Restaurant Concealed Carry in Florida

[divemedic]

DiveMedic, read the statute again. As you quoted it, it reads one cannot "use" a firearm when consuming alcohol to the extent of being "impaired". That law is aimed at drunken folks who shoot up road signs and the like. It does not address whether carrying a firearm concealed constitutes "using" it. Just because I am carrying a cellphone does not mean that I am using it.
Nothing in the law downright prohibits consuming any amount of alcohol while carrying a concealed firearm in accordance with CCW/CCF laws.
As you stated, opinions are nothing more... well, you get it.
(also, I never denied the existence of "gray areas" in the law; my post title acknowledged that.)

True, but if you are carrying a weapon while drinking, you can no longer use that weapon in self defense.

790.151 Using firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances; penalties.--

(1) As used in ss. 790.151-790.157, to "use a firearm" means to discharge a firearm or to have a firearm readily accessible for immediate discharge.

(2) For the purposes of this section, "readily accessible for immediate discharge" means loaded and in a person's hand.

As soon as you draw it, you are breaking the law. So what is the point of carrying a weapon that you cannot even touch? There is a whole other discussion that is off topic for this thread.

and to numaone: I don't buy that at all. First, without reference, it is unverifiable and sounds like uban legend, since the police would not just sit there if a person saw someone carrying a gun- after all: how would they even know the guy had a CCW permit? If the gun was visible, why not just bust him for violating 790.053?

 

[Art Eatman]

divemedic, what you cited, the blue print, says nothing about restrictions against use. Is there more, something that is actually pertinent to use?

 

[divemedic]

Sure, I will be more clear:

790.151 says:

(1) As used in ss. 790.151-790.157, to "use a firearm" means to discharge a firearm or to have a firearm readily accessible for immediate discharge.

(2) For the purposes of this section, "readily accessible for immediate discharge" means loaded and in a person's hand.

(3) It is unlawful and punishable as provided in subsection (4) for any person who is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his or her normal faculties are impaired, to use a firearm in this state.

(4) Any person who violates subsection (3) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(5) This section does not apply to persons exercising lawful self-defense or defense of one's property.


That would make it appear that you can drink while carrying, as long as you only handle your loaded weapon in a self defense situation, but remember that the clause states LAWFUL self defense. In order for self defense to be lawful, it must pass the "reasonable man" test. That means that whether or not the use of the firearm is lawful will depend entirely upon whether or not a jury thinks that your use of the firearm to defend yourself while intoxicated was reasonable. If the jury fails to buy that argument, then the charge of unlawfully using a firearm while intoxicated would also come into play.

Furthermore, simply touching your loaded firearm to ensure that it is in place could also fit the definition of "using" a firearm under this statute.

I could not find any good case law here, so if you want to make some (which is expensive, and the loser goes to jail) drink and carry, I don't care. Case law has to come from somewhere and, like Heller, sometimes it works out.

I would also point out that certain over the counter and prescription drugs would place you under this statute as well, as they are controlled under chapter 893.

 

[FlaChef]

to the OP: buy the aforementioned book by Gutmacher! I recommend every FL gun owner read it!!

On the original argument, "portion primarily devoted to the serving of alcohol" is the operative language. Where that "portion" begins or ends could always be arguable, however the fact that there is not a SINGLE known case of this being prosecuted is very telling IMO.

I forget the exact section but there is wording that "such laws should be construed in favor of lawful licensed carry wherever they do not directly contradict the previous exceptions" (paraphrasing there).

The penalty for carrying concealed without a license is a felony; but the penalty for a license holder carrying someplace that he is not supposed to is merely a 2nd degree misdemeanor (at least i believe it is second, but it is definitely only a misdemeanor).

Also remember a business owner can ask you to leave for any reason (wearing a dolphins shirt into a jaguar fans hangout could get you asked to leave).


I ANAL and all of the above is off the top of my head.

 

[Gryffydd]

Not that this helps, but here in Washington you can't carry in the section of a restaurant that is off limits to minors. Signs are required to obviously posted as to which areas are off limits. I've had to pass up a few quick tables, even though I don't even drink. But at least there's no legal gray area.

 

[scotthsi]

(3) It is unlawful and punishable as provided in subsection (4) for any person who is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his or her normal faculties are impaired, to use a firearm in this state.

Does that mean if I get shiznit faced at home and someone breaks into my house that I can't use a firearm to defend myself?

 

[FlaChef]

that means you should not then go out in the backyard and fire off a mag or two, even if you have a safe area and are otherwise allowed to on your property. Or go to your local range.

A good shoot in SD is a good shoot. Maybe if your on trial for a questionable shoot anyway then I expect it to come up. Notice that it is only a 2nd degree misdemeanor, if you are on trial for a shooting then that charge is the least of your worries.

 

[lebowski]

any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose

It's clear as day IMO - you absolutely can carry in a restaurant, just not the bar. The "which portion of the establishment is primarily devoted to such purpose" is just legal speak for saying you can't carry in the bar.

Carry away, just sit at a table not in the bar area. At most restaurants it's pretty clear cut what constitutes the "bar" - it's usually raised or has a divider or wall, and there is often a different protocol for picking up a table (i.e. just grab a table at the bar, or have the hostess seat you in the dining area).

 

[lebowski]

You can either follow advice from people on the internet or call up a Florida LEO and ask. In fact, call up two.

First off, calling an LEO (or two) is in no way the ideal way to obtain legal advise. It's not their job, and more importantly many of them don't know the law. If you're going to call someone, call a lawyer. In the state of FL, I'd recommend buying Guttmacher's book. You can also email him via his website, he usually responds pretty quick.

As far as relying on people on the internet - he's just asking to clarify a section of statue he doesn't understand. He posted the statute. The statute is clear as day. It's really not a matter of opinion. He's not just relying on a bunch of yahoos on the internet, he's going directly to the FL statue, which is the right place to start IMO.

 

[lebowski]

True, but if you are carrying a weapon while drinking, you can no longer use that weapon in self defense.

I agree with you that this is a bit of a catch 22. However, from a practical standpoint, if you're truly in fear for your life, wouldn't you rather "use" the gun if it's going to save your life?

The law isn't perfect and there are gray areas. IMO, it's obviously a very bad idea to go out and get hammered while you're carrying. I think the law is written the way it is so that, if you're at a restaurant and you're carrying you don't need to sweat having a beer with dinner. If I've had a beer with dinner and my life becomes endangered, I'd "use" the gun and risk the legal consequences. That's just me, I'm not a lawyer and I'm not giving legal advice, it's up to you to read the law and decide how YOU are going to act. Many people simply decide they will not drink period while carrying, and there's absolutely nothing wrong with that approach (and in fact that's the most prudent way to go about it).

 

[Tiomoid]

Alright. I didn't finish reading the whole thread because there was so much incorrect information.

You can eat at a restaurant that has a bar as long as you don't sit AT the bar. The high tops around the bar are fair game. The tables in the restaurant are also fine.
You are NOT allowed to be drunk with a gun. This is a fine line, I suggest never drinking while carrying. Have I had a beer while CCW? Absolutely. Have I had two? Never. Florida has a very harsh penile system 10-20-life isn't a joke. Always error on the side of caution...

 

[thorazine]

Does the restaurant have metal detectors and mind reading devices setup and operational?

 

[bondmid003]

You can carry in a restaurant as long as you are not in the area that is primarily used to serve alcohol i.e. the bar. You also can't carry after a time which the restaurant stops being a restaurant and primarily becomes a bar (just because it still serves bar food doesn't mean you can CCW)

At least thats the nuts and bolts as I understand it

 

[HAMMERHEAD73]

This is a good question!

The laws vary from state to state but in most states it is legal but in the restaurant section only. This came about after the shootings in texas were a man run his truck threw the front of a establishment an started killing patrons . a licesned ccw holder was in said place an her parents were exacuted in front of her while her firearm was in her car 100ft away . After this tragedy she went an testafied in the texas house of representatives for legal carry in restaurants that serve alcohol . an later was heard in the Us senate to which several of the favorite liberal know it alls grilled an ridiculed her for wanting to carry in said establishments to prevent this from happening to other people . The great Charles Schumer (d-ny) an the equally absurd Howard Metzanbaum (d -mi) along withe infamous "point an spray" Diana Fienstien (d_ca) all heroically (in their own minds ) thought this was such an appalling request . To which this lady ask each one "How helpless they would feel having to watch their loved ones being shot down like stray dogs an knowing if you had only BROKEN THE LAW YOURSELF would have prevented their innocent an needless murder in front of you!!" there are several short versions of this interview on youtube . I personally think every gunowner regardless of political affiliation should watch this an if it DOES NOT outrage you then you should think hard about why you own /carry a firearm an why people of this type are in the seats of power in this great nation trying to take away a god given right to preservation of ones life an the lives of the innocent.

 

[divemedic]

You can eat at a restaurant that has a bar as long as you don't sit AT the bar. The high tops around the bar are fair game. The tables in the restaurant are also fine.

You also can't carry after a time which the restaurant stops being a restaurant and primarily becomes a bar

What cases or whose legal interpretation are you getting that from? Or is this just your opinion? The law on this is vague, and I have yet to see any case law.

The laws vary from state to state but in most states it is legal but in the restaurant section only.

This thread is about Florida law.

This came about after the shootings in texas were a man run his truck threw the front of a establishment an started killing patrons . a licesned ccw holder was in said place an her parents were exacuted in front of her while her firearm was in her car 100ft away .

You are talking about Luby's cafeteria. The woman you are talking about was Suzanna Hupp, and she later became a member of the Texas House of Representatives. The Luby's massacre has abosutely nothing to do with the Florida banning carry in establishments primarily devoted to the sale of alcohol, because Florida's law was written in 1989, and Luby's occurred in 1991.

 

[sohcgt2]

Even then, a look at the "bar" area of the Outback shows that far more people are dining than drinking. So, again- is that portion of the establishment PRIMARILY for selling alcohol?

Since that portion is selling alcohol to all the patrons not just those at the bar I would say yes it is, but the point is moot as the law clearly states "any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises". I suspect if the DA wished to pursue a misdemeanor of the second degree your case law would be defined. Any portion may even include parking and property of the establishment.

 

[lebowski]

Since that portion is selling alcohol to all the patrons not just those at the bar I would say yes it is, but the point is moot as the law clearly states "any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises". I suspect if the DA wished to pursue a misdemeanor of the second degree your case law would be defined. Any portion may even include parking and property of the establishment.

Wrong. When you cut a sentence in half, it tends to change the meaning:


"any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose"

They are talking about the PORTION of the establishment primarily devoted to on-premise consumption - in english, they're referring to the bar.

This is clear as day guys, how is this still being debated?

 

[divemedic]

"any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose"

They are talking about the PORTION of the establishment primarily devoted to on-premise consumption - in english, they're referring to the bar.

This is clear as day guys, how is this still being debated?

Because at the Outback, the area of the restaurant that contains the bar also has from 15-20 tables. I am willing to bet that if you look at the receipts from that section of the establishment, it will show that more than half of the sales in that area are from food and non-alcoholic beverages. If so, does that mean that the bar area is not primarily devoted to the sale of alcohol? The answer is a resounding "maybe." Since there is no case law on the subject, and the statue itself gives us no guidance, there is no way to know.

 

[lebowski]

Because at the Outback, the area of the restaurant that contains the bar also has from 15-20 tables. I am willing to bet that if you look at the receipts from that section of the establishment, it will show that more than half of the sales in that area are from food and non-alcoholic beverages. If so, does that mean that the bar area is not primarily devoted to the sale of alcohol? The answer is a resounding "maybe." Since there is no case law on the subject, and the statue itself gives us no guidance, there is no way to know.

My post was in response to someone trying to claim the no-carry zone extends throughout the restaurant and into the parking lot. The OP's question was regarding whether there is no CCW allowed in restaurants, period. In response to their area of concern, whether you can carry inside a restaurant, the answer is a clear cut "yes you can carry, just not inside the bar."

I will agree the hightops and booths around the bar are a bit more of a gray area. My hunch is, they are considered part of the bar. They're usually on a raised platform or behind dividers along with the rest of the bar. The hostess will often ask you something along the lines of "you can wait x minutes to be seated, or you can sit down now in the bar area" while referring to the booths/hightops around the bar. If the restaurant employees are referring to it as the "bar area", and the normal table wait process doesn't apply, common sense would dictate it is part of the bar. Yes, maybe your lawyer could bust out his calculator and compute the percent of sales from food vs. beverage on a per table basis, but why not just use a little common sense, err on the side of caution, and not sit there?

I think the law is pretty clearly written as it is. Obviously, we can't ask every restaurant to take out the orange traffic paint and draw a nice clear cut line saying "THIS IS WHERE THE BAR AREA ENDS". Use some common sense.

 

[divemedic]

A bar under Florida law is defined as an establishment which derives no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises.

So regardless of what the staff of the restaurant thinks, that area is not a 'bar.'

 

[lebowski]

A bar under Florida law is defined as an establishment which derives no more than 10 percent of its gross revenue from the sale of food consumed on the licensed premises.

So regardless of what the staff of the restaurant thinks, that area is not a 'bar.'

We're not talking about whether an establishment is considered a bar or a restaurant, we're talking about the portion of a restaurant that is considered the bar. They are not the same thing.

 

[divemedic]

But if the legislature had meant the bar, they would have said so. Instead, they chose to go with the definition of the 'portion of an establishment PRIMARILY devoted to the sale of alcohol for on premises consumption.'

The statute can be read one of two ways, and since the legislature did not define what they meant by that, it is left to the courts. The odd thing is that there has been no court decision on this, and not one CCW holder has been convicted for carrying in such a venue.

 

[sohcgt2]

Wrong. When you cut a sentence in half, it tends to change the meaning:

That is true, but each clause can stand alone, and without case law to back it up the only opinion that counts is that of the judge who hears the case. As yet none has so it is all speculation at this point. I stand firmly on my first post, if you wish to be certain that you are not in violation leave the gun behind. If your security is worth risking a misdemeanor of the second degree and all that comes with that then by all means carry your firearm with you.

As you can see I am from Atlanta and so Fl. law is of little concern to me.

 

[jhco]

You can carry in a restaurant that serves alcohol if it makes less than half of its money from the sale of alcohol, however, you may not carry in the portion of the restaurant which serves the alcohol. Example an Applebees type of restaurant has a bar within so you can't carry at the BAR in the restaurant.