"Criminal Trespassing - illegally posted properties"

[tkdmavrick]

Tim Nunan and I are having a disagreement about what the law is pertaining to restaurants that try to post with an illegal sign or have a stated "no guns" policy without the proper signage at the door.

Here's the hypothetical situation. I go carrying into a restaurant. The restaurant is not legally posted and there is no otherwise indication (circle and slash). My coat opens when I sit down and the server sees my gun and reports it to the manager. The manager comes over and says that I have to leave the restaurant because they have a "no guns" policy.

I maintain that I do NOT have to leave, that I was "invited" in as a member of the public, and that the "shall be announced" provision of the posting law was removed, and if I am not creating a disturbance, I have every right to be there (I obviously wouldn't come back), and have every right to finish my meal, since, if I ordered it, I have the legal responsibility to pay for it.

Tim Nunan feels that if I am asked to leave and refuse, I am criminally trespassing and that the restaurant can make up their own rules as to who they can and can not allow onto the property. I disagree since this would allow restaurants to ban blacks, for example. I maintain that the trespass laws for a business that is open to the public are not the same as for those of a PRIVATE landowner. As a business open to the public and they ask the general public to come in, I am there as an "invitee".

Of course I can search the online TCA, but I suspect a lot of this is determined by case law and my friend and I will research the UT law library this weekend.

John Harris, care to chime in?

[C. Richard Archie]

I am not John, but having researched this question extensively, (John can correct me if I am wrong) I concur with Tim. Verbal instructions from a competent person in "charge" of a venue are binding. To the point that if no posting is evident, they can tell you what the rules are, and you must obey the instructions. A venue may allow concealed carry, but not open carry, they are not required by law to post that, and upon their discovery of you in an open carry mode, can ask you to leave or conceal. If you do not honor their request, you can be found in violation and subject to criminal trespass charges. Similarly, should you be carrying in a concealed manner, and the "In Charge" person discover you are armed, and they ask you to leave as they have a policy against weapons, if you do not, you would be subject to criminal trespass charges. Once you are verbally informed of a policy, and asked to leave, (even if there is no legal posting), you must obey the request.

[FLMason]

Any properity not owned,operated or leased by a federal,state,or local gov is going to be private properity. They can refuse service to anyone and ask them to leave at any time and you must do so. Now if they ask you to leave because of your race,sex,religon or age then they would leave themself's open for a civil rights lawsuit. JMO

[lilredhunter]

As a former manager of a restaurant I must agree with Mr. Archie and Mr. Nunan. No matter of the posting if you are asked to leave any place whether it is private property or a business , once you asked to leave & you refuse to leave then you are criminally Trespassing.

[JayC]

As the others Not leaving when asked to is clearly a violation of the law, and the reason they can do that to HCP holders and not African Americans is because race is a protected class from discrimination and being a HCP holder isn't.

Now, if you could prove the reason you were asked to leave was because of your race, disability status, or some other reason currently protected under the law, then you could file a lawsuit against the restaurant for discrimination... Then all you have to do is prove it...

Restaurants are running a risk with asking people to leave, because one day they'll do it to somebody in a protected class in such a way that calls said persons class into question (and they';ll have an audio recorder on them when it happens)... and the lawsuit will hurt, and hurt bad.

[David Lewis]

Richard, Tim, et al., are correct. Like Richard, I've had this discussion with John, & he told me to leave if it ever happened.

Now, I don't recall if we discussed whether or not I was obligated to pay for the meal, if I'd already ordered or it was on the table,
& I was then asked to leave. I've heard some opine that they'd simply do as asked, and leave (which is the right thing to do),
but there was no way they were going to pay for the meal. I'm inclined to hold that opinion, too, but I don't know the legality of it.

David

[lilredhunter]

John or David correct me if I am wrong on the food portion of this. I was told when I was a manager of a restaurant, that unless the food is actually on the table in front of the patron it has not been served. If the food has not been served then you are not required to pay. Because the food "order" could be canceled or changed. If the food is on the table then you are considered served so you are obligated to pay.

[Dan Lee]

I definitely agree that you must leave private property if an authorized agent of the property asks you to leave. That is as it should be.. If the posting is improper, you would not however be able to be charged with a "criminal trespass" as far as I know..

[lilredhunter]

It doesn't matter if the place is posted, posted wrong or what. If you are asked or told to leave and you do not comply with that you can be charged with trespassing. If you enter an establishment and are asked to leave for whatever reason then you are required to comply. You fail to comply you can be charged with trespassing. I do not know what it takes to escalate the charge to criminal trespassing.

[morg]

[lilredhunter]

Morg what you have is an attempt to Dine & Dash. What would happen here in this situation is you would be charged with attempted fraud.

[FLMason]

Most of the time if you are asked to leave even if you have not paid for your meal then you would just leave as asked even if you had started to eat . If it is a place where you have pre paid for your meal than they have to give you a refund unless you have already finshed your meal. JMO

[tkdmavrick]

While I will admit that I am wrong when proved to be, and I understand that the consensus opinion is that I am, I have not yet seen a poster yet quote to me a specific section of TCA nor cited any specific case law. I am still not quite convinced because I believe that a place "open to the public" does NOT have the same "trespass" laws as a totally private place like a residence. I am doing the legal research to find out more.

Granted, and folks don't take me wrong, if I was asked to leave, I would offer a few choice words to the manager that no one else could hear, and leave without paying for my meal, and never return. But my and your feelings about the law are probably different than what TCA and case law actually is.

Sort of like the guy carrying in NY state who is then caught doing so, then screaming about his 2nd amendment rights while behind bars. Or sadly, yelling about the Heller decision while sitting in a Chicago jail.

[lilredhunter]

If I am asked to leave, I would do so and I would not say a word. I would walk out quietly, leave and tell everyone I know. The worst thing anyone with a permit can do to bring more scrutiny is to show anger. We all know that anger is one of the first things that the anti-gunners say is about our anger and that someone with an HCP is going to get mad and lose their temper and start shooting. That jacka$$ in Williamson County (Cool Springs) didn't help our cause at all, it gave to gun grabbers fuel for their flame, when he pulled his weapon, on either an angry employee or former employee.

[KevinMcCauley]

I personally believe they have an inherent right to ask you to leave regardless of what is contained in the restaurant bill. It is their property. They can be fools and ask you to leave and lose your business but it is their right to do it.

[tkdmavrick]

OK ..... nobody else was inclined to look up TCA so for my own edification here it is:

39-14-405. Criminal trespass. —
(a) A person commits criminal trespass who, knowing the person does not have the owner's effective consent to do so, enters or remains on property, or a portion thereof. Knowledge that the person did not have the owner's effective consent may be inferred where notice against entering or remaining is given by:
(1) Personal communication to the person by the owner or by someone with apparent authority to act for the owner;
(2) Fencing or other enclosure obviously designed to exclude intruders;
(3) Posting reasonably likely to come to the attention of intruders; or
(4) Posting the property, in accordance with the requirements of § 70-4-106(b)(1)(B)(ii).
(b) It is a defense to prosecution under this section that:
(1) The property was open to the public when the person entered and remained;
(2) The person's conduct did not substantially interfere with the owner's use of the property; and
(3) The person immediately left the premises upon request.
(c) For purposes of this section, “enter” means intrusion of the entire body.
(d) Criminal trespass is a Class C misdemeanor.

[Acts 1989, ch. 591, § 1; 2005, ch. 297, §§ 1-3.]

39-14-406. Aggravated criminal trespass. —
(a) A person commits aggravated criminal trespass who enters or remains on property when:

(1) The person knows the person does not have the property owner's effective consent to do so; and

(2) The person intends, knows, or is reckless about whether such person's presence will cause fear for the safety of another.

(b) For purposes of this section, “enter” means intrusion of the entire body.

(c) Aggravated criminal trespass is a Class B misdemeanor unless it was committed in a habitation, in a building of any hospital, or on the campus, property, or facilities of any private or public school, in which event it is a Class A misdemeanor.

(d) (1) A person also commits aggravated criminal trespass who enters or remains on the real property, including the right-of-way, of a railroad:

(A) With the intent to do harm to the property or to railroad property located on the property; or

(B) With the intent to do harm to another person or knowing that their presence will harm another person.

(2) Aggravated criminal trespass on railroad property is a Class A misdemeanor.

(e) (1) A person also commits aggravated criminal trespass who trespasses upon a construction site, or property used or owned by a public or private utility or an electric or telephone cooperative, with the intent to steal, deface, destroy, tamper with, alter or remove any equipment, supplies or other property found on the site or property.

(2) (A) In order for subdivision (e)(1) to apply, the construction, utility, or electric or telephone cooperative property must be posted by use of a sign of a size that is plainly visible to the average person at all gates or entrances to the property and shall contain language substantially similar to the following:

UNLAWFUL ENTRY ON THIS PROPERTY CONSTITUTES THE CRIMINAL OFFENSE OF AGGRAVATED CRIMINAL TRESPASS AND IS PUNISHABLE BY IMPRISONMENT FOR UP TO ONE YEAR AND A $2,500 FINE.

(B) If the proof shows that the defendant entered the posted property at some place other than a gate or entrance, it is not a defense to this subsection (e) that the defendant did not know that the property was posted against trespass.

(3) Aggravated criminal trespass on a construction site is a Class A misdemeanor.

[Acts 1989, ch. 591, § 1; 2006, ch. 668, § 1; 2008, ch. 690, § 3.]

[Edited only to remove excessive white space. Please! there's no need to run to 2 screens or more with blank lines! David Lewis]

[tkdmavrick]

OK Folks,

Sorry about the squirrely spacing on the Aggravated Criminal Trespass citation .... the web page just wouldn't let me edit out the spaces.

Anyway, if asked to leave by the restaurant manager, I must leave (to paraphrase an old British navy saying : "grumble I may, but go I must"). If I refuse to leave then I am guilty of aggravated criminal trespass.

But folks, and I supsect John Harris will chime in here, the nitty, gritty, details of the law, and specifically certain sections, are determined by case law. The sections cited don't give exceptions, but seem to indicate that the property owners' rights are sacrosanct; they are not. Nothing in the citations say that the restaurant owner can't say: "We don't serve no N*****s here, get out", yet we all know that that is not allowed. Yes, I know it is trumped by federal anti-discrimination law, but is the trespass law trumped by the requirements of the posting law (39-17-1359)?

As per gun owners, at one time the "property posting" law was "posted or announced" and the "announced" part was stricken from the law. In effect, if I am asked to leave because the manager says the restaurant has a "no gun" policy then why have the law about posting (specifically since the "shall be announced" portion was removed - the restaurant manager is effectively "announcing"). Why did the legislature even bother with a posting requirement in the first place, if restaurants can restrict anyone they want based upon "property rights" and "trespass laws"?

There certainly is more case law to study here.

[C. Richard Archie]

[tkdmavrick]

Thank you Mr. Archie,

I PUBLICLY STAND CORRECTED!

<head hung low - chin on chest>

[C. Richard Archie]

We are all on the same side here, or should be!

We all need to know as much about the laws as we possibly can. Not saying I AGREE with them, but we need to be aware of what the facts are, it makes us more efficient in discussing the situations that are handled by our Legislators. If we become educated as to the fats, we are then more valuable to ourselves, and to our children, in trying to change what is wrong with the system.

I have for most of my life, been pretty opinionated with respect to the 2nd Amendment and the corresponding issues. Having strong thoughts, and making statements that were right as to direction, but lacking facts to support my stance, has burned me more than once. Now, I try to research and prove my beliefs before I announce them. I have also been surprised at just how rickety the foundation of our belief system has become. It will take us all who love Freedom and Liberty, doing the best we can, to shore up the Rights our Founders intended us to have.