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Virginia Restaurant Ban More Confusing Than Ever

8K views 46 replies 30 participants last post by  Snake Eater 
#1 ·
I was talking to a law enforcement officer who was working off duty at my synagogue's fundraising auction last Saturday (see my post "Got Made at Temple Auction" in this forum). I told him that I always open carry in restaurants that serve alcohol since Virginia law prohibits concealed carry there, even with a Concealed Handgun Permit. He said that that is only enforced in bars and that a lot of officers, him included, would see open carry in a family restaurant as creating a public disturbance.

Man, we can't win. If we comply with the law as written and carry openly, we could be in trouble for disturbing the peace. If we ignore the law and conceal carry, we might find ourselves in an establishment that he defines as a bar and get cited for that. Virginia law does not define a bar separately from any other type of estalishment that sells alcohol for on premises consumption by the single drink so its anybody's guess as to what he or other officers would say is a bar.

For me, I will comply with the written law and open carry. Tell that public disturbance junk to the judge, officer.
 
#2 ·
Don't listen to him. And don't ask LEO's for advice or their opinions on the law. Ask 10 of them and you will get 10 different answers.

If you are following the law, you are legal. If an over zealous LEO arrests you, then you need to sue the pants off that department for false arrest.

If you don't already belong to VCDL then I suggest you join. They have a very solid record of defending people who have been arrested falsely in VA.
 
#5 ·
Ditto, I was talking to one of the local LEOs here, he had no clue that OC was even legal at a restaurant, he thought it was no carry period. We had him and his wife over one night and I printed off the laws for him, edumekated him on carry at a place or religious worship as well.

Don't worry about what most LEOs have to say, worry about what the prosecuting attorney thinks.
 
#8 ·
Yup - in NC concealed is verboten in any place that sells alcohol for consumption on premises. So even if I wanted to eat at a place like Chili's, I'd have to disarm. My wife and I have a favorite restaurant that only has a beer and wine license, yet I can't carry in there.

If you open carry, you can be drunk as a lord (note lower case "L" - it's an archaic British thang).

In other words, someone else having beer or wine in a restaurant makes my activity illegal. Pretty senseless.
 
#10 ·
I'll continue to follow the law as written. If a LEO decides I'm creating a public disturbance he can explain to the judge why he arrested me for no valid or legal reason. Maybe I can get some of the money I pay the county in property taxes back!
 
#12 ·
Anibus.
The Virginia Senate recently passed a bill similar to SB 476 vetoed in 2008, which allows concealed carry in alcohol-serving restaurants if the concealed carrier does not consume alcohol and notifies a restaurant employee that he is concealing!

If You let the young serving know You were concealing a firearm, She might freak out.
 
#13 ·
I was talking to a law enforcement officer .... He said that that is only enforced in bars and that a lot of officers, him included, would see open carry in a family restaurant as creating a public disturbance.
...
For me, I will comply with the written law and open carry. Tell that public disturbance junk to the judge, officer.
There is no law in Virginia called "creating a public disturbance". There's a few that require proof of having created a public disturbance as an element of the offense, such as public nuisance, disorderly conduct, and unlawful curse and abuse. But all of the crimes that require proof of a public disturbance require some active misconduct on the part of the defendant. That is to say, you have to actively and intentionally do something that amounts to a breach of the peace before any of those crimes could be considered to have been committed. Eating a meal while wearing a gun is not such an act. Pulling the gun out and waving it around could well be. As long as it remains untouched in a holster, it's not illegal.

By the way, we don't have "bars" in Virginia, or "taverns", either. All restaurants selling mixed drinks have to have at least fifty-five percent of their revenue from sales of food.

I'll continue to follow the law as written. If a LEO decides I'm creating a public disturbance he can explain to the judge why he arrested me for no valid or legal reason. Maybe I can get some of the money I pay the county in property taxes back!
Do call me if that happens.

Virginia Legal Defense;
 
#15 ·
There is no law in Virginia called "creating a public disturbance". There's a few that require proof of having created a public disturbance as an element of the offense, such as public nuisance, disorderly conduct, and unlawful curse and abuse. But all of the crimes that require proof of a public disturbance require some active misconduct on the part of the defendant. That is to say, you have to actively and intentionally do something that amounts to a breach of the peace before any of those crimes could be considered to have been committed. Eating a meal while wearing a gun is not such an act. Pulling the gun out and waving it around could well be. As long as it remains untouched in a holster, it's not illegal.

By the way, we don't have "bars" in Virginia, or "taverns", either. All restaurants selling mixed drinks have to have at least fifty-five percent of their revenue from sales of food.



Do call me if that happens.

Virginia Legal Defense;
Absolutely true. I worked as a LEO in Virginia for nearly ten years before my move back to NC. There is no such offense as "public disturbance". Carrying a holstered firearm in plain view doesn't meet the elements for either disorderly conduct or brandishing a firearm.

Its legal to open carry in a restaurant that serves alcohol, plain and simple. If it disturbs someone that is a shame, but that doesn't make it illegal. It might result in the owner or manager of the establishment asking the open carrier to leave, and the open carrier would be required to do so (or face summons or arrest for trespass).

Yes, Virginia law against concealed carry in restaurants that serve alcohol is silly, but it is there. North Carolina actually ended up with a similar situation in the statute. In NC its illegal to carry concealed in a bank, but not to carry openly. Go figure.
 
#14 ·
You can't be found quilty of doing something that's legal. Period. You could be the test case, as has occurred in several other states, but they've all won ..... and won the lawsuit for violating their civil rights. Depends upon whether you want to be the test, and want to retire early.
 
#18 ·
I asked a deputy the same question when I was in Williamsburg. He said you can open carry almost anywhere but MUST in a restaurant selling alcohol. His only negative thought was that they are required to respond to a "man with a gun" call and your meal would be interupted but there would be no legal problem.

He also said that the more tourist like area the bigger chance of getting a complaint. But all would be OK.
 
#20 ·
The bill changing our stupid laws passed the General Assembly last year but our wonder part time Governor/full time DNC Chairman vetoed it.

I haven't followed too closely this year but I imagine if the clears the General Assembly again DNC Chairman Kaine will once again veto it.

Hopefully our next governor will be more gun friendly and this ridiculous legislation can be corrected.

Be Safe
NosaM
 
#24 ·
Its not any more legal for LEOs in NC to carry while drinking than it is anyone else. In fact its more serious for us, not only can we be charged with the same offense as anyone else for doing it, but we can also loose our certification to work as LEOs, and therefore be out of a job as well.

It might happen in other states, and even might be legal (it probably happens in NC, but its illegal), but I doubt its a huge number in NC. I've never seen it myself, and I wouldn't put up with a fellow officer doing it.
 
#23 ·
In Virginia a bar that does not serve food, can only sell beer. A restaurant with a Virginia ABC permit to sell alcohol, can sell either if their food sales are 51% of total receipts. CC is not legal in either. All laws are confusing.
 
#25 · (Edited)
He said that that is only enforced in bars and that a lot of officers, him included, would see open carry in a family restaurant as creating a public disturbance.
^^^^:aargh4:^^^^^^^^:aargh4:^^^^^^^^:aargh4:^^^^^^^^:aargh4:^^^^^^^^:aargh4:^^^^^^^^:aargh4:^^^


If you or anyone you know of is arrested for open carry in a Virginia restaurant, please advise either of both the Virginia Citizens Defense League, Inc. (VCDL) and the OpenCarry.org - A Right Unexercised is a Right Lost!.

If You let the young serving know You were concealing a firearm, She might freak out.

OTHO, at a Roanoke Restaurant last night at dinner before the Willie Nelson concert the young lady serving us was totally cool, with open carry.

:congrats:

So what is it. You can't conceal if the restaurant sell alcohol ?. Applebees You would have to open carry. Wendys would be ok to conceal as they do not sell alcohol.
Not only that, if you OC there is no law against drinking.

Go figure.
 
#26 ·
Not only that, if you OC there is no law against drinking.

Go figure.
For those that are outraged about this, make sure you direct your anger in the correct direction. The outrage should be directed at removing restrictions on CC, as in people should be allowed to carry concealed in an establishment that serves alcohol, but not be intoxicated themselves. The second you try to put one little restriction on OC, like not allowed to carry openly while having a drink, 100 other little restrictions pop up. Or the law of unintended consequences pops up and now you can't open carry within 8 hours of having a drink, since the alcohol could still be in your system.

Be careful what you ask for, you will probably get it. :aargh4:

For the record, I don't drink while I am armed. It's a personal choice I have made to show a good example. Consequently, I very seldom drink at restaurants, etc. since I feel it is more important to be armed than to drink. But I don't expect everyone to make that same choice.
 
#28 ·
Per DaveH

"OTHO, at a Roanoke Restaurant last night at dinner before the Willie Nelson concert the young lady serving us was totally cool, with open carry."

Willie has the ability to create a "zone of coolness"near his concerts.:wink::smile:
 
#31 ·
Willie has the ability to create a "zone of coolness"near his concerts.:wink::smile:
Could it be because his tour bus burns hemp oil?
 
#33 ·
It was Norfolk PD actually. My understanding is that the gentleman who was open carrying (legally) was issued a summons, not arrested. He was also charged with trespassing, not open carry.

Norfolk PD has upwards of 700 officers, I doubt it was the same officers that dealt with the subject in both cases. None of that makes them right of course, but its nice to have the relavent facts when passing along information.
 
#37 ·
Not likely, :yup:.

Also, as far as I know not true in the third incident.

However, FWIIW, here's what Dan posted on the OCDO web site about the second of the three incidents:

I hope your sitting down with some popcorn and duct tape....

So...

I dropped off my car at the dealership in Chesapeake and decided to
take the bus back to Hampton. I get on the first bus. No problems. :)

I get on the second bus and I'm questioned by the bus driver with "do
you have a permit for that?". I replied, "I do have a permit to
conceal, but there's no permit to carry in the open like this". I
guess she did not believe me, because she asked me again. I gave her
the same answer as if she didn't hear me the first time. I then slid
my transfer slip and sat down. She then started to take off, but then
stopped the bus to make a phone call. She then asked me "do you have
a security badge?". I got upset and replied "does it look like I got
a badge on?" (I've realized that might not have been the best answer,
but at that point I was pissed at her).

So then we sit there and wait while she's on the phone. A rider asked
her what's the hold up. She told him that we are waiting for the
police. So 2 mins later, Norfolk's finest show up. I'm thinking,
super, everything will be explained that it's legal and what not.

NOT!!!

So the 1st LEO steps on the bus and asks me to stand up, which I do.
He walks over to me with his hand reaching for my firearm, which I
leaned over to comply without a word. He then asks me to step off the
bus. After we get off the bus, he tells me they got a call about a
man with a gun (go figure), and I turn to my right and see MORE LEOs
arriving.

The 1st LEO asks me, "do you have a permit to conceal?", I tell him,
"yes". Then he goes about telling me that I should just conceal and
how I've caused an "inconvenience" and such. I tell him that it's a
beautiful day and I wanted to open carry. So he tells me again that
it's not a good idea and what not.

So I guess he got tired of me and a Sargent started to talk to me, and
I got frustrated because he was asking me the same damn questions. So
at this point I asked if I was being detained, and they told me that I
was being detained. I asked, "what crime am I being suspected of
committing"? and he replied, "disorderly conduct" ... They elaborated
stating that I was causing a public inconvenience. So I told him to
arrest me if that's the case. The LEO stated he didn't want to. I
said to just write me a summons so I can see him in court. He didn't
want to do that either. *sigh*

So I asked for a LT to be called. About less than a minute later, I
guess one pulled up (I didn't think he was) and he started telling me
that Norfolk has a code that one must show ID when asked by a LEO (or
something similar). I told him to tell me the code so I can make a
phone call and confirm it. He refused to tell it. I told him to
contact the city attorney. He walks away leaving me with the "watch
him" LEO.

Quick FYI - there about 5 responding LEOs, 1 whom was the LEO that had
me at gunpoint from the police vid during the 1st downtown Norfolk
incident. So I figured that he would clear things up. NOT!!!

So then they proceed to tell me that if I don't show ID, they will
confiscate my firearm. I tell them "good, I'll just get it back along
with the lawsuit" (I had my XD on, but if they took it, I would have
put on my 1911 I had in my bag :p). They were explaining that I could
be a felon or underage. Then he walks away and goes to the LEO huddle
for 2 seconds, comes back, tells me that he giving me back my firearm
and that I should conceal when the next bus comes and walks away.

So...

I got back to Hampton with NO problems whatsoever, get in my car,
drive BACK to Norfolk to get some FOIA goodies (I forgot to ask for
the police dashcams which I knew were running).
Not likely, doesn't mean it can't happen. :wink:
 
#35 ·
I was talking to a law enforcement officer who was working off duty at my synagogue's fundraising auction last Saturday (see my post "Got Made at Temple Auction" in this forum). I told him that I always open carry in restaurants that serve alcohol since Virginia law prohibits concealed carry there, even with a Concealed Handgun Permit. He said that that is only enforced in bars and that a lot of officers, him included, would see open carry in a family restaurant as creating a public disturbance.

Discretionary power and they love it. One fellow has sued a Va town for violating his rights re-OC and WON. A few weeks later the SAME cops arrested the SAME carrier again. Many are hoping his $10000 payment the first time has a couple more 0's in the 2nd award.
 
#36 ·
langenc said:

Discretionary power and they love it. One fellow has sued a Va town for violating his rights re-OC and WON. A few weeks later the SAME cops arrested the SAME carrier again. Many are hoping his $10000 payment the first time has a couple more 0's in the 2nd award.
Landric said:

It was Norfolk PD actually. My understanding is that the gentleman who was open carrying (legally) was issued a summons, not arrested. He was also charged with trespassing, not open carry.

Norfolk PD has upwards of 700 officers, I doubt it was the same officers that dealt with the subject in both cases. None of that makes them right of course, but its nice to have the relavent facts when passing along information.
I guess I was talking to myself. Again, it helps to have the relevant facts before posting information.
 
#38 ·
I'm surprised that any of the same officers were involved in the incidents, but the second of the three didn't result in any legal action, so I wasn't considering that one. I do remember reading about it.

I'm not trying to defend NPD here, but I think Mr. Moore is going to have a hard time winning any money from Norfolk based on his summons for trespass.

First off, in order to successfully sue the government one has to prove gross negligence at a minimum, otherwise the case is going to be gone on summary judgment before it ever gets near a trial. Second, the City's argument was that the property in question was private property, not city property. I know that a General District Court judge ruled that it was in fact government/public property, but the city was sure enough of its position to take the case to trial. General District Court rulings generally don't amount to case law, so its quite possible a different judge could rule the property private in the future under the same set of facts. Third, given the City's position that the property in question was private (and the case the City's lawyers made for it), it is unreasonable to expect a lesser trained (in the law) police officer to make the decision that it is in fact government property, especially if he or she has been trained by the City that it is private property. That makes proving gross negligence on the part of the officer a serious stretch. Forth, if we accept that the officer thought the property in question was private (rightly or wrongly), then it is likely he had probable cause for a trespass charge.

I think its possible that the City will give Mr. Moore more settlement money to make him go away, but I think he will have a real uphill battle if he decides to go to trial rather than accept a settlement, or in the event that the City doesn't offer one.
 
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