Texas Open Carry Law and Commercial Real Estate

Transcription

1 December 9, 2015 Rob Harlow Jackson Walker L.L.P Texas Open Carry Law and Commercial Real Estate

2 Let s see what we can do to prevent this from happening on your property

3 Do you need a license to Open Carry? Yes. When does Open Carry go into effect? January 1, 2016 Can you legally carry anywhere? No. All of the same previous restrictions apply with a few changes. Basically the word concealed was deleted wherever it appeared before the word handgun.

4 Texas Penal Code Places where carrying continues to be prohibited Bars - A place of business that derives 51% or more of its income from the sale or service of alcoholic beverages for on premises consumption (may require the socalled 51% signage ). Jails or prisons K-12 Schools and vehicle/bus or grounds of an event; educational institution High school, collegiate or professional sporting event (unless the license holder is a participant in the event and a handgun is used in the event). Polling place - on the day of an election or while early voting is in progress. Racetrack Secured area of an airport Courts - In any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court.

5 Place of worship - On the premises of a church, synagogue, or other established place of religious worship. Hospital - On the premises of a hospital licensed under the Health and Safety Code. Nursing Facility - On the premises of a nursing home licensed under the Health and Safety Code. Amusement parks - Amusement parks means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in each calendar year, and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area. Governmental Meeting - regardless of whether the handgun in concealed, in the room or rooms where a meeting of a governmental entity is held and if the meeting is an open meeting subject to Chapter 551, Government Code. These items still require notice or a 30.06/30.07 sign to be installed in accordance with the statute for prohibition to be effective.

6 IMPORTANT DEFINITIONS HANDGUN - Penal Code 46.01(5) any firearm that is designed, made, or adapted to be fired with one hand. PREMISES - Penal Code (f)(3) A building or portion of building DOES NOT include any public or private driveway, street, sidewalk, or walkway, parking lot, parking garage, or other parking area.

7 There are currently 3 signs that affect concealed handgun license ( CHL ) holders Penal Code Sign No trespassing (Concealed) Red Sign 51% Alcohol Blue Sign Alcohol sales Beginning January 1, 2016 a fourth sign will go into effect Penal Code Sign No trespassing (Open)

8 THE CHL RULE Revised Texas Penal Code for Concealed Handguns (Effective January 1, 2016): General Rule: A concealed handgun license holder commits a criminal offense if: 1. He/she carries a concealed handgun on property of another without effective consent, TEX. PENAL CODE 30.06(a)(1); 2. Such property is not owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under [Texas Penal Code] Section or , TEX. PENAL CODE 30.06(e); 3. He/she received notice that his/her entry on the property with a concealed handgun was forbidden, TEX. PENAL CODE 30.06(a)(2); 4. Such notice was provided by the owner of the property or someone with apparent authority to act for the owner, TEX. PENAL CODE 30.06(b); and 5. Such notice was provided by oral or written communication, TEX. PENAL CODE 30.06(b).

9 The written notice issue falls under Element No. 5 above, i.e., the written communication requirement. To comply with the statute, a written notice prohibiting concealed handguns on certain premises (i.e., the written communication ) must either: 1. Be on a card or other document that states exactly the following language: Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun, TEX. PENAL CODE 30.06(c)(3)(A); or 2. Be on a sign posted on the property that: a. states the following language: Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun, b. states such language in both English and Spanish, c. states such language in contrasting colors with block letters at least one inch in height, and d. is displayed in a conspicuous manner clearly visible to the public, TEX. PENAL CODE 30.06(c)(3)(B).

10 PENAL CODE CONCEALED CARRY SIGN PURSUANT TO SECTION 30.06, PENAL CODE (TRESPASS BY LICENSE HOLDER TO CARRY A CONCEALED HANDGUN), A PERSON LICENSED UNDER SUBCHAPTER H, CHAPTER 411, GOVERNMENT CODE (HANDGUN LICENSING LAW), MAY NOT ENTER THIS PROPERTY WITH A CONCEALED HANDGUN. CONFORME A LA SECCIÓN DEL CÔDIGO PENAL (TRASPASAR PORTANDO ARMAS DE FUEGO) PERSONAS CON LICENCIA BAJO DEL SUB-CAPITULO H, CAPITULO 411, CODIGO DE GOBIERNO (LEY DE PORTANDO PISTOLA ABIERTAMENTE), NO DEBEN ENTRAR A ESTA PROPIEDAD PORTANDO UN ARMA DE FUEGO.

11 OPEN CARRY RULE New Texas Penal Code for Open Carry Handguns (Effective January 1, 2016): General Rule: An open carry handgun license holder commits a criminal offense if: 1. he/she openly carries a handgun on property of another without effective consent, TEX. PENAL CODE 30.07(a)(1); 2. such property is not owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under [Texas Penal Code] Section or , TEX. PENAL CODE 30.07(e); 3. he/she received notice that his/her entry on the property [while] openly carrying a handgun was forbidden, TEX. PENAL CODE 30.07(a)(2); 4. such notice was provided by the owner of the property or someone with apparent authority to act for the owner, TEX. PENAL CODE 30.07(b); and 5. such notice was provided by oral or written communication, TEX. PENAL CODE 30.07(b).

12 To comply with the statute, a written notice prohibiting open carry handguns on certain premises (i.e., the written communication ) must either: 1. Be on a card or other document that states exactly the following language: Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly, TEX. PENAL CODE 30.07(c)(3)(A); or 2. Be on a sign posted on the property that: a. states the following language: Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly, b. states such language in both English and Spanish, c. states such language in contrasting colors with block letters at least one inch in height, and d. is displayed in a conspicuous manner clearly visible to the public at each entrance to the property, TEX. PENAL CODE 30.07(c)(3)(B).

13 PENAL CODE OPEN CARRY SIGN PURSUANT TO SECTION 30.07, PENAL CODE (TRESPASS BY LICENSE HOLDER WITH AN OPENLY CARRIED HANDGUN), A PERSON LICENSED UNDER SUBCHAPTER H, CHAPTER 411, GOVERNMENT CODE (HANDGUN LICENSING LAW), MAY NOT ENTER THIS PROPERTY WITH A HANDGUN THAT IS CARRIED OPENLY. CONFORME A LA SECCIÓN DEL CODIGO PENAL (TRASPASAR DE PERSONA CON LICENCIA PORTAR PISTOLA ABIERTAMENTE), PERSONAS CON LICENCIA BAJO DEL SUB- CAPITULO H, CAPITULO 411, CODIGO DE GOBIERNO (LEY DE PORTANDO PISTOLA ABIERTAMENTE), NO DEBEN ENTRAR A ESTA PROPIEDAD PORTANDO PISTOLA ABIERTAMENTE.

14 NON-CODE SIGNAGE

15

16 ENFORCEABLE SIGNS

17 OTHER TRANSLATIONS

18 30.06 Sign Only... No Conceal Carry Sign Only... No Open Carry Both Signs Posted...Cannot carry Open or Concealed PC goes into effect January 01, 2016

19 Red Sign must be posted at any place were 51% of their revenue comes from the sale of alcohol for on-site consumption.

20 Blue Sign must be posted at: Convenience Stores Grocery Stores Liquor Stores Restaurants with a Food and Beverage certificate from TABC Any place where alcohol is sold that does not fit the 51% criteria for a Red Sign

21 VIOLATIONS FOR TRESPASS It is a Class C misdemeanor punishable by a fine not to exceed $200. If license holder is personally given the notice by oral communication and refuses to leave, it becomes a Class A misdemeanor. Class A misdemeanor is punishable by up to a year in the county jail and/or a $4,000 fine.

22 PARKING LOT RULE Labor Code Subchapter G Restrictions on Prohibiting Employee Access to or Storage of Firearm or Ammunition. Employer may prohibit employees from carrying handguns on the premises. However, an employer can t prohibit an employee, if the employee is a licensed gun holder, from keeping the employee s gun and ammunition locked in the employee s vehicle while parked at the employer s place of business.

23 SEC EXCEPTIONS Section does not: 1. Authorize a person who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, who otherwise lawfully possess a firearm, or who lawfully possess ammunition to possess a firearm or ammunition on any property where the possession of a firearm or ammunition is prohibited by state or federal law; or

24 2. Apply to: A. A vehicle owned or leased by a public or private employer and used by an employee in the course and scope of the employee s employment, unless the employee is required to transport or store a firearm in the official discharge of the employee s duties; B. A school district; C. An open-enrollment charter school, as defined by Section 5.001, Educate Code; D. A private school, as defined by Section , Education Code;

25 E. Property owned or controlled by a person, other than the employer, that is subject to a valid, unexpired oil, gas, or other mineral lease that contains a provision prohibiting the possession of firearms on the property; or F. Property owned or leased by a chemical manufacturer or oil and gas refiner with an air authorization under Chapter 382, Health and Safety Code, and on which the primary business conducted is the manufacture, use, storage, or transportation of hazardous, combustible, or explosive materials, except in regard to an employee who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, and who stores a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees that is outside of a secured and restricted area: 1. That contains the physical plant; 2. That is not open to the public; and 3. The ingress into which is constantly monitored by security personnel.

26 SEC IMMUNITY FROM CIVIL LIABILITY (a) Except in cases of gross negligence, a public or private employer, or the employer's principal, officer, director, employee, or agent, is not liable in a civil action for personal injury, death, property damage, or any other damages resulting from or arising out of an occurrence involving a firearm or ammunition that the employer is required to allow on the employer's property under this subchapter. (b) The presence of a firearm or ammunition on an employer's property under the authority of this subchapter does not by itself constitute a failure by the employer to provide a safe workplace.

27 (c) For purposes of this section, a public or private employer, or the employer's principal, officer, director, employee, or agent, does not have a duty: (1) to patrol, inspect, or secure: (A) any parking lot, parking garage, or other parking area the employer provides for employees; or (B) any privately owned motor vehicle located in a parking lot, parking garage, or other parking area described by Paragraph (A); or (2) to investigate, confirm, or determine an employee's compliance with laws related to the ownership or possession of a firearm or ammunition or the transportation and storage of a firearm or ammunition.

28 POTENTIAL SITUATIONS #1 PROPERTY OWNER DOES NOT PROHIBIT GUNS UNDER EITHER OPEN OR CONCEALED CARRY. Issues: a. Resolution is left to Tenants therefore, could be a variety of restrictions on property. b. May make Tenants and invitees less comfortable. c. No enforcement policy to develop.

29 #2 PROPERTY OWNER WANTS TO PROHIBIT GUNS Issues: a. Must post requisite signage or be prepared to provide notice depending upon prohibition desired. b. Need to establish and train property personnel on protocols (i) what to do if someone enters property with gun? (ii) - call police? - management or security approach and enforce? Ability to answer questions or respond to inquiries. c. Could lack of proactive enforcement of policy lead to liability? d. Could prohibition lead to liability?

30 SUGGESTIONS Property owners should consider discussing the issue with tenants regarding how each wants to proceed in regards to banning or permitting weapons on site. Consider adopting a lease amendment that sets out the landlord and tenants agreement regarding who may determine if guns, open or concealed, will be permitted on premises. Property owners may wish to include a provision in their lease form which requires the tenant to indemnify the owner against any incidents which may occur on the property.

31 SUGGESTIONS (continued) Property owners may wish to discuss with their insurance agents the possible impact of prohibiting handguns on the premises (or even the failure to prohibit handguns) on the insurance coverage for the property or business. Insurance provisions in leases delineating insurance requirement of tenants must be reevaluated to insure tenant s insurance does not have exceptions in coverage for handgun incidents (Many secondary insurer policies have such exceptions buried deep in the fine print). Property owners should consider updating the employee handbook establishing clear guidelines for employees regarding guns on the premises. Remember that premises does not include locked, personal vehicles in a property s parking lot, garage, or other parking area.

32 SAMPLE TENANT INSURANCE REQUIREMENT PROVISION Landlord s Insurance Requirements of Tenant 1. Insurance Coverage To Be Provided by Tenant. These requirements (the Insurance Requirements ) are attached as an Exhibit as part of the Lease Agreement. In the event of conflict between any of the following Insurance Requirements and any provision in the Lease Agreement, these Insurance Requirements control, amend and supplement the conflicting provision. Subject to review and revision by Landlord from time to time, in Landlord s good faith judgment, the following insurance shall be maintained by Tenant with limits of not less than those set forth below at all times during the term of this Lease and thereafter as required. COURTESY Charles Comiskey of Brady, Chapman, Holland & Associates, Inc.

33 No. Specifications Coverages, Limits and Other Requirements A. LIABILITY 1. Commercial General Liability. Tenant is to maintain commercial general liability ( CGL ) insurance and, if necessary, commercial excess insurance, issued on an Occurrence Basis meeting at least the following specifications. 1.1 Minimum Limits The limits of coverage shall not be less than the following amounts: $5,000,000 Per Occurrence $5,000,000 General Aggregate $5,000,000 Products and Completed Operations Aggregate $5,000,000 Personal and Advertising Injury 1.2 General Aggregate A Designated Location(s) General Aggregate Limit shall be provided on ISO form CG Form This insurance is to be issued on the most recent reasonably available and unmodified ISO form CG or equivalent and shall cover liability arising from use or occupancy of premises, ongoing and completed operations. 1.4 Insured Contracts Coverage shall include but not be limited to liability assumed by Tenant under the Agreement, including the tort liability of another assumed in a business contract, and shall include unmodified Separation of Insureds coverage. 1.5 Additional Insureds Additional Insured status shall be provided in favor of Landlord Parties on ISO form CG Personal Injury Contractual Liability The personal injury contractual liability exclusion shall be deleted.

34 1.7 Primary and Noncontributory This insurance shall be endorsed to provide primary and noncontributing liability coverage by ISO CG It is the specific intent of the parties to the Agreement that all insurance required herein shall be primary to and shall seek no contribution from any other insurance (primary, umbrella, contingent or excess) maintained by Landlord Parties, with Landlord Parties insurance being excess, secondary and noncontributing. 1.8 Waiver of Right of Recovery and Subrogation Tenant agrees to waive its rights of recovery and shall cause this insurance to be endorsed to waive all rights of subrogation in favor of Landlord Parties on ISO form CG Notice of Cancellation This insurance shall be endorsed to provide a 30 day notice of cancellation to Landlord Prohibited Exclusions and Limitations Prohibited exclusions/limitations or their equivalents include but are not limited to: a. Amendment of Insured Contract Definition ISO CG b. Classification or Business Description c. Contractual Liability Limitation ISO CG d. Endorsement modifying the Employer s Liability exclusion or deleting the exception to it e. Insured vs. Insured except Named Insured vs. Named Insured f. Limitation of Coverage to Designated Premises or Project ISO CG g. Punitive, Exemplary or Multiplied Damages

35 SAMPLE HANDBOOK POLICY Employees are not permitted to carry (either openly or in a concealed manner) any firearms while on the premises, while at client work locations on owner s business, while in owner vehicles, or while acting as an owner representative at any work-related activities, meetings, or functions. This prohibition against the possession or carrying of firearms applies even if the employee is licensed to carry a concealed handgun or to openly carry a handgun by the state of Texas. Texas state law permits employees to transport and store in a safe and discrete manner a legal firearm and ammunition in a personal vehicle while the vehicle is in the premises parking lot. This policy is intended to comply with all applicable state laws concerning employee rights to possess and carry firearms and shall be interpreted and enforced accordingly. Employees are prohibited from making any statements or actions that draw attention to the presence of a lawfully transported weapon or that threaten or intimidate other employees, clients, or visitors with regard to the employee s lawful possession of a weapon.

36 Q & A