restaurant and alcohol sales

[gfd_703]

Let me tell about two experiences I have had recently. Case number one, a small supermarket near home has a cafeteria complete with counter and stools and a small seating area. Upon finishing my meal I went to the restroom which is in the rear of the a separate eating area which is used for overflow seating and private parties. To my surprise I see a small bar stocked with adult beverages. It was not maned and the lights were off. Case number two, a catfish restaurant on the lake. I stopped in to have lunch and there were about 10 customers eating, one employee out front, the owner and her two grandkids. As I was leaving I saw a customer with a beer on the table.

Now in neither case were there any beer signs of any kind, and the beverages were not on the menu. In both cases I asked at the checkout about alcohol sales and both times I was told yes we do sell these but do not advertise the fact so as to not offend some customers.

How can I as a permit holder obey the law short of asking someone outside of every restaurant before entering? Is there no requirement that they post that alcohol is being served?

Just another reason to get this law changed before one of the good guys become a felon, because we do not want to offend someone!

[shaftbass]

I don't know how to answer that.

I guess just keep it concealed so if something like that comes up again, you don't have to worry about your gun being seen.

[TGO David]

These restaurants are supposed to post the typical state "Misdemeanor Offense" sign regarding carrying a firearms where alcohol is served, in clear view of the register. If beer wasn't advertised and wasn't on the menu, then I think you'd probably stand a pretty good chance of just being asked to leave by a LEO if you were made.

I've inadvertently eaten at a few places that I later discovered served alcohol on premises as well. I wasn't made and no one was the wiser. I also didn't shoot anyone or get into a drunken brawl with another patron, so I guess those two schools of thought are flawed.

My recommendation is that now that you know about those places, either no longer eat there while armed or be very discrete and carry on about your business. Doing the latter or the two is a decision you would have to make for yourself and obviously juxtaposes you with the letter of the law.

Another reason why the current law SUCKS.

[molonlabetn]

I was told by an instructor many years ago that it is the responsibility of the HCP holder to verify whether a business has a liquor license, to serve. I don't doubt that it would be handled fairly by most LEOs, but I wouldn't want to count on that.

One other question which arises... since the 'new' language in the Self-Defense doctrine which was implemented this year basically states that a shooting will not be justified if the shooter was committing a crime at the time. Violating the prohibition on carrying in a bar is a 'crime'... I'd hate to test the statute by adhering to the 'concealed is concealed' logic, being involved in an otherwise clean shoot in a bar, and ending up under the jail because it occurred in a place where I could not have been legally carrying. That alternative is better than being dead... but certainly is a step backward from the way it was before.

[TGO David]

Very good points. That change in the law's language was one of the things that John Harris (TFA) was pretty opposed to. This is a perfect example of why. We have now lost what was previously a "safe harbor" provision.

[molonlabetn]

It's one reason why I am less inclined to go the 'concealed is concealed' route lately.

[Guest EasilyObsessed]

Dont know how this might factor in, but it was my understanding that beer is classified as a malt beverage and not alcohol. IIRC the cutoff is 5% alcohol. If the establishment only serves beer or other beverages less than 5% (i.e. zima, Mikes hard lemonade etc.), and they havent posted a sign prohibiting firearms, then you should be able to carry. I think there was a post about this several months ago in which someone posted the exact language of the law...Ill have to dig to find it.

[Guest EasilyObsessed]

Found it...

You may find the following TN State Attorney General opinion interesting regarding carrying a firearm where only beer is sold.

S T A T E O F T E N N E S S E E

OFFICE OF THE

ATTORNEY GENERAL

425 FIFTH AVENUE NORTH

NASHVILLE, TENNESSEE 37243

February 22, 2000

Opinion No. 00-031

Ability of Persons to Carry Firearms on Premises that Sells Beer Which Contain Five Percent

Alcohol or Less

QUESTION

Does Tenn. Code Ann. § 39-17-1305(a) prohibit carrying of a gun into an

establishment that sells beer with less than a 5% alcohol content?

OPINION

No. A court would most likely interpret the term "alcoholic beverages" in Tenn.

Code Ann. § 39-17-1305(a) to exclude beer, thereby permitting the carrying of a weapon into an

establishment that sells beer with an alcohol content of 5% by weight or less.

ANALYSIS

In 1989 the legislature changed the scope of the prohibition against carrying firearms on

premises where beverages containing alcohol are sold or served. The current version provides:

It is an offense for a person to possess a firearm on the premises of a place open to

the public where

alcoholic beverages are served or in the confines of a building

where alcoholic beverages are sold.

Tenn. Code Ann. § 39-17-1305(a)(emphasis supplied). The prior version provided:

No person shall intentionally, knowingly, or recklessly carry on or about his person

while inside the confines of the building of any establishment licensed to sell beer,

wine or any other alcoholic beverage, for consumption on or off premises, any

weapon prohibited by § 39-6-1701 for the purpose of going armed.

Tenn. Code Ann. § 39-6-1717 (1988)(emphasis supplied).

When interpreting the meaning of a statute, a court cannot dismiss a change in wording which

the legislature has chosen to make to the statutory provisions. State v. Horton, 880 S.W.2d 732, 736

(Ct. Crim. App. 1994). The court must presume that there was a purpose for the legislative decision

to change the provisions of the prohibition from applying to an "establishment licensed to sell beer,

wine or any other alcoholic beverage, for consumption on or off premises" to "premises of a place

Page 2

Further, Tenn. Code Ann. §57-4-203(k) provides that persons licensed to sell wine or liquor must display a

1

sign specifying that it is illegal to carry weapons where alcoholic beverages are sold or served. Tenn. Code Ann. §§57-

5-105 and 57-5-301, which deal with the regulation of beer containing an alcoholic content of five percent (5%) or less,

do not have similar provisions dealing with the posting of a sign prohibiting the carrying of weapons. The presence of

words of limitation in one part of a statute and the absence of those words in other parts of the same statute indicates

an intentional legislative choice.

State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The legislature has clearly

provided that in licensing of establishments which sell "alcoholic beverages" warnings concerning the possession of

weapons on the premises are required. However the legislature has not required a similar provision for the licensing

of establishments that local beer boards choose to license. The parts of a statute should be construed so that its

component parts are consistent. Cohen v. Cohen, 937 S.W.2d 823, 827 (Tenn. 1996).

open to the public where alcoholic beverages are served or in the confines of a building where

alcoholic beverages are sold."

The legislature did not provide a separate definition for alcoholic beverages in Title 39.

Courts have previously found that the terms "alcoholic beverages" and "beer" are not synonymous

under the law.

Underground II, Inc. v. City of Knoxville, No. 03A01-9709-CH-00425, 1998 LEXIS

78, p. 2 (Tenn. Ct. App. February 4, 1998). "Alcoholic beverages" are specifically defined in Tenn. 1

Code Ann. § 57-3-101(a)(1) to exclude patented medicine or beer with an alcoholic content of five

percent (5%) weight or less. These distinctions between "alcoholic beverages" and "beer" existed

in 1989. When the legislature chose to reword the provisions of Tenn. Code Ann. § 39-17-1305(a),

the legislature removed the word "beer" from the statute, and did not provide a separate definition

of the term "alcoholic beverages" for the specific purposes of Title 39. Therefore, a court would

most likely interpret the term "alcoholic beverages" in Tenn. Code Ann. § 39-17-1305(a) to conform

to the definition provided in Tenn. Code Ann. § 57-3-101(a)(1). Thus the prohibition against

carrying a weapon where alcoholic beverages are sold would not apply to establishments which sell

or serve no intoxicating beverages other than beer with an alcohol content of 5% by weight or less.

PAUL G. SUMMERS

Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

WILLIAM C. BRIGHT

Assistant Attorney General

Page 3

Requested by:

Mae Beavers

State Representative

208 War Memorial Building

Nashville, TN 37243-0157

[Marswolf]

Yeah, but most restaurants and bars that have beer also have malt liquors, and probably other beverages, above 5%.

[Guest EasilyObsessed]

Yeah, but most restaurants and bars that have beer also have malt liquors, and probably other beverages, above 5%.

True in most cases, but the permit for the sale of beer and the permit for the sale of alcohol are separate. The county (or city...cant remember now, been to long since I looked at the paperwork) controls the beer permit while the alcohol permit is handled by the state. As the beer permit is generally much easier to obtain, sometimes "Mom and Pop" type places will just get the beer permit and forgo the alcohol permit.

[saintsfanbrian]

Correct me if I am wrong, but don't these permits also have to be predominantly displayed?

[Guest EasilyObsessed]

Correct me if I am wrong, but don't these permits also have to be predominantly displayed?

Yes they do.

[Marswolf]

I'm not up on the beer laws but I thought a beer license allowed you to sell malt liquor. I think the distinction is that the local group controls "malt beverages." I could easily be wrong about that.

[Cruel Hand Luke]

Anyone have a quick link or can print the "new language"?

[molonlabetn]

Anyone have a quick link or can print the "new language"?

Found here: http://www.legislature.state.tn.us/bills/currentga/asp/WebBillInfo/Summary.aspx?BillNumber=SB0011

Bill Summary for *SB0011 / HB1907

This bill revises present law governing self-defense.

PRESENT LAW

Under present law, a person is justified in threatening or using force against another individual when and to the degree the person reasonably believes the force is immediately necessary for self-defense. The person must have a reasonable belief that there is an imminent danger of death or serious bodily injury. The danger creating the belief of imminent death or serious bodily injury must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds. There is no duty to retreat before a person threatens or uses force.

Under present law, any person using force intended or likely to cause death or serious bodily injury within the person's own residence is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to self, family or a member of the household when that force is used against another individual, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

THIS BILL

This bill rewrites the present law provisions governing self-defense.

Under this bill, a person who is not engaged in unlawful activity and is in a place where such person has a right to be would have no duty to retreat before:

(1) Threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force; or

(2) Threatening or using force intended or likely to cause death or serious bodily injury if the person has a reasonable belief that there is an imminent danger of death or serious bodily injury, the danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time, and the belief of danger is founded upon reasonable grounds.

Under this bill, there would be a presumption that a person who used force intended or likely to cause death or serious bodily injury within any residence or dwelling (as opposed to just that person's own residence as under present law) held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household, or a person visiting as an invited guest. This presumption would apply when the force is used against another person who is not a member of the person's family or household and who unlawfully and forcibly entered the residence or dwelling.

This above presumption would also apply when the force is exerted within an occupied vehicle if:

(1) The force is used against a person who unlawfully and forcibly enters the vehicle;

(2) The person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred; and

(3) Possession of the instrument used, if any, by the person to inflict defensive force did not violate any state or federal law.

The above presumption would not apply under the following circumstances:

(1) The person against whom the force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle;

(2) The person against whom the force is used is attempting to remove a person who is in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used;

(3) The person using force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(4) The person against whom force is used is a law enforcement officer who enters or attempts to enter a dwelling, residence, or vehicle in the performance of the officer's official duties and the officer identified himself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

Under this bill, the threat or use of force against another is not justified:

(1) If the person using force consented to the exact force used or attempted by the other individual;

(2) If the person using force provoked the other individual's use or attempted use of unlawful force, unless the person using force abandons the encounter or clearly communicates to the other the intent to do so and the other person nevertheless continues or attempts to use unlawful force against the person; or

(3) To resist a halt at a roadblock, arrest, search, or stop and frisk that the person using force knows is being made by a law enforcement officer, unless the law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt, and the person using force reasonably believes that the force is immediately necessary to protect against the law enforcement officer's use or attempted use of greater force than necessary.

This bill provides immunity from civil liability for a person who uses lawful force in defense of self, others, or property except when the force is used against a law enforcement officer acting in an official capacity who identified himself or when the person using the force knew or should have known that the person against whom force was used was a law enforcement officer.

The court would award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by a person in defense of any civil action brought against the person based upon that person's use of force if the court finds that the person's use of force was justified.

ON APRIL 26, 2007, THE HOUSE ADOPTED AMENDMENT #1 AND PASSED HOUSE BILL 1907, AS AMENDED.

AMENDMENT #1 applies the presumption that a person who used deadly force against an intruder who is not a member of the person's family or household and who unlawfully and forcibly entered the residence or dwelling held a reasonable belief of imminent death or serious bodily injury to situations where the intruder entered a motorized vehicle that is designed for use on public highways.

This amendment specifies that civil immunity for the use of justifiable force would not apply if the use of force resulted in property damage to or the death or injury of an innocent bystander or other person against whom the force used was not justified.

[Cruel Hand Luke]

A largely useless piece of legislation as the key to the law presently (until this is passed) is whether you were in legitimate fear of death or grave bodily injury. Location (house, street, car) did not matter. If they NEEDED to be shot there was no duty to retreat. This bill was NOT needed.

What IS needed is less effort on this and more effort on making it legal to carry in parks and places that serve alcahol.

[Guest CrazyLincoln]

I was under the impression there was a TN law somewhere which essentially said that if a weapon were justifiably used in self defense, the victim was immune to weapon related offenses. E.g. You carry without a permit and are robbed at gunpoint and shoot the assailant, you could not be brought on charges for carrying without a permit.

[Marswolf]

39-17-1322. Defenses. -

A person shall not be charged with or convicted of a violation under this part if the person possessed, displayed or employed a handgun in justifiable self-defense or in justifiable defense of another during the commission of a crime in which that person or the other person defended was a victim.

[Guest CrazyLincoln]

Thank you marswolf. I spent an hour browsing the TCA looking for that one! I guess I am blind.....

[Marswolf]

I made a file of all of the TCA gun stuff as a HTML page I keep saved on my computer. Makes it easy to search.

[DaveTN]

Just another reason to get this law changed before one of the good guys become a felon, because we do not want to offend someone!

Is violating the carry/alcohol/restaurant law a felony?

Tennessee (and other states) just saw fit to trample all over the obvious rights of restaurant and bars owners in favor of the perceived rights of non-smokers. You think they are going to waiver on something that is no more than a privilege?

Are there any states that allow carry in bars? I know AZ tried and failed and even Alaska does not allow it.

Could a decision like that effect reciprocity agreements with other states?

[Marswolf]

Is violating the carry/alcohol/restaurant law a felony?

Class A misdemeanor

[saintsfanbrian]

While I appreciate the fact that you can no longer smoke in an establishment open to persons under the age of 21, I agree. The legislature had no business making it a law that you can't smoke there. I believe in the rights of property owners and if Bobcat's wants to sell beer and allow smoking, I have the right not to go there. End of story.

Our government has spent the last 100 years trampling on individual rights "for the good of society" yet they don't put these things to a vote of the society. I personally say, FIRE THEM ALL!!!! Yes we would have to elect new ones, but maybe then the big boys would realize who REALLY has the power (or is supposed to at least.)

[DaveTN]

Our government has spent the last 100 years trampling on individual rights "for the good of society" yet they don't put these things to a vote of the society. I personally say, FIRE THEM ALL!!!! Yes we would have to elect new ones, but maybe then the big boys would realize who REALLY has the power (or is supposed to at least.)

I have wondered about putting some of these things to a vote. I think the ban on smoking would pass. If you look at the responses on most of the forums to the smoking ban; most folks don’t seem to have a problem with trampling all over the rights of business owners when it comes to smoking.

I wonder how handgun carry would do? I’m not sure we would want to find out.

[Cruel Hand Luke]

Are there any states that allow carry in bars? I know AZ tried and failed and even Alaska does not allow it.

New Hampshire (According to Massad Ayoob) and Pennsylvania. In PA you can DRINK in a bar with a gun. And you do not hear about drunken gunfights in bars in Pa. At NTI (National Tactical Invitational) in Harrisburg PA, we met in the hotel bar every night that week and no one left their pistols in their rooms..........No one got DRUNK, most armed professionals do not, but the presence of beer and guns didn't cause otherwise normal people to turn into bloodthirsty killers either.....