Possession of a Firearm on a Beer/Liquor Licensed Premises
There’s no denying that alcohol impairs judgment, but it also impairs reaction time, perception, and coordination. Using a firearm while intoxicated is both illegal and unwise, but did you know it’s a crime to simply possess firearms in most Ohio bars and restaurants? You don’t need to have a single drink to be charged with illegal possession of a firearm in a liquor establishment pursuant to Ohio Code § 2923.121. In fact, it’s a felony-level offense.
Defining which establishments have a qualifying “beer or liquor” license and determining when and if certain exceptions apply is complicated. Even some coffee chains have started to serve beer at night! There are exclusions and affirmative defenses to charges of possessing a firearm on a beer/liquor licensed premises in Ohio, and it’s imperative to retain a qualified Ohio firearms defense attorney to raise them. Felony charges carry serious direct and collateral consequences.
Ohio Information Center for Possession of a Firearm on a Beer/Liquor Licensed Premises (Ohio Code § 2923.121)
The provisions of Ohio Code § 2923.121, which prohibit possessing a firearm in any room on a D-licensed premise where beer or liquor is being consumed, run contrary to Ohio’s open carry policy. This statute even applies to certain open-air arenas but exempts those legally carrying a handgun with a valid concealed handgun license (“CHL”). It’s easy to misunderstand the application and scope of Ohio Code § 2923.121, but a single misunderstanding can result in a felony. Ohio gun owners and those traveling to Ohio with a firearm should consult the Joslyn Law Firm’s Ohio Information Center for Possession of a Firearm on a Beer/Liquor Licensed Premises for an overview of Ohio law before taking their firearms into an Ohio bar, restaurant, social club, or event space. For case-specific questions or to discuss pending Ohio Code § 2923.121 charges, you must contact the Joslyn Law Firm directly for a free firearms defense consultation online or by calling (614) 444-1900.
- Places and Premises that Qualify as Beer/Liquor Establishments under Ohio Code § 2923.121
- Specific Requirements to Bring Criminal Charges for Possession of a Firearm on a Beer/Liquor Licensed Premises
- Statutory Exceptions and Exemptions to Possession of a Firearm on Beer/Liquor Premises in Ohio
- Direct and Collateral Penalties for Unlawful Possession of a Firearm on a Beer/Liquor Premises
- Affirmative and Common Law Defenses to Unlawful Possession of a Firearm on a Beer/Liquor Premises Charges
1. Places and Premises that Qualify as Beer/Liquor Establishments under Ohio Code § 2923.121
The text of § 2923.121 makes it illegal for any person to possess a firearm in any room where at least one person is consuming beer or alcohol provided the room is located on or in “a premises for which a D permit has been issued under Chapter 4303.” While prosecutors know the average citizen doesn’t understand what qualifies as a “D permit” premises, ignorance of the law is no excuse to criminal charges. Proprietors are charged with knowing which beer/liquor establishments have D-class permits pursuant to Chapter 4303 despite the fact there are twelve (12) separate D-class permits in Ohio. They include:
- D-1 Permits: Any hotel, food establishment, or food service-based operators of restaurants, clubs, amusement parks, drugstores, lunch stands, boats, or vessels that sell beer either in glass or container for consumption or retail.
- D-2/D2x Permits: The same as D-1 but for wine, cocktails, cordials, and otherwise mixed beverages.
- D-3 Permits: Same as D-1 but for “spirituous liquor at retail, only by the individual drink in a glass or from the container, for consumption on the premises where sold” not after 1:00 am for D-3 and D-3x permits but after 1:00 am for D-3a permits.
- D-4 Permits: For social/airline clubs to sell beer and liquor to members only for consumption at the club.
- D-5 Permits: For restaurants and nightclubs to sell beer and/or any liquor by the glass/bottle for consumption on the premises. D-5 permits may also include certain hotels, motels, enclosed shopping centers, and cover food establishments renting space.
- D-6 Permits: Allows other D-class permit holders to sell beer/liquor at various hours, depending on the day. This can include state fairs, sports facilities, outdoor performing arts centers, ski areas, trams, and state parks.
- D-7 Permit: Specialized permit for qualifying resorts and resort areas.
- D-8 Permit: For a retail or agency store that sells wine, beer, or mixed beverages at retail as part of a larger business and provides tastings but does not serve individual beverages. This may include certain unexpected locations such as a local supermarket or wholesale chain.
For purposes of § 2923.121, Ohio gun owners should assume firearms are prohibited in any location where beer, wine, or liquor is served, whether by the glass, bottled for sale, or as a sample. It is enough that at least one person is consuming alcohol when you’re present. The same should be assumed of any open-air event, such as a concern, craft fair, or horse show, where any alcohol is served. It doesn’t matter if you or the members of your party don’t consume an alcoholic beverage.
2. Specific Requirements to Bring Criminal Charges for Possession of a Firearm on a Beer/Liquor Licensed Premises
Statutory interpretive principles dictate that criminal laws must be read narrowly and in favor of the defendant. There is no “close enough” when it comes to the language used in a criminal statute. Prosecutors must prove every element of the crime as written occurred simultaneously. This includes:
- That the item possessed is a firearm as defined by the Ohio Code
- That you actually possessed the firearm, which means it was on your person or in your control
- The premises had been issued a D permit
- At least one person in the room was actually consuming alcohol
It is not a crime to possess a firearm in a room where liquor is being consumed if it’s not licensed (even if it should be). Further, it’s not a crime if, at the time you were in the room, no one was consuming beer or alcohol despite its availability. A qualified Ohio firearms defense attorney will review the specific facts of each case to determine whether prosecutors can make a prima facie showing of guilt at trial, i.e., prove every necessary fact.
3. Statutory Exceptions and Exemptions to Possession of a Firearm on Beer/Liquor Premises in Ohio
Ohio Code § 2923.121 does not apply to the following persons:
- Anyone with a valid CHL (or qualifying military with documentation) who is not consuming or under the influence of any alcohol or drugs of abuse
- Any government (state or federal) officer, agent, and/or employee, including law enforcement officials, authorized to carry firearms as a part of their duties and acting within the scope of their duties at the time, i.e., police responding to a bar fight or medical emergency in a restaurant
- An off-duty law enforcement officer or investigator provided he/she is carrying law enforcement I.D., he/she is not otherwise prohibited from carrying a work-related firearm while off duty, and he/she does not consume and is not under the influence of any alcohol or drugs of abuse
- Any guest room at a licensed hotel, i.e., you may have a firearm and Champaign in your hotel room
- The actual D permit holder and/or his security agent on his own premises provided he has a CHL and is not consuming or under the influence of any alcohol or drugs of abuse
- Members of a veteran’s organization carrying a legally possessed and unloaded rifle while at any event or in a place owned/sponsored by the applicable veteran’s organization
- A lawful exhibitor, trader, purchaser, or seller of unloaded firearms engaged in that business at a convention center or public meeting place, i.e., a firearms sales convention at the local center that serves beer
This means anyone who qualifies for one of the above exemptions may carry a firearm (or specific firearm as specified) into a licensed beer/liquor premises provided he/she is not consuming alcohol. Consumption of alcohol voids both the exception to Ohio Code § 2923.121 and violates Ohio Code § 2923.15, Carrying/Using a Weapon while Intoxicated. This means he/she may be charged with two separate offenses. For more information about the applicability of Ohio Code § 2923.15, consult the Joslyn Law Firm’s Information Center for Using Weapons While Intoxicated Charges.
4. Direct and Collateral Penalties for Unlawful Possession of a Firearm on a Beer/Liquor Premises
Direct Consequences of a Criminal Conviction for Unlawful Possession under Ohio Code § 2923.121
Despite the relative ease by which patrons may unwittingly violate Ohio Code § 2923.121, those found guilty of unlawfully possessing a firearm in a beer/liquor establishment have committed a felony. If the firearm is carried openly, the violation is a felony of the fifth degree. Fifth degree-felonies are punishable by up to a year in prison and/or a $2,500 fine. However, if the firearm is knowingly concealed or concealed “ready at hand” (other than concealed handguns with a valid CHL), the offense is a felony of the third degree. Third-degree felonies in Ohio are punishable by up to three years in prison and/or a fine up to $10,000. The concealment must be knowing (either actual or constructive).
If a weapon is concealed in a woman’s purse without her knowledge, for example, this is not punishable as a felony in the third degree. In addition to possible imprisonment and/or fines, a judge may order:
- Restitution (payment) to any victims, including the premises owner, for injuries or property damage done resulting from the offense
- Payment of court and investigation fees
- Probation/community control
- Community service
- Attendance at drug or alcohol rehabilitation
If a judge orders an offender to attend a drug or alcohol rehabilitation program, he has likely been adjudicated a chronic alcoholic or drug-dependent individual. This triggers a weapon’s disability in Ohio and completely bars that individual from owning, possessing, using, controlling, or obtaining any firearm.
Collateral Consequences of a Felony Conviction
In addition to any direct sentence imposed, felons are subject to the following collateral consequences of a conviction depending on the specific facts of the case:
- Deportation/international travel restrictions
- Dishonorable discharge from the military
- Loss of child custody or visitation
- Loss of a job and/or inability to obtain employment
- Loss of a professional license
- Loss of government benefits
- Temporary loss of voting rights
It’s often possible to negotiate a plea deal to a lesser-included misdemeanor charge with the help of an experienced Ohio criminal firearms defense attorney. For example, Ohio Code § 2923.15 prohibits carrying a weapon while intoxicated, which is often an additional/lesser-included offense to unlawful possession charges under Ohio Code § 2923.121. However, possessing a weapon while intoxicated is only a misdemeanor in the first degree. Agreeing to plead guilty to the misdemeanor in exchange for dropping the felony-level charges may be possible in certain cases. There is a major difference between misdemeanor and felony convictions, even if the eventual direct sentence is similar.
5. Affirmative and Common Law Defenses to Unlawful Possession of a Firearm on a Beer/Liquor Premises Charges
Ohio Code § 2923.121 sets forth both the above-referenced exclusions to unlawful possession charges and a set of affirmative defenses to those charges. These are often confused. If you qualify for an exception to § 2923.121, you may not be charged under the statute. Those with an affirmative defense, however, may still be charged. They must raise the affirmative defense at trial (or to the prosecuting attorney) and introduce the evidence necessary to prove the defense was applicable. Credible evidence of an affirmative statutory defense negates criminal liability and often results in dismissal of the charges. It is an affirmative defense to § 2923.121 charges if all of the following are true:
- The weapon was not a handgun and
- The weapon was lawfully owned and possessed and
- The possessor needed the weapon for defensive purposes at work because he/she worked in an occupation where he/she was reasonably susceptible to a criminal attack, and he/she was going to or from work at the time of the alleged offense or
- The weapon was kept ready for defense purposes, for the individual or his family, while engaged in an otherwise lawful activity but with reason to fear a criminal attack that would justify the average person going in armed
These affirmative defenses would protect a father bringing a weapon to a D-licensed grocery store to purchase food during a natural disaster, state of emergency, or riot. They would also protect an individual, such as a bail bondsman, who needed to carry a weapon for work and was required to walk through a D licensed premises to and/or from his job. Provided the prosecution is able to establish all elements of the offense and the offender does not otherwise qualify for an exemption or affirmative defense, the following common law defenses are available to unlawful possession of a firearm on a beer/liquor licensed premises charges:
- Mistake of Fact – This defense is available if you had reason to believe certain facts were true making your behavior lawful, but the facts were not actually true. A reasonable person would have had to make the same mistake. For example, there was no reason to believe a local amusement park started serving beer when there was no sign or notice.
- Duress: The crime was committed due to the threat of harm or death, and the defendant did not have a reasonable alternative at the time. For example, being forced to bring a weapon into a bar by a gang member before you’re able to contact the police or a security guard.
- Self-Defense/Defense of Others: This is almost always a defense to firearms charges provided the potential harm is (1) imminent and (2) serious. For example, someone running into a bar with a weapon when another cries for help due to an attack. This doesn’t justify the unlawful presence of a weapon prior to the danger, however.
- Necessity: This is available if taking the weapon onto the premises was necessary to prevent greater harm. Necessity is used if the behavior should be encouraged, i.e., avoiding greater harm, but it falls short of self-defense.
- Insanity: This is a defense if the offender (1) does not understand what he’s doing, i.e., he thinks he’s at home, (2) does not have the physical ability to control his actions, i.e., a secondary personality taking over, and/or (3) does not have the mental capacity to understand his actions, i.e., doesn’t understand what a firearm is. This is not the same as mental disturbance or mental illness.
Maximize your defense against serious Ohio felony-level firearms charges today by contacting the Joslyn Law Firm’s top-rated Columbus criminal firearms defense lawyers at (614) 444-1900 or online for a free, no-obligation consultation.a F