Definition of "Premises" Regarding 51% Restaurants

[merrittj214]

There is a large and popular restaurant near us that has about 75% of their tables outside and a bar on the inside. The tables where people eat are just like any other outdoor restaurant and this place from the looks of it sells much more food that alcohol. I was recently given the following information, but I have not been able to verify it with any actual materials.

"Assuming effective notice is not given under 30.06 or 30.07, a license holder is not statutorily prohibited from carrying a handgun in an outdoor parking or seating area of a "51%" location; entering the building, however, would be prohibited regardless of whether signage has been properly posted."

Is this true? If so, where can I see it?

[Mike S]

Could you please cite where you received that information? That would be helpful.

[merrittj214]

It came from a user on another message board.

[Jusme]

Premise under the TABC rules, depends upon where the establishment has determined that they will be in control. Basically, if they serve alcohol, in an outdoor setting, that is their premise. It can cover parking areas, etc..

The boundaries, will be available on their floor plan. It should be accessible through the TABC, or from the establishment itself.

Establishments, in strip centers, will not include parking areas, because they don’t want to be held responsible, for TABC violations that may occur there. If they are serving in an outdoor seating area, more than likely, it is part of the “premise” and statutorily prohibited for carry.

JMHO

[Lynyrd]

I do not know how to answer your question, although I've never heard that defense before. However, you can search to find out whether or not the restaurant is a 51% location here.

https://www.tabc.state.tx.us/publicinquiry/Status.aspx

Red sign = 51%

[ScottDLS]

Premise under the TABC rules, depends upon where the establishment has determined that they will be in control. Basically, if they serve alcohol, in an outdoor setting, that is their premise. It can cover parking areas, etc..

The boundaries, will be available on their floor plan. It should be accessible through the TABC, or from the establishment itself.

Establishments, in strip centers, will not include parking areas, because they don’t want to be held responsible, for TABC violations that may occur there. If they are serving in an outdoor seating area, more than likely, it is part of the “premise” and statutorily prohibited for carry.

JMHO

The defense that I would raise, were I to carry in such a location would be: The TABC definition of premises IS NOT referenced in the criminal statute under which you would be charged. If you had a LTC and you were carrying in said location, you would be charged with.

TXPC 46.035(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 or carried in a shoulder or belt holster, 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;

Now some will say the TABC definition of premises controls...however, the statute 46.035 is very explicit.

46.035(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.

So if you are outside, you are not in a building. Take the TX State Fair for example. You can walk throughout the outdoor area of the Fair with a beer that you bought at a stand whose temporary 51% license encompasses the entire Fairgrounds. Yet they removed the 51% signs at the entrance to the Fair 18 or so years ago after the prohibition on Public Entities posting 30.06 passed.

[Mike S]

Texas Penal Code 46.035 states it is unlawful for an LTC holder to carry on the "premises" of a 51% establishment. It is a defense to prosecution if it's a 51% establishment but they failed to post a 51% sign.

TPC 46.035 uses the following definition for Premises:

"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.

You can find that portion here: https://statutes.capitol.texas.gov/Docs ... /PE.46.htm

Regarding if it's actually a 51% establishment or not, you can do an inquiry here at the TABC's website:
https://www.tabc.state.tx.us/PublicInquiry/Status.aspx

So, regarding your question, the 46.035 definition of Premise specifically excludes the parking lot. However, if the outdoor seating area is connected to the building, such as a covered or screened in porch, I personally wouldn't chance it.

[ScottDLS]

Texas Penal Code 46.035 states it is unlawful for an LTC holder to carry on the "premises" of a 51% establishment. It is a defense to prosecution if it's a 51% establishment but they failed to post a 51% sign.

TPC 46.035 uses the following definition for Premises:

"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.

You can find that portion here: https://statutes.capitol.texas.gov/Docs ... /PE.46.htm

Regarding if it's actually a 51% establishment or not, you can do an inquiry here at the TABC's website:
https://www.tabc.state.tx.us/PublicInquiry/Status.aspx

So, regarding your question, the 46.035 definition of Premise specifically excludes the parking lot. However, if the outdoor seating area is connected to the building, such as a covered or screened in porch, I personally wouldn't chance it.

That is a good point. Another point is that all the locations I've seen have outdoor patio areas fenced in with only emergency exits, so typically you would HAVE to enter through the building of the 51% location, thereby violating the law.

[ELB]

A search of the TABC website did not come up with a definition of “premises”, but I did find this answer to question 14 under General Questions.

https://www.tabc.state.tx.us/faq/general.asp#general

What can be searched without a warrant?

A peace officer may inspect or conduct an inspection of the premises covered by a license or permit at any time without a search warrant for the purpose of performing any duty imposed by the Code.

The premises include all of the grounds and related buildings, vehicles and appurtenances, as well as the adjacent premises under the control of the permittee or licensee when covered by permit or license by the TABC.

In some instances specific parts of the premises may be diagramed off the licensed premises and not subject to search without a warrant. A copy of the TABC approved diagram is required to be publicly posted with the license or permit if a specific part of the premises has been diagrammed off the licensed premises. If living quarters are located on the premises and have not been diagramed off the licensed premises, it is suggested that the officer obtain voluntary consent to search or secure a search warrant before searching this area.

So it appears that the “licensed premises“, like others mentioned above, are whatever the proprietor put on his license. It appears he must have this Publicly posted. I’ve never seen one, although I’ve never looked for one either.

srothstein Is a member of this forum And a former TABC officer, and I hesitate to put words in his mouth, but I believe he has essentially said the same thing: the premises is whatever the proprietor put on his license as the place where he’s going to serve drinks for on-premises consumption. Perhaps will be along to enlighten us.

p.s. The parking lot might not be “premises”, but I would not be willing to chance that an outdoor seating area connected to an establishment where food and/or alcohol is served is not a “portion of a building”, Especially if it appears on their 51%license.

[KLB]

Most bars have a license only for on-premises consumption. If they'll serve you on the patio, I would think either that's a part of their premises or they're violating the limits of their license. As a customer, if I were trying to stay clear of the law, I would not leap to the assumption the establishment is violating its license.

[srothstein]

There has been an on-going discussion for years over which definition of premises will apply to what is a licensed premise. There is a history of the ABC definition applying and people being arrested for unlawfully carrying in a licensed premise for having a pistol in the parking lot of a bar. But, as far as I know, that all predates the law concerning CHL/LTC. I feel comfortable that if I caught a person who was not licensed and they had a pistol in the parking lot of a gas station that sold beer, that I could make the felony case stick by applying the TABC definition of the licensed premise. I do not feel anywhere nearly as comfortable that the same definition would apply to a person with an LTC.

In all honesty, I feel fairly sure that in a case like the OP stated, the law would apply the PC definition of premises. I just have to warn everyone that this is not 100% sure. There is an old saying that bad facts make for bad case law. I can see a case where person acts stupidly enough that the court wants to make sure they get convicted - regardless of my interpretation of the law - and we end up with an appellate decision that is against what we want it to be. I am most concerned about the temporary permits issued for festivals like the Watermelon Thump (well, I do live in Luling) where they get 51% permits issued yet all of the alcohol is sold and consumed outdoors. They get enough drunks in there and something could happen. My mind is eased somewhat based on the record of LTCs not getting drunk though.

[Beiruty]

I am not a lawyer, I would not argue that eating on outside patio of the 51% establishment while open carrying is a good idea

[imkopaka]

IMO it would not be a stretch to claim that since the area had a roof/wood floor/at least one wall/screen/etc that it qualifies as a portion of a building.

Personally I just wouldn't risk it. The place is 51% for a reason, and even if you were abstaining from alcohol you would still have a tough time explaining yourself if anything happened. I can't imagine an officer in all of Texas who wouldn't at least cite you for carrying in such a place, and "I'm outside and that's not the premises!" sounds like the kind of defense OCT would give in a publicity stunt. YMMV

[Lena]

My thoughts here in 51% any spot on the property of the place inside or outside I would not go just my thoughts, remembering all do not see things the same there and I do not take chances, way to many other places to eat, Why chance it anyway? To me if ANY doubt at all I do not go there, just my views. Don't drink anyway so it would be a no go there. Same if I do not see any signs and observe others drinking, I avoid, just one that does not leave things to chance if possible not to.