charles Cotton has said in a previous post that by case law all the 46.15 Non-Applicability Provisions are considered a "Defense to Prosecution" vs. an exception to the law. That means carrying at all with a CHL or even carry by a Peace Officer is a "only" Defense to Prosecution.

Second. The Defense provided under 46.035 can't be negated by proving that you "knew" it was a 51% location. The Defense is that you were not given effective notice under section GC 411.204 (by posting of a 51% sign). If you present evidence of your Defense at trial, the prosecution must prove "beyond a reasonable doubt" that the Defense didn't exist.

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