A number of states have enacted legislation that allows concealed carry weapon (CCW) permit holders to bring handguns into establishments that serve alcoholic beverages. Similar legislation is pending in North Carolina (House Bill 111). During legislative debate much emphasis is placed on the ‘right’ of ‘law-abiding citizens’ to carry guns for protection. But, could this legislation conflict with existing state and federal law and thus potentially infringe on establishment owner’s rights and/or subject them to liability? Recently completed legal research in the state of North Carolina concluded that it might.
The proposed NC law (and ‘Guns in Restaurants/Bars’ legislation in general) would seem to place small business owners in an untenable situation. The State would be forcing them to choose either of two scenarios, both of which could expose them to risk. The legislation presumptively forces them to allow customers and employees with concealed, loaded handguns (“CCW”) onto their premises, in which case they could be sued if someone is injured with a gun. The only way they can avoid this exposure is if they post a State-dictated sign that prominently states that CCWs are not welcome, which injects them into a hot button issue that may repel some potential patrons. My concern was that this legislation could place proprietors at risk regarding not only their livelihood but their personal assets as well (it is not unusual for small business owners to put their own money into the venture as well as be required to personally guarantee loans, leases, etc).
Having founded and managed a place of business, I approached this legislation from the perspective of a business owner, focusing on such things as workplace liability. A list of potential legal issues was sent to attorneys with two national organizations familiar with this type of legislation: The Legal Community Against Violence and The Brady Center to Prevent Gun Violence. Both agreed the points had merit. Legal research was conducted through the pro bono program at the UNC-Chapel Hill Law School under the supervision of the Legal Action Project of The Brady Center to Prevent Gun Violence. Based on a review of North Carolina and federal law, it was concluded that H.B. 111 could potentially:
- Place establishment owners at risk of liability to patrons or employees who are injured with guns on the premises;
- Infringe on the rights of establishment owners by restricting their property rights to exclude and to choose their aesthetic design;
- Violate their First Amendment right not to speak; and,
- Violate the General Duty Clause of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(1), which requires employers to ensure that their workplaces are free from recognized hazards likely to cause death or serious harm.
Liability and Workplace Safety
The potential for liability exists because the establishment owner would have declined the opportunity to exclude concealed handguns from the premises, and the increased danger is reasonably foreseeable as required to impose liability under North Carolina law.
Intoxication and Liability
The presence of an intoxicated person on the premises immediately exposes the proprietor to the hazards of liability resulting from the unpredictable conduct of such person. Although law prohibits licensed gun owners from consuming alcohol while in possession of their firearm, gun ownership (including CCW) has been linked to heavy alcohol use, numerous instances of CCW permit holders having DWI convictions, and instances of licensed gun owners being found in possession of their firearm while intoxicated.
A recent multi-state study published in an international peer reviewed journal on injury prevention (ref) (ref) linked gun ownership (including CCW) to heavy alcohol use. The study showed that gun owners who carry concealed weapons or have confronted another person with a gun were twice as likely to drink heavily as people who do not own guns. And gun owners who also drove or rode in motor vehicles with loaded guns were more than four times as likely to drink and drive as were people who did not own guns.
Examination of the 2400 NC CCW permit holders with criminal convictions over the past 5 years shows that there were 900 instances of CCW permit holders convicted of drunken driving (ref). As these were only the convictions that number is likely an underestimate of this illegal and dangerous behavior as there would undoubtedly be many more who were not caught.
And Tennessee State Representative Curry Todd, the sponsor of that state’s ‘guns in restaurants/bars’ legislation, repeatedly stated during the legislative debate that no responsible gun owner would drink while in possession of his/her firearm. In October of last year he failed a roadside sobriety test, refused a breath test, and a loaded .38-caliber handgun was found in a holster between the driver seat and the center console. He was booked on both DUI and gun charges. Representative Todd was not only a licensed gun owner but was also ex-law enforcement and yet still violated the very principle he used to successfully argue for the legislation in that state (ref). His mug shot is in the following image, where he claimed he had only had two drinks.
The risk that this legislation will result in instances of armed, intoxicated individuals within an establishment is foreseeable, and the establishment owner would have declined the opportunity to exclude guns from the premises.
The proposed law would also allow employees with CCW permits to bring their weapons into a workplace. This creates the potential for a number of inherently dangerous workplace situations. The possibility exists that disciplinary action, up to and including termination of employment (an often emotional event), could take place with an employee in possession of a loaded gun. Although a disgruntled employee returning to the workplace with a gun, which has happened in multiple instances, is beyond what an employer can control, the proprietor in this case would have permitted the employee to be in possession of the weapon within the workplace. Additionally employee conflicts can become highly charged and the possibility would exist that one or both parties could be in possession of a loaded gun.
Also, employees could find themselves in the position of having to cut-off an intoxicated individual (an often contentious event) who is in possession of a loaded gun. In a March 14, 2011 letter to NC Representative Mark Hilton (the bill sponsor), the North Carolina Restaurant and Lounge Association opposed an amendment which would have allowed servers to ask a patron if they are carrying a firearm as it could put servers “in an unfair, uncomfortable and possibly unsafe situation”. Yet the possibility exists that servers may have to address such an individual after they are under the influence of alcohol.
These generally foreseeable dangers could place management, other employees and patrons at immediate risk of serious bodily injury or death and thus potentially violate the proprietor’s obligation to maintain a safe place of business for both employees and patrons.
North Carolina common law also requires landowners and occupiers to warn of hidden dangers. Because the handguns in question are concealed and restaurants and bars are not required to post notice that concealed weapons are allowed on the premises, such concealed weapons constitute an inherently hidden danger. This hidden danger is arguably discoverable by bars and restaurants because the proprietors would know whether or not they allow concealed handguns on the premises. The proprietors inevitably have superior knowledge of a condition that is undiscoverable for many patrons, especially out-of-state patrons as they are less likely to know of the law.
Statute May Not Shield Owner from Liability
Case law from other states indicates that following a statute (such as the proposed legislation) will not necessarily shield a landowner or occupier from liability where they fail to meet their common law duty. Thus a restaurant or bar would likely fail in attempting to argue by way of defense that the modified statute permitted them to allow concealed handguns on the premises.
Property and First Amendment Rights
As has firmly been established in North Carolina case law, one of the most crucial rights a private property owner has is the right to prevent or exclude individuals from entering his property. The proposed NC law would only provide one option to property owners enabling them to protect their rights to exclude CCW carriers from their premises: the display of a conspicuous sign. Since the sign itself may infringe on the property rights of the owners—both by negatively changing the aesthetic value of the property, and by compelling them to take an implied stance on a hot button cultural and political issue—the option of displaying a sign is not an adequate remedy.
The Supreme Court has held that the First Amendment protects against compelled speech. In states that have enacted similar laws to the proposed H.B.111, there have been cases where businesses that have tried to utilize the opt-out provision have been placed on lists to protest their no concealed weapons policy in an effort to decrease patronage to those businesses.
The implied, politically charged, message in the ‘opt-out’ sign is also made clear by the posted opinion of a NC CCW permit holder regarding establishment owners who would post such a sign: “we want to force the anti-rights bigots to post their ‘No Law Abiding Gun Owners’ sign. We consider it fair warning that the person we are dealiing with is the same sort of bigot that would post a ‘Whites Only’ sign. We want someone to have to identify themselves when they exclude the most law abiding people on the planet…And yes, we will ‘target’ those who post their victim disarmament signs. We will reason with them, we will remonstrate with them, and finally we will boycott them”. State-required signs such as ‘employees must wash hands’ or sanitation grade ratings, do not incite that type of reaction. That language was passed along to trade and business organizations in NC saying that no business owner should ever have to face, or fear the possibility of facing, that type of threatening behavior simply because the proprietor exercised their legal right to exclude guns from their property.
Since one main goal of House Bill 111 is uniformity across the state, the research concluded that there is currently no way to make this bill uniform without infringing on private property or First Amendment rights.
Beyond State Permit Holders
Another concern with this legislation is that establishment owners who decline the opportunity to exclude guns from their premises could soon be accepting CCW permit holders from other states. Should HR822 (concealed carry reciprocity) find its way into federal law (it has passed the US House of Representatives and is pending in the Senate), anyone with a CCW permit from any state could carry a CCW across state lines. If HR822 is enacted, restaurants and bars (and in NC’s case, our parks as well) would be opening their doors to concealed carry from other states, some having lax CCW requirements such as no requirement for safety training. As an example, states would be forced to allow individuals like the shooter in the Trayvon Martin incident (ref) to carry a concealed weapon in their state, and subsequently into restaurants/bars and parks in those states that permit such.
I write these comments from the perspective of having been a business owner and whose father made his living in the wholesale liquor distribution business. I learned at an early age the risk of alcohol-related violence in establishments that serve alcohol.
Business owners put a good deal of ‘blood, sweat and tears’ into creating something of value to themselves and society that provides goods, services, and employment. And in building our vision we assume risk along the way often involving our own personal assets to guarantee loans, leases and other forms of indebtedness that support the business. As such, we take care to avoid risks that could adversely affect not only our livelihood but our personal savings and property as well.
What impressed me about the conclusions of the research were the number of different avenues that could potentially place a small business owner at risk of being sued should they decline the opportunity to exclude guns from the premises, and that the modified statute might not serve as a defense. Although the claim is often made by ‘gun rights’ advocates that CCW permit holders are ‘law abiding citizens’ with a good track record, it is quite apparent that some are not, having engaged in dangerous behaviors such as DWI and in some small instance even having committed murder with a gun. In the end, a business owner will not be judged on the general characteristics of a population; they will be judged on a specific event and whether or not they contributed to it. There is no doubt that in opening the doors of a business to CCW permit holders, that the owner is also knowingly opening them to the less-than-law-abiding as well thus increasing risk to both employees and patrons. And the potential workplace scenarios that this legislation creates, such as terminating employment with an individual in possession of a loaded gun, are frankly frightening.
The claim that the legislation does not create a safety issue based on current record in other states is irrelevant as the risks are generally foreseeable. One could not make the claim that a blocked exit from a facility was not a safety issue because no problems had occurred over a period of many years. Just as a blocked exit can claim multiple lives when the circumstances are wrong, so could concealed guns in places where alcohol is consumed.
A summary of the legal research conclusions has been sent to several trade and business organizations in NC for their consideration, giving them opportunity to contact the supervising attorney. Trade and business organizations have an obligation to act in the best interests of their membership, and as such they must be able to provide guidance to their membership as to whether or not a proposed piece of legislation could place them at risk or violate their rights. Should there be any doubt in the matter, I have posed the question as on what grounds a trade/business organization would not oppose legislation if it potentially places their membership at risk. Additionally, state lawmakers should also be able to assure trade and business organizations, with certainty, that the modified statute would not place business owners at risk nor violate their rights.
Establishment owners in NC and other states do have the right to contact their trade and business associations and ask if they know, with certainty, if the (proposed) law would shield them from liability should they decline the opportunity to exclude guns from the premises; or, whether by being forced to post a sign (to protect their right to exclude) the law is infringing on their property and/or First Amendment rights.
Speaking from the perspective of having been a business owner, I would question why an owner would even take the chance of expending the time, money and effort of fighting a suit in court when they had the opportunity to exclude, or face the potential negative business implications of a controversial shooting (such as the Treyvon Martin matter) by a gun holder that they permitted onto their premises.
Speaking from the perspective of being a citizen, should an establishment owner feel that the risks of entering his/her business are great enough to warrant patrons and employees carrying loaded guns to protect themselves, I personally would not enter such an establishment with either my family or my clients.