SC Law does not prohibit CWP holders from CC in businesses serving alcohol...
Source: SCFIREARMS.ORG (aka GrassRoots)
Report on SELF-DEFENSE AT NICE RESTAURANTS
by Dr. Rob Butler
SELF-DEFENSE AT NICE RESTAURANTS IS OUR GOD GIVEN RIGHT
One of the most frequent complaints GrassRoots hears is that the concealed weapons permit (CWP) law prohibits CWP holders from carrying into nice restaurants. Most people go to nice restaurants when it is dark and they have money, exactly the elements criminals seek when looking for victims. GrassRoots has studied the law and found that current law DOES NOT prohibit CWP holders from carrying into nice restaurants. Unfortunately, SLED has a different opinion, or maybe we should say had.
GrassRoots presented GrassRoots’ interpretation of the law to Capt. Joe Dorton, head of SLED Regulatory. Capt. Dorton could not find a way to legally refute the GrassRoots analysis of the law, so he sent the GrassRoots analysis to Capt. Mark Keel, head of SLED Legal Affairs. Capt. Keel could not find a way to legally refute the GrassRoots analysis, either. Thus, SLED was forced to make a decision. SLED either had to change their interpretation of the law, or punt. SLED did not want to take responsibility for such a political hot potato as CWP holders carrying in nice restaurants, so they punted it to the Attorney General’s office. The GrassRoots analysis of the law was sent by SLED to Attorney General Charlie Condon for his opinion.
The GrassRoots analysis proving that current law DOES NOT prohibit CWP holders from carrying into nice restaurants follows this logical sequence:
1. SLED claims Section 16-23-465 prohibits CWP holders under the new law from carrying into nice restaurants, but admits Section 16-23-465 did not prohibit CWP holders under the old law from doing so.
2. The Law Abiding Citizen’s Self-Defense Act of 1996 added an additional penalty for CWP holders for violating Section 16-23-465, but no additional prohibitions were added.
3. The Law Abiding Citizen’s Self-Defense Act of 1996 stated "[n]othing contained herein may be construed to alter or affect the provisions of Sections … 16-23-465 …."
4. Thus, since it was legal for CWP holders to carry into nice restaurants before the new CWP law was passed, and no prohibitions were added to the restaurant law, it should still be legal for CWP holders to carry into nice restaurants now.
Just by coincidence, AG Condon was a guest on WVOC talk radio in Columbia on December 19, 2000. GrassRoots leadership called in and read the four step logical sequence to AG Condon on the air. GrassRoots leadership then asked AG Condon this question: "When will you support the rights of the law abiding citizens and issue your opinion acknowledging that GrassRoots’ analysis of the law is correct?" AG Condon said that he could get it done the next morning. The issue now is whether AG Condon will support our God given right of self-defense, or take the "politically correct" position and deny our God given right to self-defense. We are waiting for AG Condon’s opinion.
UPDATE! UPDATE! UPDATE!
Wednesday, December 20, 2000. It has just been discovered that SLED failed to get the GrassRoots analysis to the AG’s office. SLED was trying to send three different gun rights issues together to the AG’s office so that the legal research could be done simultaneously. SLED has agreed to send the GrassRoots analysis to the AG’s office by December 22, 2000. GrassRoots will keep everyone advised as to what action the AG’s office takes.
The full GrassRoots analysis (the one provided to SLED, and thus the AG’s office) proving that current law DOES NOT prohibit CWP holders from carrying into nice restaurants is provided for your reading enjoyment.
GrassRoots’ ANALYSIS of the LAW:
Section 16-23-20 of the South Carolina Code makes it illegal for a person to carry a pistol unless a person meets the criteria of a particular exception. Section 16-23-20 states
It is unlawful for anyone to carry about the person any pistol, whether concealed or not, except as follows:
(1) Regular, salaried law enforcement officers and reserve police officers of a municipality or county of the State, uncompensated Governor's constables, law enforcement officers of the federal government or other states when they are carrying out official duties while in this State, deputy enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources, and retired commissioned law enforcement officers employed as private detectives or private investigators.
…
(12) Any person who is granted a permit under provision of law by the State Law Enforcement Division to carry a pistol about his person, under conditions set forth in the permit.
Further, Section 16-23-20 states "persons authorized to carry weapons pursuant to [exception 12] may exercise this privilege only after acquiring a permit from [SLED] as provided for in Article 4 of Chapter 31 of Title 23."
Section 16-23-20 excepts a law enforcement officer (LEO) from the prohibition of carrying "about the person any pistol, whether concealed or not." This exception applies under all circumstances except where expressly stated by law. This exception has been recognized by SLED to apply to an officer’s carrying a concealable weapon onto the premises of a business which sells alcoholic beverages for on-premises consumption, even if he is off duty. The penalty prescribed by §16-23-465 would not apply to a LEO as long as the officer is law abiding and does not violate §§ 16-11-330 or 16-23-460). Therefore, § 16-23-20, the same section that excepts LEO’s, must also except CWP holders from the prohibitions contained in § 16-23-465, as long as the CWP holder is carrying "under conditions set forth in the permit" as required by § 16-23-20(12). Article 4 of Chapter 31 of Title 23 sets forth the conditions under which a CWP holder can carry, and it does not prohibit carrying onto the premises of a business which sells alcoholic beverages for on-premises consumption. Thus, both LEO’s and CWP holder’s are not prohibited from carrying a concealable weapon onto the premises of a business which sells alcoholic beverages for on-premises consumption by § 16-23-465 because § 16-23-20 excepts both LEO’s and CWP holders from Section 16-23-465.
The statutory language of § 16-23-465 does not prohibit either a LEO or a CWP holder from carrying a concealable weapon onto the premises of a business which sells alcoholic beverages for on-premises consumption. Section 16-23-465 assesses additional penalties only for one who has violated other specified laws in a location that has an on-premises license. Section 16-23-465 does not create a new crime in and of itself. Section 16-23-465 reads:
In addition to the penalties provided for by Sections 16-11-330 and 16-23-460 and by Article 1 of Chapter 23 of Title 16, a person convicted of carrying a pistol or firearm onto the premises of a business which sells alcoholic liquor, beer, or wine for consumption on the premises is guilty of a misdemeanor and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than three years, or both.
In addition to the penalties described above, a person who violates this section while carrying a concealable weapon pursuant to Article 4, Chapter 31, Title 23 must have his concealed weapon permit revoked.
Section 16-23-465 requires a conviction for a violation of § 16-11-330, § 16-23-460, or Article 1 of Chapter 23 of Title 16 as a condition precedent to a violation of § 16-23-465; otherwise, the words "in addition to the penalties provided for by Sections 16-11-330 and 16-23-460 and by Article 1 of Chapter 23 of Title 16" would be superfluous. Rules of judicial interpretation dictate an interpretation which makes some of the statutory language superfluous should be rejected when another interpretation would give full meaning to all of the statute’s words. The only interpretation which does not make some of the statutory language of §16-23-465 superfluous is the one that acknowledges a person must first be in violation of §16-11-330, §16-23-460, or Article 1 of Chapter 23 of Title 16 in order to run afoul of §16-23-465. Significantly, this was how SLED interpreted Section 16-23-465 prior to passage of The Law Abiding Citizen’s Self Defense Act of 1996.
Section 16-11-330 addresses the issue of armed robbery. With regards to this section, unless the CWP holder is committing armed robbery while on the premises of a business which sells alcoholic beverages for on-premises consumption, § 16-23-465 can impose no additional penalty upon a CWP holder for the lawful carrying of a concealable weapon onto the premises of such business because no initial penalty could be imposed due to § 16-11-330.
Section 16-23-460 addresses the issue of the concealed carrying of deadly weapon. Section 16-23-460 specifically excepts CWP holders lawfully carrying with the words "nothing herein contained may be construed to apply to (1) persons carrying concealed weapons upon their own premises or pursuant to and in compliance with Article 4 of Chapter 31 of Title 23 … ." As pointed out above, Article 4 of Chapter 31 of Title 23 does not prohibit the carrying of concealable weapons onto the premises of a business which sells alcoholic beverages for on-premises consumption. Section 16-23-460 does not apply to a CWP holder unless the CWP holder is not in compliance with some provision of the CWP law (e.g., failure to present one’s CWP identification when asked for identification by a law enforcement officer and failure to have the CWP on one’s person would both constitute violations of Article 4, Chapter 31, Title 23). A CWP holder not in compliance with Article 4 of Chapter 31 of Title 23 who carried a concealable weapon onto the premises of a business which sells alcoholic beverages for on-premises consumption could "have his concealed weapon permit revoked," but there is no statutory authority for revoking a CWP due to a CWP holder merely entering onto the premises. Thus, § 16-23-465 can impose no additional penalty upon a CWP holder for the lawful carrying of a concealable weapon onto the premises of a business which sells alcoholic beverages for on-premises consumption because no initial penalty could be imposed due to § 16-23-460.
Section 16-23-465 states "in addition to the penalties described above, a person who violates this section while carrying a concealable weapon pursuant to Article 4, Chapter 31, Title 23 must have his concealed weapon permit revoked." This language imposes an additional penalty upon CWP holders for violating § 16-23-465. But, there must still be a violation of § 16-23-465 prior to the additional penalty of revocation being imposed, and a violation of §16-23-465 requires a contemporaneous, appurtenant violation of § 16-11-330, § 16-23-460, or Article 1 of Chapter 23 of Title 16.
It is significant that prior to the passage of The Law Abiding Citizen’s Self Defense Act of 1996, it was SLED’s interpretation that § 16-23-465 did not prohibit a CWP holder from carrying a concealable weapon onto the premises of a business which sold alcoholic beverages for on-premises consumption. Thus, if § 16-23-465 is to be the basis for denying the right of a CWP holder to carry onto the premises of a business which sells alcoholic beverages for on-premises consumption, then a change in the applicability of § 16-23-465 must be found in either The Law Abiding Citizen’s Self Defense Act of 1996 or a statute enacted or revised subsequent to The Law Abiding Citizen’s Self Defense Act of 1996. There have been no statutes enacted or revised subsequent to The Law Abiding Citizen’s Self Defense Act of 1996 which so altered the applicability of § 16-23-465, nor does The Law Abiding Citizen’s Self Defense Act of 1996 contain any provision for altering the applicability of §16-23-465.
The Law Abiding Citizen’s Self Defense Act of 1996 contained § 23-31-215(M), which specifically states "[n]othing contained herein may be construed to alter or affect the provisions of Sections … 16-23-465 …." Clearly, The Law Abiding Citizen’s Self Defense Act of 1996 states the provisions of § 16-23-465 were not altered or affected by the enactment of The Law Abiding Citizen’s Self Defense Act of 1996. The only change to § 16-23-465 made by The Law Abiding Citizen’s Self Defense Act of 1996 added the following language to § 16-23-465: "In addition to the penalties described above, a person who violates this section while carrying a concealable weapon pursuant to Article 4, Chapter 31, Title 23 must have his concealed weapon permit revoked." But as discussed above, this is merely an additional penalty for violating § 16-23-465 (which requires a contemporaneous, appurtenant violation of §16-11-330, §16-23-460, or Article 1 of Chapter 23 of Title 16), not a prohibition of the carrying of a concealable weapon onto the premises of a business which sells alcoholic beverages for on-premises consumption. Thus, The Law Abiding Citizen’s Self Defense Act of 1996 not only does not give any valid justification for changing SLED’s prior interpretation of § 16-23-465, it specifically prohibits doing such based upon The Law Abiding Citizen’s Self Defense Act of 1996.
The above analysis establishes that carrying a concealable weapon onto the premises of a business which sells alcoholic beverages for on-premises consumption is not illegal per se. There must be a contemporaneous, appurtenant violation of § 16-11-330, § 16-23-460, or Article 1 of Chapter 23 of Title 16 as a condition precedent prior to invoking § 16-23-465. SLED’s current interpretation of § 16-23-465 requires: (1) some statutory language of § 16-23-465 be considered as superfluous, (2) is inconsistent with SLED’s interpretation of § 16-23-20 with respect to law enforcement officers and § 16-23-465, (3) is inconsistent with SLED’s prior interpretation of § 16-23-465 with respect to CWP holders prior to enactment of The Law Abiding Citizen’s Self Defense Act of 1996, and (4) violates the express language of § 23-31-215(M) and § 16-23-465. The GrassRoots interpretation of § 16-23-465 (1) embraces all of the statutory language of § 16-23-465, (2) is consistent with SLED’s interpretation of § 16-23-20 with respect to law enforcement officers and § 16-23-465, (3) is consistent with SLED’s prior interpretation of § 16-23-465 with respect to concealed weapons permit holders prior to enactment of The Law Abiding Citizen’s Self Defense Act of 1996, and (4) embraces the express language of § 23-31-215(M) and § 16-23-465.
