R5B-Amend Civil Emergencies Ordinance - Regulation Of Firearms -Libbin-OFFICE OF THE CITY ATIORNEY
JOSE SMITH, CITY ATIORNEY COMMISSION MEMORANDUM
TO: Mayor Matti Herrera Bower
Members of the City Commission
City Manager Jorge M. Go lez
FROM: City Attorney Jose
DATE: January 11, 2012
SECOND READING
PUBLIC HEARING
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 form 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. The City Commission
approved the Ordinance on First Reading on December 14, 2011.
DT/sc
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Agenda Item R 55
Date l-11-l2-
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
206
* * *
Article II. State of Emergency
* * *
Sec. 26 32. A~:~tomatic emergency meas~:~res.
Whenever the city manager declares that a state of emergency exists, pursuant to
section 26 31, the follo¥.'ing acts shall be prohibited during the period of emergency throughout
the city:
(1) The sale of or offer to sell 'l.'ith or without consideration, any ammunition or gun
or other firearm of any si2: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 si2:e or description.
(3) The intentional possession in a public place of a firearm by any person, except a
duly authori2:ed la•.v 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. 'Neapons; discharging.
It shall be unla•Nful for any unauthori2:ed person to discharge, fire or shoot within the city
any firearm or other weapons, including air rifles, air pistols, slingshots or ·.veapons of the kind
usually called "BB gun," from which 'iveapon 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
207
* * *
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
(10) 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, fA.aGe, 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.
208
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
F:\A TIO\TURN\ORDINANC\Firearms Ordinance.docx
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1_6NE I THURSDAY, DECEMBER 29, 2011 MiamiHerald.com I THE MIAMI HERALD
i? MIAMIBEACH
CITY OF MIAMI BEACH
NOnCE OF PUBLIC. HEARINGS
NOTICE IS HEREBY given that second readings and public hearings will be held by the Mayor and City Commission
of the City of Miami Beach, Florida, in the Commi~sion Chambers, 3rd floor, City Hall, 1700 Convention Center Drive,
Miami Beach, Florida, on WEDNESDAY, January 11, 201'2 to consider the following:
10:15a.m.
Ordinance Amending Chapter 110 OfThe City Code, Entitled "Utilities," By Amending Article IV, Entitled "Fees, Charges,
Rates And Billing Procedure," By Amending Division 3, Entitled "Billing Procedure," By Amendirig.Section 110-191,
Entitled "Payment Of Bills," By Amending 11 0-191{B) By Changing The Penalty For Late Utility Bills From Ten Percent
Of The Current Bill To 1.5% Per Month Of The Late Outstanding Balance.
Inquiries may be directed to the Rnance Department at (305) 673-7 466.
10:20a.m.
"
Ortlinance Amending Chapter 26 Of The Miami Beach City Code Entftled "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," l3y Repealing Section 70-2, Entitled "Weapons;
Discharging," Due To The Preemption OfThe Entire Reid Of Regulation Of Firearms To The State Of Florida; E\Y Amending
Chapter 1 06 OfThe Miami Beach City Code, Entitled "Traffic And Vehicles," By Amending Article Ill, Entitled "Parades,"
By Amending Division 2, Entttled "Permi~" 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.-
Inquiries m&y be directed to the Legal Department at (305) 673-7470.
10:25a.m. _
Ordinance Amending Chapter 10 OfThe Miami Beach City Code Entitled "Animals," By Amending Section 10-10, Entitled
"Animals Prohibited In Public Parks And On Beaches" To Cross-Reference Language In Section 10-11 Regarding
Off-Leash Areas For.Dogs; By Amending Section 10-11, Entitled "Running At Large Prohibited,"By Extending The
Pilot Program 'Off-Leash Area For Dogs In South Pointe Park Until July 15, 2012, By Providing qff-Leash Hours In The
Designated Area In The Morning From Sunrise To 10:00 A.M. Daily And Between 4:00 P.M. And -7:00 P.M. Monday
Through Friday, And Relocating The Off-Leash Area To The South And East OfThe Washington Avenue Entry Plaza
Inquiries may be directed to the Parks and Recreation Department at (305) 673-7730·.
5:00p.m.
An Ordinance Amendifllf.The Land Development Regulations Of The :Code Of The City Of Miami Beach, By Amending
-Chapter 142;. "Zonirig Districts And Regulations," Article If, ''District Retjulations," Division 18, "PS Pertormance
Standard District", Section 142-696 "Residential Pertormance Standard Area Requirements".To Modify The Maximum
Height Requirements For Residential Apartment Structures; By Amending Section 142-697 ·~setback Requirements In
The R-PS 1, 2, 3, 4 District," To Modify The Setback Requirements For Oceanfront Buildings.
Inquiries may be directe.d to the Planning Department at (305) 673-7550. ·
5:o5p.m.
Ordinance Granting To Florida Power And Light Company, Its Successors And Assigns, An Electric Franchise Imposing
Provisions And Condttions Relating Thereto, Providing For Monthly Payments To The City Of Miami Beach:
I ,
Inquiries may be directed to the Public Works Department at (305) 673-7080.
INTERESTED PARTIES are invtted to appear at this meeting, or be represented by an agent, or to express ~heir views in
writing addressed to the City Commission, c/o the City Clerk, 1700 Convention .Center Drive, 1st Floor, City Hall, Miami
Beach, Florida 33139. Copies ofthese ordinances are available for public inspection during normal business hours
in the City Clerk's Office, 1700 Convention Genter Drive, 1st Floor, City Hall, and Miami Beach,.Fiorida 33139. This
meeting may be continued and under such circumstances additional legal notice would not be provided.
Robert E. Parcher, City Clerk
City of Miami Beach
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: if a person decides to appeal any
decision made by the City Commission with respect to any matter considered at its meeting or its hearing, such person
must· ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence
upon -which the appeal is to be based. This notice does not constitute consent by the City for the introduction or
admission of otherwise inadmissible or irrelevant evidence, nor does tt authorize challenges or appeals not otherwise
allowed by law. ·
. . ;-~ .
To request this material in accessible format, sign language interpreters, information on ~access .tor persons with
disabilities, and/or any accommoCiation to review any doc'Ument or participate in any citY-sponsored proceeding,
please contact (305) 604-2489 (voice), (305)673-7218(1TY) five days in advanca to initiate your request TrY users
may also call 711 (Florida Relay Service).
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