HB3125/SB3012 new restaurant carry bill by Todd/Jackson

[GLOCKMEISTER]

that wasnt it...

[macville]

Why don't one of us geniuses just email Todd and ask him what's up?

Matthew

[GLOCKMEISTER]

we might not wanna post it here just yet... just in case

[DavidD]

we might not wanna post it here just yet... just in case

OK Phillip, the suspense is killing me. Can you at least tell us

OR

[Fallguy]

Could it be the Pro Gun Legislators have decided to get behind HB2694 instead of HB3125? It seems like a better bill and everyone seemed to be all for it when it was discussed here a month or so ago.

HB3125 w/ amendment does the same as HB2694 (repeal 39-17-1305) plus requires exact wording for a 39-17-1359 sign and removes old code requiring sings in places that serve alcohol that are out dated.

So HB3125 is a better bill, but HB2694 doesn't have a fiscal note (although HB3125 doesn't either w/ amendment) so it shouldn't have to go to the budget committee and therefore might have a better chance of passing.

[Champ198]

I sent all of them on the House Finance, Ways, and Means Budget Sub-Committee an email asking for their support of the bill. Only Donna Rowland responded to me. She supports the bill.

[kb4ns]

I'm a little late returning to this party, but to the folks asking about reapplying for a permit after suspension or revocation, here's how the TDOS works. It is the same with HCPs as it is with driver's licenses. You have a "handgun permit status" just like you have a "driver's license status". Once the status is revoked or suspended, it is revoked or suspended. There's no getting a new one. If you go leaving the scene of an accident and your license gets suspended, you can't just go take the test again and get a new one. The TDOS computer system saves your status and it is what it is.

When the police run a DL (or ID or HCP), we see a "Permit Status" on the results. Everyone in the state has a HCP status. For most folks, it says "None". For those with a valid HCP it says "Valid". If they ever suspend or revoke your HCP, it will remain "Suspended" or "Revoked" unless properly reinstated.

Edited March 28, 2010 by kb4ns
Edited for clarity

[JayC]

I'm curious exactly what law the TDOS would use to prevent re-issuing a permit... remember we're talking about a possible loophole here... Also keep in mind that the law which covers DL's suspensions is completely different from the law which covers HCP's.

TDOS suspends your permit because you carry illegally under this provision..

1. The resulting 'charge' is not enough to prevent you from holding or getting a HCP.

2. The fact you're HCP is previously suspended is not listed as a reason TDOS can deny you a permit under the law.

3. If there is no criminal record, and no statue which prohibits issuing a permit TDOS is obligated under the law to issue within 90 days of receiving an application.

If all the above is correct (And it appears to be the case), other than playing the "Poses a material likelihood of risk of harm to the public" how does the TDOS deny the permit application?

I'm not disagreeing with you they wouldn't attempt to deny the application and force a show down in court hoping you'd just give up... I'm just saying if they revoke your permit, and you don't have any record that would prevent you from re-applying, it seems under the law they are required to issue you a permit.

If I'm wrong, please provide a cite to the part of the law I overlooked.

I'm a little late returning to this party, but to the folks asking about reapplying for a permit after suspension or revocation, here's how the TDOS works. It is the same with HCPs as it is with driver's licenses. You have a "handgun permit status" just like you have a "driver's license status". Once the status is revoked or suspended, it is revoked or suspended. There's no getting a new one. If you go leaving the scene of an accident and your license gets suspended, you can't just go take the test again and get a new one. The TDOS computer system saves your status and it is what it is.

When the police run a DL (or ID or HCP), we see a "Permit Status" on the results. Everyone in the state has a HCP status. For most folks, it says "None". For those with a valid HCP it says "Valid". If they ever suspend or revoke your HCP, it will remain "Suspended" or "Revoked" unless properly reinstated.

[kb4ns]

I'm referring to the system TDOS uses to issue HCPs, DLs, etc. If you took another HCP class and headed to the DL station to get a new HCP, when they type in your DL # to process the application, a big ole "SUSPENDED" or "REVOKED" is gonna pop up on the screen in the handgun permit status. There's no law saying they cannot re-issue it because there is no "re-issuing". You either have one or you don't. And if you have one, your status is going to be one of the following: valid, suspended, or revoked.

I know that the TCAs covering HCPs are different from DLs. What I'm saying is that when it comes to any type of license / permit issued by TDOS, they go by your DL / HCP number. It's either valid or not. If not, it has to be reinstated.

[kb4ns]

Another issue you'd face; Say that by some computer glitch, you were issued another HCP while suspended. If the police have to run your permit status for any reason, you'll probably come back suspended. If you're carrying, you could have a rough day. Sure, if you went through the process of taking another HCP class and getting another HCP (assuming that computer glitch was there and allowed it), you may have some plausible deniability, but at the least you could be dealing with a costly legal battle.

A HCP is not much more than a piece of plastic. It's what the state says when the police run it that matters. Same reason I didn't mind giving a friendly reminder (in lieu of much worse) to the HCP holder I stopped last week who had his gun on his hip, but left his wallet (and permit) at home. I never saw his HCP, but I was able to verify it in the computer.

Edited March 29, 2010 by kb4ns

[JayC]

I'm referring to the system TDOS uses to issue HCPs, DLs, etc. If you took another HCP class and headed to the DL station to get a new HCP, when they type in your DL # to process the application, a big ole "SUSPENDED" or "REVOKED" is gonna pop up on the screen in the handgun permit status. There's no law saying they cannot re-issue it because there is no "re-issuing". You either have one or you don't. And if you have one, your status is going to be one of the following: valid, suspended, or revoked.

I know that the TCAs covering HCPs are different from DLs. What I'm saying is that when it comes to any type of license / permit issued by TDOS, they go by your DL / HCP number. It's either valid or not. If not, it has to be reinstated.

I'm not disagreeing on the computer system side of things... only asking where they have the authority under the law not to issue you a valid HCP if you re-took the test, and had no criminal charges which would prevent you from being issued a permit.

The DL law gives them all sorts of listed ability to prevent them from having to re-issue a new DL to a suspended driver, all of that appears to be missing from the HCP law.

The point I think we're making is, the way the current law is written, if they suspend or revoke for something other than a disqualifying reason, re-taking the class might force them to issue you and new valid HCP, then your status in their computer system is NOT listed as one of the reasons they can deny you a permit.

Again, my guess is they'd deny you the permit and force you to take them to court... and who knows what a liberal judge will say... but it doesn't seem in a shall issue state that TDOS would not be allowed to long term suspend your permit for a non-disqualifying related offense.

[Oh Shoot]

...

The point I think we're making is, the way the current law is written, if they suspend or revoke for something other than a disqualifying reason, re-taking the class might force them to issue you and new valid HCP, then your status in their computer system is NOT listed as one of the reasons they can deny you a permit.

...

I think kb4ns' point is that, just like a driver's license, you only get one HCP, and it's forever, just like TN DL. It is either valid or not. And just like a driver's license, if it is invalid, it can be because of suspension, revocation, or simply lapse in renewal.

If lapsed, it can be renewed, up to a certain date by paying fee. Past a certain date, your HCP can't be renewed without taking course again and paying the original fee - but you would still only get YOUR original permit back (with original number on it).

If it's suspended, only way to change that is to go before TNDOS hearing and convince them to do it. So you'd be throwing your money away to apply for a new one - because you can only be issued your ONLY one, which already exists, and it's nuked.

- OS

[kb4ns]

OhShoot hit the nail on the head.

[Fallguy]

I think kb4ns' point is that, just like a driver's license, you only get one HCP, and it's forever, just like TN DL. It is either valid or not. And just like a driver's license, if it is invalid, it can be because of suspension, revocation, or simply lapse in renewal.

If lapsed, it can be renewed, up to a certain date by paying fee. Past a certain date, your HCP can't be renewed without taking course again and paying the original fee - but you would still only get YOUR original permit back (with original number on it).

If it's suspended, only way to change that is to go before TNDOS hearing and convince them to do it. So you'd be throwing your money away to apply for a new one - because you can only be issued your ONLY one, which already exists, and it's nuked.

- OS

That's the way I was seeing it....

Of course there is a difference between suspeneded and revoked.

Suspened can just be temporary of course, once what ever conditions that caused it to be suspended have passed you can apply for reinstatment.

Revoked, is revoked....

I understand what JayC is saying in that...under 39-17-1351 there is a specifice list of what can disqualify you from getting a HCP in the first place. Also that there could be things that get your HCP revoked that aren't in that list in 39-17-1351.

But kb4ns is right in that you have and only will ever have one HCP, the only thing can change is your status. If your status becomes revoked, under 39-17-1352 and is not changed by any court procedings...then that is it. There is not getting a new one...you have one.....and it revoked.

[JayC]

Guys, you're so missing the point I'm making.... We're a SHALL issue state, and TDOS can only deny your new permit application for a short list of reasons. (Note that fact that your HCP and DL have the same number isn't required by law, it's something TDOS does because it makes their life easier).

You guys are focusing on the computer system TDOS uses, and not the law. I don't disagree that their computer system will state something... but the status in the computer system is not listed as a reason they can deny a new application under the law.

The argument you're making is that somebody at TDOS can revoke your permit, and even though the reason your permit was revoked doesn't prevent you from owning a firearm or getting a permit you'll never be able to get a new one?

Again, I'm not saying you wouldn't have to push the issue in court... But the law is very clear on the subject, we're a shall issue state, and a past violation of 39-17-1351 - 39-17-1360 is not listed as a reason to deny a new permit application (Unless the above violation also happens to be a class A misdemeanor or felony for which you've been charged and/or convicted of).

Here is a perfect example of what I mean, kb4ns pulled a guy over without a permit in hand, if he wanted to he could have forwarded that to TDOS and from all indications they would could have revoked the HCP... Now that guy who forgot his HCP permit is revoked for life? For something that is not even a criminal violation?

If TDOS can suspend or revoke a permit for life, and once that happens you can never get your permit back, seems to fly in the face of the law, and it's something I think we should campaign to fix personally. But, I suspect the truth is TDOS would not have a legal leg to stand on if they revoked your license, and then denied your new application.

I agree with Fallguy, a limited time suspension would be more problematic, but the out and out revoking of the permit I think would open the door for somebody to reapply. Again, we're splitting hairs here, the truth is it's a major legal grey area and I for one have no interest in getting my permit revoked this way to test it

I think kb4ns' point is that, just like a driver's license, you only get one HCP, and it's forever, just like TN DL. It is either valid or not. And just like a driver's license, if it is invalid, it can be because of suspension, revocation, or simply lapse in renewal.

If lapsed, it can be renewed, up to a certain date by paying fee. Past a certain date, your HCP can't be renewed without taking course again and paying the original fee - but you would still only get YOUR original permit back (with original number on it).

If it's suspended, only way to change that is to go before TNDOS hearing and convince them to do it. So you'd be throwing your money away to apply for a new one - because you can only be issued your ONLY one, which already exists, and it's nuked.

- OS

[Fallguy]

My point has nothing to do with the computer system. The computer system is simply a way for LEO to check the status, but what the status is, is determined by other means.

Being a shall issue state has nothing to do with it...you were issued one at some point. They are not denying issuing you one.

My point is that you can't apply for a new HCP...you already have been issued a HCP.

It was already issued to you. You did something to screw things up for yourself. There is no getting around it by trying to apply again, because you already have one.

When it is first suspended or revoked by the DOS, you have recourse. First by a hearing conducted by the DOS, secondly by the courts. But if after all that is done and you are still revoked, I believe that is the end of the line.

I'm not sure if the DOS would, but I'm fairly sure a court would require a higher standard to permanently revoke a HCP than just to suspend for a period of time. Or in other words, it would take more than a minor violation of the law to forever loose your HCP privileges.

On your traffic stop scenario...first, if you are carrying your handgun without your HCP in your possession....that is a violation of the law. However (even though I admit they could) I see no reason why the DOS would revoke your HCP for that....they may suspended it. But even if the did revoke it (or suspended for that matter) you can state you want a hearing in which that decision could be reversed. But let's say that it isn't, you can then apply to have a court hear the case in which it could be reversed.

I really don't think the DOS or the courts are out to permanently revoke everyone's HCP for minor offenses.

About the only changes I could see made in the law (and not sure if it would help or not) is to have separate criteria for revoking your HCP from those that could cause it to be suspended.

[kb4ns]

From TCA 39-17-1351

Except as provided in subsection ®, any resident of Tennessee who is a United States citizen or permanent lawful resident, as defined by § 55-50-102, who has reached twenty-one (21) years of age, may apply to the department of safety for a handgun carry permit.

One would argue that since the "shall issue" applies to a handgun carry permit, the fact that you already have one (albeit suspended or revoked) would prevent you from being able to apply for or receive another.

And I agree that the DOS is not usually in the habit of yanking HCPs for minor infractions. They are usually bright enough to realize that it wouldn't be worth their time since it's likely to be returned to you if you fight it.

Edited March 30, 2010 by kb4ns

[GLOCKMEISTER]

we shall find out Kwik enough... if you know what i mean

[JayC]

Fall, I wasn't including your statements in my reply... I agree that it's a grey area, but I'm aware of 2 separate cases where somebody didn't have charges filed against them but did have their permits revoked...

I suspect if we did some digging that we could find more cases where law enforcement didn't file criminal charges that would have resulted in a person being unable to keep or maintain their HCP but because of reports and/or requests to TDOS have resulted in the permit being revoked.

Now as for carrying without a permit, which from my understanding is that would be a Class C misdemeanor which would not in and of itself result in you loosing your permit (since from my reading only Class A's and felony result in suspension or revocation)... So the *only* way you loose your permit in that cases is for TDOS to revoke under the 1351-1360 rule.

Again I suspect that if kb4ns wanted to push the issue and filed a formal notification with TDOS the forgetful person would see their permit suspended or revoked over the matter... And my argument is that a revoking under that (even after appealing the ruling) is not a lifetime ban. You look at what little Belle Meade had to send in to get a certain persons permit revoked (which wasn't even a violation of 1351-1360) I suspect their default policy is if a department complains, revoke.

The point I'm making is that under the law, a HCP is the bit of plastic they give you to carry, not the note in the TDOS computer system. The law clearly indicates you must return that bit of plastic when so ordered to do so by TDOS. And then you have this bit which is the part of the law which I think requires TDOS to give you a valid permit (the bit of plastic) unless they have a reason to deny under the law...

39-17-1351

(l) The department shall issue a permit to an applicant not prohibited from obtaining a permit under this section no later than ninety (90) days after the date the department receives the application. A permit issued prior to the department's receipt of the Tennessee and federal bureaus of investigation's criminal history record checks based upon the applicant's fingerprints shall be subject to immediate revocation if either record check reveals that the applicant is not eligible for a permit pursuant to the provisions of this section.

And here the law defines the permit as this:

The permit shall be issued on a wallet-sized laminated card of the same approximate size as is used by the state of Tennessee for driver licenses and shall contain only the following information concerning the permit holder:

So again the permit is not the record in the system, but is the DL sized card you're issued. Revoking or suspending the permit, requires me to surrender the permit to TDOS, and therefore I no longer have a permit.

I understand the argument folks are making that what matters is whats in the TDOS computer, if they issue you a permit but then mark it as revoked in the computer system, bad things happen (whether it's truly revoked or not police officers go off of whats on the screen not whats in your hand).

But again, if you revoke my permit, for a violation of 1351-1360 which is not part of a class A misdemeanor or felony arrest or conviction (or pre-trail diversion etc)... I return my permit, how can TDOS deny my application for a new permit? How are they not required to give me a new permit under 39-17-1351 section l?

I suspect that the max length they can suspend your permit would be until it is due to expire, and if they didn't it might prevent you from having a permit for up to 4 years... I completely agree that this would be a problem trying to apply for a new one while your permit has been suspended for a limited time.

But, if TDOS can revoke your permit for life for a minor infraction in 1351-1360 which results in a not being charged, or a non-serious charge (Class C or B misdemeanor) then I say there is something wrong with the system that does need to be changed. It seems to me that if you're revoked the cost of taking the class and re-applying is a reasonable punishment for such a minor infraction.

[JayC]

we shall find out Kwik enough... if you know what i mean

I agree, I'm somewhat surprised he hasn't headed down this road, as it's much cheaper just to re-take the class and file a new application than it is to pay for an hour of a good lawyers time.

I'm also aware of a recently (was at the time) former police department employee (non-law enforcement) that claims their permit was also revoked without any charges being filed or arrest being made...

I'm cruious just how hard it is to get a permit revoked via TDOS... I suspect a written complain is likely all that is needed.

[GKar]

Back to our regularly scheduled programming... HB2694 passed in the House Judiciary Cmte today, thus going to Calendar. Rep Dennis said he does not intend to bring it to the floor, however, unless a problem arises with HB 3125. Hmmm...

EDIT for clarity: HB 2694 simply repeals the relevant section of TCA alcohol regs that prevent carry where alcohol is served.

[Fallguy]

Back to our regularly scheduled programming... HB2694 passed in the House Judiciary Cmte today, thus going to Calendar. Rep Dennis said he does not intend to bring it to the floor, however, unless a problem arises with HB 3125. Hmmm...

EDIT for clarity: HB 2694 simply repeals the relevant section of TCA alcohol regs that prevent carry where alcohol is served.

Good news.

While I would rather see HB3125 pass because of the changes made to 39-17-1359 and removing the need to post the ABC signs, HB2694 does accomplish the same thing as far as restaurant carry is concerned.

[Fallguy]

So again the permit is not the record in the system, but is the DL sized card you're issued. Revoking or suspending the permit, requires me to surrender the permit to TDOS, and therefore I no longer have a permit.

Did you know that even if you have never applied for a DL but are arrested for DUI, driving with out a DL, etc.... the DOS issues you one with a revoked status? I guarantee you that the person couldn't go apply for a new DL claiming they never have before.

The piece of plastic and the record of it kept in the computer system are intertwined and can not be separated.

I think we all agree the only otherwise non-criminal offense that can get your HCP revoked or suspended is the "Poses a material likelihood of risk of harm to the public." I don't think any judge worth his salt is going to a say a person that has a HCP, but didn't have it in is possession falls into that category. But if he does, then he does. But HE did it...not the DOS. That is why the law allows for Judaical review, so the DOS is not the end all be all of HCP and there is an external review of their actions.

[kb4ns]

The piece of plastic and the record of it kept in the computer system are intertwined and can not be separated.

Yep. Think of your original "piece of plastic" as sitting in a file cabinet at the TDOS. It still exists, even if it isn't in your possession.

[Oh Shoot]

...

Now as for carrying without a permit, which from my understanding is that would be a Class C misdemeanor which would not in and of itself result in you loosing your permit (since from my reading only Class A's and felony result in suspension or revocation)... ...

It's Class A 'meanor doing it in "public", which is just about anywhere you're likely to get popped except your own car.

- OS