Restaurant Carry Law ruled Void!

[Guest HvyMtl]

Oook. From what I can tell, and correct me if wrong, there is no LEGAL specifics that designate the difference between a Restaurant and Bar in our State's Law.

Effectively, as written, there ARE NO BARS in TN. Only restaurants. There are several cases and situations where places we would know, and call a "bar," run afoul of the State Restaurant Law and get fined... This Ambiguity, and the lack of definition of several specific words used in the law - were the issues.

No specific definitions leads directly to ambiguity - and no law can have ambiguity, and pass the TN Constitution's test (as it is supposed to work...)

So, due to the present Restaurant Law not differentiating between a Bar and a Restaurant, plus the lack of specific definitions of certain words used in the carry law, it gets, rightfully, overturned.

Yes, rightfully. BUT, that should NOT be the end of this. Tennessee has long needed to clarify what a "Bar" is... And, having specific definitions (including the proper signage to "opt out") and having the law written where the Permit Holder is 100% clear on where, and where not, to carry should now be the focus.

This is not a set back, but a desperately needed clarification.

FYI: I suggest boycotting the restaurant owner who sued. He is not a friend of the 2nd A, and should be advised of his poor view, by our lack of $ going to his restaurants...

Edited December 3, 2009 by HvyMtl

[Guest HexHead]

There are three words which define Liberty, to me, more than any other I have found... "to each, his own".

I admire your passion, but I hate to point out the obvious, that's four words.

[Guest HexHead]

Oook. From what I can tell, and correct me if wrong, there is no LEGAL specifics that designate the difference between a Restaurant and Bar in our State's Law.

Effectively, as written, there ARE NO BARS in TN. Only restaurants. .

Well, apparently there is a legal specific since the ABC has some sort of % requirement or the plaintiffs case wouldn't have gotten any traction. Apparently, that dip**** Bonneyman thinks there is a distinction between a bar and restaurant based on that ABC legal specific. Why don't our lawmakers in the legislature know about this?

[Oh Shoot]

I admire your passion, but I hate to point out the obvious, that's four words.

There an echo in here?

- OS

[Guest CrimsonTrace]

1v1v

Edited December 18, 2009 by CrimsonTrace

[GKar]

From looking at a Nov 24 copy of the bench ruling, it appears that the undoing of the current TCA 39-17-1305 ©(3)( is the terminal phrase "and the serving of such meals shall be the principal business conducted." [emphasis added] The judge apparently agreed that all other facets of the definition of the term "restaurant" as used in the statute were able to be ascertained by the average person; however, she opined that an average person could not reliably determine whether serving meals was the principal/primary business conducted by the business, even upon questioning of restaurant workers. This ambiguity thus causes the entire statute to be "unconstutionally vague" by presenting a situation wherein a well-intentioned permit holder could not reliably discern whether an establishment that serves alcohol met the exclusion criteria in the statute.

Edited December 3, 2009 by GKar
delete nonfunctional text tags

[Guest HexHead]

From looking at a Nov 24 copy of the bench ruling, it appears that the undoing of the current TCA 39-17-1305 ©(3)( is the terminal phrase "and the serving of such meals shall be the principal business conducted." [emphasis added] The judge apparently agreed that all other facets of the definition of the term "restaurant" as used in the statute were able to be ascertained by the average person; however, she opined that an average person could not reliably determine whether serving meals was the principal/primary business conducted by the business, even upon questioning of restaurant workers. This ambiguity thus causes the entire statute to be "unconstutionally vague" by presenting a situation wherein a well-intentioned permit holder could not reliably discern whether an establishment that serves alcohol met the exclusion criteria in the statute.

Where'd you get the ruling?

[Guest HexHead]

Okay, I did find this....(emphasis added)

And, from Bonnyman’s opinion: “The court finds that TCA 39—17—1305 © does violate the due process rights of the plaintiffs—generally, the plaintiffs gun permit holders—because the language ‘the serving of such meals shall be the principal business conducted’ cannot be known to the ordinary citizen.â€

So the finding wasn't even in favor of Rayburn and the other restaurant plaintiffs, but in favor of the four HCP holder plaintiffs.

I'd sure like to know who these four butt plugs are.

[Guest HexHead]

Okay, here is a copy of her ruling...

http://www.drslawfirm.com/gunsinbars/MELROSE_F.pdf

[Wingshooter]

Okay, I did find this....(emphasis added)

So the finding wasn't even in favor of Rayburn and the other restaurant plaintiffs, but in favor of the four HCP holder plaintiffs.

I'd sure like to know who these four butt plugs are.

I wonder when those 4 applied for their HCP... probably did at the direction of Rayburn's attorney. That or they were "bought".

[Guest jackdm3]

From looking at a Nov 24 copy of the bench ruling, it appears that the undoing of the current TCA 39-17-1305 ©(3)( is the terminal phrase "and the serving of such meals shall be the principal business conducted." [emphasis added] The judge apparently agreed that all other facets of the definition of the term "restaurant" as used in the statute were able to be ascertained by the average person; however, she opined that an average person could not reliably determine whether serving meals was the principal/primary business conducted by the business, even upon questioning of restaurant workers. This ambiguity thus causes the entire statute to be "unconstutionally vague" by presenting a situation wherein a well-intentioned permit holder could not reliably discern whether an establishment that serves alcohol met the exclusion criteria in the statute.

***damn, she makes me so incredibly ****in' angry right now.

1.She says the average person can "ascertain" a restaurant.

2.She says the average person cannot determine it a business serves a sufficient amount of food. (As restaurants do when we observe a lot of people eating.)

She's saying we, the sheeple, have no cognitive functioning. I hope something/someone leads to her massive humiliation and failure on the bench.

[Guest mosinon]

At first I was all like "Liberal gun hater" and then I read the ruling and I was all like "Damn, that seems like a reasonable conclusion"

She left a clear path for fixing the law so hopefully the legislature will fix it. Though allowing guns in bars (whatever a bar is) will be a hard sell to most voters. All they'll think of is wild eyed gun nuts downing jello shots or something.

[GKar]

Interesting: the AG's office tried to offer up the option for the judge to "eliminate" the offending language in the instance where she might find some portion of the statute vague or ambiguous. She didn't take the bait on that one, unfortunately.

I had the same reaction, Mosinon. The devil was in that one detail...one clause of a half-dozen words or so.

[Guest mosinon]

I see what you are are saying Gkar but I wonder how people would have reacted to the elimination of the offending language. Wouldn't that be legislation from the bench?

And everyone hates that... when the legislation from the bench doesn't favor their position.

[Guest HvyMtl]

Judge was smart on this one... Did not legislate from the bench - and seems to stay neutral, if not saying, fix this part and the law is fine...

Hmm. Not a real defeat, but more like - go back and fix this...

Anyone see any place in the decision where the Judge spouted anything for/against the underlying cause for the legislation? After a quick glance through, I did not see anything pro/anti gun control.

Ok, so we now wait for the Legislature to fix this. Meanwhile we I.D. the plaintiff's restaurants and bars, and spend our $ elsewhere. If he does not want citizens who, statistically, are 14 time less likely to commit crimes than the general public as his customers... Well, I would feel less safe in his establishments...

[GKar]

I agree with you both (mosinon and HvyMtl) - it would have been an even bigger disaster if she had taken that route, because there would surely have been follow-on challenges to that action, and then its in court ad infinitum. And yes, that type of action from the bench is totally inappropriate.

Pretty good synopsis, HM...it does seem to be rather focused and specific to one particular issue, and at the same time does give definitive answers to certain other challenges that should head off any future attempts to go down those roads.

[JAB]

At first I was all like "Liberal gun hater"...

That's actually still pretty much what I am thinking. She worked it so that she only had to address one aspect of the bill in this ruling. My suspicion is that she did it this way so that, once that aspect is fixed, she can rule any new law void due to other issues. I suspect that partly because of the following passage from the ruling:

The Melrose plaintiffs contend that

12 they meet the definition of restaurant under TCA

13 39-17-1305; and they face the possibility that

14 police may charge them with aiding and abetting

15 if they serve alcohol to a permit holder who

16 carries a gun. The Melrose plaintiffs contend

17 the option of posting a sign, which is found at

18 TCA 39-17-1359, may not protect them from

19 prosecution.

I believe that the 'aiding and abetting' and 'liability' issues aren't really addressed by the ruling so that Rayburn, et al. can still argue (against a future, clarified law) that even if the law were clear and an HCP holder knowingly entered their establishments and drank, the owners of the establishments might still be guilty of aiding and abetting even if they didn't know the person was carrying.

I have a nagging feeling that Bonnyman ruled on this one issue not in an attempt to remain impartial but in order to leave the plaintiffs (and herself) wiggle room to shut another such law down in the future. After all, if she spoke to all the potential issues and gave lawmakers a chance to correct them then they might pass an 'airtight' law. This way, she can potentially say, "Yes, that issue was addressed but now the law is null and void because of this issue."

I remember reading on one forum that some other state has a similar provision with regard to sales percentages and that state requires businesses that serve alchohol to post a sign indicating whether or not 51% of their profits are from food. IIRC, the sign actually simply has 51% printed on it if at least that percentage of profits are from food so permit holders can know at a glance if entering the establishment while armed is legal or not.

Edited December 3, 2009 by JAB

[JAB]

I wonder when those 4 applied for their HCP... probably did at the direction of Rayburn's attorney. That or they were "bought".

I remember reading an article in the Knoxville News-Sentinel a year or two ago, that Jimmy Naifeh had gotten an HCP. Wouldn't be surprised if he was one of the 'HCP holder plaintiffs' in this suit.

[Guest HexHead]

That's actually still pretty much what I am thinking. She worked it so that she only had to address one aspect of the bill in this ruling. My suspicion is that she did it this way so that, once that aspect is fixed, she can rule any new law void due to other issues. I suspect that partly because of the following passage from the ruling:

I believe that the 'aiding and abetting' and 'liability' issues aren't really addressed by the ruling so that Rayburn, et al. can still argue (against a future, clarified law) that even if the law were clear and an HCP holder knowingly entered their establishments and drank, the owners of the establishments might still be guilty of aiding and abetting even if they didn't know the person was carrying.

I have a nagging feeling that Bonnyman ruled on this one issue not in an attempt to remain impartial but in order to leave the plaintiffs (and herself) wiggle room to shut another such law down in the future. After all, if she spoke to all the potential issues and gave lawmakers a chance to correct them then they might pass an 'airtight' law. This way, she can potentially say, "Yes, that issue was addressed but now the law is null and void because of this issue."

I remember reading on one forum that some other state has a similar provision with regard to sales percentages and that state requires businesses that serve alchohol to post a sign indicating whether or not 51% of their profits are from food. IIRC, the sign actually simply has 51% printed on it if at least that percentage of profits are from food so permit holders can know at a glance if entering the establishment while armed is legal or not.

The state with bars that have a 51% sign, indicating 51% of their sales are alcohol is Texas.

You may be right that a little re-wording isn't going to end this. Attorney Smith said right afterwards the hearing that they were ready to litigate any changes the legislature may make to circumvent her decision. This statement shows that a) this action has nothing to do with protecting HCP holders from an accidental violation and prosecution as stated, and they aren't going to go away any time soon.

The new law really needs to state that HCP holders can carry anywhere not prohibited by statute. Period. But I think we all know that's not going to happen.

I sent a compromise idea to my lawmakers. Rather than the State redefine what's a restaurant or bar, let the owners do it and apply for either a restaurant license or a bar license. If they get a bar license, they only need to post a sign at the entrance indicating it's a "Bar". Handgun carry would be illegal, period. And so would customers under 21. Children don't need to be in bars. Those that choose the restaurant license wouldn't be allowed to post. In either case, there won't be any "no guns" signs to scare the tourists.

[strickj]

Great,Hex!

Then I wouldn't be able to carry while shooting pool or watching the game with friends

[Guest HexHead]

Great,Hex!

Then I wouldn't be able to carry while shooting pool or watching the game with friends

Yeah, our not being able to carry anywhere is sure working out well now. Cry me a river over shooting pool.

[macville]

The new law really needs to state that HCP holders can carry anywhere not prohibited by statute. Period. But I think we all know that's not going to happen.

I sent a compromise idea to my lawmakers. Rather than the State redefine what's a restaurant or bar, let the owners do it and apply for either a restaurant license or a bar license. If they get a bar license, they only need to post a sign at the entrance indicating it's a "Bar". Handgun carry would be illegal, period. And so would customers under 21. Children don't need to be in bars. Those that choose the restaurant license wouldn't be allowed to post. In either case, there won't be any "no guns" signs to scare the tourists.

You never know...the reps might actually be as mad as us about this ruling since they did go over the gov's head to pass the bill. We need to let them know loudly that we should be able to carry anywhere alcohol is served. No exceptions.

Matthew

[Oh Shoot]

You never know...the reps might actually be as mad as us about this ruling since they did go over the gov's head to pass the bill. We need to let them know loudly that we should be able to carry anywhere alcohol is served. No exceptions.

Matthew

How you honestly expect to get that when you can't carry in a posted restaurant that doesn't sell booze? Or in any posted business for that matter. Or in a posted park? Or posted municipal building? Or ...

- OS

[macville]

How you honestly expect to get that when you can't carry in a posted restaurant that doesn't sell booze? Or in any posted business for that matter. Or in a posted park? Or posted municipal building? Or ...

Actually yes. It's one thing to respect personal property rights (which is another discussion considering what you give up when you open to the public), but since there are private businesses that WANT to allow legally carried firearms on their property and cannot, that makes a difference. If we were purposing dropping 39-17-1359 & allowing carry in all places that serve alcohol, then I don't think it would pass (although, that would be GREAT!) But just allowing carry in places that serves...there is a decent chance. Just make sure your voice is heard by ALL that voted for the original bill. Let them know that it's foolish to ban carry in only some places that serve alcohol. You can get just as drunk at Joe's Bar as Chili's. Obviously, permit holders can be trusted because in the 5 months we were allowed to carry there wasn't *1* incident with a permit holder at a place that served alcohol. So why restrict something that's not a problem.

Matthew

[Oh Shoot]

Actually yes. It's one thing to respect personal property rights (which is another discussion considering what you give up when you open to the public), but since there are private businesses that WANT to allow legally carried firearms on their property and cannot, that makes a difference. If we were purposing dropping 39-17-1359 & allowing carry in all places that serve alcohol, then I don't think it would pass (although, that would be GREAT!) But just allowing carry in places that serves...there is a decent chance. Just make sure your voice is heard by ALL that voted for the original bill. Let them know that it's foolish to ban carry in only some places that serve alcohol. You can get just as drunk at Joe's Bar as Chili's. Obviously, permit holders can be trusted because in the 5 months we were allowed to carry there wasn't *1* incident with a permit holder at a place that served alcohol. So why restrict something that's not a problem.

Matthew

The legislature will NOT designate ONE type of business as not being able to post, while allowing all OTHER businesses to post. Won't. No how, no way.

If you're gonna push for something, then push for NO private businesses being able to post, or for posting to have no legal standing, like in some other states.

- OS