There’s been a lot of misreporting, assumptions, and insinuations about what actually happened with Restaurant Carry and what it means. I can’t seem to find a PDF of Bonnyman’s ruling yet, so anything in this post is my recollection of what happened. IANAL, YMMV.
First, let’s clarify what the Restaurant Carry law actually is. Under TCA 39-17-1305, it is illegal for ANYONE to possess a firearm where alcoholic beverages are served:
39-17-1305. Possession of firearm where alcoholic beverages are served. –
(a) It is an offense for a person to possess a firearm within the confines of a building open to the public where liquor, wine or other alcoholic beverages, as defined in § 57-3-101(a)(1)(A), or beer, as defined in § 57-6-102(1), are served for on premises consumption.
(b) A violation of this section is a Class A misdemeanor.
Then they carve out exemptions for law enforcement and property owners (and their agents).
Restaurant Carry is was an exemption for carry permit holders. It is subsection 3 in the exemptions. This is what we refer to as the Restaurant Carry Law:
(3) (A) Authorized to carry a firearm under § 39-17-1351 who is not consuming beer, wine or any alcoholic beverage and is within the confines of a restaurant that is open to the public and serves alcoholic beverages, wine or beer;
(B) As used in this subdivision (c)(3), “restaurant” means any public place kept, used, maintained, advertised and held out to the public as a place where meals are served and where meals are actually and regularly served, such place being provided with adequate and sanitary kitchen and dining room equipment, having employed in the restaurant a sufficient number and kind of employees to prepare, cook and serve suitable food for its guests. At least one (1) meal per day shall be served at least five (5) days a week, with the exception of holidays, vacations and periods of redecorating, and the serving of such meals shall be the principal business conducted.
Now, the plaintiffs had all kinds of arguments: It delegates police power to restaurant owners. It violates workplace safety. 1359 signage doesn’t mean anything and permit holders can ignore it. All these arguments were thrown out by Chancellor Bonnyman.
The last sentence of (3)(B) is what Bonnyman used to declare subsection 3 unconstitutional because it violates due process. After a weekend of reflection, I have to agree.
Here’s the scenario: You, your wife, and your 2.4 kids go into your local latino restaurant (this is the example that Will Cheek used when arguing for the restaurant lobby) for dinner on a Saturday. You check for 1359 signage, and there isn’t any. You’re open carrying, because that’s how you roll. The hostess seats you, and the server brings you your chips and salsa. No one mentions your weapon, probably because they don’t notice. At the end of your dinner, you get up to pay at the front counter. Unbeknownst to you, Chief Ronal Serpas is also in that restaurant, and he knows that last week the restaurant was fined because more than 50% or their revenue came from liquor sales–they have a very good happy hour special on Margaritas.
Under the law cited above, it doesn’t matter that you didn’t know that. There’s not an exemption for “restaurant owner didn’t inform you that they were in violation of their license.” If they violate their license by serving too much alcohol, then it doesn’t meet the very narrow definition of a restaurant in subsection B. The serving of meals is no longer the “principal business conducted,” the selling of margaritas is. You’ve committed a Class A Misdemeanor, and in court you will lose. “I didn’t know” has not been a valid defense in quite some time. You’d have a police chief, a waiter, and a hostess all testify that you had a gun on you in a place that didn’t meet the definition. They’d probably have video, too. There’s just no way of getting around it, unless you landed a prosecutor that had the gumption to not charge you, against the wishes of the Chief.
Am I happy about all this? Hell no, but I’m already working on things to present to some state reps to fix this. I spoke with one about this a few weeks ago, and said that the easiest thing to do would be to remove all the extra language from 1305(c)(3), and have it simply read “Authorized to carry a firearm under § 39-17-1351.” That covers bars, restaurants, honky-tonks, and unlicensed facilities.
Another thing to do would be to automatically revoke the liquor license of anyone found in violation. If you listen to the lawyers and plaintiffs in this case, the number of violations is absolutely staggering. Apparently, there’s not a significant enough incentive for them to obey the rules, so we should REALLY look in to that.
Maybe we should do both.
You’re open carrying, because that’s how you roll. A point against open carry, perhaps?
More generally, the solution is to write the HCP carry laws to match the exemption for LEOs with businesses ability to post, one would think. I.E., if you don’t imbibe, you’re cool.
You seem to be measuring “principal business conducted” with an arbitrary percentage of revenue. I could be wrong, but I don’t recall any specific percentages of gross or net revenue being used anywhere in the existing Code to establish the principal business of an establishment. Given the different costs and profit margins of food vs. alcoholic beverages, I think it would be difficult to use a percentage of revenue to ascertain principal business. I do not believe that it was ever the intent of the legislature to require a percentage of revenue analysis; I believe that most legislators understood the intent of the bill was to allow permitted carry in any establishment that has a liquor license, since the establishment has already proven itself to meet the statutory definition of restaurant, which is identical in all substantive respects in both sections of the Code, in order to obtain the liquor license.
There are several ways to the fix the problem if the Court of Appeals, and possibly the Tennessee Supreme Court, happens to concur with the Chancellor’s decision. However, we won’t really know the best way to develop a politically feasible solution until the appeal is resolved.
Vance,
You’ve illustrated perfectly why the law was struck down. I (and the authors of the legislation if you want to review the floor debate) take it to mean they have to make most of their money on food. “Most” meaning more than 50%. You take it to mean something else. Who is right? It’s a matter of opinion, and therefor the statute violates due process because the standards are subjective.