“Easy Rider” (not his real name) was arrested on 6/25/17 for having a concealed firearm at Earl’s Hideaway in Sebastian, Florida. Easy Rider was surprised because he showed the Sebastian police officer his concealed weapons license.
The police officer asserted that the concealed weapons license did not work in Earl’s Hideaway, because it “is a bar which is primarily designed for the sale and consumption of alcohol”. The State subsequently filed an information charging Easy Rider with a violation of his concealed weapons license.
Saint Lucie Criminal Defense Attorney Jeffrey Garland identified constitutional problems with Section 790.06(12)(a)(12), Fla. Stat.
This provision declares that a concealed weapons license does not authorize carrying a weapon or firearm into certain establishments dispensing alcoholic beverages:
(12) 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. (Emphasis supplied).
Earl’s Hideaway was obviously licensed to dispense alcoholic beverages for consumption on the premises, but the statute requires more than that.
The statute distinguishes between “dispensing” and “consumption”. The statute further divides an establishment into portions. Only those portions “primarily devoted” to “dispensing” alcoholic beverages would be places where a concealed weapons license would not authorize a concealed firearm.
What does §790.06(12)(a)(12) prohibit? It is impossible to say:
1. How is “primarily devoted” supposed to be evaluated? The State asserted that it was a percentage of gross sales. There is nothing in the statute which actually says that a percentage of gross sales is to be used.
2. Earl’s Hideaway opens for breakfast from 7:00 A.M. until 11:00 A.M. doing business as “Earl’s Hideaway Kitchen”. It is open for lunch from 11:00 A.M. until 5:00 P.M. doing business as “Earl’s Hideaway Grill”. After 5:00 P.M., and until closing, it does business as “Earl’s New York Style Pizza”. In short, Earl’s Hideaway is a restaurant which also sells alcoholic beverages, not just a bar as alleged in the arrest affidavit.
3. The State’s gross sales theory of prosecution is not authorized by the statute. Even if the gross sales theory could be used, why should overall gross sales be used for a particular time of day or for a particular portion of the restaurant?
4. Under the State’s theory, a reasonable person would violate the law by “carrying” at 7:30 A.M. when alcoholic beverages are not even being sold. No reasonable person would know that “carrying” was illegal in the morning.
5. Why would a reasonable person assume a firearm was not allowed for lunch? Earl’s Hideaway does lunch business as a “grill”, not as a bar. Certainly, the police are not going into a fancy country club or a swank restaurant and arresting folks for concealed weapon violations. Sounds a lot like due process and equal protection violations.
6. The statute divides an establishment into “portions”. Nothing in the statute says how the portions are to be drawn. It is certainly just as reasonable to define a portion by time frame (lunch or breakfast) as by geography. The State’s assertion that a single “gross sales” percentage is contrary to the plain wording of the statute. The statute plainly divides the establishment into “any portion”. It seems obvious that the “primary devoted” test must be related to the portion occupied by Easy Rider and at the time he was occupying it.
7. The statute further states that the restriction on “carrying” only applies to “any portion” which is “primarily devoted” to “dispensing” alcoholic beverages. The statute does not say primarily devoted to the consumption of alcoholic beverages. Earl’s Hideaway mixes and pours all alcoholic beverages at a relatively small area behind the bar. Easy Rider was lunching at a low top table on the patio overlooking the beautiful Indian River. It was obvious that no “dispensing” was taking place on the patio.
8. Although the statute divides an establishment into “portions”, there are no standards showing how such portions are to be drawn. The statute does not define a portion in terms of distance from mixing or pouring area. Nor does the statute talk about any barriers. In short, the State’s theory that Earl’s Hideaway should be considered a single unit is completely contrary to the plain language of the statute.
9. §790.06(12)(a)(12) runs contrary to the general pronouncement set forth in §790.25(4) that all of Chapter 790 is to be liberally construed in favor of the right to keep and bear firearms: This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes…[a]nd nothing herein shall impair or diminish any such rights…
10. Finally, there is this little thing called the Second Amendment to the United States Constitution, as well as Article 1, §8(a), of the Florida Constitution.
Easy Rider announced ready for trial on 9/13/17. Jury selection was to start on 9/18/17. The State elected to nolle prosse the charge on 9/15/17.
Call the outcome, in this case, a victory for the Second Amendment.