Can privately owned business allow open carry?

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  • wildrider666

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    Specifically: Can a privately owned FL business, that is open to the public: "allow blanket authority for OC" by patrons on their premises?

    Do non-gun people have a lawful expection of no OC (other than enroute hikers/fisherman/range folks) while at business open to the Public?

    This gun friendly business mentioned below made me wonder how friendly can they be?
    https://www.gulfcoastgunforum.com/showthread.php?53-Official-Pics-Thread&p=480131#post480131
     

    RackinRay

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    Specifically: Can a privately owned FL business, that is open to the public: "allow blanket authority for OC" by patrons on their premises?

    Do non-gun people have a lawful expection of no OC (other than enroute hikers/fisherman/range folks) while at business open to the Public?

    This gun friendly business mentioned below made me wonder how friendly can they be?
    https://www.gulfcoastgunforum.com/showthread.php?53-Official-Pics-Thread&p=480131#post480131

    Not sure if you have been there, or are reading the sign I posted.

    Nothing I see mentioned open carry, and none of the employees I saw were carrying open. If some do, such as owner or someone they authorize I would believe it to be legal withing the confines of the property. I mentioned the gun sign and staff member mentioned that some so carry, but did not mention open carry specifically.

    I would never open carry, and do not believe it is a good idea even where legal.
     

    Bowhntr6pt

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    Interesting legal tid-bit... you can legally carry at your place of business IAW state law without the express permission of your employer...

    State v. Commons,592 So. 2d 317 (Fla. 3DCA 1991)

    Of course if it violates company policy you could get fired. Of course the parking lot law is different.

    The best book any Floridian can get is FLORIDA FIREARMS Law, Use & Ownership by Jon H. Gutmacher, Esq. Our agency once issued every Deputy a copy.
     

    wildrider666

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    RackingRay

    I was just wondering how far "similar'" gun friendly business can go regarding customer carry, such as allowing OC on their premises. I used your recent Post as Gun Friendly example. I didn't intend any misrepresentation of that fine establishment or their policies. I thought last paragraph of OP covered it.
     
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    Bowhntr6pt

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    I was just wondering how far "similar'" gun friendly business can go regarding customer carry, such as allowing OC on their premises. I used your recent Post as Gun Friendly example. I didn't intend any misrepresentation of that fine establishment or their policies.

    I'm no lawyer and I can't find any case law... but FSS 790.25 (3)(n) says... (n) A person possessing arms at his or her home or place of business;.

    I think the problem is with the "at his or her" portion, as it does not say anything about third party person(s) exceptions or authorizations. There is no authorization clause to cover those who are NOT at THEIR home or THEIR place of business. Maybe there is case law but I can't find it.
     

    wildrider666

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    I'm no lawyer and I can't find any case law... but FSS 790.25 (3)(n) says... (n) A person possessing arms at his or her home or place of business;.

    I think the problem is with the "at his or her" portion, as it does not say anything about third party person(s) exceptions or authorizations. There is no authorization clause to cover those who are NOT at THEIR home or THEIR place of business. Maybe there is case law but I can't find it.

    Any property owner may "Authorize" any other lawful citizen or group for that matter: to carry firearms (OC/CC) on their (owned/lawful possession) property for lawful purposes (like preparedness for self defense or Show and Tell). That's how we have those gun envy BBQs. Lol. We shouldn't "read anything into Laws" that is not explicitly written in them. You are still King of your Castle!

    There is no need for exemptions nor any grey areas. If a person is NOT authorized on the private property that's Trespass or Trespass with a firearm or dangerous weapon. You can tell the Landlord to get off your (rented) property if its not a maintenance emergency or pre scheduled maintence/inspection (lease agreements vary on access).
     

    Bowhntr6pt

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    Any property owner may "Authorize" any other lawful citizen or group for that matter: to carry firearms (OC/CC) on their (owned/lawful possession) property for lawful purposes (like preparedness for self defense or Show and Tell). That's how we have those gun envy BBQs. Lol. We shouldn't "read anything into Laws" that is not explicitly written in them. You are still King of your Castle!

    There is no need for exemptions nor any grey areas. If a person is NOT authorized on the private property that's Trespass or Trespass with a firearm or dangerous weapon. You can tell the Landlord to get off your (rented) property if its not a maintenance emergency or pre scheduled maintence/inspection (lease agreements vary on access).

    I don't disagree with your post. Just pointing out like Jon does in his book, our laws could be written better.

    My post was for simple thought and consideration and certainly not a statement of fact.

    As you know OC is illegal per se... it's only allowed via a "statutory exemption"... the law, as written and without interpretation, specifically says who the exemption allies to... it could articulate the exception better, that was my point.
     

    Bowhntr6pt

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    Any property owner may "Authorize" any other lawful citizen or group for that matter: to carry firearms (OC/CC) on their (owned/lawful possession) property for lawful purposes (like preparedness for self defense or Show and Tell). That's how we have those gun envy BBQs. Lol. We shouldn't "read anything into Laws" that is not explicitly written in them. You are still King of your Castle!

    There is no need for exemptions nor any grey areas. If a person is NOT authorized on the private property that's Trespass or Trespass with a firearm or dangerous weapon. You can tell the Landlord to get off your (rented) property if its not a maintenance emergency or pre scheduled maintence/inspection (lease agreements vary on access).

    You might find this interesting... it says what I was eluding to...

    https://www.floridafirearmslaw.com/...ow-open-carry-on-private-property-in-florida/
     

    Bowhntr6pt

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    Dang it... Can't edit my post so I'm adding this here...

    I didn't want to just come right out and say you can't authorize folks to OC on your property for the sake of OC'ing, and absent engaging in any of the exempted activities, by law you can't, I know because I've arrested for it once in the past.

    I didn't want to kick the hornet's nest and draw fire for being "anti 2nd"... but let's just say the guy needed to go to jail that night, trust me on it, despite the owner of the property not having issues with the guy being there or OC'ing, the arrest was lawful and IAW the statute for the reasons I mentioned.

    If not for the particular circumstances in our case that night, I would have not arrested as I'm as Pro 2nd as they come. As Jon points out, the law as written is flawed.
     

    jmfillin1

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    I open carried at my former job. it was a precious metals and stone shop

    Sent from my Pixel 3 XL using Tapatalk
     

    RackinRay

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    RackingRay

    I was just wondering how far "similar'" gun friendly business can go regarding customer carry, such as allowing OC on their premises. I used your recent Post as Gun Friendly example. I didn't intend any misrepresentation of that fine establishment or their policies. I thought last paragraph of OP covered it.

    No worries, I was curious if I missed something. That is what I get for weighing in before two cups of coffee! LOL
     

    wildrider666

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    Dang it... Can't edit my post so I'm adding this here...

    I didn't want to just come right out and say you can't authorize folks to OC on your property for the sake of OC'ing, and absent engaging in any of the exempted activities, by law you can't, I know because I've arrested for it once in the past.

    I didn't want to kick the hornet's nest and draw fire for being "anti 2nd"... but let's just say the guy needed to go to jail that night, trust me on it, despite the owner of the property not having issues with the guy being there or OC'ing, the arrest was lawful and IAW the statute for the reasons I mentioned.

    If not for the particular circumstances in our case that night, I would have not arrested as I'm as Pro 2nd as they come. As Jon points out, the law as written is flawed.

    I'm not a lawyer. I'm giving my opinion/interpetion and strict interpretation doesn't make sense, more below.
    The Link in your #12 is an individual opinion recommending a clarification to the Law.

    More info please: You made an arrest, was he convicted on the OC Charge? Pled to lesser Charge, Appealed?

    The Law by the "Strict interpetation": a neighbor would commit a criminal act comming to your aid (not his property) with a firearm as would a non-CC who retrieves a lawfully "enclosed" handgun from his vehicle to fight a mass murderer in a business, Church or other property he doesn't own or work at. You can OC, draw and shoot on a friends private residence Range but its unlawful to OC there and not shoot! A husband whose name is not on the property Deed (in wife's name only) would commit a crime if he carried or posessed a gun in the house or property. Strict interpretation of "only his/her property" fails when the conduct in question has no other criminal element and deference is provided in the Construction Clause.

    Here is an OC Charge but there are other potential criminal acts:
    https://www.clickorlando.com/news/local/2020/01/10/man-accused-of-firing-rifle-in-downtown-orlando/

    Fl OC Case Appeal to SCOTUS
    Litigation history https://www.floridacarry.org/litigation/21-statecourt/70-norman-v-state
    FSC Action http://www.floridasupremecourt.org/decisions/2017/sc15-650.pdf

    The Law doesn't say strict interpretation but it does say: (4) CONSTRUCTION.—This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act is supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights.

    The above "(4) Construction. Also dovetails into relief of inordinate burden imposed by Laws by regulating your guests CC contrary to your beliefs and their Rights to Bear Arms under your authority and permission while on your Private property.
    70.001 Private property rights protection.—
    (1) This act may be cited as the “Bert J. Harris, Jr., Private Property Rights Protection Act.” The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. ............

    There is also an "extention" of Residence (includes private property) in 776.013 Justifiable Use Of Force, to cover an invited guest.
    (b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

    You can CC on private property without owners permission but you can't OC on private property WITH owners permission. Hmmmm.
     

    Zeroed in

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    ^^^ You can CC on private property without owners permission but you can't OC on private property WITH owners permission. Hmmmm. ^^^

    You left out Exceptions of "lawful purposes" such as handgun (pistol) hunting on someone's property.
     

    Bowhntr6pt

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    I'm not a lawyer. I'm giving my opinion/interpetion and strict interpretation doesn't make sense, more below.
    The Link in your #12 is an individual opinion recommending a clarification to the Law.

    More info please: You made an arrest, was he convicted on the OC Charge? Pled to lesser Charge, Appealed?

    You can CC on private property without owners permission but you can't OC on private property WITH owners permission. Hmmmm.

    The case was some 13-14 years ago... I believe the individual pled. If the case was dropped I would have been advised, I wasn't.

    Responded to a complaint of a stranger in someone's yard. He was sleeping with a pistol in his lap... in a car, on someone's property, our Sgt. at the time said we couldn't charge him, my partner and I said we could, no-shit, she got pissed and left the scene saying something to the effect "I'm out of here, do what you want", we made the arrest. I know she dug into it after the fact and not a word was said. She would have championed her case had she received information to the contrary.

    The information from the link is the law, it's not Jon's "opinion". When Jon gives an opinion he will clearly indicate that it as such.

    The real issue I'm sure we can agree is the law, as written, is stupid and needs changing as Jon points out.

    Another point to be made is how to read law. Remember the saying... "the law says what it says and does not say what it does not say". In this case we have a law that says:

    790.053 Open carrying of weapons.—
    (1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device.


    This means, unless another law applies (I'll get to the exceptions in a second), you can't OC... period. On face value, OC is illegal, ANYWHERE in the state. Kind of like DUI and Reckless Driving... which can be charged ANYWHERE in the state of Florida.

    So now, let's look at what gives us "Except as otherwise provided by law." And now enter FSS 790.25(3)(n) which in part says:

    (3) LAWFUL USES.—The provisions of ss. 790.053 [OPEN CARRY] and 790.06 [CC] do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:

    And then we go down and find (n) that "exempts" people at home from the prohibition of OC/CC as indicated in the those two laws.

    (n) A person possessing arms at his or her home or place of business;

    The "exemption" in (n) ONLY and SPECIFICALLY addresses someone at HIS/HER HOME. That's the problem... it's stupid. Actually the word "property" isn't mentioned. You can be "home" but not on property you own.

    Right, wrong, indifferent, as it technically stands until the law gets changed/amended, OC on a third person's property for the sole sake of OC, while not engaged in one of the exemptions is actually illegal.

    I'm fully aware of the other points you made above and agree with you. Again, just to be clear, I think the law is stupid, infringes on property owner rights in regards to saying who can and can't do what on their property such as OC, and I go out of my way to educate fellow officers on the (4) CONSTRUCTION clause of the law... I love that part when I share it with others (cops) who don't understand it's ok to choose EDUCATION over ENFORCEMENT.

    Just pointing out some things for discussion and this in NO WAY means I support the specifics mentioned.
     
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    wildrider666

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    The case was some 13-14 years ago... I believe the individual pled. If the case was dropped I would have been advised, I wasn't.

    Responded to a complaint of a stranger in someone's yard. He was sleeping with a pistol in his lap... in a car, on someone's property, our Sgt. at the time said we couldn't charge him, my partner and I said we could, no-shit, she got pissed and left the scene saying something to the effect "I'm out of here, do what you want", we made the arrest. I know she dug into it after the fact and not a word was said. She would have championed her case had she received information to the contrary.

    The information from the link is the law, it's not Jon's "opinion". When Jon gives an opinion he will clearly indicate that it as such.

    The real issue I'm sure we can agree is the law, as written, is stupid and needs changing as Jon points out.

    Another point to be made is how to read law. Remember the saying... "the law says what it says and does not say what it does not say". In this case we have a law that says:

    790.053 Open carrying of weapons.—
    (1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device.


    This means, unless another law applies (I'll get to the exceptions in a second), you can't OC... period. On face value, OC is illegal, ANYWHERE in the state. Kind of like DUI and Reckless Driving... which can be charged ANYWHERE in the state of Florida.

    So now, let's look at what gives us "Except as otherwise provided by law." And now enter FSS 790.25(3)(n) which in part says:

    (3) LAWFUL USES.—The provisions of ss. 790.053 [OPEN CARRY] and 790.06 [CC] do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:

    And then we go down and find (n) that "exempts" people at home from the prohibition of OC/CC as indicated in the those two laws.

    (n) A person possessing arms at his or her home or place of business;

    The "exemption" in (n) ONLY and SPECIFICALLY addresses someone at HIS/HER HOME. That's the problem... it's stupid. Actually the word "property" isn't mentioned. You can be "home" but not on property you own.

    Right, wrong, indifferent, as it technically stands until the law gets changed/amended, OC on a third person's property for the sole sake of OC, while not engaged in one of the exemptions is actually illegal.

    I'm fully aware of the other points you made above and agree with you. Again, just to be clear, I think the law is stupid, infringes on property owner rights in regards to saying who can and can't do what on their property such as OC, and I go out of my way to educate fellow officers on the (4) CONSTRUCTION clause of the law... I love that part when I share it with others (cops) who don't understand it's ok to choose EDUCATION over ENFORCEMENT.
    Just pointing out some things for discussion and this in NO WAY means I support the specifics mentioned.

    We agree on the majority of points. I hold a slightly different opinion in a few areas but not strong enough to volunteer my liberty as a test case.
    I appreciate your comments and thank you for your detailed responses.

    We know from Judicial comments the Courts have identified "problems with the Law as written but still Ruled in favor of the State. We have to wait and see if SCOTUS decides to accept the Case, they chose very few 2A Cases. As the issue now stands, the answer to my OP question would be No.
     

    Jdcujo

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    The case was some 13-14 years ago... I believe the individual pled. If the case was dropped I would have been advised, I wasn't.

    Responded to a complaint of a stranger in someone's yard. He was sleeping with a pistol in his lap... in a car, on someone's property, our Sgt. at the time said we couldn't charge him, my partner and I said we could, no-shit, she got pissed and left the scene saying something to the effect "I'm out of here, do what you want", we made the arrest. I know she dug into it after the fact and not a word was said. She would have championed her case had she received information to the contrary.

    The information from the link is the law, it's not Jon's "opinion". When Jon gives an opinion he will clearly indicate that it as such.

    The real issue I'm sure we can agree is the law, as written, is stupid and needs changing as Jon points out.

    Another point to be made is how to read law. Remember the saying... "the law says what it says and does not say what it does not say". In this case we have a law that says:

    790.053 Open carrying of weapons.—
    (1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device.


    This means, unless another law applies (I'll get to the exceptions in a second), you can't OC... period. On face value, OC is illegal, ANYWHERE in the state. Kind of like DUI and Reckless Driving... which can be charged ANYWHERE in the state of Florida.

    So now, let's look at what gives us "Except as otherwise provided by law." And now enter FSS 790.25(3)(n) which in part says:

    (3) LAWFUL USES.—The provisions of ss. 790.053 [OPEN CARRY] and 790.06 [CC] do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:

    And then we go down and find (n) that "exempts" people at home from the prohibition of OC/CC as indicated in the those two laws.

    (n) A person possessing arms at his or her home or place of business;

    The "exemption" in (n) ONLY and SPECIFICALLY addresses someone at HIS/HER HOME. That's the problem... it's stupid. Actually the word "property" isn't mentioned. You can be "home" but not on property you own.

    Right, wrong, indifferent, as it technically stands until the law gets changed/amended, OC on a third person's property for the sole sake of OC, while not engaged in one of the exemptions is actually illegal.

    I'm fully aware of the other points you made above and agree with you. Again, just to be clear, I think the law is stupid, infringes on property owner rights in regards to saying who can and can't do what on their property such as OC, and I go out of my way to educate fellow officers on the (4) CONSTRUCTION clause of the law... I love that part when I share it with others (cops) who don't understand it's ok to choose EDUCATION over ENFORCEMENT.

    Just pointing out some things for discussion and this in NO WAY means I support the specifics mentioned.
    Reading your explanation and I may be off on this, but open carry while in the committal of another unlawful act would supercede the legality of it being ok on private property , correct?
    Similar to if someone is a lawful conceal carrier, commits trespass, or even say petty theft and is found to be in position of the firearm, it would null his permit and create a new set of issues as he was armed during the commission of a criminal act. I know trespass is more of a civil issue. Especially with Florida's lovely trespass after notification issue. Worked security in Tampa and I do not miss that crap.
     

    Bowhntr6pt

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    The addition of a firearm into the mix is an "enhancement", penalty wise for some charges. Armed Burglary, Armed Trespass, etc. If you are committing a Burglary or Trespass and are armed with a deadly weapon, or in the course of committing said crime become armed, the law provides for an enhancement of the charge, usually one degree higher.

    Nothing "civil" about Florida trespass laws. The law is pretty straight forward and is certainly criminal.

    If you're on your own property and armed... I'm not sure it matters in the event you commit some other crime, such as smack your wife with an open hand.

    Now days, nothing surprises me anymore with the SAO and how they interpret things... at the end of the day, the SAO gets the final say as to prosecution. It's far from consistent at times.
     
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