LTC 283-2018 Town of Surfsde Resolution NO. 18-2504MIAMI BEACH
OFFICE OF THE CITY CLERK
No.
283-2018
LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Rafael E. Granada, City Clerk
DATE: May 21, 2018
SUBJECT: TOWN OF SURFSIDE RESOLUTION NO. 18-2504
Attached for your information is Resolution No. 18-2504, adopted by the Mayor and Commission
of the Town of Surfside on May 8, 2018.
A RESOLUTION OF THE MAYOR AND TOWN COMMISSION OF THE TOWN
OF SURFSIDE, FLORIDA, RATIFYING THE AUTHORIZATION AND DIRECTION
TO FILE A LAWSUIT SEEKING A DECLARATION THAT THE PROVISIONS
PUNISHING ELECTED OFFICIALS SET FORTH IN SECTION 790.33, FLORIDA
STATUTES, FOR VIOLATING THE PREEMPTION RELATED TO THE
REGULATION OF FIREARMS AND AMMUNITION ARE INVALID, AND
INVITING OTHER LOCAL GOVERNMENTS TO JOIN THE LAWSUIT; AND
PROVIDING FOR AN EFFECTIVE DATE.
The Town Clerk of Surfside has requested that a copy of this Resolution be provided to the
Miami Beach Mayor and Commissioners.
If you have any questions, please contact the Office of the City Clerk at 305.673.7411.
REG/Ic
Attachment
F:\CLER\$ALL\CILIA\LTC's - Transmittal's\Resolution 18-2504 Town of surfside.docx
ESOLUT d ! NO.
A .RESOLUTION OF TILE iiiAYR AND TOWN
COMMISSION OF THE TOWN OF $LORFSE, FLORIDA,
'RATIFYING THE AvtHORI AT ION AND DIRECTION
TO .FILE .A: LAWSUIT SEEMING A DECLARATION THAT
THE PROVISIONS PUNISHING ELECTED OFFICIALS
SET FORTH IN SECTION 790.33, FLORIDA STATUTES,
FOR VIOLATING THE PREEMPTION RELATED TO THE
REGULATION OF FIREARMS AND AA/mm. ION ARE
INVALID, AND INVITING OTHER LOCAL.
GOVERNMENTS TO JOIN THE LAWSUIT; AND
PROVIDING FOR AN EF ECTI;E DATE.
WHEREAS, over the past several years there have been an unprecedented number of
mass shootings frt. American cornmurtities including, most recently, at Ma jory Stoneman.
Douglas High School in Parkland, ]Florida; and
WHEREAS, National and State leaders continueto fail to act to tnplement sensible gun
law reforms that are supported by a majority of the nation; and
WHEREAS, in Section 79033, Florida Statutes, the State of Florida (a) declared that it
occupying the whole field of regulation of firearms and ammunition, to the exclusion of all
existing and future county or city ordinances, regulations, or rules, (b) purports to prohibit the
enactrn nt of any future ordinances or regulations "relating to Breams," and (c) also purports to
create potential liability for damages for actions other than ordinances and regulations, including
any "measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced";
and
MEAS, the purported preemption, by using the terms "relating to firearms" and.
"any measure, directive, rule, enactment, order or policy promulgated," is extremely broad and
vague, and could apply to a panoply of measures that the Town would like to consider enacting,
including the stricting of guns in Town facilities and parks, the placingof signs relating to guns
in Town facilities and parks, the regulation of gun accessories (such as holsters, high capacity
magazines, or bump stocks) or the creating of "gun freezones" or "gun safe Zones"; and
WHEREAS, the potential violation of the broad and vague preemption of .fire nn
regulation in Section 790.33, Florida Statutes, carries the risk of onerous and punitive
consequences, including but not limited to damages up to $100,000 and fines up to $ ,000 (for
which the official may be personally liable), removal from office by the Governor without due
process of law, and a prohibition of the use of public funds to pay or reimburse the official for
fines, damages or defense costs (collectively, the "Onerous Preemption Penalties"); and
WHEREAS, asa r'es'ult of the Onerous Preemption Penalties, the Town. Commission and
its members fear taking any steps that could even remotely be viewed as a violation of the
preemption, creating a chilling effect upon Town action and preventing the Town Commission
from responding to the petitions and requests of the Town's residents to do something to protect
against the dangers of firearms; and
WHEREAS, the Town Commission and its members desire to consider various
reasonable measures related to firearms, including the restriction of guns in Town facilities and
parks, the placing of signs related to guns in Town facilities and parks, the regulation of gun
accessories (such as holsters, high capacity magazines, or bump stocks), the creation of "gun free
zones" or "gun safe zones," or other measures related to guns, but have refrained from doing so
because they could possibly be viewed as falling under the preemption and be subjected to the
Onerous Preemption Penalties; and
WHEREAS, the Onerous Preemption Penalties strike at the core of the American system
of democratic representation: they suppress, in an insidious, Orwellian fashion, the voice of the
local electorate through intimidation of local elected officials; and
WHEREAS, the Onerous Preemption Penalties infringe on the free speech rights of the
Town Commission and its members, and interfere with their ability to perform their official
duties; and
WHEREAS, the Onerous Preemption Penalties infringe upon the legislative immunity
the members of the Town Commission enjoy under law when casting votes in their official
capacities; and
WHEREAS, the portion of the Onerous Preemption Penalties related to the removal
from office by the Governor conflicts with Article 4, Section 7 of the Florida Constitution, by
allowing the Governor to remove a municipal official who has not been indicted for any crime,
and violates due process; and
WHEREAS, on February 26, 2018, the City of Weston passed Resolution 2018-30,
authorizing and directing its City Attorney (Weiss Serota Helfman Cole & Bierman, the "Firm")
to file a lawsuit seeking a declaration that the provisions punishing elected officials set forth in
Section 790.33, Florida Statutes, for violating the preemption related to the -regulation _ of firearms
and ammunition are invalid ("Lawsuit"), and invited other local governments to join the Lawsuit;
and
WHEREAS, the Town desires to join the Lawsuit and invite other local governments to
join also; and
WHEREAS, the Town Commission believes it is in the best interest of the citizens and
residents of the Town to file a lawsuit seeking a declaration that the Onerous Preemption
Penalties are invalid and urging other local governments to join the lawsuit as plaintiffs with the
Town.
2
NO , THE BEFORE, BE IT OLVED BY THE MAYOR AND TOWN
COMMISSION OF THE TOWN OF SURFSIDE, FLORIDA AS FOLLOWS:
Section L Recitals. The above Recitals are true and correct and incotporated herein
y this reference.
Section Z Authorization. The Town Commission hereby ratifies. the authorization
and direction to 1e a lawsuit naming the Town and :those individual Members of the
Connrnission in their official. capacity who choose to participate, as plaintiffs. (Mayor Daniel
Dietch, Vice Mayor Daniel Gielchinsky, Commissioner Michael Karukin and COMMiSSiOnCr
Tina Paul), seeking declaratory and other appropriate relief to challenge the Onerous Preemption
Penalties contained in Section 79033, Florida Statutes, based upon any appropriate legal
theories, including those set forth above.
Section 3 : Attorneys Fee. The Firm is hereby retained to represent the Town in
this liti ation, The Firm will charge the Town a flat fee of $10,000 to represent the Town and.
the individual Members of the Commission in their official capacity who choose to participate as
plaintiffs (Mayor Daniel 'Dietch, Vice Mayor Daniel Gielchinsky, Commissioner Michael
'.arukin and Commissioner issioner Tina Pawl), for the litigation, including all appeals. If more than 15
cities choose to have the Firm represent them, the flat fee will be reduced by 1% for each city
over 15 up to a maximum reduction of 25% (which would lower the fee to $7,500 if 40 or mare.
cities have the Firm represent thee, and refund any amounts paid in excess of the flat fee, The
Town also acknowledges that the Finn will be representing other local governments and officials
in thin lawsuit and waives any conflicts related to such representation. The Firm's retention may
be subject to execution of a retainer agreement between the Town and the Firm consistent with
the terms set forth herein and which addresses any conflict of interest waivers.
Section 4: Ur ine Other Local Governments.. The Town Commission invites and
urges other local governments and elected officials to join the Town as plaintiffs in the lawsuit
and to coordinate their efforts with the Town.
Section 5: Town Clerk Resnonsibilities. The Town Clerk is directed :to
distribute this R,esolttion to all local governments in lviami-Dade County,
Section 6: Anthortty: That the appropriate Town Officials are hereby authorized
to dtr all things necessary and expedient to carry out the aims of this Resolution
Section 7: Effective Date. That this Resolution shalltake effect immediately upon
adoption.
ASSED D .DOPTED this S' day
Motion by
Second by
ay, 2018.
Commissioner Barry Cohen
Commissioner Michael Karukin
Commissioner Tina Paul
Vice Mayor Daniel Gielchinsky
Mayor Daniel Dietch
ATTEST:
Sandra Novoa, wn Clerk
Daniel Welch, Mayor
APPROVED AS TO FORM AND LEGAL SUFFICIENCY
FOR THE TOWN OF SURFSIDE ONLY: