Florida Carry

Firearms Preemption

Florida Cities and Counties Knowingly Continue to Break State Law

Since 1987 it has been illegal for local Florida governments to regulate firearms and ammunition.  The preemption statute was passed then so that Florida gun owners would no longer face a patchwork of local laws that was impossible to keep up with.  It was also passed to protect Floridians from local lawmakers who do not respect the citizens’ right to bear arms. The Florida Legislature never imagined that local leaders would thumb their noses at Tallahassee and intentionally break the law despite clear statute and appellate court decisions.  But they have for the past 24 years and the patchwork continued.

 

In 2010, Florida Carry, Inc. Co-Executive Director Richard Nascak and a cadre of volunteers organized on web forums and banded together in an grassroots effort to fix the problems at the local level.   They contacted local governments and were shocked at the reactions they got.  Local leaders were quite happy to make criminals of lawful gun owners because there was no penalty for politicians and bureaucrats breaking the state preemption law.

 

“So, sue us!” was the general and sometimes literal response.  Lee County resident and attorney Patrick Buckley did just that. He filed a lawsuit against his county’s park carry ban, knowing there was no provision to even recover his costs and fees should he win.

 

Richard Nascak engaged State Rep. Paige Kreegel for help and the NRA got involved to draft legislation that would put teeth in the long-abused statute.

 

Volusia County traded arguments for months with Florida Carry, Inc. Co-Executive Director Sean Caranna over its woodland and airport carry bans but finally backed down and repealed the preempted ordinances in March 2011 once it became clear that the Firearms Preemption Enforceability bill was on track to pass.

 

During the 2011 session, the legislature made it clear that they had had enough. On October 1st 2011, new penalties and a vehicle for recovery of attorney’s fees and costs goes in to effect. With days left to act, Florida counties, cities, and agencies are on notice.  Florida Carry will hold local leaders accountable and finally clear up the patchwork of unlawful restrictions on the right to bear arms in Florida.

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Preemption Issues

§790.33 Florida Statutes - Field of regulation of firearms and ammunition preempted

"Except as expressly provided by general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void."

 

No guns in parks? This clearly written statute was signed into law in 1987. It has been law for twenty-four years, and was enacted because prior to its existence, the firearms laws in Florida were determined by each individual county or municipality, creating a patchwork of conflicting regulations. At that time, a firearms owner could unknowingly violate one locality's ordinance and yet be perfectly in compliance in his own home county. It was a prescription for disaster for law-abiding gun owners and carriers.

 

Realizing the potential pitfalls that could turn a citizen into a criminal, the state legislature took a bold, and at the time, groundbreaking step and declared that they were assuming control of all firearms law statewide. The state legislature would decide the who, where, when, why, and how of firearms and ammunition regulation. This would create uniform law from the panhandle to the keys, and from the gulf to the Atlantic...or so they thought. They missed one critical item. They forgot to put teeth into the statute.

 

A quirky concept exists in Florida law. If a local jurisdiction passes an ordinance, there is no requirement to ensure that it is in accordance with state law, and the state must assume local ordinances are valid until challenged in court. Therefore, the counties and municipalities were free to knowingly create ordinances that were in violation of state statute and that would be virtually unchallenged due to the exorbitant costs in challenging them. In fact, a full two-thirds of Florida's 67 counties and countless cities and municipalities have ordinances, rules, and regulations that are in violation of the state preemption statute. To be fair, some ordinances existed prior to the 1987 statute and were overlooked. However, those are few and far between.

No guns in parks?

 

Enter HB 45, sponsored by Representative Matt Gaetz. Inspired by the outrage of concealed carry licensees who were told by their home counties, "sue us", the bill is the result of our effort to hold counties and cities accountable to the state. Authored by Marion P. Hammer, the bill not only gives teeth to the preemption statute, it provides fangs! First, it provides that when a firearms ordinance is challenged in court, the prevailing party is entitled to recoup all court costs and attorney's fees. If that isn't enough, it provides for fines and criminal prosecution by the State Attorney General for members of county commissions and municipal entities who willfully violate the state preemption statute.

Already, Palm Beach County has rescinded their long-standing and unlawful ban on firearms in county parks. Other jurisdictions are soon to follow suit. When the Commonwealth of Virginia passed a similar statute in 2009, not a single challenge had to be filed as the counties and municipalities immediately capitulated.

Florida Carry, Inc. fully supports this bill. If you haven't done so already, please take the time to look up your state representative and send them a letter of support for HB 45. Personal letters are always more effective than either form letters or e-mails but send an email also.

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