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Texas: Alcoholic Beverage Commission Proposes New Rules that Negatively Impact Friends of NRA Events, Shooting Clubs and Gun Shows

Monday, August 11, 2014

The state agency charged with regulating the sale, distribution and possession of alcoholic beverages in Texas is proposing new regulations that could drastically affect fundraising events held by charitable organizations as well as the operation of certain shooting clubs and gun shows.  While these new regulations were ostensibly drafted to allow alcohol sales at certain events and venues where firearms transactions take place, the plain language of the proposed rule amendments is far-reaching and could have drastic consequences.  These proposed rule changes have not been finalized and there will be an opportunity for public comment as the rulemaking process moves forward -- for which we encourage you to participate.  More information on how to engage is at the end of this alert.

The proposed rules, as currently written, could have a devastating impact on Friends of NRA (FONRA) events in the Lone Star State.  These events are organized by hundreds of dedicated volunteers and held roughly twice a week across Texas.  Monies raised at these events go to the NRA Foundation, a 501(c)(3) charitable organization, which supports local program funding for youth education, law enforcement training, hunter education, conservation, firearms and marksmanship training and safety.

If you’ve never been to one, a typical FONRA event begins with a reception that includes games, raffles and a silent auction.  Attendees, who number in the hundreds for each event, are served dinner and sometimes addressed by a speaker.  The evening often ends with a live auction.  Firearms are typical prizes or auction items.  Alcohol is often sold and served at these events.

Title 16, Part 3, Chapter 36, Rule 36.1 of the Texas Administrative Code governs the possession and sale of firearms at facilities and businesses licensed by the Texas Alcoholic Beverage Commission (TABC).  It allows firearms to be possessed on premises licensed for consumption of alcohol on the premises if the firearm is, (a) possessed for ceremonial or display purposes; (b) disabled from use as a firearm while on the premises; (c) possessed on the licensed premises in connection with charitable fundraising; and (d) remains in the possession, control or supervision of person or persons acting on behalf of the charitable organization sponsoring the fundraising activity.

The organizers of FONRA events have complied with these rules for decades and relied on TABC for guidance and consistent interpretation of the law.  From a letter issued by TABC in 1995:

“We are aware that many ‘outdoor’ groups…hold annual banquets at locations such as the Marriott or other places holding a license to sell alcoholic beverages.  We have determined, within the meaning of the law and the rules adopted by our commission, that any firearm simply on display at a banquet, function of the charity, or that may be ‘raffled off’ or presented to an outstanding member or officer, would not be in violation if the firearm is rendered incapable of being fired.  For example, a trigger guard on a handgun or plugs in the barrel of a shotgun or rifle would suffice.”

From a letter issued by TABC to NRA attorneys in 2003:

“…a disabled firearm may be displayed during a banquet for auction, raffle or sale purposes” and acknowledges that “this situation is different from ‘gun shows’ governed by [current] rule 36.1(a).”

Since the issuance of these letters, agents from TABC have, on occasion, questioned activities at FONRA dinners. Once provided with these letters, events have always been allowed to continue.

We have been unable to identify any law change in the last ten years or any problems with how FONRA dinners or similar events sponsored by other organizations have been conducted that would prompt TABC to propose new rules to severely restrict possible venues they could take place in and require written agreements between organizers of these events and TABC licensees to be filed and approved by TABC thirty days prior to them occurring at these venues!

  • Under the proposed changes in regulations, FONRA dinners and similar events with firearms displayed for auction or raffle could no longer be held in private venues such as hotel ballrooms if the property owner has been issued a TABC license – even if the events were dry!  And if event organizers wanted to sell or serve alcohol and display firearms as prizes, they would be limited to locations “owned or leased by a governmental entity or non-profit civic, religious, charitable, fraternal, or veterans’ organization.”  Governmental entities such as Travis County have recently considered banning gun shows from public facilities entirely.  It’s not hard to imagine local officials using their authority or terms of contracts to limit the ability of pro-Second Amendment or pro-sportsmen’s organizations to hold fundraising events where alcohol and firearms are present – even if the event organizers signed written agreements to adhere to the new conditions and limitations being proposed by TABC.
  • The proposed rule revisions would require signed written agreements between the event organizer and the TABC licensee that include language prohibiting “live ammunition in the building or facility where the licensed premises are located.”  This prohibition is not limited to firearms on display but would apparently apply to ammunition brought by individual attendees, most notably in their personal firearms.  As licenses generally apply to entire locations, and events often take up just one room or part of a facility, the prohibition would apply to anyone carrying ammunition at the location, whether or not they were there for the event.
  • While the current rule requires that firearms be “disabled from use as a firearm while on the licensed premises,” the new rule would require as part of the signed written agreement not only that the firearm be disabled but that it not be “readily convertible for use as a firearm.” Such a term has been interpreted by courts to mean a firearm is readily convertible if it can be made so in eight hours in a well-equipped machine shop.  Essentially, then, the firearms must be disabled to the point of destruction.  So that beautiful shotgun or rifle your local retailer donated as a live auction item for your charity event would have to be disassembled and disabled so that it cannot be readily convertible for use as a firearm in order to appear on the auction table.
  •  Such signed written agreements between the event organizers and TABC licensees would have to be filed with and approved by the Commission thirty days prior to any event.  If the Commission failed to act on agreements or refused to approve agreements, it is essentially empowered to prohibit fundraising events involving firearms.  Furthermore, the organizers of these events would be left with choosing between possibly violating the Texas Administrative Code or paying facilities for space and catering for events that cannot take place.  A prohibition on the delivery of any firearms inside buildings or facilities where the licensed premises are located must also be part of the terms and conditions between event organizers and TABC licensees.
  • In addition to a whole host of unnecessary and intrusive restrictions on the location and operation of FONRA dinners and similar events, the proposed rule revisions also target shooting ranges and gun clubs that may have a facility which requires a TABC permit.  Owners or operators of these establishments would have to ensure that alcoholic beverages are not sold or possessed in any area where firearms are “readily accessible.”  So if on one end of your clubhouse you have a dining area where food and alcohol are sold or served for small events and regular member meetings, and on the other end you have a counter behind which firearms are racked and displayed on the wall for rental, sale or transfer, you would be in violation of TABC rules, even if alcohol consumption and firearms handling or sales are not co-mingled in any way.
  • These proposed regulations also would require shooting ranges and clubs to enforce unspecified “safety guidelines.”  All clubs and ranges have rules, including rules for the safe handling and discharge of firearms.  This new enforcement requirement could open clubs and ranges up to liability for individual misuse of firearms which could, in turn, increase insurance costs and require greater staffing by Range Safety Officers, whether as volunteers or employees.
  • And even though, as mentioned earlier, these new regulations were ostensibly drafted to allow alcohol sales at gun shows, they could actually end these events as we know them – even if the promoter had NO plans to sell alcohol on-premises.  In the proposed rule language, the mere fact that the event is taking place at TABC-licensed premises triggers the new restrictions, NOT whether alcohol would be sold and served during the show.  Gun shows could no longer be held in a private venue that has a TABC license, period.  At the same time that some local politicians are trying to chase these events out of public facilities, we have a state agency trying to force them out of most large private venues.  Like FONRA event organizers, gun show promoters and collectors organizations would be limited to locations “owned or leased by a governmental entity or nonprofit civic, religious, charitable, fraternal, or veterans’ organization.”  Furthermore, gun shows could only be held at these locations “on an occasional basis.”  If TABC determines that shows are being held too often, they could be prohibited.  Such gun shows would also have to have an agreement with the licensee that “prohibits live ammunition in the building or facility.”   So, if a gun show is allowed, ammunition, including that for sale, would be prohibited.  Even worse, the agreement, which, again, TABC may or may not approve or even act on, would also require a prohibition on “the delivery of any firearm inside the building or facility.”  And, just as with charity events, the firearms at the gun shows must be disabled and not readily convertible for use as a firearm.  So, even if a gun show is allowed, there apparently could be no ammunition for sale and no delivery of firearms inside the building or facility. 

A copy of the proposed rules can be found here and they will be published in the Texas Register on Friday, August 8, which will trigger a thirty-day public comment period.  We encourage you to review them, determine how they could negatively impact your local FONRA dinner or similar gun owner/sportsmen organization’s charitable event, your shooting range or gun club, and the gun shows you promote or attend.   Comments on the proposed changes may be FAXED to (512) 206-3280, emailed to TABC contacts, Carolyn Beck and Martin Wilson, or sent in writing by mail to:

Martin Wilson
Assistant General Counsel
Texas Alcoholic Beverage Commission
Post Office Box 13127
Austin, Texas, 78711-3127 

Additionally, TABC attorneys and staff will conduct an open public hearing on Tuesday, August 19 at 1:30 p.m. in the Commission meeting room at TABC headquarters, located at 5806 Mesa in Austin.  Those who wish to do so may express their concerns about these proposed new regulations by attending this meeting.

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