The views expressed in this article are those of the author and do not necessarily reflect the views of Gunset Training Group or its affiliates.
Click HERE to view the original post on the GunSnobbery Blog
Author’s note: this is part 10 in a series of educational posts I am going to write about State of Ohio and federal weapon and firearm laws. Part 1 can be found here. There is a list of the previous articles at the bottom (or side, depending on your device) of the page. This post does not offer legal advice. I am not a lawyer. I am a Certified Firearm Specialist through the International Firearm Specialist Academy and the State of Ohio certifies me to teach Ohio’s weapon laws in the Basic Police Academy. I’ve spent quite a bit of time studying federal law and Ohio’s laws in 30 years on the job. More than anything, this series of posts is an attempt to educate people on portions of the law and to show them where they can find the laws so that they can educate themselves further. Please consult with an attorney who specializes in firearms and weapons law if you have questions that require a legal opinion. If you are a law enforcement officer, check with your jurisdiction’s legal counsel for guidance. And remember, not all attorneys are created equal. And keep in mind that laws, interpretations of laws and definitions change. So what was current at the time I published this article may have changed over time.
Right off the bat, the first line of the statute pictured above should tell you that this prohibited location is different than others. “No person shall possess a firearm…..” Not a “concealed handgun”, but any firearm. So concealed carry, open carry, handguns, rifles, shotguns would all be covered under this prohibition.
To better understand the remainder of 2923.121, you’re going to need to get a crash course in Ohio Liquor Control law. The Department of Commerce (DoC) handles liquor permits throughout the state. The permit(s) that a business possesses will determine what the business can do. For example, a winery has to have permit to manufacture wine. Same goes for breweries and distilleries. Permits limit the amount that can be manufactured. Permits cost money. Non-manufacturers also need permits to buy and sell beer, wine, etc. There are over 60 different permit “classes” under Ohio law. Ohio Revised Code 2923.121 only deals with one category of “classes” – Class D permits.
Of the 60+ permit classes, roughly 1/3 of them fall within the Class D permit category. Class D permits all have one thing in common – they allow the legal consumption of alcohol on the premises of the permit holder. Not all permits allow that to happen. So what businesses fall within this category? The easiest to understand are bars, nightclubs and restaurants. These are common places where people can go in, buy a drink, sit down, eat, whatever. But there are other places that have a class D permit that are not so easy to understand. If you’re curious to know what type of liquor permit a business has, the DoC has an online search option. Out of curiosity, I did a search for every business in Greene County, Ohio, that has a class D1 permit. D1 permits allow the business to sell: “Beer only for on premises consumption or in original sealed containers for carry out only until 1:00am.” There were over 60 businesses in Greene County that fit that search criteria. Here’s one that may surprise you:
That’s right, Kroger. The supermarket. Here’s another one that may surprise you:
Yup, Sheetz. The gas station. DBA means “doing business as”. You will see DBAs quite often in liquor permits because the names of many business entities aren’t catchy names or phrases. So they use a DBA. Most gas stations and carryouts have a variety of Class C permits, but here and there you will find one with a Class D, like these Sheetz stores.
So how are you to know which is which? Well, a good rule of thumb to follow is this: if people are legally allowed to consume alcohol at a business, there’s a good chance it’s a Class D permit location, which implicates 2923.121. But that isn’t an absolute. Temporary beer gardens at festivals or fairs are places that require a temporary (Class F) permit, not a Class D, so 2923.121 would not apply to the beer gardens. The bottom line? The only way to really know which class of permit a business has is to look it up on the DoC website. And how many people are going to do that? Right. Pretty much no one. It isn’t practical.
So we’ve covered the fact that this prohibition applies to any firearm in a Class D permit location, but there is another element we haven’t talked about – “in any room in which any person is consuming beer or intoxicating liquor”. What’s that mean? Does that mean the cops would have to prove that someone was drinking in the same room where the person is carrying a gun? No. The courts have given wide latitude in how to prove that element. Circumstantial evidence and inferences can help satisfy that element, like they did in a case from a Fricker’s in Montgomery County, OH (see below). But importantly – there does not have to be actual evidence that someone is consuming alcohol in the room.
Before we start talking about the exceptions to this law, let’s discuss signage. A bar or other liquor permit premises, like any other private company, can prohibit most people from coming into the building by posting a “No Guns Allowed” sign in a conspicuous location. However, a complicating factor that confuses a lot of people is the sign pictured at the top of the article and also below this paragraph. If you have paid attention (and if you’re carrying a concealed pistol you had better be paying attention) when you’ve gone into any place selling beer, wine, etc. then you have probably seen this sign somewhere. This is not a sign that prohibits firearms. Reading the language of the sign there are a couple of key words – “if” and “may”. It is a different sign that the DoC requires each liquor permit holder to post. It has been a requirement since 1997, long before the CCW law came to be. The same statute (4301.637(B)) requires similar signs that relate to buying alcohol if you’re underage. I blew up and highlighted the section of the sign that shows the Ohio Revised Code section that mandates the sign. Usually these signs are by a cash register, customer service desk or behind the bar somewhere.
Like any of these weapon related statutes, there are exceptions to the prohibition on having firearms in a liquor permit premises. Other than exceptions for various employees and law enforcement, the most important one for most people is the exception for qualifying adults/concealed handgun licensees. This exception has a condition to it: “as long as the person is not consuming beer or intoxicating liquor or under the influence of alcohol or a drug of abuse.” That’s an important phrase because it does not require someone to actually be intoxicated, just “consuming alcohol” in order for the exception to no longer apply.
So what does “consuming alcohol” or “under the influence” really mean? I haven’t found a case that deals with “consuming alcohol” in a liquor establishment, but here is what the First District Court of Appeals in Hamilton County (Cincinnati) had to say about a case involving “consuming alcohol” in a motor vehicle:
As you can see, the courts allowed inferences to be drawn based on other evidence, just like they did in the case that dealt involving “in any room in which any person is consuming beer or intoxicating liquor” that I talked about earlier. Imagine a case where an Officer was called to a local restaurant because someone saw a patron carrying a pistol. When the Officer arrives, there is no obvious sign prohibiting people from carrying firearms in the establishment. After making contact with the caller, the caller points out the table and describes the patron carrying a pistol. When the Officer walks up to the table, he finds several people sitting at a table. In front of every person is an open, half empty bottle of beer. He asks the patron if they are carrying a pistol, the patron says yes, but denies “consuming” any alcohol. The caller cannot confirm that the patron actually consumed any alcohol, so the Officer asks the waitress if the patron ordered a beer. She confirms that the patron actually ordered a beer. Based on the court cases we’ve looked at, what do you think would happen if the Officer decided to charge the patron with possessing a firearm in the liquor establishment?
Between “consuming alcohol” and “being under the influence”, “consuming alcohol” is much easier to prove. Being “under the influence” can be proven in a variety of ways – slurred speech, bloodshot eyes, problems with keeping balance when standing or walking and the odor of “an alcoholic beverage” emanating from their “breath or person” are all signs that someone is “under the influence”. “Under the influence” does not mean you have to be over the .08 BAC (blood alcohol content) that is used for DUIs. The best option? Don’t have a sip, a drink, nothing that could even hint at you being in violation of the statute. Why? Because violating this statute by carrying a loaded concealed pistol isn’t a misdemeanor. It’s a felony of the third degree (F-3). Which means you could theoretically go to prison, but even if you didn’t go to prison, you would forfeit your right to own firearms since a conviction would put you under a federal prohibition.
Having said all of that, this may all change in the near future due to cases currently in the appeals process. I’ve said it before – the Bruen decision has changed the face of 2nd Amendment jurisprudence and we will be seeing the ripple effects of this decision for years to come. Here is a good article about Bruen.
That’s all for now, next week I’ll dive into carrying into a school zone.