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Discussion Starter · #1 ·
I couldn't find any threads on this. Since my band went on hiatus, I obtained my CWP. Some of the places we play at are bars, and loading in/out of gear in a back alley is about what you'd expect. Anyone know of any caselaw or have any thoughts on carrying to the gig? Are we considered "employees" as we were hired for the night? Or is it risky, since we are not on the rolls? Thanks.
 

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I doubt you'll find an official legal answer here, but it would appear to be your place of employment, even if you're a "contract" employee of sorts. Concealed is concealed, don't do nuthin' dumb.
 

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I would assume most bands are paid under the table. In order for it to be a "place of business", does the band need to be "in business" (like officially)?
 

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I'm not a lawyer, and don't take this as advice, but the way I've seen it done in bars and nightclubs by employees is that they don't carry in the operational public-facing area of the bar or club. Their firearms are usually stored in the office safe, which they then retrieve them after their shift.

Problems with that for you:

• Your band might finish before closing time. It may not be practical to wait around for a manager to unlock the safe for you.

• Locking it up in the first place. Some venues might be in and of themselves, sketchy places. It wouldn't do to have to retrieve your gun from someone who might just decide to use it on you.

• Some venues might be anti-gun and flip out if you ask, and you then lose your gig. Or they may not be anti-gun but see it as a major liability.

• You can't leave it in your car/van because that kind of defeats the purpose of being armed during load-in/load-out.

When I was young I used to work as a light tech for my friend's sound/lighting company. We did a lot of shows in some bad areas. We got lucky that no one decided to have a go at us. Though I do recall one concert producer we worked with who was a "practical" man and carried regardless of the law, especially during load-out.
 

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Owners and employees can carry in a bar. If you're employed by the bar you should be good. I don't think the law distinguishes between full, part, or one time work. You were hired, you're being paid to be there and you can be fired. Sounds like employment to me.
 

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First, it is unlikely that a venue where you are performing would be considered YOUR place of business, under the law. The venue owner is not employing you, personally, but rather he is paying the "band", which should be a business entity in its own right for tax purposes, to provide a service, entertainment. You work for the band, not the business owner. So, carry in a bar would probably not be covered under the exception listed in 790.25(3)(n). You should be able to leave it in your vehicle, while inside the bar, however. It would be a simple matter for you to retrieve the firearm, from the vehicle, and "stand guard" outside the bar near the vehicle, while other members of the group carry equipment into and out of the bar.
 

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I don't think you can carry in the alcohol-serving area of the bar or nightclub unless you are LEO.

One of my jobs is working at a major nightclub in the area and we're all told by the head of security (as pro-2A as they come) that we have to either not carry to the club, or secure it in the office safe until we're done with our work-shift and are going home. And we're not allowed to traverse any area accessible to the public while armed, while the club is in operation. Thankfully the office has a separate entrance so there's no technical fouls going on.

The hazy area for the original poster is not really his employment status, it's more of the logistics of the venues he'll be working at. He could legally be armed and do load-in/load-out if certain conditions are met. What those conditions are need to be clarified for him. This isn't a situation where one could easily go "Eh, it won't happen". Bars and nightclubs, at least the fun ones, are usually located in some pretty rough areas. It'd be stupid not to be armed.
 

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Look, if it was me and the place has a real possibility of danger, I would carry and risk the misdemeanor. If it ever came to having to lawfully defend my life, I doubt there would be "serious" repercussions from it. Lawful self-defense is just that, lawful. Better be judged by 12 than beat up to a pulp by 10 or so??? YMMV of course.
 

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That's the implied advice that we are all giving this guy, of course. However, in a hazy situation like a bar with regards to his employment status and so on, it's always best to know the law, so if the SHTF, he is better able to fend off any rabid prosecutors.
 

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I'm confused. How could this NOT be your place of business. In my opinion the case law supports this.

790.25
(n)
A person possessing arms at his or her home or place of business;

Discussion?

M
ac??
 

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First, it is unlikely that a venue where you are performing would be considered YOUR place of business, under the law. The venue owner is not employing you, personally, but rather he is paying the "band", which should be a business entity in its own right for tax purposes, to provide a service, entertainment. You work for the band, not the business owner. So, carry in a bar would probably not be covered under the exception listed in 790.25(3)(n). You should be able to leave it in your vehicle, while inside the bar, however. It would be a simple matter for you to retrieve the firearm, from the vehicle, and "stand guard" outside the bar near the vehicle, while other members of the group carry equipment into and out of the bar.
Wrong, again.

One's 'place of business' is where that individual works, regardless of the payment details. Heck even folks that volunteer are at their place of business.

Here is another good example:
On June 16, 2011, police received information that an unidentified male was carrying a firearm in a union hall parking lot. When the police arrived, the police observed Little carrying a firearm in the waistband under his shirt. Little did not have a permit to carry a concealed weapon. The police arrested Little, and the state charged him with carrying a concealed weapon in violation of section 790.01(2), Florida Statutes (2010).

. . .
We turn now to the state's contention that Little, an elected secretary of a labor union at his union hall, did not fit the 790.25(3)(n) exception. The state argues that there is a distinction between a secretary of a labor union and an employee of a business. The state particularly focuses on the fact that Little did not allege that he was paid by the union. The state cites to no authority that suggests a union secretary (whether paid or unpaid) would not meet the 790.25(3)(n) exception, and this appears to be an issue of first impression.
. . .

The Florida Supreme Court has defined "place of business" as" simply a location where business is transacted." McCall v. State, 156 Fla. 437, 23 So.2d 492, 494 (1945). The facts before us establish that Little's place of business was the union hall. Little was required to report for and perform duties at the union hall, including providing security in the union parking lot.
Under the facts of this case we find that Little was encompassed within the "place of business" exception in section 790.25(3)(n).
State v. Little, 104 So. 3d 1263 - Fla: Dist. Court of Appeals, 4th Dist. 2013
 

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Discussion Starter · #12 ·
Thanks for the replies. Some good discussion on this. I was leaning towards packing during load in/out at a minimum, and giving consideration to securing my weapon in the car in between if I could do so discreetly. And not chilling at the bar while packing.
 

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Wrong, again.

One's 'place of business' is where that individual works, regardless of the payment details. Heck even folks that volunteer are at their place of business.

Here is another good example:

State v. Little, 104 So. 3d 1263 - Fla: Dist. Court of Appeals, 4th Dist. 2013
Just to be clear, he is allowed to be in a bar (prohibited place) if he's working there right?

Your example seems to deal more with carrying w/o a permit than it does with entering a prohibited place. I know the point was to define "employment" but there seems to be some confusion as to whether or not his employment allows him to carry in an otherwise prohibited place.
 

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Wrong, again.

One's 'place of business' is where that individual works, regardless of the payment details. Heck even folks that volunteer are at their place of business.

Here is another good example:

State v. Little, 104 So. 3d 1263 - Fla: Dist. Court of Appeals, 4th Dist. 2013
Not the same thing. Little was an elected OFFICER of the business where he was located, the union hall, and his duties, for the business, encompassed providing direct services necessary for the functioning of that business. He was not an employee of another business providing services there, nor was he employed on a contract basis. This is entirely different than the situation under discussion. The band member is essential employed by the band, which is a business entity. The band, the business entity, is paid to perform, by the club and it, in turn, pays its members [who are either the owners or employees of the band, depending upon the internal business relationship]. The individuals are not owners in the bar, nor are they employees of the establishment. They are, in fact, not treated, under employment laws, as employees of the business. So, the members of the band would probably not be entitled to the exception under 790.25(3)(n).
 

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I'm confused. How could this NOT be your place of business. In my opinion the case law supports this.

790.25
(n)
A person possessing arms at his or her home or place of business;

Discussion?

M
ac??
The relevant wording here is "his place of business". This means where a person's business is conducted, not necessarily where he performs a service for another business. If a truck driver works for a trucking company in North Carolina he is likely not entitled to the exception provided in 790.25(3)(n) while delivering to a furniture store in Lantana. The driver's place of business would be the physical location of the company that employs him, not merely wherever he is while transporting goods for that business. This is similar to the band performing in a particular venue. The individual members of the band are employees or owners of the band. They are not employed directly by the venue. So, their "place of business" would be wherever the corporate headquarters of the band would be located or any property which was directly owned, leased or controlled by the band, itself. Simply because a performer stands in a public park and juggles for money, does not make that park his "place of business". And, simply because a deliveryman transports goods over a public roadway, this doe not make the "roadway" his "place of business".
 

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I don't think you can carry in the alcohol-serving area of the bar or nightclub unless you are LEO.
No such restriction. If it's your place of business, that supersedes the restriction in 790.06 (12). Why? Because one doesn't require a license under 790.25 (3) to carry either openly or concealed at one's home or place of business, therefore the prohibited places list in 790.06 doesn't apply.

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The relevant wording here is "his place of business". This means where a person's business is conducted, not necessarily where he performs a service for another business. If a truck driver works for a trucking company in North Carolina he is likely not entitled to the exception provided in 790.25(3)(n) while delivering to a furniture store in Lantana. The driver's place of business would be the physical location of the company that employs him, not merely wherever he is while transporting goods for that business. This is similar to the band performing in a particular venue. The individual members of the band are employees or owners of the band. They are not employed directly by the venue. So, their "place of business" would be wherever the corporate headquarters of the band would be located or any property which was directly owned, leased or controlled by the band, itself. Simply because a performer stands in a public park and juggles for money, does not make that park his "place of business". And, simply because a deliveryman transports goods over a public roadway, this doe not make the "roadway" his "place of business".
There is validity to this argument. I'm sure we can delve into case law, particularly contract law to find how the courts view the legal status of the owner/operator/contractor/employee, but I'm interested in how you see how this concept dovetails into the "state actor" relationship.

Let's say for example, the local government hires a management company to operate a public venue like an arena on their behalf. At this point, the management company becomes a state actor and is subject to preemption just as the local government is. Since the preemption statute permits action against individuals who enact, enforce, or promulgate regulation of firearms and ammunition, and local government employees are subject to such action, would that extend to employees of state actors as well? And if so, does the character of what a "contractor" is legally malleable enough to be construed as an employee, therefore making the venue a "place of business" for the purposes of 790.25 (3)?

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The band member is essential employed by the band, which is a business entity. The band, the business entity, is paid to perform, by the club and it, in turn, pays its members [who are either the owners or employees of the band, depending upon the internal business relationship]. The individuals are not owners in the bar, nor are they employees of the establishment. .


Well if the "band" is the place of business and not the bar/restaurant/etc wouldn't it then be ok to carry wherever the band goes when you're "working" for the band? You're in the process of doing business every time you perform regardless of location if Mac 's reasoning is to be believed.
 

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There is validity to this argument. I'm sure we can delve into case law, particularly contract law to find how the courts view the legal status of the owner/operator/contractor/employee, but I'm interested in how you see how this concept dovetails into the "state actor" relationship.

Let's say for example, the local government hires a management company to operate a public venue like an arena on their behalf. At this point, the management company becomes a state actor and is subject to preemption just as the local government is. Since the preemption statute permits action against individuals who enact, enforce, or promulgate regulation of firearms and ammunition, and local government employees are subject to such action, would that extend to employees of state actors as well? And if so, does the character of what a "contractor" is legally malleable enough to be construed as an employee, therefore making the venue a "place of business" for the purposes of 790.25 (3)?

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Not necessarily. The case law that you refer to is, once again, based upon some rather spurious concepts and was rendered, initially, in cases where governmental entities were attempting to circumvent the spirit of 790.33 by using "contractors". But, none of this case law has ever implied that the "contractor", or its employees, were de facto employees of the governmental agency which contracted with the contracting party. If it did, then these "contract employees" would be entitled to all the perks and benefits of actual employees of the governmental body or agency.

The point is that attempting to apply the provisions of 790.25(3)(n) to someone other than a person directly employed by a business operating at a specific location is not settled law. Now test cases may be nice for the attorneys trying them, but they are not so nice for those who are, themselves, the actual test case.
 

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Well if the "band" is the place of business and not the bar/restaurant/etc wouldn't it then be ok to carry wherever the band goes when you're "working" for the band? You're in the process of doing business every time you perform regardless of location if Mac 's reasoning is to be believed.
The key words, in the statute are "his place of business". The band is no more the "place of business" then is a public street corner where someone sets up a hot dog stand. The band is the employing agency and its "place of business" would be restricted to those physical locations which it owns, leases or has legal physical control. None of that applied to a third party venue.
 
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