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Tuesday, Sep 02, 2014
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In gun showdown, business owners win

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If you feel compelled to carry your pistol to Starbucks for that espresso, just know this: If the barista asks you to take your gun and leave, you do in fact have to listen and comply. That’s Florida and federal law.

Whether or not anyone would ever take a stand on that issue and trigger a standoff over the cream and sugar, legal experts say the law in Florida is quite clear on the topic of whose rights prevail: The business owner’s.

“Any business can say, ‘No shirt, no shoes, no service, and no sidearms either,’” said Joe Bodiford, a criminal defense lawyer in Tampa and adjunct professor of law with Stetson University.

The debate came to a head this week as Starbucks CEO Howard Schultz issued an open letter asking patrons to please not make Starbucks the stage for a gun debate showdown and to please not bring guns to the restaurants. That dispute didn’t arise from a vacuum. Starbucks several years ago became a hot spot for gun-rights groups to gather and defiantly carry their sidearms for a cup of joe as a political statement. Schultz’s letter this week was his latest attempt to shift the debate over guns out of his coffee shops.

Here are some questions and answers about the law in Florida:

Q: Don’t people have a Second Amendment right to keep and bear arms?

Answer: The Starbucks CEO made a “respectful request” that customers not bring guns to the cafe. He did not mandate a new policy prohibiting guns in cafes, partly because he didn’t want his employees in the position of confronting armed customers. Also, the Second Amendment only limits the federal government from passing laws on the issue. The property rights of individuals and businesses generally trump the Second Amendment.

Q: Can a cafe tell someone not to bring a gun?

Answer: Technically, when a business opens, it “invites” customers in for service. Businesses can revoke that invitation for nearly any reason, such as “No Shirt, No Shoes, No Service.” The same rationale holds when an NFL stadium or nightclub prohibits guns on-site.

Q: Isn’t that discrimination?

Answer: Federal law only prohibits discrimination against a protected class of people, such as people of a certain race or gender — as protected by the 14th Amendment and federal civil rights laws. Also, there is a concept in the law that things such as race and gender aren’t things people can change, whereas wearing a shirt or carrying a gun is a choice.

Q: What about carrying a gun elsewhere?

Answer: Florida is not an “open carry” state, and it prohibits things such as openly carrying a sidearm or rifle in most public places, with only a few exceptions. (Florida statute 790.053)

Q: Is there any time I can carry a gun in Florida?

Answer: Yes. Concealed weapons can be carried by those with a permit issued by the state.

Q: Do businesses really have rules against concealed weapons they can’t even see?

Answer: Many do. WestShore Plaza mall, for instance, has a code of conduct that prohibits weapons of any kind on the property, including guns carried by someone with a valid license, and mall officials could ask police to remove a person violating their rules.

Q: If Florida prohibits “open carrying” of a gun, what if someone accidentally shows the gun — like opening their coat and revealing a holster?

Answer: Florida law does not consider that an “open carry” violation. However, state law makes it a first-degree misdemeanor to display a gun in a “rude, careless, angry, or threatening manner, not in necessary self-defense.” (Florida statute 790.10)

Q: What law would someone with a gun be breaking if they refused to leave a cafe?

Answer: Trespassing, likely. If a business asks a patron to leave, and they don’t, the business owner has the right to call the police. The Tampa Police Department doesn’t have a separate policy for this other than to “follow the law,” officials said, adding that any business can invoke trespassing on a patron.

Q: Doesn’t the Second Amendment talk about a militia?

Answer: Yes. It reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Modern courts have interpreted this to include a right of private individuals to own and carry guns, regardless of military affiliation, with limited rules for things such as airports, courts, bars and schools.

Q: Has this been tested in court?

Answer: Some aspects, yes. The Florida Retail Federation several years ago argued against what was called Florida’s “guns at work” law that allowed employees to keep guns in their cars. The court cited several “odd” facets of the law, such as the requirement that a business allow guns in cars if that business has an employee with a concealed weapons permit — because a business might not know who has a permit, and two businesses side by side would be treated differently. But the court ruled against the FRF. Other appeals courts and the Supreme Court have struck down state and municipal laws that would have limited people’s ability to carry weapons.

rmullins@tampatrib.com

(813) 259-7919

Twitter: @DailyDeadline

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