2012-27847 Reso RESOLUTION NO. 2012 -27847
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA URGING THE FLORIDA
LEGISLATURE TO REPEAL THE PENALTY PROVISIONS IN THE JOE
CARLUCCI UNIFORM FIREARMS ACT WHICH WERE ENACTED
DURING THE 2011 FLORIDA LEGISLATIVE SESSION AND WHICH
BECAME EFFECTIVE OCTOBER 1, 2011.
WHEREAS, there are various provisions in the Florida Statutes which preempt certain
areas of regulation to the State Florida; and
WHEREAS, in an unprecedented action, the Florida Legislature amended the Joe
Carlucci Uniform Firearms Act ( "Act ") during its 2011 legislative session to not only clarify and
expand its preemption in the area of the regulation of firearms and ammunition, but it enacted
fines and penalty provision against local governments and their officials when they enact or
cause or to be enforced any local ordinance, administrative rule, or regulation impinging upon
the exclusive occupation of the field of firearm regulation by the State of Florida; and
WHEREAS, the fine and penalty provisions in the Act include: injunctive relief against
governmental entities; up to a $5000.00 fine for knowing and willful violations by government
officials; the termination of employment or contract of any person acting in an official capacity
for a knowing and willful violation of the Act or removal from office by the Governor; and the
mandatory award of reasonable attorney's fees, costs, actual damages up to $100,000.00, and
interest to a prevailing party in a suit brought by an adversely affected person or organization;
and
WHEREAS, local government officials and local governments around the State,
including the Mayor and City Commission for the City of Miami Beach, oppose the new penalty
amendments in the Act on the bases that they are a) unconstitutional and contravene the
legislative immunity of local government officials and b) violate the separation of powers
doctrine with regard to the authority given to the Governor in the Act to remove local officials
when such authority is vested in the Florida Senate pursuant to the Florida Constitution; and
WHEREAS, in particular, the Palm Beach County Board of County Commissioners, and
five named Commissioners in their individual and official capacities, have filed a complaint for
declaratory and injunctive relief against Governor Rick Scott, Pam Bondi, the Florida Senate,
and the Florida House of Representatives in the Circuit Court of the 15 Judicial Circuit in and
for Palm Beach County, Florida, on the bases that the penalty provisions in the Act violate the
Florida Constitution and the principles of legislative immunity.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that, based upon the
foregoing reasons, the Florida Legislature is hereby urged to repeal the penalty provisions in the
Joe Carlucci Uniform Firearms Act.
PASSED AND ADOPTED this 3444 day of f= e6rkur t/ , 2012.
ATTEST: F
r Matti Herrera Bower APPROVED AS TO
H 26 T11 City Clerk Robert Parcher INCORP ORATED. * FORM & UAGE
h & FOR EC TION
F:WTTO \TURN \RESOS \Repeal Penalt t'i on rya docx r,
CITY NEY ATE
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MIAMI B
OFFICE OF THE CITY ATTORNEY
JOSE SMITH, CITY ATTORNEY
COMMISSION MEMORANDUM
TO: Honorable Mayor Matti Herrera Bower
Members of the City Commission
CC: Jorge Gonzalez, City Ma
9a gK r
FROM: Jose Smith, City Attorney
DATE: February 8, 2012
SUBJECT: The Florida Legislature's 2011 Amendments to the Florida Uniform
Firearms Act and City of Miami Beach Resolution Urging the
Repeal of the 2011 Amendments.
At the January 11, 2012 Commission meeting, the City Commission asked
the City Attorney to consider the options to oppose the penalty provisions in the
2011 amendments to the Joe Carlucci Uniform Firearms Act ( "Firearms Act ").
The following is a summary of the new legislation and a recent legal challenge
thereto filed by Palm Beach County. In addition, attached hereto is a Resolution
for consideration by the Mayor and City Commission urging the Florida
Legislature to repeal the 2011 amendments.
In 1987, the Florida Legislature enacted the Firearms Act expressly
preempting to the State the regulation of firearms and ammunition, with certain
limited exceptions. In 2011, the Florida Legislature amended the Firearms Act to
expand the preemption of firearms regulation to include the storage of firearms
and ammunition. In addition, the 2011 amendments established penalties for
local government officials and local governmental entities that violate the
preemption by "enacting or causing to be enforced any local ordinance or
administrative rule or regulation impinging upon such exclusive occupation of the
field." §790.33(3)(a), Fla. Stat.
The new penalties include injunctive relief against the governmental entity;
up to a $5000.00 fine for knowing and willful violations by government officials;
the termination of employment or contract of any person acting in an official
capacity for a knowing and willful violation of the Firearms Act or removal from
office by the Governor; and reasonable attorney's fees, costs, actual damages up
to $100,000.00, and interest shall be awarded to a prevailing party in a suit
brought by an adversely affected person or organization §790.33(3)(a) -(f), Fla.
Stat. The Firearms Act also provides that it is no defense that a local
government acted in good faith or upon advice of counsel in enacting an
Agenda Item
Date
ordinance or regulation in violation of the Act. §790.33(3)(b), Fla. Stat. Moreover,
public funds may not be used to defend or reimburse a person found to have
knowingly and willfully violated the Act. §790.33(3)(d), Fla. Stat.
On December 6, 2011, the Palm Beach County Board of County
Commissioners, and five named Commissioners in their individual and official
capacities, filed a Complaint for Declaratory and Injunctive Relief in the Circuit
Court of the Fifteenth Judicial Circuit in and for Palm Beach County against
Governor Rick Scott, Florida Attorney General Pam Bondi, the Florida Senate,
and the Florida House of Representatives. The Complaint challenges the 2011
amendments to the Firearms Act on various grounds. (A copy of the Complaint
will be provided to you under separate cover). In the Complaint, the Plaintiffs
seek:
1) a declaratory judgment that the new sanctions in the Firearms Act violate
the Plaintiffs' rights to legislative immunity in the enactment of legislation,
including but not limited to ordinances and resolutions;
2) injunctive relief to enjoin the enforcement of the new sanctions imposed by
the Act on the basis that such sanctions violate legislative immunity
enjoyed by Plaintiffs and the enacting of legislation requires discretion
and, therefore, is not a ministerial act subject to sanctions;
3) a declaratory judgment that the sanction of removal from office by the
Governor is an unlawful delegation of power by the Florida Legislature to
the Governor and violates the separation of powers doctrine. Specifically,
Plaintiffs assert that, under the Florida Constitution, it is the Senate that
has the power to remove a local official from office or to reinstate a
suspended official. It is within the Governor's initial discretion to determine
whether a particular set of circumstances warrants suspension. The
Senate has no power to either expand the categories for which the
Governor may suspend an official or to mandate a finding that a certain
act fits within one of the discretionary categories for suspension; and
4) injunctive relief to enjoin the enforcement of the removal from office
sanction because such sanction constitutes an unlawful delegation of
power to the Governor and violates the separation of powers doctrine
because it is the Senate that has the authority to remove an official from
office.
The Defendants' response to the Complaint is due to be filed on Monday,
January 30, 2012.
We are closely monitoring the Palm Beach County case and we will keep you
advised as to the status of the litigation.
JS /DT /mem
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