Waffle House = No firearms, even soldiers.

[Jeb21]

I eat there in the evenings or sometimes breakfast during weekend. I always sit by myself listing to my ipod and reading a book.

 

[wildrider666]

See: Actual communication to leave and case law ref. at:

http://www.husseinandwebber.com/crimes/property-crimes/trespass/

No Gun signs
Link is PDF download. Go to bottom of page 6.
https://www.uslawshield.com/florida-gun-law/

At this point I will withdraw from the discussion as I have more pressing interests.
Thanks to all for their contributiors.

 

[Jeb21]

Thanks for the information

 

[Hopin4aboat]

The one on sorento just passed blue angel has on but it's at the opposite end of the building from the door and about 8 feet off the ground noticed it on a call the other day.

 

[Jeb21]

Good to know, thanks

 

[flyandscuba]

Glad to know I was right all along... So much for Internet/forum lawyers.

 

[Jeb21]

Glad to know I was right all along... So much for Internet/forum lawyers. [/QUOTE

First of all you were not right, the case law cited does not support your stated intent. In fact, that case law cited actually demonstrates that you will be arrested for your action if and when you are caught. I have have stated repeatedly, it is about notice. The sign provides notice. The only way you can try to get around that sign is to claim that you did not see it. Depending upon where that sign is located the jury may or may not buy that position.

Second, I am not an internet lawyer, I am an actual trial lawyer with more than 24 years experience. I have put wise asses, know it alls, in jail for violating weapons laws. They argued with me and with the judge about what the law was and what their rights were. They continued that argument to their cell buddies and shower pals.

Third and finally, your disregard for other's property rights is both disturbing and potentially illegal depending upon the attitude of prosecutor who reviews your case. You think that you can skim a statute and understand how it will be interpreted by an actual trained prosecutor and judge. And once again you are wrong. The law is gray on a good day and given the current climate about gun crimes a prosecutor may very well decide to make an example out of you.

When you get busted - call Roy Kinsey 434-5267 or Andrew Marks 439-1818 they are excellent defense lawyers who do a good job for you.

 

[flyandscuba]

Well, you took the bait. Nope - I won't get busted (concealed is concealed), but at least we now know you're an anti-gun type here on a firearms forum.

I have put wise asses, know it alls, in jail for violating weapons laws. They argued with me and with the judge about what the law was and what their rights were.

 

[Jeb21]

Once again you are wrong. At least you are consistent.

 

[Viking1204]

The only weapon laws that should be in existence are felons or those deemed a risk mentally, anybody supporting laws that restrict the gun rights of legal citizens is by definition an anti-gun type.

 

[MAXman]

He's not supporting anything Viking, he's trying to warn us so we don't catch a criminal charge, spend a bunch of money, and perhaps loose our right to legally own firearms.

 

[Seanpcola]

The only weapon laws that should be in existence are felons or those deemed a risk mentally, anybody supporting laws that restrict the gun rights of legal citizens is by definition an anti-gun type.

The point is that the laws are here and now. We all want to change them but until they are you can be all the self righteous you want, all he way to jail and the poor house. All the bravado in this world sounds good on line, real world.......don't drop the soap.

 

[Viking1204]

This is why I would never be a good cop, I couldn't arrest someone breaking a law that went against our constitutional right to bear arms. I'm not self righteous, I'm venting to how stupid our gun laws are but I still obey them. I'm not going to risk going to jail and not being able to support my family just to prove a point.

 

[flyandscuba]

This why I posted the video in this thread that I did - the Hillsboro County Florida Sheriff (deputy) stated himself that the ex-cop shooter in the theater who popped a guy for texting during the movie "violated NO LAW" by bringing a firearm into the theater - a theater marked with a "no firearms allowed" sign.

Either our resident forum attorney is mistaken in his interpretation - or this LEO involved in a HOMICIDE case is mistaken. Every other expert I've heard on the subject - including Guttmacher (author of Florida Firearms Law reference book) indicates that you must be first asked to leave when discovered with a firearm - and refuse - before you can be charged with trespassing.

I think the LEO in the video equated the no firearms allowed sign to the "no food or drinks from outside" signs at theaters.

Otherwise, I expect Disney would have gladly asked the deputy working a security detail to arrest me when the S&W 1076 I was carrying at the time "printed" under my shirt following a brief rainstorm while at the park. Nope - I was simply informed of their no firearms policy (no sign observed) and asked to either deposit my firearm in a locker at security or return it to my vehicle.

I chose the latter - and picked up a Rohrbaugh R9S for my pocket while at the car and returned to the park...

 

[Jeb21]

Guttmacher is a well respected expert in this field. I have his book and I have recommended it to my CCW students I lent out my copy of his book otherwise I would see exactly what he says on this issue. He may disagree with me, which is fine. The law is a gray area many times. On this topic in particular I will say that there is no appellate level cases directly on point and no statutes that directly addresses this issue (again not unusual in the law). When you read the cases dealing with trespass you do see issues of notice and conditional invitations.

A conditional invitation is one were the store owner says you can come in so long as you pay a cover or you can come in so long as you are over the age of 18 or similar race/religion neutral condition. If someone sneaks into a club with out paying the cover charge or while underage, then he or she is a trespassers because he or she did not comply with conditions of the invitation. I put the "no guns" allowed signs in the same category - you can come in so long as you leave your weapons outside. If you bring in a weapon you have violated the condition of the invitation and you are automatically an armed trespasser.

Notice we have discussed already and repeatedly. I believe a properly posted "no guns" sign is sufficient notice. I further believe that forcing an employee or business owner to confront and armed individual who has ignored a posted "no guns" sign and ask that armed individual to leave in order to trigger the criminal statutes is dangerous bordering on crazy.

In the last few days I have spoken to some of my peers regarding this issue. One said that there must be a direct request to leave and then a refusal and two said that the sign would be enough. I personally don't give a rat's ass what a homicide detective thinks about that issue. His opinion on the law would not be admissible in a court of law. I further believe that comparing a no gun sign with a no food or drink sign is apples and oranges. The first addresses a very real safety concern, the other deals solely with profit. Having said that theaters will kick you out for violating their no outside food or drink policy.

This is a long post but I want to give you food for thought in this and any other firearms law. You may know that in 2014 the Stand You Ground Statute and other use of force statutes were amended to include the following phrase "or threaten to use force" . This addition supplemented the original language which read "use of force". The reason for this change is contained in the legislative history excerpted here - In recent years, there have been cases in which persons have been convicted of aggravated assault for threatening to use force (e.g., displaying a firearm, etc.) and have been sentenced to mandatory minimum terms of imprisonment pursuant to the 10-20-Life law. [FN15] In some of these cases, the defendant unsuccessfully argued self-defense. [FN16] Specifying that the justifications in ch. 776, F.S., apply to threatened uses of force may clarify the issue.

So to rephrase, there were situations where a bad guy attacked his victim, the victim presented a weapon, the bad guy retreated or surrendered, the victim did not then shoot the bad guy because his life was no longer in danger. Should be a win win for all concerned. But nope, some prosecutors were then going after the victim arguing that you have to actually shoot the bad guy in order to take advantage of the favorable language contained in the statutes (i.e. you have to fire the weapon in order to "use it" as stated by the statute). A stunningly stupid argument in my mind, but it was working and otherwise good folks were going to prison because they did not shoot. Here is a case that was actually cited by the legislature:

For example, 53 year old Orville Wollard was charged with aggravated assault with a deadly weapon after firing
a warning shot into a wall in response to his daughter's boyfriend aggressive behavior towards his daughter (the boyfriend
had physically attacked Wollard earlier that day and, upon returning to Wollard's house, shoved Wollard's daughter and
punched a hole in the wall). Wollard claimed self-defense but was convicted and sentenced to 20 years pursuant to the 10-20-
Life law. http:// famm.org/orville-lee-wollard/ (last visited on April 24, 2014); http:// www.theledger.com/article/20090619/
NEWS/906195060 (last visited on April 24, 2014).

BTW I am not an advocate of warning shots - still I faill to understand how this man could have been convicted.

This is why I get concerned when folks think they can toe the legal line and get away with it. I have always counseled give the line a bit of distance so that you are not the victim of some incredibly stupid interpretation of the law.

 

[MAXman]

Only if they know I'm packing - and ask me to leave and I refuse.

They won't know I'm packing - so they won't ask me to leave.

The one time in my life that I was "made" by printing (carrying a large sidearm) at Disney - and asked to secure the forearm, I simply left...

This, why I carry concealed.

Wait, so did you leave, or did you trade out one handgun for another and go back in?
If it was the latter, after being notified verbally of the no firearms policy, were you trespassing then? Or do they have to ask you every time they see the firearm? And only if you refuse to leave(and swap for a different one) are you trespassing?

 

[flyandscuba]

You may not care what the homicide detective thinks regarding the law - but he (or another LEO) is who will be arresting someone at the scene. If they feel you are breaking no law - there will be no arrest. If there is no arrest - the need for an attorney doesn't exist.

It sounds as if at least one of your peers agrees with me (us) that feel you must be asked to leave and refuse in order to be arrested with trespassing. So, it not as black and white - don't do it - as you have been indicating.

Everyone can do as they please. I will continue to carry concealed daily - anywhere and everywhere there is no magnetometer pass through required. My hope is that I will never need it. If I do - and I happen to be in a "gun free" zone - I'll be alive ( or at least go down fighting back) rather than the helpless victims in most mass shootings where the location was carefully selected due to the lack of perceived armed resistance by the BG/nut job.

Open carry is legal here - but I choose to carry concealed. If I do my job well at my concealment technique - no one will ever know I'm armed unless a firearm is needed (as was the case for me on December, 2012).

I refuse to be a victim. I simply would rather retain the risk of potential legal troubles - than transfer the risk to law enforcement with an unknown response time...or go "uninsured" without a means to defend myself. Risk Management is my area of expertise. I've analyzed the risk of carrying concealed in a "gun free" zone - and decided for myself the risk of not violating such a restriction outweighs the risk of being a compliant sheeple and abiding by such signage.

If I need an attorney for my decision - I'll call on Guttmacher or someone that he would recommend.

 

[flyandscuba]

Wait, so did you leave, or did you trade out one handgun for another and go back in? If it was the latter, after being notified verbally of the no firearms policy, were you trespassing then? Or do they have to ask you every time they see the firearm? And only if you refuse to leave(and swap for a different one) are you trespassing?

If I had been found to have returned from the parking lot with a different firearm - I expect at that point I would have been arrested for armed trespassing.

See my previous post as to why I made that decision that day.

 

[RackinRay]

Good discourse on a subject that most, if not all, of us should be interested in.

Jeb21, thanks for qualifying your experience. Since you say “used to prosecute”, I take it that you are not currently an Assistant State Atty here. Was your prosecutorial experience here in Florida?

In light of your experience, how do you reconcile property rights against state licensed legal activity? If the place is open to the public, all of the public has access to that space unless it is more restricted by the owner, as in your last example. Further, I believe that trespass can attached if a person goes past an employees or authorized personnel only sign as that is in the property owner’s right to restrict access to part of the property.

Since the activity of CCW is licensed by the state, and Waffle House is not a proscribed place for that lawful activity under state law; and the state of Florida has passed statutes preventing lower forms of government from passing more restrictive statutes, how can a property owner restrict legal activity?

I do not believe that they can. However, I do agree with the earlier stated position that if warned to leave and a CCW refuses to do so, they then become an armed trespasser. I would rather not test that in a court of law, and if found in that position I would NOT elect a jury trial as they are unpredictable and the judge would have to strictly follow the law; which includes the statutes, the precedent case law, and higher court case rulings.

Why take a chance is my stance. Plenty of places to eat, even Waffle Houses that are not signed by franchise owners, to take a risk on my rights and liberty!

 

[Jeb21]

I am not a prosecutor. I did prosecute in Tallahassee, Florida.

To answer the rest of your question will require another long post. I called a friend who had his copy of Guttmacher handy and it seems that this expert was basing his opinion on the uselessness of no gun sign on the concept of preemption. Which is exactly what your question goes to. I have several problems with relying on that doctrine in this case. First, the statute specifically preempts all other state or local public entities from passing any ordinances or regulations that affect firearm but it does not expressly extend this preemption to private entities.
790.33 Field of regulation of firearms and ammunition preempted.—
(1) PREEMPTION.—Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.

There is more to this subsection so read it all but you will see that it specifically applies to governmental entities and not to private ones. For example

 If any county, city, town, or other local government violates this section, the court shall declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against the local government prohibiting it from enforcing such ordinance, regulation, or rule. It is no defense that in enacting the ordinance, regulation, or rule the local government was acting in good faith or upon advice of counsel.
(c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred.

So if the legislature intended to preempt private business owners from infringing upon gun rights, we would expect to see that expressly spelled out in the statute. We don't.

Next problem with preemption. Preemption means basically, I have spoken on this topic so all lesser entities will remain silent. However, as discussed here the legislature is completely silent regarding "no gun" signs. Hard to say that a topic is preempted when it is not even discusssed.

Along those same lines, the legislature did specifically enumerate 15 categories of places where CCW holders may not carry a gun. See 790.06(12)(a). If private entities' rights to restrict firearms was preempted, then we would expect that Walmart, Waffle House, Pawn shops, and Disney World could not preclude firearm on their properties as these business do not fit any of the 15 specifically enumerated categories of restricted places. However, everyone, including Guttmacher and Scuba agree that if a business owner ask you to leave you must do so or run the risk of being charged with armed trespass. So how can you argue that "no gun" signs have no force of law because the State law preempted it, and yet at the same time agree that private business owners can prevent firearms from remaining on their property? The right to exclude firearms should have been preempted as well. The only logical explanation is that the state never intended to infringe upon a private entities' rights to control access of firearms on their property.

We see further proof when we look at 790.251 Protection of the right to keep and bear arms in motor vehicles for self-defense and other lawful purposes; prohibited acts; duty of public and private employers; immunity from liability; enforcement.— This statues basically holds that where a private entity has banned firearms from being on its property, employees and invitees who have a CCW license may still keep their gun on the property provided that the guns are kept secured in their vehicle in the parking lot. First, point - this statute is unnecessary if restricting firearms by private entities was preempted by 790.06 or 790.333. Second point, even this statute only provides that the weapon must be allowed if secured in the vehicle and in the parking lot, and then only if you have a CCW. This statute does not allow the CCW holder to carry the weapon into a structure or to keep it anywhere except locked in his car.

BTW this particular statute is a hot mess. In 2008 a Federal Court precluded the state from ever enforcing that portion of the law that protects the rights of an invitee with a CCW license to keep a weapon on the property. In other word a private entity cannot keep one of its CCW employees from keeping at gun in his car but a private entity can prevent an invitee with a ccw from keeping a gun in her car. So if a private entity can preclude an invitee from having a gun in his car , he certainly can preclude that invitee from having an gun in his store.

So - setting aside the preemption argument - why can't a "no gun" sign notify you that you will be in legal trouble if you bring a gun into a building. A "restricted- employees only" sign will keep you out of a portion of a store and cause you to be arrested for trespassing if you violate that restriction. Why should we treat a no- gun sign any differently?