R5F-Amend Civil Emergencies Ordinance - Regulation Of Firearms -Libbin-JOSE SMITH, CITY AnORNEY
OFFICE OF THE CITY AnORNEY COMMISSION MEMORANDUM
TO:
FROM:
DATE:
Mayor Matti Herrera Bower
Members of the City Commission
City Manager Jorge M. Gonzalez
December 14, 2011
FIRST READING
SUBJECT: Ordinance Repealing Various Provisions in the Miami Beach City Code
Regarding the Regulation of Firearms due to Preemption by the State of
Florida.
The attached Ordinance amends the City Code to comply with the new state law
preempting the regulation of firearms to the State of Florida. Based upon prior City
Attorney opinions that the City Code provisions regarding firearms were preempted by
state law, the Administration was proactive in changing the City's beach "no firearms"
signs prior to the enactment of the new state law. Due to amendments to Section
790.33, Fla. Stat., the Florida legislature has now made clear that local governments
are preempted from regulating firearms. The new State law further provides penalties
for officials and local governments that enforce any such preempted local ordinances,
administrative rules, or regulations.
The Ordinance was referred to the Neighborhoods and Community Affairs Committee at
the November 2, 2011 Commission meeting by Commissioner Jerry Libbin. At the
Neighborhoods and Community Affairs Committee meeting, the proposed Ordinance
was discussed and the Committee moved this item to the full Commission for
consideration.
DT/sc/mem
Enclosure
379
Agenda Item R 5" F
Date tz~tq-11
ORDINANCE NO.------
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 26 OF THE
MIAMI BEACH CITY CODE ENTITLED "CIVIL EMERGENCIES," BY
AMENDING ARTICLE II, ENTITLED "STATE OF EMERGENCY," BY
REPEALING SECTION 26-32, ENTITLED "AUTOMATIC EMERGENCY
MEASURES" DUE TO THE PREEMPTION OF THE ENTIRE FIELD OF
REGULATION OF FIREARMS TO THE STATE OF FLORIDA; BY
AMENDING CHAPTER 70, ENTITLED "MISCELLANEOUS
OFFENSES," BY AMENDING ARTICLE I, ENTITLED "IN GENERAL,"
BY REPEALING SECTION 70-2, ENTITLED "WEAPONS;
DISCHARGING," DUE TO THE PREEMPTION OF THE ENTIRE FIELD
OF REGULATION OF FIREARMS TO THE STATE OF FLORIDA; BY
AMENDING CHAPTER 106 OF THE MIAMI BEACH CITY CODE,
ENTITLED "TRAFFIC AND VEHICLES," BY AMENDING ARTICLE Ill,
ENTITLED "PARADES," BY AMENDING DIVISION 2, ENTITLED
"PERMIT," BY AMENDING SECTION 106-375(A)(1) TO REPEAL
LANGUAGE REGARDING THE REGULATION OF FIREARMS THAT IS
PREEMPTED BY THE STATE OF FLORIDA, AND TO PROVIDE THAT
WEAPONS SHALL NOT INCLUDE ANY DESTRUCTIVE DEVICE OR
FIREARM AS DEFINED UNDER FLORIDA LAW; PROVIDING FOR
REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE
DATE.
WHEREAS, during the 2011 session of the Florida Legislature, HB 45 was adopted,
effective October 1, 2011, which preempted the entire field of regulation regarding firearms to
the State of Florida; and
WHEREAS, HB 45 also provides for civil fines up to $5,000.00, as well as other
penalties, for the enactment or enforcement of local laws or regulations in conflict with the new
State law and which makes local governments, and their elected and appointed government
officials, liable therefor; and
WHEREAS, there are various provisions in the Miami Beach City Code which must be
repealed or amended in order to comply with HB 45.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1.
That Section 26-32 entitled "Automatic Emergency Measures" of Article II of Chapter 26
of the Miami Beach City Code is hereby repealed as follows:
Chapter 26
CIVIL EMERGENCIES
380
* * *
Article II. State of Emergency
* * *
Sec. 2& 32. A1:1tematic emergency meas1:1res.
VVhenever the city manager declares that a state of emergency exists, pursuant to
section 26 31, the foii0\11.'ing acts shall be prohibited during the period of emergency throughout
the city:
(1) The sale of or offer to sell 'Nith or without consideration, any ammunition or gun
or other firearm of any si:z:e or description.
(2) The intentional display, after the emergency is declared, by or in any store or
shop of any ammunition or gun or other firearm of any si:z:e or description.
(3) The intentional possession in a public place of a firearm by any person, except a
duly authori:z:ed law enforcement official or person in military service acting in the
official performance of his duty.
SECTION 2.
That Section 70-2 entitled "Weapons, discharging," of Article I of Chapter 70 entitled
"Miscellaneous Offenses" of the Miami Beach City Code is hereby repealed as follows:
Chapter 70
MISCELLANEOUS OFFENSES
* * *
Article I. In General
* * *
Sec. 70 2. Weapens; discharging.
It shall be unla'IJful for any unauthori:z:ed person to discharge, fire or shoot within the city
any firearm or other weapons, including air rifles, air pistols, slingshots or weapons of the kind
usually called "BB gun," from which weapon any bullet, shot or pellet of lead or other material is
discharged or expelled, or for any person to discharge, fire or shoot in the waters within the city.
SECTION 3.
That Section 106-375 entitled "Prohibited activities," in Article VIII under Chapter 106 of
the Miami Beach City Code is hereby amended as follows:
Chapter 106
TRAFFIC AND VEHICLES
381
* * *
Article VIII. Parades
* * *
Division 2. Permit
* * *
Sec. 106-375. Prohibited activities.
(a) Any participant in a demonstration, rally, picket line or parade within the city who is
observed carrying or possessing any of the objects specified in subsections (1) through
(1 0) shall immediately dispose of or discard the object(s) upon the request of a law
enforcement officer. The willful refusal to dispose of or discard of the object(s) shall
constitute a violation, punishable in accordance with section 1-14 of this Code.
It shall be unlawful for any person participating in a demonstration, rally, picket line or
parade, to exhibit, display, possess, carry or wear any of the following:
(1) Any weapon. For purposes of this section, "weapon" shall mean any pistol, rifle,
shotgun or other firearm, whether loaded or unloaded, air rifle, air pistol, paintball
gun, paintball rifle, explosive, blasting cap, knife, hatchet, ax, slingshot,
blackjack, metal knuckles, mase, iron buckle, ax handle, crowbar, or any other
instrument customarily use or intended for use as a dangerous weapon.,. but,
shall not include any destructive device or firearm as defined under Florida law.
SECTION 4. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 5. SEVERABILITY.
If any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect
the validity of the remaining portions of this ordinance.
SECTION 6. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made a part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
382
SECTION 7. EFFECTIVE DATE.
This Ordinance shall take effect the day of-------' 2011.
PASSED and ADOPTED this day of ________ ,, 2011.
ATTEST:
ROBERT PARCHER, CITY CLERK
MATTI HERRERA BOWER
MAYOR
Underline denotes additions and strike through denotes deletions
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