LTC 428-2019 City of Weston, Florida, et al., v. The Honorable Ron DeSantis, et al. (Lawsuit - Firearm Preemption Penalty Provisions) Case Nos.: 2018 CA 0699, 2018 CA 1509 and 2018 CA 0882 MAMI BEACH
OFFICE OF THE CITY ATTORNEY
LTC No.
428-2019
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members of the City Commission
'Si
FROM: Raul J. Aguila, City Attor Gel
DATE: July 31, 2019
SUBJECT: City of Weston, Florida, et al., v. The Honorable Ron DeSantis, et al.
(Lawsuit - Firearm Preemption Penalty Provisions)
Case Nos.: 2018 CA 0699, 2018 CA 1509 and 2018 CA 0882
The purpose of this Letter to Commission is to provide formal notification to the Mayor
and City Commission regarding the Final Summary Judgment issued in the Second
Judicial Circuit Court, in and for Leon County, Florida, on July 29, 2019, in the City of
Weston, Florida, et al., v. The Honorable Ron DeSantis, et al.; Dan Daley, in his official
capacity as Commissioner of the City of Coral Springs, Florida, et al., v. The State of
Florida, et al.; and Broward County, a political subdivision of the State of Florida, et al., v.
The State of Florida, et al. A copy of the complete Final Summary Judgment for Plaintiffs
and Against Defendants, which the Court entered in those three (3) consolidated cases
identified herein, is attached.
In 1987, the Florida Legislature established Section 790.33 of the Florida Statutes, which
declared that the Legislature was preempting the regulation of firearms and ammunition
to itself, and to the exclusion of all city, county, town or municipal ordinances, and any
administrative rules or regulations adopted by any state or local government(s).
The Florida Legislature further amended Section 790.33 to create civil penalties for any
local governmental entity or official who violates the preemption by enacting any local
ordinance, administrative rule, or regulation that violates the Legislature's exclusive
regulation of firearms and ammunition. The penalties consist of personal fines of up to
$5,000 against any elected or appointed official (including a prohibition on public funds
being utilized to defend or reimburse such elected or appointed official for any knowing
and willful violation) and the termination of employment or removal from office by the
Governor. Equally important, the statute authorizes individual(s) to file a lawsuit against
any local governmental entity, with the possibility of awarding actual damages up to
$100,000 (plus attorneys' fees and costs) to the plaintiff, should there be a determination
that the statutory preemption was violated by the local governmental entity.
Regrettably, these onerous penalty provisions have deterred local governments and their
elected officials from taking any action related to firearms or ammunition.
We are committed to providing excellent public service and safety to all who live,work, and ploy in our vibrant, tropical, historic community.
Letter to Commission— Lawsuit- Firearm Preemption Penalty Provisions)
July 31, 2019
Page 2
On April 2, 2018, the Plaintiffs (including the City of Miami Beach and its Mayor and
individual City Commissioners, along with various other municipalities and more than
seventy (70) elected officials), filed a lawsuit in the Circuit Court of Leon County, Florida,
challenging those penalty provisions set forth in Section 790.33. The lawsuit claimed that
such civil penalties, and the removal from elected office provision, expressly violated both
the Florida Constitution and the United States Constitution. The City asserted that the
penalty provisions were invalid based upon the City's legislative immunity for its local
legislators; governmental function immunity; impermissibly expanding the Governor's
authority to remove elected officials from office; and various other constitutional
challenges.
On June 7, 2019, Leon County Judge Charles Dodson held a hearing on Plaintiffs' motion
for summary judgment. The Court determined that there were no genuine issues of
material fact, and the Court subsequently ruled that:
(1) the preemption penalty as to elected officials violates legislative immunity
and the separation of powers clause as identified in the Florida and United
States Constitutions;
(2) the provision authorizing lawsuits against local governmental entities and
their officials violates governmental function immunity guaranteed by the
Florida Constitution;
(3) the provision providing the Governor the power to remove elected officials
for violating the preemption is in contravention of the Florida Constitution
and bestows upon the Governor an entirely new power; and
(4) the penalty provision regarding the termination of contract employees
violates the contracts clause of the Florida Constitution.
In its Final Summary Judgment for Plaintiffs and Against Defendants, the Court struck
down all the penalty provisions delineated in Section 790.33, finding that although the
Florida Legislature may prohibit the local regulation of firearms and accessories, those
penalty provisions added to Section 790.33 by the Florida Legislature are
unconstitutional.
This is clearly a successful result for the City. However, the Court's ruling in this case is
the initial step in this legal battle, and we anticipate that the ultimate resolution will be
determined by the Florida Supreme Court. Governor DeSantis has filed an appeal of the
Circuit Court ruling but, for the time being, those penalty provisions are not a threat to the
Mayor and City Commission.
Please direct any questions or concerns regarding this matter to Aleksandr Boksner,
Chief Deputy City Attorney.
RJA/MAF/mmm
Attachment
F:\ATTO\AGUR\CITY ATTORNEY\LTC\2019\LTC-Firearm Preemption Penalty Lawsuit docx
We are committed to providing excellent public service and safely to all who live, work, and play in our vibranttropical, historic community
Filing # 93279358 E-Filed 07/29/2019 09:54:30 AM
IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
IN AND FOR LEON COUNTY, FLORIDA
CITY OF WESTON, FLORIDA, et al.,
Plaintiffs.
CASE NO.: 2018 CA 0699
v.
THE HONORABLE RON DESANTIS.
et al..
Defendants.
DAN DALEY. in his official capacity as
Commissioner of the City of Coral Springs.
Florida,et al.,
Plaintiffs,
CASE NO.: 2018 CA 1509
v.
STATE OF FLORIDA. et al.,
Defendants.
BROWARD COUNTY. a political
subdivision of the State of Florida. et al.,
Plaintiffs.
CASE NO.: 2018 CA 0882
v.
THE STATE OF FLORIDA. ct al..
Defendants.
/
FINAL SUMMARY JUDGMENT FOR PLAINTIFFS AND AGAINST DEFENDANTS
A hearing was held on June 7, 2019 on Plaintiffs' and Defendants' motions for summary
judgment. There are no genuine issues of material fact to be resolved and the cases are appropriate
for summary judgment. The court has considered the motions and accompanying memoranda, all
matters of record proper to consider on such motions, argument of counsel, and the law. Based
upon those considerations, this order and final judgment is entered.
I. Introduction
In 1987 the Florida legislature passed Section 790.33, Florida Statutes, which prevents
local governments from regulating the field of firearms and ammunition. In that statute the
legislature declares it is occupying "the whole field of regulation of firearms and ammunition ...
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." This
legal doctrine is referred to as 'preemption' and the legislature can do this.No party in this case is
challenging the validity of this preemption.
In 2011 the legislature amended Section 790.33.creating civil penalties for any person who
violates that preemption by enacting or causing to be enforced a firearm or ammunition regulation.
These penalties are both official and personal, meaning not only is the local governmental entity
liable, the individual officials can be sued personally also. These officials, along with any other
person who enacts or causes to be enforced a preempted firearm regulation, can also be removed
from office by the governor. Those 2011 amendments, specifically with regard to Sections 790.33
(3) and 790.335 (4)(c). are referred to in this order as the penalty provisions.
In these three consolidated cases. Plaintiffs, which include 30 municipalities, three
counties, more than 70 elected officials, and one individual citizen, challenge the penalty
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provisions. They claim the civil penalties and removal provisions violate the Florida Constitution,
the U.S. Constitution, or both. This order addresses each claim.
H. Legislative Immunity
The local governments claim local legislators are immune from suit because they are
protected by legislative immunity. making the penalty provisions unenforceable against them.
They argue legislative immunity for local legislators arises from three sources: (A) Florida
common law, (B)separation of powers in the Florida Constitution. and (C) federal law. The State
argues Florida's common law immunity in this area was abrogated. They also argue the legal
principles underpinning the immunities do not apply to local governments.
A.
The court finds the legislature abrogated the common law legislative immunity. Section
790.33(3)(a) states in pertinent part "any person ... that violates the Legislature's occupation of
the whole field of regulation of firearms and ammunition ....by enacting or causing to be enforced
any local ordinance ... impinging upon such exclusive occupation of the field shall be liable as set
forth herein." Local legislators are the only people who can enact local ordinances. While the
statute does not actually contain the phrase 'legislative immunity is hereby abrogated for local
legislators,' the State's only obligation in abrogating common law immunities is to make itself
clear. Bates v. St. Lucie County Sheriff's Office. 31 So. 3d 210. 213 (Fla. 4th DCA 2010). The
legislature was clear in its intent to create a new cause of action and for it to extend to local
legislators.
B.
The court next finds legislative immunity arising from the separation of powers clause in
the Florida Constitution docs apply to judicial review of local legislators and cannot be waived by
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statute. Florida courts regularly apply separation of powers principles to counties and cities. See.
e.g.. Broward County v. La Rosa. 505 So. 2d 422, 424 (Fla. 1987): Solares v. City of Miami. 166
So. 3d 887. 889 (Fla. 3d DCA 2015), cert. denied. 177 So. 3d 1271; Trianon Park Condo. Ass'n,
Inc. v. City of Hialeah, 468 So. 2d 912.918 (Fla. 1985); City ofMiami v. Wellman. 976 So. 2d 22,
26 (Fla. 3d DCA 2008).
The language used by the United States Supreme Court in Bogan v. Scott—Harris. 18 S.Ct.
966 (1998), is pertinent to this case. Although dealing with a federal statute, the United States
Supreme Court there concluded the rationales for according absolute immunity to federal, state,
and regional legislators apply with equal force to local legislators." As the Court went on to say.
the time and energy(and here,personal funds)required to defend against a lawsuit are of particular
concern at the local level, where the part-time citizen-legislator remains commonplace, and the
threat of liability may significantly deter service in local government because of the threat of civil
liability. And as the Court went on to say. the ultimate check on legislative abuse—the electoral
process — applies with equal force at the local level, where legislators are often more closely
responsible to the electorate. That language goes to the heart of this case.
Judicial power is vested in courts alone and judges cannot wield executive or legislative
power. As a part of this separation, Florida courts cannot question any legislator about her or his
legislative process because it would be impermissible judicial meddling in a purely political
matter. See League of Women Voters of Florida v. Florida House of Representatives, 132 So. 3d
135, 146(Fla. 2013).
The State's main argument on this issue asserts the legislature's ultimate authority over
local governments. This is generally the case; the legislature could abolish all counties and cities
if they so choose. Art. VIII, Sections 1(a) and 2(a), Fla. Const. But once those governments are
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established, the Constitution mandates certain requirements for how they must be set up. The
establishment of a legislative county commission is one. Art. VIII, Section 1(e), Fla. Const.
Establishing municipal legislative bodies is another. Art. VIII, Section 2, Fla. Const. The
legislature cannot change these fundamental aspects of counties and cities without amending the
Constitution. In following this reasoning, the court sees no relevance to the legislative supremacy
argument when considering the separation of powers question because the legislature cannot
change the fundamental aspects of separation of powers.
Because local governments must have what amount to small legislatures, and because
courts cannot interfere in legislative processes, neither this court, nor any other court in Florida,
can enforce the civil penalty provisions of Section 790.33 against local legislators.
C.
The court also finds the U.S. Constitution affords local legislators legislative immunity.
The First District Court of Appeal said so clearly:
The Speech or Debate clause is limited by its terms to members of Congress,
yet the court in Tenney applied the underlying common law principles to conclude
that members of the California Legislature were immune from liability in a civil
suit. Subsequently, the Court extended legislative immunity to local legislative
officials and to non-legislators legitimately engaged in a legislative function.
Expedia. Inc., 85 So. 3d at 522 (citations omitted); see also City of Pompano Beach v. Swerdlow
Lightspeed Mgmt. Co., LLC. 942 So. 2d 455, 456(Fla. 4th DCA 2006).
For the stated reasons the penalty provisions violate the legislative immunity doctrine.
III. Governmental Function Immunity
The local governments claim the penalty provisions violate the immunity for discretionary
governmental functions. The State reiterates its argument that local governments are not subject
to a separation of powers analysis under Florida's Constitution, the origin of governmental
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function immunity. Because separation of powers analysis is, in fact, implicated the court finds
governmental function immunity applies and the local governmental entities and their officials are
immune from suit.
Governmental function immunity exempts governments from appearing before a court and
answering for judgment decisions inherent in the act of governing. '"This is so because certain
functions of coordinate branches of government may not be subjected to scrutiny by judge or jury
as to the wisdom of their performance." Commercial Carrier Corp. v. Indian River CV_ 371 So.
2d 1010, 1022 (Fla. 1979). Governmental function immunity is a limitation on the power of the
courts and its application must be determined on a case by case basis. When determining if the
governmental function immunity applies, courts distinguish between legislative "planning"
decisions of a government,which the court may not review,and "operational"decisions for which
a government may be held liable. See, e.g. Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009);
Commercial Carrier. 371 So. 2d at 1018-22; C'ity of Freeport v. Beach Cmty. Bank, 108 So. 3d
684, 687 (Fla. 1st DCA 2013).
The State argues the legislature's decision to enact the penalty provisions eliminated local
governments' discretion. Local governments are indeed subject to""legislative prerogatives in the
conduct of their affairs. Weaver v. Heidtman. 245 So. 2d 295, 296 (Fla. 1st DCA 1971), and in
1987 the legislature exercised that prerogative to preempt local regulation of firearms. However.
it does not follow that the local governments can be penalized by the courts for acting, or
attempting to act, outside the scope of the legislature's preemption.
Here, were the penalty provisions to be enforced, they would necessarily subject local
legislative planning decisions to judicial scrutiny because the penalty provisions create liability for
enacting legislation—an inherently discretionary governmental function. Although the local
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government may ultimately be mistaken, and the preempted law stricken by a court, this
subsequent finding would not convert the original decision to enact legislation into the sort of
operational act which would be subject to judicial review.
Accordingly, the court finds the penalty provisions violate the doctrine of governmental
function immunity.
IV. Removal by the Governor
The penalty provisions include a provision that allows the governor to remove any person
from her or his official office for enacting or enforcing a preempted law. Section 790.33(3)(e),Fla.
Stat. The local governments raise a constitutional challenge to that provision. They argue the
governor cannot remove any local official from office because the Florida Constitution already
provides the method for removing them.
Article IV, Section 7 of the Florida Constitution states in pertinent part:
(a) By executive order... the governor may suspend from office... any county
officer,for malfeasance. misfeasance.neglect of duty,drunkenness, incompetence.
permanent inability to perform official duties, or commission of a felony...
(b) The senate may. in proceedings prescribed by law, remove from office or
reinstate the suspended official...
(c) By order of the governor any elected municipal officer indicted for crime may
be suspended from office until acquitted and the office filled by appointment for
the period of suspension...
Section 790.33(3)(e) states: "A knowing and willful violation of[firearm preemption] ...
shall be cause for termination of employment or contract or removal from office by the Governor."
In that subsection the legislature grants the governor the power to remove local officers from
office. The legislature did not have authority to do that.
Defendants' primary argument is that Article IV Section 7 is a floor, not a ceiling, on the
governor's authority and that the subject statute merely supplements the constitutional authority—
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that it "fills in the gaps." The court is mindful that the interpretive canon of negative implication
should be applied with caution when interpreting constitutional provisions and that the legislature
may enact legislation relating to the governor's exercise of his duties and powers already provided
in the Florida Constitution. The removal provision, though, goes much further. Giving the
governor removal power when the Constitution limits him as specifically provided is a grant of an
entirely new power, not an expansion of a previously existing power. "Where the Constitution
expressly provides the manner of doing a thing,it impliedly forbids its being done in a substantially
different manner."Bush v. Holmes, 919 So. 2d 392, 407(Fla. 2006).
The court finds the governor removal provision is unconstitutional for the reasons stated
above.
V. Speech
The local governments claim the penalty provisions violate free speech, association,
petition,and instruction rights under the Florida and Federal Constitution.The local governments'
position is:
• Local officials will not consider arguably non-preempted gun regulations because they are
afraid of the onerous penalties, leading to suppression of political speech and action:
• The constitutional rights to free speech, free association, and the right to petition and
instruct representatives protect the ability to engage in core political speech and action:
• Consequently,the penalties violate the Constitutions.
The State makes four points in response. First, the statute prohibits only the enactment or
enforcement of firearms regulations. not speech or expression. Florida Carry. Inc. v. City of
Tallahassee, 212 So. 3d 452, 461 (Fla. 1st DCA 2017). Second, enacting and enforcing is non-
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expressive conduct, Nev. Comm'n on Ethics v. Carrigan, 564 U.S. 117, 126-27 (2011), and a
legislator has no right to use official powers for expressive purposes. Third, private citizens not
achieving their preferred policy outcomes does not violate expressive rights. Initiative &
Referendum Inst. v. Walker,450 F.3d 1082, 1101 (10th Cir.2006).And fourth,restrictions directed
at conduct that impose incidental burdens on speech do not violate the First Amendment. Sorrell
v. IMS Health Inc., 564 U.S. 552, 567 (2011).
The legislature's preemption caused local governments to lose jurisdiction over the whole
field of regulation of firearms and ammunition, and penalizing infringement of this preemption
does not limit speech. All citizens are free to speak, assemble, or petition and instruct their local
officials about firearms and ammunition.
VI. Vagueness
The local governments argue Section 790.33 is unconstitutionally vague and provides
inadequate guidance as to what conduct is prohibited,or to whom the penalties apply.But whatever
ambiguity may exist in the statute does not rise to the level of unconstitutional vagueness.
For a statute to be unconstitutionally vague it must fail to provide a person of common
intelligence a reasonable opportunity to understand what conduct is prohibited, or it must invite
arbitrary enforcement. See Johnson v. United States. 135 S. Ct. 2551, 2556 (2015). Because the
penalty provisions impose civil penalties, they are penal in nature and any doubt as to
constitutionality must be resolved against the State. State v. Wershow, 343 So. 2d 605, 608 (Fla.
1977).
A "shapeless, hopeless[ly] indeterminate] statute that produces grave uncertainty.
regarding its scope will not survive a facial vagueness challenge even though some conduct . . .
clearly falls within the provision's grasp," thus a statute is unconstitutionally vague on its face
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only if no standard of conduct is specified at all," and fails to give ordinary people fair notice of
the punished conduct. Martin v. State, 259 So. 3d 733, 741 (Fla. 2018) (citations and internal
quotation marks omitted).
Here, the local governments contend the law provides no standard to determine what
regulation is preempted. The statute expressly incorporates the list of preempted areas of
regulation found in Section 790.33(1). This is not a standardless prohibition. Contrary to the local
governments' argument that the prohibitions in the preemption section and punished conduct are
contradictory, ordinary statutory interpretation provides reasonably ascertainable guidelines. The
court does not find Section 790.33 is unconstitutionally vague regarding what conduct is
prohibited.
The local governments also contend Section 790.33 is unconstitutionally vague for failing
to identify when and to whom the penalties apply. The court finds the law provides adequate
standards to determine whose conduct is punishable. By its terms Section 790.33(3)(d) prohibits
the use of public funds to defend, or reimburse the defense of, an action brought against an
individual under the section only after the finding the preemption was violated knowingly and
willfully.
The court does not find Section 790.33 is unconstitutionally vague.
VII. Due Process
The local governments claim the penalty provisions violate due process because they apply
to local officials who vote against preempted ordinances. They argue that individual legislators
cannot enact any law on their own, so, when a government enacts some law or ordinance, all of
the legislators can be held responsible. The court disagrees with the local governments' reading of
the penalty provisions and finds Section 790.33 does not violate due process of law.
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Section 790.33 penalizes "any person .... that violates the Legislature's occupation of the
whole field of regulation of firearms and ammunition ... by enacting ... any local ordinance or
administrative rule or regulation impinging upon such exclusive occupation." The local
governments are right that an individual official cannot make an ordinance into law. But each
official plays her or his part in enacting the law by taking the "authoritative act" of voting in the
affirmative. A local government cannot enact any law without actual people voting,and it is those
people which the law targets. When an official does not vote or votes 'no' on an ordinance, they
play no part in"making into law"that ordinance. Therefore,they enact nothing and are not liable
under Section 790.33.
Because the law penalizes only those officials who violate it, it does not violate due
process.
VIII. Contract Clause
Broward and Leon County Plaintiffs claim Section 790.33 unconstitutionally impairs its
employment contracts with county administrators Bertha Henry and Vincent Long respectively.
The local governments make two arguments: (A) first, Section 790.33 (3)(e) purports to give the
governor"cause for termination of employment or contract or removal from office"regarding the
administrators; (B)second. the purported impingement of Section 790.33(3)(b)&(d)on Broward
County's obligation to defend and indemnify administrator Henry. The court finds Section 790.33
unconstitutionally impairs these employment contracts.
In order to find that a statute impairs a contract in violation of the Florida Constitution.the
"[t]otal destruction of contractual expectations is not necessary,"" but rather, "[a]ny legislative
action which diminishes the value of a contract is repugnant to and inhibited by the Constitution. "
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Sears. Roebuck & Co. v. Forbes/Cohen Fla, Props., L.P., 223 So. 3d 292, 299 (Fla. 4th DCA
2017).
A.
Under the existing contractual relationships between the county administrators and the
counties' boards only the contractual parties can terminate the contractual relationship.By its plain
terms,Section 790.33(3)(e)purports to alter these agreements by granting the governor a unilateral
power to terminate the employment of the county administrators and by declaring certain action
as"cause"for termination,even if the county administrators took those actions after being directed
to do so by the board. Section 790.33(3)(e) Fla. Stat. The court agrees with the counties that, as
applied to termination of employment, Section 790.33(3) substantially alters the contractual terms
in a way that diminishes the value of the contract. Therefore, the court finds Section 790.33 is
unconstitutional as applied to the employment clauses of the county administrators.
B.
Broward County argues the contract between the County and administrator Henry imposes
a limited obligation to defend,hold harmless and indemnify the administrator,and Section 790.33
has the effect of voiding these obligations. The court does not agree that Sections 790.33(3)(b)&
(d) violate the contract's indemnification section.because,by the terms of the contract,the parties
clearly "acknowledge and agree that even though BOARD may proceed to handle a claim . . .
against ADMINISTRATOR. certain claims, actions, demands, losses and/or liabilities may be
precluded by law or may not be covered by the terms of this Article." Liability under Section
790.33(3)is an instance where the law explicitly precludes defense and indemnification,a scenario
which was anticipated in the contract.
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For the stated reasons the court finds Section 790.33(3)(e) violates the contract clause of
the Florida Constitution.
IX. Declarations
The local governments requested a declaration of their rights under Florida's Constitution
and the preemption statute. As these cases present a bona fide, actual, present practical need for
the declarations sought, and the declarations deal with an ascertainable state of facts, this court is
obliged to make such a ruling. Coalition for Adequacy and Fairness in School Funding, Inc. v.
Chiles, 680 So. 2d 400, 404 (Fla. 1996). The local governments present four policy actions which
they argue are not preempted or otherwise subject to the penalty provisions. Specifically, they
request declaratory judgment on their rights and obligations to: (A) enact regulations under their
constitutional "Local Option," (B) their rights to take actions as proprietors and employers, (C)
their authority to enact enabling legislation under section 790.06 Fla. Stat., and(D)their authority
to regulate firearms"components"and"accessories." The court will address each in turn.
A.
First, Florida's Constitution provides certain counties with "Local Option" powers to
require a criminal background check and up to a 5 day waiting period for all firearms sales within
the county, and local governments must be able to enact reasonable regulations attendant to those
powers. Fla.Const.Art.VIII, Section 5 (b);see Zingale v. Powell, 885 So.2d 277,282(Fla. 2004).
This court declares that counties may lawfully enact enabling regulations to enforce the Local
Option powers of Article VIII, Section 5(b)of the Florida Constitution, including by:
• Requiring documentation which demonstrates compliance with the waiting period by
showing the date and hour of the firearm sale as well as the date and hour of the firearm
transfer or receipt;
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• Requiring documentation which demonstrates compliance with the criminal records
history check. Such documentation is necessary to make such enforcement possible:
• Requiring posting of conspicuous signs throughout gun shows and providing written
notice to all gun show dealers of the Local Option requirements of a waiting period and
background screening:
• Actions reasonably tailored to enforce the Local Option powers, including enacting
regulations such as requiring that guns brought into gun shows for sale be tagged and
controlling access doors at gun shows to ensure regulatory compliance. The court
further finds proposed actions which require creating records of firearms transactions.
even if enacted in the form of regulations, do not violate section 790.335, Florida
Statutes, which is limited solely to records of firearms and firearm owners.
B.
Second,the local governments may establish policies related to firearms in their capacities
as employers and proprietors. The local governments' authority to act as proprietors is limited to
internal government operations (e.g., workplace rules under Section 790.33(4)(c)) and private
market participation(e.g., leasing, contracting, and operation of a traditionally private business).
C.
Third, the local governments are preempted from enacting further regulations under
Section 790.06(12) Fla. Stat., which prohibits the open carrying of a firearm and provides
exceptions to the rights of license holders to the concealed carry of a firearm in certain places and
at certain times. The local governments are all already obliged to enforce these laws. As written
neither the preemption provision nor Section 790.06 authorize further regulation of firearms by
the local governments.
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D.
Fourth,the local governments are preempted from the regulation of firearms"components"
and"accessories."It was the legislature's intent to occupy the whole field of regulation of firearms
and ammunition or components thereof. Section 790.33(4)(b) includes an exception permitting
local law enforcement organizations to regulate "firearm accessories' for their own use,
demonstrating the legislature's understanding that regulation of accessories was otherwise
prohibited. Regulation of firearm "components" and "accessories'' is the regulation of firearms:
something the local governments may not do.See Penelas iv. Arms Technologies,778 So. 2d 1042,
1045 (Fla. 3d DCA 2001).
X. Conclusion
In accordance with the legal doctrine of preemption,the legislature may prohibit local
regulation of firearms and accessories. However,the court finds the penalty provisions added in
2011 are unconstitutional. The penalty provisions are stricken for the reasons stated in this order.
With all claims resolved, it is:
ORDERED AND ADJUDGED Plaintiffs' motion for summary judgment is granted
and Final Judgment is entered for Plaintiffs. Defendants' motions for summary judgment are
denied and Final Judgment is entered against Defendants.
DONE AND ORDERED this 1.to day of J 4 9.
"An‘6. 6
HARLES D I DSON
IRCUIT JUDGE
Copies to:
All parties of record
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