Agenda 06/08/2021 Item #16K 1 (No further action with respect to public petition requesting to protect firearm owners from federal/state government acts)
Proposed Agenda Changes
Board of County Commissioners Meeting
June 8, 2021
Continue Item 9C to the July 13, 2021 BCC Meeting: Recommendation to adopt the proposed
amendments to the Rural Lands Stewardship Area Overlay of the Collier County Growth
Management Plan (GMP), Ordinance 89-05, as amended, and to transmit the amendments to the
Florida Department of Economic Opportunity (DEO) and other statutorily required agencies.
(Staff’s request)
Continue item 10A to the June 22, 2021 BCC Meeting: Recommendation for the Board to
consider adoption of a County Ordinance establishing Collier County as a Bill of Rights Sanctuary
County. (Commissioner McDaniel’s request)
Continue Item 10B to the July 13, 2021 BCC Meeting: Recommendation to direct the County
Manager to retain an outside consultant to review the Rural Lands Stewardship Area (RLSA)
Overlay Growth Management Plan, as amended, to estimate the total Stewardship Credits
available in the Overlay. (Commissioner Taylor’s request)
Move Item 16A15 to Item 11J: Recommendation to accept the Golden Gate Parkway Complete
Street Study and direct staff to pursue Concept 1. (Commissioner Saunders’ request)
Add on Item 11K: Update on the Great Wolf Lodge development agreement. (Commissioner
Saunders’ request)
Move Item 16C4 to Item 11L: Recommendation to approve a Resolution authorizing the Chairman
of the Board of County Commissioners, Collier County, Florida, to execute Agreements, Deeds, and
other documents required for the sale of Gulf American Corporation (GAC) Land Trust property
during the 2021 Calendar Year. (Commissioner McDaniel’s request)
Withdraw item 16D6: Recommendation to approve and authorize the Chairperson to sign the
Fourth Amendment between Collier County and Prestige Home Centers, Inc. to extend the
agreement term and increase funding in the amount of $30,000 for the State Housing Initiatives
Partnership Demolition and/or Replacement of Manufactured Housing program. (Staff’s request)
Continue Item 16K1 to the June 22, 2021 BCC Meeting:
Recommendation to take no further action with respect to a public
petition requesting that Collier County enact an ordinance to
protect firearm owners from federal or state government intrusion.
(Commissioner McDaniel’s request)
Time Certain Items:
Item 9A & 9B and companion items to be heard at 10:00am - Longwater and Belmar items with
companion items
6/8/2021 8:33 AM
06/08/2021
EXECUTIVE SUMMARY
Recommendation to take no further action with respect to a public petition requesting that Collier
County enact an ordinance to protect firearm owners from federal or state government acts in
violation of the Second Amendment.
OBJECTIVE: That the Board of County Commissioners takes no further action with respect to Mr.
Rosenberger’s Public Petition.
CONSIDERATIONS: On March 23, 2021, Mr. James Rosenberger appeared before the Board under
Public Petition. In his Petition, Mr. Rosenberger noted that in 2013 the Board approved Resolution No.
2013-56 which set forth Collier County’s support of the Second Amendment. Mr. Rosenberger’s Petition
asked the Board to “recast that resolution as an ordinance.” Mr. Rosenberger presented a proposed
ordinance for the Board’s consideration, the purpose of which, as explained in the Petition, is to:
1. Invalidate any Federal or State law which the County deemed was an unlawful restriction on
the public’s right to keep and bear arms;
2. Prohibit any Collier County employee or official from participating in such an unlawful act;
and
3. Make subject to arrest any federal or state agent attempting to enforce an unlawful act.
A copy of the proposed ordinance, which is included in the back-up materials, is problematic in a number
of ways. Since I believe that the Board is preempted by Florida Statutes from enacting the proposed
ordinance, there is no need to address any other issue.
During the 2011 legislative session, the Florida Legislature adopted House Bill 45, which was signed into
law by Governor Rick Scott and codified at Chapter 2011-109, Laws of Florida. House Bill 45 amended
Section 790.33, Florida Statutes, entitled “Field of regulation of firearms and ammunition preempted,” by
expanding the Legislature’s preemption in the field of regulation of the firearms and ammunition, and by
exacting severe penalties should an elected or appointed local government official enact, or cause to be
enforced, an ordinance or regulation relating to firearms and ammunition. The legislation became
effective October 1, 2011.
Based on this Legislation, at the County Attorney’s recommendation, in September of 2011 the
Board repealed all of the County’s current firearms laws and regulations. Similar repeals occurred
throughout the State. A copy of that Executive Summary is included as back-up.
History of Section 790.33, Florida Statutes
Section 790.33, Florida Statutes (the “Joe Carlucci Uniform Firearms Act”), was created during
the 1987 legislative session. The intent of the Act was to provide uniform firearms laws in the State.
Since its adoption in 1987, Section 790.33 has preempted local governments from regulating firearms and
ammunition unless expressly authorized to do so by general law.
House Bill 45
In 2011, the Legislature tightened the preemption language of the Joe Carlucci Uniform Firearms
Act, leaving no doubt as to its intent. Section 790.33(1), as amended by House Bill 45, provides the
following express preemption:
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Except as expressly provided by the State Constitution or 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, storage, and transportation thereof, to the
exclusion of all existing and future county, city, town, or municipal ordinances
or any administrative regulations or rules adopted by local or state government
relating thereto. Any such existing ordinances, rules, or regulations are hereby
declared null and void.
House Bill 45 added a new subsection (3) to Section 790.33, regarding penalties to be imposed should
any person, county, agency, municipality, or district violate the Legislature’s exclusive regulation of
firearms and ammunition, such a violation being a third-degree felony. For example, a knowing and
willful violation of any provision of Section 790.33 by a person acting in an official capacity for any local
government entity that enacts, or causes to be enforced, an ordinance or administrative rule or regulation,
“shall be cause for termination of employment or contract or removal from office by the Governor.”
Furthermore, if a court determines that the official acted knowingly and willingly, the court “shall assess a
civil fine of up to $5,000” against the official and public funds “may not be used to defend or reimburse
the unlawful conduct.”
It is my opinion that the Board is expressly preempted from enacting the proposed ordinance. Should the
Board do so, each of the Commissioners who votes to enact the proposed ordinance risks personal fines
and removal from Office.
FISCAL IMPACT: None.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to
form and legality, and requires majority vote for approval. -JAK
GROWTH MANAGEMENT IMPACT: None.
RECOMMENDATION: That the Board of County Commissioners takes no further action with respect
to Mr. Rosenberger’s Public Petition.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
ATTACHMENT(S)
1. Request to Speak Under Public Petition - James Rosenberger (PDF)
2. proposed ordinance - 2021 Second Amendment Preservation Act (PDF)
3. Executive Summary - 9.27.11 BCC Agenda item 17E (PDF)
4. Section 790.33 Fla. Stat. (PDF)
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.1
Doc ID: 15872
Item Summary: *** This item was continued from the April 27, 2021 BCC meeting and further
continued at the May 11, 2021 BCC meeting to the June 8, 2021 BCC meeting. *** Recommendation to
take no further action with respect to a public petition requesting that Collier County enact an ordinance
to protect firearm owners from federal or state government intrusion.
Meeting Date: 06/08/2021
Prepared by:
Title: Sr. Operations Analyst – County Manager's Office
Name: Geoffrey Willig
05/12/2021 9:33 AM
Submitted by:
Title: Division Director - IF, CPP & PM – County Manager's Office
Name: Amy Patterson
05/12/2021 9:33 AM
Approved By:
Review:
Office of Management and Budget Geoffrey Willig Level 3 OMB Gatekeeper Review Skipped 05/12/2021 9:20 AM
County Attorney's Office Geoffrey Willig Level 3 County Attorney's Office Review Skipped 05/12/2021 9:20 AM
County Manager's Office Geoffrey Willig Additional Reviewer Skipped 05/12/2021 9:20 AM
County Manager's Office Sean Callahan Level 4 County Manager Review Completed 05/28/2021 2:25 PM
Board of County Commissioners Geoffrey Willig Meeting Pending 06/08/2021 9:00 AM
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2021 Second Amendment Preservation Act
Section 1. Title
This ordinance shall be known and cited as the “Second Amendment Preservation Act” also
known as “SAPA”
Section 2. Findings
The people of Collier County, Florida, find and declare:
A. Acting through the Constitution of the United States, the people created the federal
government to be their agent in the exercise of a few defined powers, while reserving for the
citizens the right to decide on matters which concern their lives, liberty and property in the
ordinary cost of affairs;
B. The Second Amendment to the Constitution of the United States of America states, “A well-
regulated militia being necessary to the security of a free state, the right of the people to keep
and bear arms, shall not be infringed”;
C. The right of the people to keep and bear arms is further protected from infringement by state
and local governments under the ninth, tenth, and fourteenth amendments to the Constitution
of the United States of America.
D. Law of the Land: The general misconception is that any statute passed by legislators bearing
the appearance of law constitutes the Law of the Land. The U.S. Constitution is the Supreme
Law of the Land, and any statute to be valid, must be in agreement. It is impossible for a law
which violates the Constitution to be valid. This is succinctly stated as follows:
1. “All laws which are repugnant to the Constitution are null and void.” Marbury v.
Madison. 5 U.S., 137, 174, 176 (1803).
2. “Where rights secured by the Constitution are involved, there can be no rule making or
legislation which would abrogate them.” Miranda v. Arizona, 384 U.S. 436 p.491.
(1966).
3. “An unconstitutional act is not a law; it confers no rights; it imposes no duties; affords no
protection; it creates no office; it is in legal contemplation, as inoperative as though it had
never been passed.” Norton v. Shelby County. 118 U.S. 425 p. 442 (1886).
4. The general rule is that an unconstitutional statute, though having the form and name of
law, is in reality no law, but is wholly void and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from the date of
the decision so branding it.
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5. “No one is bound to obey an unconstitutional law and no courts are bound to enforce it”.
16 Am Jur 2d, Sec 177 late 2d, Sec 256.
E. In District of Columbia v. Heller the Supreme Court of the United States of America
recognized the individual’s right to keep and bear arms, as protected by the Second
Amendment of the Constitution of the United States of America. Justice Antonin Scalia’s
prevailing opinion in that case stated that the Second Amendment protects an individual’s
right to possess a firearm unconnected with service in a militia, and the right to use that
firearm for traditionally lawful purposes, such as self-defense within the home;
F. Section 1 of the Fourteenth Amendment to the Constitution of the United States of America
states, “no state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state deprive any person of life,
liberty or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws”;
G. The Supreme Court of the United States recognized in McDonald v. City of Chicago that the
Second Amendment to the Constitution was incorporated by the Fourteenth Amendment and
thereby made fully applicable to the States;
H. Justice Thomas M. Cooley in the People v. Hurlbut 24 Mich. 44, page 108 (1874), states
“The State may mould local institutions according to its views of policy or expediency: but
local government is a matter of absolute right; and the State cannot take it away”;
I. The right to be free from commandeering hand of government has been recognized by the
United States Supreme Court in Printz v. United States. The court held: “The Federal
Government may neither issue directives requiring the States to address particular problems,
nor command States’ officers, or those of their political subdivisions, to administer or
enforce a federal regulatory program.” The anti-commandeering principles recognized by the
U.S. Supreme Court in Printz v. United States are predicated upon the words of James
Madison, who in Federalist #46 advised “A refusal to cooperate with officers of the Union”
in response to either unconstitutional federal measures or constitutional but unpopular federal
measures.
J. Therefore, the right to keep and bear arms is a fundamental individual right that shall not be
infringed by the Federal Government or any of its appointed unelected officials; and all local,
state, and federal acts, laws, orders, rules or regulations regarding firearms, firearms
accessories, and ammunition are in violation of the Second Amendment.
K. Local governments have the legal authority to refuse to cooperate with state and federal
firearm laws that violate those rights and proclaim a Second Amendment Sanctuary for law-
abiding citizens in their cities and counties. Any act whether past, present, or future passed
by the United States Congress and signed into law by the Federal Government and
specifically any Presential Administration which infringes on the peoples’ right to keep and
bear arms in Collier County, Florida shall be considered null and void in the County and not
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recognized by this County. Any current House bills if passed are null and void, and not
recognized by Collier County, Florida. Any past, present or future bill passed by the United
States Congress will be null and void and not recognized by Collier County, Florida.
L. Therefore, through the enactment of this document, Collier County, Florida is hereby
protected by the Second Amendment Preservation Act.
Section 3. Prohibitions
A. Notwithstanding any other law, regulation, rule or order to the contrary, no agent,
department, employee or official of Collier County, a political subdivision of the State of
Florida, while acting in their official capacity, shall:
1. Knowingly and willingly, participate in any way in the enforcement of any Unlawful Act,
as defined herein, regarding personal firearms, firearm accessories or ammunition.
2. Utilize any assets, Collier County funds, or funds allocated by any entity to Collier
County, in whole or in part, to engage in any activity that aids in the enforcement or
investigation relating to an Unlawful Act in connection with personal firearms, firearm
accessories, or ammunition.
Section 4. Penalties
A. An “Unlawful Act”: shall consist of any federal or state act, law, order, rule, or regulation,
which restricts an individual’s constitutional right to keep and bear arms, including any
federal or state act, law, order, rule or regulation which bans or effectively bans, registers or
effectively registers, or limits the lawful use of firearms, firearm accessories or ammunition
(other than a fully automatic firearm which is made unlawful by federal law). Any such
“Unlawful Act” is invalid in Collier County and shall not be recognized by Collier County, is
specifically rejected by the voters of Collier County, and shall be considered null, void and of
no effect in Collier County, Florida, and this includes, but shall not be limited to the
following:
1. Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not
common to all other goods and services on the purchase or ownership of those items by
citizens;
2. Any registration or tracking of firearms, firearm accessories, or ammunition;
3. Any registration or tracking of the owners of firearms, firearm accessories, or
ammunition;
4. Any act forbidding the possession, ownership, or use or transfer of any type of firearm,
firearm accessory, or ammunition by citizens of the legal age of eighteen and over, other
than pursuant to federal law background check requirements for transfers or purchases
through FFL dealers;
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5. Any act ordering the confiscation of firearms, firearm accessories, or ammunition from
citizens;
6. Any prohibition, regulation, and/or use restriction related to ownership or the
constitutionally guaranteed lawful use or carry of no-fully automatic firearms; and
7. Any prohibition, regulation, and/or use restriction limiting hand grips, stocks, flash
suppressors, bayonet mounts, magazine capacity, clip capacity, internal capacity, bump
stocks, suppressors, or types of ammunition available for sale, possession or use by
citizens.
B. Anyone within the jurisdiction of Collier County, Florida, accused of being in violation of
this ordinance may be sued in the district court of the state of Florida for declaratory and
injunctive relief, damages and attorneys’ fees. Neither sovereign nor official or qualified
immunity shall be an affirmative defense in cases pursuant to this section.
Collier County, Florida declares that any person while acting as an official, agent, employee,
or deputy of the United States Government who enforces or attempts to enforce any of the
infringements identified in this ordinance or gives material aid and support to the efforts of
others who enforce or attempt to enforce any of the infringements identified in this ordinance
may be permanently ineligible to be hired as a law enforcement officer or to supervise law
enforcement officers in the county.
C. Any peace officer may enforce this ordinance. Any and all federal agents trying to enforce
the regulations in Section 4, 1-7 shall be subject to arrest by Collier County, Florida’s
Sheriff’s Department. The Collier County Sheriff’s Department shall be given the full
authority to make an arrest to any and all federal agents that violate state laws and enforce
the regulations listed in Section 4., 1-7.
D. Exceptions:
1. The protections provided to citizens by this ordinance do not apply to persons who have
been convicted of felony crimes or who are prohibited from possessing firearms under
federal law.
2. This act is not intended to prohibit or affect in any way the prosecution of any crime for
which the use of, or possession of, a firearm is an aggregating factor or enhancement to
an otherwise independent crime.
3. This act does not permit or otherwise allow the possession of firearms in Federal
buildings
4. This act does not prohibit individuals in Collier County, Florida, from voluntarily
participating in assisting in permitting, licensing, registration or other processing of
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applications for concealed carry permits, or other firearm, firearm accessory, or
ammunition licensing or registration processes that may be required by law.
Section 5. Severability
A. The provisions of this Act are hereby declared to be severable, and if any provision of this act
or the application of such provision of this act or the application of such provision to any
person or circumstance is declared invalid for any reason, such declaration shall not affect
the validity of the remaining portions of this act.
Section 6. Effective Date
A. The effective date of this Act, The Second Amendment Preservation Act, or “SAPA” shall
be immediately upon approval by the Collier County Commissioners.
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790.33 Field of regulation of firearms and ammunition preempted.—
(1) PREEMPTION.—Except as expressly provided by the State Constitution or 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,
storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or
municipal ordinances or any administrative regulations or rules adopted by local or state government
relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.
(2) POLICY AND INTENT.—
(a) It is the intent of this section to provide uniform firearms laws in the state; to declare all
ordinances and regulations null and void which have been enacted by any jurisdictions other than state
and federal, which regulate firearms, ammunition, or components thereof; to prohibit the enactment
of any future ordinances or regulations relating to firearms, ammunition, or components thereof unless
specifically authorized by this section or general law; and to require local jurisdictions to enforce state
firearms laws.
(b) It is further the intent of this section to deter and prevent the violation of this section and the
violation of rights protected under the constitution and laws of this state related to firearms,
ammunition, or components thereof, by the abuse of official authority that occurs when enactments
are passed in violation of state law or under color of local or state authority.
(3) PROHIBITIONS; PENALTIES.—
(a) Any person, county, agency, municipality, district, or other entity that violates the
Legislature’s occupation of the whole field of regulation of firearms and ammunition, as declared in
subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or
regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein.
(b) If any county, city, town, or other local government violates this section, the court shall
declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against
the local government prohibiting it from enforcing such ordinance, regulation, or rule. It is no defense
that in enacting the ordinance, regulation, or rule the local government was acting in good faith or
upon advice of counsel.
(c) If the court determines that a violation was knowing and willful, the court shall assess a civil
fine of up to $5,000 against the elected or appointed local government official or officials or
administrative agency head under whose jurisdiction the violation occurred.
(d) Except as required by applicable law, public funds may not be used to defend or reimburse the
unlawful conduct of any person found to have knowingly and willfully violated this section.
(e) A knowing and willful violation of any provision of this section by a person acting in an official
capacity for any entity enacting or causing to be enforced a local ordinance or administrative rule or
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regulation prohibited under paragraph (a) or otherwise under color of law shall be cause for
termination of employment or contract or removal from office by the Governor.
(f) A person or an organization whose membership is adversely affected by any ordinance,
regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced
in violation of this section may file suit against any county, agency, municipality, district, or other
entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and
injunctive relief and for actual damages, as limited herein, caused by the violation. A court shall award
the prevailing plaintiff in any such suit:
1. Reasonable attorney’s fees and costs in accordance with the laws of this state, including a
contingency fee multiplier, as authorized by law; and
2. The actual damages incurred, but not more than $100,000.
Interest on the sums awarded pursuant to this subsection shall accrue at the legal rate from the date on
which suit was filed.
(4) EXCEPTIONS.—This section does not prohibit:
(a) Zoning ordinances that encompass firearms businesses along with other businesses, except that
zoning ordinances that are designed for the purpose of restricting or prohibiting the sale, purchase,
transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition
are in conflict with this subsection and are prohibited;
(b) A duly organized law enforcement agency from enacting and enforcing regulations pertaining to
firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their
official duties;
(c) Except as provided in s. 790.251, any entity subject to the prohibitions of this section from
regulating or prohibiting the carrying of firearms and ammunition by an employee of the entity during
and in the course of the employee’s official duties;
(d) A court or administrative law judge from hearing and resolving any case or controversy or
issuing any opinion or order on a matter within the jurisdiction of that court or judge; or
(e) The Florida Fish and Wildlife Conservation Commission from regulating the use of firearms or
ammunition as a method of taking wildlife and regulating the shooting ranges managed by the
commission.
(5) SHORT TITLE.—As created by chapter 87-23, Laws of Florida, this section may be cited as the
“Joe Carlucci Uniform Firearms Act.”
History.—ss. 1, 2, 3, 4, ch. 87-23; s. 5, ch. 88-183; s. 1, ch. 2011-109.
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