Restaurant carry redo moves slowly in Tennessee Legislature

Last year the Tennessee Legislature overwhelmingly passed a bill legalizing handgun carry in restaurants that serve alcohol. This was quickly dubbed the 'so called Guns in Bars Bill' by the state's major newspapers. So called, because they so called it.

The bill was vetoed by Governor Bredesen.

The Legislature then overrode the Gov's veto.

Chancellor Bonnyman, a Bredesen appointee, in a judicial end run, declared the statute "unconstitutionally vague."

Fast forward to 2010. A bill is moving through the legislature to once again allow carry in alcohol-serving restaurants. Now there appears to be a move to stall this bill, through poison pill amendments.

John Harris of Tennessee Firearms Association reports in an email from yesterday:

House Bill 3125 which is one of several bills that was introduced to deal with the Nashville Court's ruling that the 2009 restaurant law was unconstitutional was passed by the full House Finance, Ways, and Means Committee on Tuesday, April 20 by a vote of 20 to 6 with 5 present and not voting.

          Representatives voting aye were: Bone, Brooks H, Brooks K, Casada, Dunn, Eldridge, Harrison, Johnson C, Maddox, Maggart, McDaniel, McManus, Montgomery, Mumpower, Roach, Rowland, Sargent, Tindell, Winningham, Williams, Williams -- 20.

          Representatives voting no were: Armstrong, DeBerry L, Fitzhugh, Odom, Sontany, Turner M -- 6.

          Representatives present and not voting were: Brown, Coleman, Miller L, Naifeh, Shaw -- 5.

This picture only shows a sad part of what went on.  Many amendments were offered and defeated.  However, an amendment was offered which had some Republican support that inserts 50% rule regarding posting.  House Amendment 1368  The amendment mandates that a location which derives less than 50% of its "gross annual revenue from the sale of food shall prohibit" by posting:

An individual, corporation, business entity or local, state or federal government entity or agent thereof that operates or manages an establishment that is open to the public, serves alcohol or beer, and derives less than fifty percent (50%) of its gross annual revenue from the sale of food shall prohibit the possession of weapons by any person who is within the confines of such establishment.

This is a very unfortunate move and one which supporters should be challenged on since it was likely added to delay or kill the bill.  Consider these factors:

-  Under current TN law, an establishment that fails the 50% rule is violating the liquor laws.  Such establishments likely would have a Fifth Amendment privilege to refuse to post.

-  Under the proposed language, a location other than a restaurant but which has a liquor license, such as a museum, bed and breakfast, hotel, etc., that generates less than 50% of its annual revenue "from the sale of food" would be required to post.  Thus, it would not be just the restaurant area that might be off limits but the entire facility.  This would potentially create a conflict with the castle doctrine under TN law as expanded a few years ago to include such locations.

- Under the proposed language, there will now be a mandate on business to affirmatively post their businesses as a) prohibiting weapons and b) as potentially being in violation of the state's current liquor licensing laws.  While this should not trigger a fiscal note, it will trigger lobbying opposition from business interests.

The Senate has also amended the bill (SB3012) but not with this same approach.  The Senate Amendment SA1236 addresses the posting issue with focus on the content of the signs.  It creates potential problems for permit holders and potential opportunity for new legal challenges with respect to the language of the sign(s).  The language that causes me concern removes the requirement of specific language and reintroduces a "substantially similar" standard that could be open to judicial determination again of vagueness.  It also allows the use of the "circle slash" which for permit holders and reciprocity permit holders gives no warning or communication as to the potential criminal consequences of possession.  Finally, note that the restriction only applies to carry permit holders and exempts anyone who carries under any other legal standard (or illegally) such as off duty law enforcement, judges, etc.:

(1) Notice of the prohibition permitted by subsection (a) shall be accomplished by displaying one (1) or both of the notices described in subdivision (3) in prominent locations, including all entrances primarily used by persons entering the property, building, or portion of the property or building where weapon possession is prohibited.

(2) The notice required by this section shall be in English, but a duplicate notice may also be posted in any language used by patrons, customers or persons who frequent the place where weapon possession is prohibited.

(3)  (A) The sign shall be of a size that is plainly visible to the average person entering the building, property, or portion of the building or property, posted and shall contain language substantially similar to the following:

AS AUTHORIZED BY TCA § 39-17-1359, POSSESSION OF A WEAPON ON THIS PROPERTY, WITHIN THIS BUILDING, OR THE POSTED PORTION OF THIS PROPERTY OR BUILDING IS PROHIBITED. POSSESSION OF A WEAPON ON POSTED PROPERTY IS A CRIMINAL OFFENSE.

(B) As used in this section, “language substantially similar to” means the sign contains language plainly stating that:

(i) The property is posted under authority of Tennessee law;

(ii) Weapons or firearms are prohibited on the property, in the building, or on the portion of the property or building that is posted; and

(iii) Possessing a weapon in an area that has been posted is a criminal offense.

(C) A building, property or a portion of a building or property, shall be considered properly posted in accordance with this section if one (1) or both of the following is displayed in prominent locations, including all entrances primarily used by persons entering the property, building, or portion of the property or building where weapon possession is prohibited:

(i) The international circle and slash symbolizingthe prohibition of the item within the circle; or

(ii) The posting sign described in this subdivision (3).

SB3012 is anticipated to be heard on Monday, April 26 on the Senate floor.  The House Bill goes forward to House Calendar and Rules and then should be on the House floor perhaps within 2 weeks.

There are several paths, each of which are possible, that could cause this legislation to fail this year.  One potential is that the House and Senate cannot agree on language. As happened last year, if that happens the House and Senate will appoint and conference committee to work out the differences.  The appointees from the Senate will come from Lt. Gov. Ron Ramsey's office and Tennessee firearms owners should be ok with those appointees.  The risk comes potentially from the appointments that may be made from Speaker Kent Williams.  It is important for Tennessee's firearms owners to start now contacting Speaker Williams office with these demands and requests:

- Appoint only strong 2nd Amendment conservatives to any conference committee.  This bill has made it too far to fail at this point.

- Work to repeal the House Amendment and to Adopt the Senate bill without the amendment regarding "substantial similarity" or the "circle slash" warnings.

and most important

- GET THIS BILL PASSED AS SOON AS POSSIBLE so that we have time to deal with an expected VETO!!!!

As just mentioned, we are expecting a veto.  That is why Jimmy Naifeh and others who would deny you your rights have worked so hard to delay the passage of this legislation until late in the session.  Once the legislation is passed by both houses, it could take a week or so to be prepared and sent to Governor Bredesen.  We have every expectation that Governor Bredesen will veto it but that he will wait until the last possible moment to do so.  If that happens, as we saw last year, the Legislature can override the veto but it is unlikely they will do so this year.  Why?  Several reasons but one of the most significant is that its an election year and a big expected "turnover" year, elected officials cannot raise funds until they are out of session (although their challengers can) and they will not want to lose precious campaigning or fundraising time to come back into session to do a veto override.  Every firearms owner supporting this legislation needs to be making a veto override or preventing  a veto an election year issue with your candidates and elected officials.

So, the stage is set. If all this wrangling is successful, the right to carry wil be continued to be restricted another year. Gun rights advocates throughout Tennessee should contact their legislators, as noted above, and REMEMBER IN NOVEMBER.

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Disclaimer: The information and ideas presented in this column are provided for informational purposes only. Gunrights, like all other Constitutionally recognized rights, must be exercised responsibly. Firearms, like cars, kitchen knives and life itself all can be dangerous. You should get professional training as part of any plan to use firearms for any purpose. I have made a reasonable, good-faith effort to assure that the content of this column is accurate. I have no control over what you do, and specifically accept no responsibility for anything you do as a result of reading my columns. Any action or lack of action on your part is strictly your responsibility.