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Agenda 09/13/2011 Item #16K2Agenda Changes Board of County Commissioners Meeting September 13, 2011 MOVE ITEM 16K2 TO ITEM 11A: REQUEST AUTHORIZATION TO ADVERTISE AND BRING BACK FOR FUTURE CONSIDERATION ORDINANCES WHICH REPEAL OR AMEND CERTAIN COLLIER COUNTY ORDINANCES RELATING TO THE REGULATION OF FIREARMS AND AMMUNITION IN ORDER TO COMPLY WITH RECENT AMENDMENTS TO SECTION 790.333, FLORIDA STATUTES WHICH PREEMPTS ALL SUCH REGULATORY POWERS TO THE STATE OF FLORIDA EFFECTIVE OCTOBER 12011 9 AND THAT FOLLOWING SUCH FUTURE PUBLIC HEARING THE BOARD CONSIDERS REFERRING TWO SPECIAL ACTS DEALING WITH FIREARMS TO THE LEGISLATIVE DELEGATION, WITH A REQUEST THE LEGISLATURE REVIEW THEM FOR POSSIBLE REPEAL. (COMMISSIONER HILLER'S REQUEST) Continue Item 16A3 to the September 27, 2011 BCC Meeting: Recommendation to grant final approval of the roadway (private) and drainage improvements for the final plat of Caldecott with roadway and drainage improvements being privately maintained and authorizing release of the maintenance security (Staff request due to a calculation error in the performance security) Move Item 16A14 to Item 10i: PMC- PL2011 -872: Heavenly PUD — Notification of staff intent to approve a minor amendment to the Heavenly PUD in accordance with LDC Section 10.02.13.E.6 and 8 to change location and type of plantings and revise buffer standards to reduce height of trees and plantings due to site conditions and conflict with FPL lines, and allow payment in lieu of sidewalks instead of construction of a sidewalk along Myrtle Road from North Trail Boulevard to the project entrance. Property located at 6926 Trail Boulevard, and comprises the entire block bounded by Ridge Drive, West Street, Myrtle Road and Trail Boulevard in Section 3, Township 49 South, Range 25 East Collier County, FL (Commissioner Hiller's request) Move Item 16A16 to Item 1OK: Recommendation to provide after the fact approval for submittal of a State of Good Repair (SGR) Bus and Bus Facilities grant application, in the amount $11,335,290, to the Federal Transit Administration (FTA) for construction of improvements at the Collier Area Transit Administration and Maintenance Facility at 8300 Radio Road (Commissioner Hiller's request) Move Item 16A19 to Item 1 OH: Recommendation to accept a Speed Limit Study Report and adopt a Resolution of the Board of County Commissioners of Collier County, Florida, authorizing a speed limit decrease from fifty -five miles per hour (55 mph) to fifty miles per hour (50 mph) on Collier Boulevard from to Golden Gate Boulevard at a cost of approx $500. (Commissioner Fiala's request) Withdraw Item 16A25: Recommendation to advertise an amendment to Ordinance No. 2009 -44, Radio Road East of Santa Barbara Boulevard to Davis Boulevard Municipal Service Taxing Unit (MSTU) Ordinance, to remove a sunset provision of six years and provide the MSTU be dissolved Agenda Changes Board of County Commissioners Meeting September 13, 2011 MOVE ITEM 16K2 TO ITEM 11A: REQUEST AUTHORIZATION TO ADVERTISE AND BRING BACK FOR FUTURE CONSIDERATION ORDINANCES WHICH REPEAL OR AMEND CERTAIN COLLIER COUNTY ORDINANCES RELATING TO THE REGULATION OF FIREARMS AND AMMUNITION IN ORDER TO COMPLY WITH RECENT AMENDMENTS TO SECTION 790.333, FLORIDA STATUTES WHICH PREEMPTS ALL SUCH REGULATORY POWERS TO THE STATE OF FLORIDA EFFECTIVE OCTOBER 12011 9 AND THAT FOLLOWING SUCH FUTURE PUBLIC HEARING THE BOARD CONSIDERS REFERRING TWO SPECIAL ACTS DEALING WITH FIREARMS TO THE LEGISLATIVE DELEGATION, WITH A REQUEST THE LEGISLATURE REVIEW THEM FOR POSSIBLE REPEAL. (COMMISSIONER HILLER'S REQUEST) Continue Item 16A3 to the September 27, 2011 BCC Meeting: Recommendation to grant final approval of the roadway (private) and drainage improvements for the final plat of Caldecott with roadway and drainage improvements being privately maintained and authorizing release of the maintenance security (Staff request due to a calculation error in the performance security) Move Item 16A14 to Item 10i: PMC- PL2011 -872: Heavenly PUD — Notification of staff intent to approve a minor amendment to the Heavenly PUD in accordance with LDC Section 10.02.13.E.6 and 8 to change location and type of plantings and revise buffer standards to reduce height of trees and plantings due to site conditions and conflict with FPL lines, and allow payment in lieu of sidewalks instead of construction of a sidewalk along Myrtle Road from North Trail Boulevard to the project entrance. Property located at 6926 Trail Boulevard, and comprises the entire block bounded by Ridge Drive, West Street, Myrtle Road and Trail Boulevard in Section 3, Township 49 South, Range 25 East Collier County, FL (Commissioner Hiller's request) Move Item 16A16 to Item 1OK: Recommendation to provide after the fact approval for submittal of a State of Good Repair (SGR) Bus and Bus Facilities grant application, in the amount $11,335,290, to the Federal Transit Administration (FTA) for construction of improvements at the Collier Area Transit Administration and Maintenance Facility at 8300 Radio Road (Commissioner Hiller's request) Move Item 16A19 to Item 1 OH: Recommendation to accept a Speed Limit Study Report and adopt a Resolution of the Board of County Commissioners of Collier County, Florida, authorizing a speed limit decrease from fifty -five miles per hour (55 mph) to fifty miles per hour (50 mph) on Collier Boulevard from to Golden Gate Boulevard at a cost of approx $500. (Commissioner Fiala's request) Withdraw Item 16A25: Recommendation to advertise an amendment to Ordinance No. 2009 -44, Radio Road East of Santa Barbara Boulevard to Davis Boulevard Municipal Service Taxing Unit (MSTU) Ordinance, to remove a sunset provision of six years and provide the MSTU be dissolved upon recommendation by the MSTU Advisory Committee and approval by Board of County Commissioners. (Staff request to coordinate with future MSTU Referendum question) Move Item 16B2 to 13A: Continued from May 10, 2011 Recommendation to approve a Resolution to petition Governor Scott to extend the "Rural Area of Critical Economic Concern" designation awarded to Florida's Heartland Regional Economic Development Initiative, Inc. for another 5 -years and keep the Community of Immokalee in the South Central Rural Area of Critical Economic Concern designation (Commissioner Hiller's request) Withdraw Item 16C12: Recommendation to approve a requisite Memorandum of Agreement with FDOT & Florida Department of Financial Services, Division of Treasury, to establish an interest bearing escrow account for funds required to relocate County Water -Sewer District -owned underground utility lines to accommodate widening State Road 84 between Santa Barbara Boulevard and Radio Road. (County Attorney's request) Move Item 16D5 to Item 10I: Recommendation to waive boarding fees in the amount of $16,400 associated with kenneling two declared dangerous dogs, in exchange for dismissal of a pending dangerous dog appeal, and in order for the dogs to be reunited with the owners, who currently live out - of- county. (Commissioner Coletta's request) Move Item 16D8 to Item 1OG: Continued from the July 26, 2011 BCC Meeting. Request the Board of County Commissioners review and approve County Attorney's recommendation to waive any potential ethics conflict for a Code Enforcement Board member based on Ch. 112, Florida Statutes. (Commissioner Coyle's request) Continue Item 16E13 to the September 27, 2011 Meeting: Recommendation to establish standards and criteria for use of Peer Reviews of designs for major capital projects. (Staff request) Move Item 16H3 to Item 9H: Authorize the Chairman to sign a letter of concurrency for the Florida Department of Children and Families for a State of FL Refugee Services Targeted Assistance Grant Program and utilize funds in the County through Catholic Charities (Commissioner Fiala's request) Continue Item 16K6 to the October 11, 2011 BCC Meeting: Recommendation that the Board consider the withdrawal of the designation of the Stewardship Sending Area known as Half Circle L Ranch Partnership ( "HCLRP ") SSA #8 and the termination of the Stewardship Sending Area Credit Agreement and the Stewardship Easement Agreement, and the canceling of the Stewardship credits generated by the designation of said Stewardship Sending Area. (County Attorney's request) Note: Item 8C does not require that ex parte disclosure be provided by Commission members as stated in the agenda title. Also, Items 8B and 8C are companion items; Item 8C will be heard before 8B. Item 16A20 "Recommendation" portion of the Executive Summary should read: That the Board of County Commissioners accept the Traffic Speed Limit Study and adopt the Resolution desreasin increasing the speed limit on a designated section of Pine Ridge Road, authorize Chairman to execute the Resolution, and authorize County Manager to erect and remove appropriate traffic control signs. upon recommendation by the MSTU Advisory Committee and approval by Board of County Commissioners. (Staff request to coordinate with future MSTU Referendum question) Move Item 16B2 to 13A: Continued from May 10, 2011 Recommendation to approve a Resolution to petition Governor Scott to extend the "Rural Area of Critical Economic Concern" designation awarded to Florida's Heartland Regional Economic Development Initiative, Inc. for another 5 -years and keep the Community of Immokalee in the South Central Rural Area of Critical Economic Concern designation (Commissioner Hiller's request) Withdraw Item 16C12: Recommendation to approve a requisite Memorandum of Agreement with FDOT & Florida Department of Financial Services, Division of Treasury, to establish an interest bearing escrow account for funds required to relocate County Water -Sewer District -owned underground utility lines to accommodate widening State Road 84 between Santa Barbara Boulevard and Radio Road. (County Attorney's request) Move Item 16D5 to Item 10I: Recommendation to waive boarding fees in the amount of $16,400 associated with kenneling two declared dangerous dogs, in exchange for dismissal of a pending dangerous dog appeal, and in order for the dogs to be reunited with the owners, who currently live out - of- county. (Commissioner Coletta's request) Move Item 16D8 to Item 1OG: Continued from the July 26, 2011 BCC Meeting. Request the Board of County Commissioners review and approve County Attorney's recommendation to waive any potential ethics conflict for a Code Enforcement Board member based on Ch. 112, Florida Statutes. (Commissioner Coyle's request) Continue Item 16E13 to the September 27, 2011 Meeting: Recommendation to establish standards and criteria for use of Peer Reviews of designs for major capital projects. (Staff request) Move Item 16H3 to Item 9H: Authorize the Chairman to sign a letter of concurrency for the Florida Department of Children and Families for a State of FL Refugee Services Targeted Assistance Grant Program and utilize funds in the County through Catholic Charities (Commissioner Fiala's request) Continue Item 16K6 to the October 11, 2011 BCC Meeting: Recommendation that the Board consider the withdrawal of the designation of the Stewardship Sending Area known as Half Circle L Ranch Partnership ( "HCLRP ") SSA #8 and the termination of the Stewardship Sending Area Credit Agreement and the Stewardship Easement Agreement, and the canceling of the Stewardship credits generated by the designation of said Stewardship Sending Area. (County Attorney's request) Note: Item 8C does not require that ex parte disclosure be provided by Commission members as stated in the agenda title. Also, Items 8B and 8C are companion items; Item 8C will be heard before 8B. Item 16A20 "Recommendation" portion of the Executive Summary should read: That the Board of County Commissioners accept the Traffic Speed Limit Study and adopt the Resolution desreasin increasing the speed limit on a designated section of Pine Ridge Road, authorize Chairman to execute the Resolution, and authorize County Manager to erect and remove appropriate traffic control signs. 9/13/2011 item 16.x.2. EXECUTIVE SUMMARY Request for authorization to advertise and bring back for future consideration ordinances which repeal or amend certain Collier County ordinances relating to the regulation of firearms and ammunition in order to comply with recent amendments to .Section 790.33, Florida Statutes, which preempts all such regulatory powers to the State of Florida effective October 1, 2011, and that following such future public hearing the Board considers referring two Special Acts dealing with firearms to the Legislative Delegation, with a request that the Legislature review them for possible repeal OBJECTIVE: To comply with recent State legislative amendments to Section 790.33, Florida Statutes, which relate to the regulation of firearms and ammunition. CONSIDERATIONS: 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 amends 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 is effective on October 1, 2011 Based on discussions with fellow County Attorneys, as a result of HB 45, a number of Florida counties have already repealed their firearms regulations, including Charlotte County, Leon County, St. Johns County, and Indian River County, with others in the process of repealing their firearm regulations. 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. The field of regulation specifically included the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation of firearms and ammunition, to the exclusion;of all existing and future local government ordinances or regulations relating thereto. Subsection (2) of Section 790.33 was amended in 1988, and provided a specific exception to the preemption, in that any county had the option to adopt a waiting- period ordinance to require a waiting period of up to three working days between the purchase and delivery of a handgun. House Bill 45 Section 790.33(1), as amended by House Bill 45, provides the - following express 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, Packet Page -3291- 9/13/2011 Item 16.K.2. 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 specifically added the storage of firearms and ammunition to its list of express preemptions, plus specifically stated that, in addition to locally adopted ordinances, any locally adopted administrative regulations or rules were declared null and void. Notably, House Bill 45 also added a subsection that states as follows: 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. House Bill 45 added a new subsection (3) to Section 790.33, regarding the 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." In addition, the governmental entity could be fined up to $5 million. The County Attorney's Office has completed a full review of existing County ordinances and recommends that the Board re al the following ordinances in their entirety, all of which are codified in Code of Laws and Ordinances under Chapter 94, Article 11I. Offenses Involving Public Safety, Division 2. Firearms: I Ordinance No. 70 -10, amended by Ordinance No. 80 -12 (Sec. 94 -61) "Possession of guns prohibited on W.J. Janes Memorial Scenic Drive," prohibiting the possession or transport of firearms, crossbows and bows and arrows on Janes Scenic Drive. This ordinance is derived from a Special Act, as referenced below. 2. Ordinance No. 80 -24 (Sec. 94 -62) "Discharge of firearms, hunting, in subdivisions generally, prohibiting the discharge of any firearm in or into any platted subdivision in the county, except for certain portions of Golden Gate Estates. 3. Ordinance No. 79 -102, amended by Ordinance No. 80 -6 (Sec. 94-63) "Discharge of firearms in Golden Gate Estates subdivision," prohibiting the discharge of any firearm (except in certain circumstances a shotgun) within the urbanized portion of Golden Gates Estates, and prohibiting the discharge of a shotgun within ' /a mile of any residence or occupied structure within the unincorporated area. 4. Ordinance No. 76-,6 1, amended by Ordinances Nos. 77 -43 and 78 -25 (Sec. 94 -64) "Discharge; of firearms prohibited in certain area," prohibiting the discharge of firearms in portions Packet Page -3292- 9/13/2011 Item 16.K.2. of Golden Gate Estates and elsewhere, and requiring the posting of signs giving notice of this prohibition, 5. Ordinance No. 82 -77 (Sec. 94 -65) "Discharge of firearms in South Florida Water Management District," prohibiting the discharge of firearms, crossbows or bow and arrows within the South Florida Water Management District right -of -way of the L -28 interceptor canal, and requiring the posting of signs giving notice of this prohibition. Additionally, it is recommended that the Board amend the following ordinances in order to repeal any provisions relating to firearms: 1. With respect to County Airports, Ordinance No. 04 -03 (codified in Sec. 18 -51), repeal Section 16, "Concealed weapons, concealed firearms," which generally prohibits carrying a concealed firearm or weapon into a Collier County Airport, unless authorized by applicable law. 2. With respect to the State of Emergency, Ordinance 02 -50, as amended (codified in Sec. 38- 68), repeal the ability of the Chairman, upon a declaration of emergency, to suspend or limit the sale, dispensing or transportation of firearms. 3. With respect to the Collier County Noise Control Ordinance, although state law does not address the noise implications of the discharge of firearms, in light of House Bill 45, it is recommended that the noise associated with the discharge of firearms be expressly exempted. . Elsewhere in the Code of Laws and Ordinances of Collier County Sec. 242 -2, entitled "Everglades Parkway; hunting and discharge of firearms prohibited," adopted by the Florida Legislature as a Special Act (Laws of Fla. Ch. 67 -892), prohibits hunting and the discharge of any firearm on, from, across or within ' /a miles of Alligator Alley, in Broward and Collier Counties. This Special Act appears to conflict with Florida Constitution Article III, Section II(a)(19), which prohibits special laws relating to hunting or fresh water fishing, and possibly Florida Statutes Sec. 790.33, whose policy is to create uniform firearms laws in the state. It is recommended that this Special Act be referred to our Legislative Delegation with a request that the Legislature review it for possible repeal. It is further recommended that Collier County does not enforce this Special Act. Chapter 246, Article III, entitled "Collier County Scenic Drive Parks," adopted by the Florida Legislature as a Special Act (Laws of Fla. Ch. 61- 2041), prohibits hunting at all times in Janes Scenic Highway, and prohibits firearms and bows during non- hunting season. It also prohibits the destruction or taking of flora and fauna from the Park (which provision is' not at issue). This Special Act appears to conflict with Florida Constitution Article III, Section I l (a)(19), which prohibits special laws relating to hunting or fresh water fishing, and possibly Florida Statutes Sec. 790.33, whose policy is to create uniform firearms laws in the state. It is recommended that this Special Act be referred to our Legislative Delegation with a request that the Legislature review it for possible partial repeal. It is further recommended that Collier County does not enforce the hunting and firearms provisions of this Special Act. Packet Page -3293- 111"�. 9/13/2011 Item 16.K.2. Land Development Code There is no provision in the Land Development Code pertaining to firearms that needs to be addressed, as one of the continuing exceptions to the express preemption by the State in this field of regulation is that a local government may continue to enact zoning ordinances, which encompass firearms businesses along with other businesses. The Florida Legislature has sent a clear, specific, and strict legislative statement concerning the expansion of its preemption in the field of the regulation of firearms and ammunition. The regulation of firearms and ammunition is now fully and expressly preempted to the State, except as expressly provided by general law. The Florida Legislature has also sent a clear message that there will be significant personal financial consequences, not to mention the possibility of being removed from office, should local government officials run afoul of Section 790.33, Florida Statutes, as amended. In view of the above, the County Attorney believes that it is prudent for the Board to amend or repeal the referenced provisions in the Collier County Code of Laws that addresses firearms. The proposed ordinances are attached for the Board's consideration. I have also attached a copy of HB 45, the staff analysis of the bill, the two Special Acts referenced above, and general informational materials dealing with Florida firearms laws. Lastly, please note that I am not recommending any changes be made with respect to the existing security of the Administration Building, which houses the BCC chambers as well as offices to a U.S. Senator and Congressmen. FISCAL IMPACT: The cost of advertising the proposed ordinances is estimated to be $800.00. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action and requires a majority vote. JAK RECOMMENDATION: That the Board of County Commissioners takes the following actions in order to comply with Section 790.33, Florida Statutes, which preempts all such regulatory powers to the State of Florida as of October 1, 2011: 1. Authorizes the County Attorney to advertise and bring back for future consideration the attached ordinances repealing or amending the above- referenced Collier County ordinances relating to the regulation of firearms and ammunition. 2. That following such future public hearing, that the Board (a) suspends enforcement of Sec. 242 -2, "Everglades Parkway; hunting and discharge of firearms prohibited," adopted by the Florida Legislature as a Special Act (Laws of Fla. Ch. 67 -892) and directs staff to refer this Special Act to our Legislative Delegation with a request that the Legislature review it for possible repeal, and (b) suspends enforcement of Chapter 246, Article III, "Collier County Scenic Drive Parks," adopted by the Florida Legislature as a Special Act (Laws of Fla. Ch. 61- 2041) and directs staff to refer this Special Act to our Legislative Delegation with a request that the Legislature review it for possible partial repeal. Prepared by Jeffrey A. Klatzkow, County Attorney Packet Page -3294- 9/13/2011 Item 16.K.2. COLLIER COUNTY Board of County Commissioners Item Number: 16.x.2. Item Summary: Request for authorization to advertise and bring back for future consideration ordinances which repeal or amend certain Collier County ordinances relating to the regulation of firearms and ammunition in order to comply with recent amendments to Section 790.33, Florida Statutes, which preempts all such regulatory powers to the State of Florida effective October 1,2011, and that following' such- future public hearing the Board considers referring two Special Acts dealing with firearms to the legislative Delegation, with a, request that the Legislature review them for possible repeal. Meeting Date: 9/13/2011 Prepared By Name: NeetVirginia Title: Legal Assistant/Paralegal,County Attorney 8/17/2011 - 3:15:49 PM Submitted by Title: County Attorney, Name: KlatzkowJeff 8/17/2011 3:15:50 PM Approved. By Name: KlatzkowJeff Title: County Attorney, Date: 8/17/20114 :18 :03 PM Name: GreenwaldRandy - Title: Management/Budget Analyst,Office of Management & B Date 8/18/201111:42-51 AM Name: KlatzkowJeff Title: County Attorney, Date: 8/19/2011`3:35:57 PM Packet Page -3295- 9/13/2011 Item 16.x.2. Name: OchsLeo Title: County Manager Date: 8/30/20119:35:58 AM �1 9/13/2011 Item 16.K.2. ORDINANCE NO. 2011- AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, REPEALING ORDINANCE NO. 70 -10, AS AMENDED, ORDINANCE NO. 80 -24, ORDINANCE NO. 79 -102, AS AMENDED, ORDINANCE NO. 76 -61, AS AMENDED, AND ORDINANCE NO. 82 -77, ALL RELATING TO THE POSSESSION AND /OR DISCHARGE OF FIREARMS, WHICH ARE CODIFIED IN CHAPTER 94, ARTICLE III, DIVISION 2 OF THE COLLIER COUNTY CODE OF LAWS AND ORDINANCES, IN ORDER TO COMPLY WITH AMENDMENTS TO SECTION 790.33, FLORIDA STATUTES, WHICH PREEMPTS THE WHOLE FIELD OF FIREARMS AND AMMUNITION REGULATION TO THE STATE OF FLORIDA; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE OF OCTOBER 1, 2011. WHEREAS, during the 2011 Legislative Session, the Florida Legislature adopted House Bill 45, amending Section 790.33, Florida Statutes, entitled "Field of regulation of firearms and n ammunition preempted," by expanding the Legislature's preemption in the field of regulation of the firearms and ammunition and 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 effective date of the legislation is October 1, 2011; and WHEREAS, to comply with this amendment to Section 790.33, Florida Statutes, the Board of County Commissioners desire to repeal Ordinance No. 70 -10, as amended, Ordinance No. 80 -24, Ordinance No. 79 -102, as amended, Ordinance No. 76 -61, as amended, and Ordinance No. 82 -77, all relating to the possession and /or discharge of firearms and ammunition, which are codified in Chapter 94, Article III, Division 2 of the Collier County Code of Laws and Ordinances. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: REPEAL OF ORDINANCE NO. 70 -10, AS AMENDED. Ordinance No. 70 -10, codified as Sec. 94 -61 of the Collier County Code of Laws and Ordinances, and all amendments thereto, is hereby repealed in its entirety. Packet Page -3297- 9/13/2011 Item 16.K.2. SECTION TWO: REPEAL OF ORDINANCE NO. 80-24. Ordinance No. 80 -24, codified as Sec. 94 -62 of the Collier County Code of Laws and Ordinances, is hereby repealed in its entirety. SECTION THREE: REPEAL OF ORDINANCE NO. 79-102, AS AMENDED. Ordinance No. 79 -102, codified as Sec. 94 -63 of the Collier County Code of Laws and Ordinances, and all amendments thereto, is hereby repealed in its entirety. SECTION FOUR: REPEAL OF ORDINANCE NO. 76-61, AS AMENDED. Ordinance No. 76 -61, codified as Sec. 94 -64 of the Collier County Code of Laws and Ordinances, and all amendments thereto, is hereby repealed in its entirety. SECTION FIVE: REPEAL OF ORDINANCE NO. 82-77. Ordinance No. 82 -77, codified as Sec. 94 -65 of the Collier County Code of Laws and Ordinances, is hereby repealed in its entirety. n SECTION SIX: CONFLICT AND SEVERABILITY. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION SEVEN: INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word. SECTION EIGHT: EFFECTIVE DATE. This Ordinance shall be effective on October 1, 2011. Packet Page -3298- 9/13/2011 Item 16.K.2. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this day of , 2011. ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA , Deputy Clerk Approved as to form and legal sufficiency: Jeffrey A. Klatzkow County Attorney 11-1*, FRED W. COYLE, CHAIRMAN Packet Page -3299- 9/13/2011 Item 16.K.2. ORDINANCE NO. 2011- AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AMENDING CHAPTER 38, CIVIL EMERGENCIES, ARTICLE III, DECLARATION OF STATE OF EMERGENCY, OF THE COLLIER COUNTY CODE OF LAWS AND ORDINANCES, ALSO KNOWN AS ORDINANCE NO. 84 -37, AS AMENDED, AMENDING SECTION 38 -68, AUTHORIZED EMERGENCY MEASURES, BY DELETING THE RIGHT TO SUSPEND OR LIMIT THE SALE OF FIREARMS DURING A STATE OF EMERGENCY, IN ORDER TO COMPLY WITH AMENDMENTS TO SECTION 790.33, FLORIDA STATUTES, WHICH PREEMPTS THE WHOLE FIELD OF FIREARMS AND AMMUNITION REGULATION TO THE STATE OF FLORIDA; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE OF OCTOBER 1, 2011. WHEREAS, during the 2011 Legislative Session, the Florida Legislature adopted House Bill 45, amending 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 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 effective date of the legislation is October 1, 2011; and WHEREAS, to comply with this amendment to Section 790.33, Florida Statutes, the Board of County Commissioners desire to amend Section 38 -68 of the Collier County Code of Laws and Ordinances, by deleting the right to suspend or limit the transportation of firearms during a State of Emergency. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: Article III. Declaration of State of Emergency, Section 38 -56, of the Code of Laws and Ordinances of Collier County, Florida, is hereby amended as follows: Section 38 -68. Authorized Emergency Measures. In addition to any other powers conferred by law, upon the declaration of a state of emergency pursuant to this article, the chairman, or vice - chairman in his or her absence, and in the absence of the chairman and vice - chairman; the next County Commissioner in order of seniority, � Underlined text is added; &reek- threuo text is deleted Packet Page -3300- 9/13/2011 Item 16.K.2. or if two or more were appointed on the same date, then in alphabetical order among them, and in the absence of any Commissioner; the County Manager, in the absence of the County Manager; the Clerk of Courts; and in the Clerk's absence; the Deputy County Manager, may order and promulgate all or any of the following emergency measures to be effective during the period of such emergency in whole or in part, and with such limitation and conditions as he may deem appropriate to protect the health, safety and welfare of the community: (1) Suspend or limit the sale, dispensing or transportation of alcoholic beverages, firearms, explosives, and combustibles. (2) Establish curfews, including but not limited to the prohibition of or restrictions on pedestrian and vehicular movement, standing and parking, except for the provision of designated, essential services, such as fire, police, emergency medical services and hospital services, including the transportation of patients, utility emergency repairs and emergency calls by physicians. SECTION TWO: CONFLICT AND SEVERABILITY. In the event this Ordinance conflicts with any other ordinance of Collier County or other n applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION THREE: INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or relettered to accomplish such, and the word "ordinance." may be changed to "section," "article," or any other appropriate word. SECTION FOUR: EFFECTIVE DATE. This Ordinance shall be effective on October 1, 2011. Underlined text is added; St-Fusle through text is deleted Packet Page -3301- 9/13/2011 Item 16.K.2. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this day of ATTEST: DWIGHT E. BROCK, CLERK , Deputy Clerk Approved as to form and legal sufficiency: Jeffrey A. Klatzkow County Attorney 2011. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: FRED W. COYLE, CHAIRMAN Underlined text is added; 94"ek-evto text is deleted Packet Page -3302- n 9/13/2011 Item 16.K.2. �* ORDINANCE NO. 2011- AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 2004-03, AS AMENDED, THE COLLIER COUNTY AIRPORT AUTHORITY ORDINANCE, BY REPEALING SECTION 16 ENTITLED "CONCEALED WEAPONS; CONCEALED FIREARMS," CODIFIED AS SECTION 18 -51 OF THE COLLIER COUNTY CODE OF LAWS AND ORDINANCES, IN ORDER TO COMPLY WITH AMENDMENTS TO SECTION 790.33, FLORIDA STATUTES, WHICH PREEMPTS THE WHOLE FIELD OF FIREARMS AND AMMUNITION REGULATION TO THE STATE OF FLORIDA; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE OF OCTOBER 1, 2011. WHEREAS, during the 2011 Legislative Session, the Florida Legislature adopted House Bill 45, amending 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 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 effective date of the legislation is October 1, 2011; and WHEREAS, to comply with this amendment to Section 790.33, Florida Statutes, the Board of County Commissioners desires to amend Ordinance No. 2004 -03, as amended, The Collier County Airport Authority Ordinance, by repealing Section 16 entitled "Concealed Weapons; Concealed Firearms," codified as Section 18 -51 of the Collier County Code of Laws and Ordinances. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: AMENDMENT TO ORDINANCE NO. 2004-03, AS AMENDED. Section Sixteen of Ordinance No. 2004 -03, as amended, entitled "Concealed Weapons; Concealed Firearms," codified as Section 18 -51 of the Collier County Code of Laws and Ordinances, is hereby repealed in its entirety. Packet Page -3303- 9/13/2011 Item 16.K.2. SECTION TWO: CONFLICT AND SEVERABILITY. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION THREE: INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word. SECTION FOUR: EFFECTIVE DATE. This Ordinance shall be effective on October 1, 2011. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this day of ATTEST: DWIGHT E. BROCK, CLERK , Deputy Clerk Approved as to form and legal sufficiency: Jeffrey A. Klatzkow County Attorney 2011. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA FRED W. COYLE, CHAIRMAN Packet Page -3304- 18-49 COLLIER COUNTY CODE (c) Every violation of any such Board adopted Rule and/or Regulation shall be a separate viola- tion of this Ordinance. Also, every individual who, while in the pretence of a law enforcement officer, either refuses to immediately obey an oral order (instruction) to leave the airport, or to move his/her person to some other part of the airport, or who is then committing any violation of any such rule or regulation, or is committing a trespass anywhere in any secured area of an airport, such law enforcement officer may arrest the violator without a warrant for any such violation(s), which Authority to arrest without a warrant is autho- rized by F.S. § 901.15(1). (Ord. No. 04-03, § 14; Ord. No. 2010 -10, § 10) Sec. 19-50. Trespass: anywhere at airport; secured areas. (a) It shall be a separate violation of this article for any individual to refuse to immediately and completely obey an oral order (instruction) to leave the airport, or to move his/her person to ,some other area of the airport, if the order (in- struction) is perponally communicated to the in- dividual by the Airport Manager, or if the Airport Manager is not then and there available, by any employee who at such time and place has author- ity to issue such an instruction. (b) It is a separate violation of this article for any individual to commit a trespass into (or within) any secure area of any Collier County Airport, provided signs are posted in conspicuous areas and such signs give notice that unautho- rized entry into the respective secured area con- stitutes a trespass, and the signs specify the means that are available for gaining authorized access to the respective secure area. Each such violation of this article shall subject each such trespassing individual(s) to arrest by a law en- forcement officer without a warrant, on or off of the airport, as specified in F.S. § 901.15(15). The Collier County Airport Authority is hereby autho- rized to designate such secure area(s) as it deems appropriate by posting appropriate signs. Each such trespass in any secured area of an airport is an independent violation of this article irrespec- tive of application of any Airport Authority rule or regulation. `(Ord. No. 04 -03, § 15) Supp. No. 27 9/13/2011 Item 16.K.2. -ra c ckae.� Sec. 1 8-51. Concealed weapons; concealed firearms. Any individual not then authorized by applica- ble law to carry a concealed firearm or a concealed weapon into the passenger terminal of the air- port, or into any sterile area of any Collier County Airport shall thereby violate this article and shall violate F.S. § 790.06(12). The specified penalty for such violation is not Iess than a misdemeanor of the second degree, as specified in that statutory subsection. "Sterile area" is defined in that Stat- ute as "the area of the airport to which access is controlled by the inspection of persons and prop- erty in accordance with federally approved air- port security programs ". However, provided such action or possession is not then prohibited by federal law, rule or regulation, that statutory provision does not prevent an individual from carrying any legal firearm into the airport termi- nal provided each such firearm is then encased for shipment for purposes of checking such firearm as baggage to be lawfully transported on an aircraft. No such "firearm or weapon" violation is a violation of this article because this field of regulation is wholly preempted to the State of Florida by application of F.S. § 790.33. (Ord. No. 04 -03, § 16) Sec. 15 -52. Penalties; referrals within Col- lier County Government. (a) General penalties; continuing violations. In this article the phase 'violation of this article" means any of the following: (1) Doing an act that is prohibited or made or declared unlawful, or an offense, or a misdemeanor by ordinance, or by rule or regulation authorized by any Collier County Ordinance. (2) Failure to perform an act that is required to be performed by any Collier County Ordinance, or by rule or regulation autho- rized by any Collier County Ordinance. (3) Failure to perform any act if the failure is declared a misdemeanor or an offense, or otherwise unlawful or a violation by any Collier County Ordinance, or by any rule or regulation authorized by Collier County Ordinance. CD18:10 Packet Page -3305- 9/13/2011 Item 16.x.2. ORDINANCE NO. 2011- AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 90 -17, AS AMENDED, THE COLLIER COUNTY NOISE CONTROL ORDINANCE, BY AMENDING SECTION SEVEN, EXEMPTIONS, CODIFIED AS SECTION 54 -87 OF THE CODE OF LAWS AND ORDINANCES, PROVIDING FOR AN EXEMPTION OF NOISE ASSOCIATED WITH THE DISCHARGE OF FIREARMS IN ORDER TO COMPLY WITH AMENDMENTS TO SECTION 790.33, FLORIDA STATUTES, WHICH PREEMPTS THE WHOLE FIELD OF FIREARMS AND AMMUNITION REGULATION TO THE STATE OF FLORIDA; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE OF OCTOBER 1, 2011. WHEREAS, during the 2011 Legislative Session, the Florida Legislature adopted House Bill 45, amending 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 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 effective date of the legislation is October 1, 2011; and WHEREAS, to comply with this amendment to Section 790.33, Florida Statutes, the Board of County Commissioners desires to amend Ordinance No. 90 -17, as amended, The Collier County Noise Control Ordinance, by amending Section Seven, Exemptions, codified as Section 54 -87 of the Collier County Code of Laws and Ordinances. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: Ordinance No. 90 -17, as previously amended, is hereby amended further by adding the following subsection S to Section Seven: SECTION SEVEN. EXEMPTIONS. The following uses and activities shall be permitted under this Ordinance and are exempt from the Sound Level limits set forth in subsection 6.13. n S Noise associated with the discharge of firearms. Underlined text is added; Stra& kreagh text is deleted Packet Page -3306- 9/13/2011 Item 16.K.2. SECTION TWO: CONFLICT AND SEVERABILITY. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION THREE: INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or relettered to accomplish such, and the word 'ordinance" may be changed to "section," "article," or any other appropriate word. SECTION FOUR: EFFECTIVE DATE. This Ordinance shall be effective on October 1, 2011. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this day of ATTEST: DWIGHT E. BROCK, CLERK By: , Deputy Clerk Approved as to form and legal sufficiency: Jeffrey A. Klatzkow County Attorney 2011. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA FRED W. COYLE, CHAIRMAN Underlined text is added; tr � g text is deleted Packet Page -3307- —Y OFFENSES AND MISCELLANEOUS PROVISIONS Sec. 242 -1. Reserved. Editor's note —Laws of Florida, ch. 94 -482, § 2, approved May 13, 1994, repealed § 242 -1, which pertained to county roadirights -of -way; discharge of firearms prohibited. See the Code Comparative Table. Sec. 242 -2. Everglades Parkway; hunting and discharge of firearms prohib- ited; penalty. (a) It shall be unlawful for any person to hunt any wild animal or bird or to discharge or cause to be discharged any firearm on, from, across or with- in one -half mile on either side of the Everglades Parkway, commonly known as Alligator Alley, in Broward and Collier Counties. (b) This section shall not apply to any person hunting or discharging firearms on the home- stead of such person situated within one -half mile of the parkway, nor to any law enforcement officer acting in the discharge of his duties. (c) This section shall not be construed as re- pealing any other acts pertaining to game preser- vation or the protection of game within the area defined in subsection (a) of this section, but shall be additional to and cumulative with such acts. (d) Any person who shall violate the provisions of this section shall be deemed guilty of a misde- meanor and upon conviction shall be fined not more than $500.00 or imprisoned not more than six months, or both. (e) The provisions of this section may be en- forced by the duly authorized conservation agents of the game and freshwater fish commission un- der the powers granted them by F.S. § 372.07. (f) If any part of this section or its application to any person or circumstance shall be held in- Supp. No. 1 9/13/2011 Item 16.K.2. § 242 -2 - 'N valid or unconstitutional such holding shall not affect any other part of the section or its applica- tion to any other person or circumstance. (Laws of Fla. ch. 67 -892, § 1) Editor's note —The specific penalty provided for in the above section is unconstitutional and unenforceable as a spe- cial act may not prescribe punishment for crime. See Fla. Coast. Art. III, § 11. However, as this section. makes a violation a misdemeanor, such violation is punishable as a misdemeanor of the second degree. See F.S. §§ 775.08- 775.083; Delmonico v. State, 155 So. 2d 368 (Fla. 1963); Lynch v. Durrance, 77 So. 2d 489 (Fla. 1955); Jannett v Windham, 109 Fla. 129, 147 So. 296 (1933); reh. denied, 109 Fla. 129, 153 So. 784, acrd. 290 U.S. 602. Cross references - Animals, ch. 210; roads and bridges, ch. 254. State law references — Special laws and general laws of local application pertaining to hunting or fishing prohibited, Fla. Const. art. III, § 11(aX19); discharging firearms in public, F.S. § 790.15; local regulation of firearms, F.S. § 790.33. SA242:3 Packet Page -3308- PARKS AND RECREATION thing except to the extent expressly au- thorized by permit issued by the State of Florida or an agency thereof. (Laws of Fla. ch. 89 -449, § 3; Laws of Fla. ch. 97 -347, § 3; Laws of Fla. ch. 98 -483, § 1; Laws of Fla. ch. 99 -487, § 1) Sec. 246 -29. Enforcement. A citation issued by a county park enforcement officer (park ranger) under the provisions of this Act shall be in a form prescribed by the board of county commissioners. Such citations shall state the date and time of issuance, name and address of the person in violation, the date of the viola- tion, description ofthe violation, the Collier County Ordinance and section violated, name of the citing county park enforcement officer (park ranger), and a date and time at which the violator shall appear before the Collier County Code Enforce- ment Special Master. The violator may elect a nonmandatory appearance and pay the fine as prescribed by county ordinance. (Laws of Fla. ch. 89 -449, § 4; Laws of Fla. ch. 97 -347, § 4; Laws of Fla. ch. 2006 -337, § 1) See. 246 -30. Restrictions. Nothing herein contained shall be construed to authorize or permit any person designated as a county park enforcement officer (park ranger) pursuant to this article to perform any function or duties of a law enforcement officer other than as specified herein. County park enforcement offic- ers (park rangers) designated pursuant to this article shall not make physical arrests or take any person into custody and shall be exempt from the requirements relating to the state high - hazard retirement program and police standards and training commission as defined by F.S. §§ 122.34 and 943.11- 943.25. (Laws of Fla. ch. 89 -449, § 5) Secs. 246 -31- 246 -50. Reserved. ARTICLE III. COLLIER COUNTY SCENIC DRIVE PARKS Sec. 246 -51. Created. (a) There is hereby created in Collier County, the Collier County Scenic Drive Park. The loca- tion of said park will be as described in subsection (b). 9/13/2011 Item 16.K.2. § 246 -53 (b) The geographical limits of said Collier County Scenic Drive Park are: The right -of -way of 100 feet in width along the so- called "Main Line" of the logging railroad used by the Lee Tidewater Cypress Company from 1943 through 1957, less and except that portion of said right -of -way lying and being in Sections 4, 5, 9,10,14,15, 23, 25, 26, 35, and 36 in Township 50 South, Range 28 East, Collier County, Florida. (Laws of Fla. ch. 61 -2041, §§ 1, 6) Sec. 246 -52. Weapons restricted; hunting prohibited; enforcement. No hunting will be permitted within said park at any time. No firearms, bows and arrows or other weapons will be permitted within the park during any time of a closed hunting season as set by the game and freshwater fish commission. During the open hunting season, all hunters passing through the park must have their guns unloaded. If the weapons, including hunting bows, are capable of being broken down, the same must be broken down and stored with other camp equipment or within case provided for such weapon. Any sheriff, deputy sheriff, wild life officer or other properly designated official shall have the right to stop any vehicle or hunter found within the confines of said park and make a search to see that the above provisions are being complied with. (Laws of Fla. ch. 61 -2041, § 2) Cross references — Animals, ch. 210; offenses and miscel- laneous provisions, ch. 242. State law references — Special laws and general laws of local application pertaining to hunting or fishing prohibited, Fla. Const. art. III, § 11(aX19); discharging firearms in public, F.S. § 790.15; local regulation of firearms, F.S. § 796.33. Sec. 246 -53. Destroying, cutting of flora and fauna prohibited. No person at any time may remove, cut, de- stroy, uproot or take away any flora or fauna from the confines of said park, including but not lim- ited to orchids, air plants, palms, trees, shrubbery or any type of live animal. (Laws of Fla. ch. 61 -2041, § 3) State law reference — Special laws and general laws of local application pertaining to hunting or fishing prohibited, Fla. Const. art. III, § 11(aX19). Supp. No. 24 SA246:5 Packet Page -3309- 9/13/2011 Item 16.K.2. F L O R I D A H 0 U S E O F R E P R E S E N T A T I V E S 1' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ENROLLED CS /CS /CS /HB 45, Engrossed 1 2011 Legislature A bill to be entitled An act relating to the regulation of firearms and ammunition; amending s. 790.33, F.S.; clarifying and reorganizing provisions that preempt to the state the entire field of regulation of firearms; prohibiting the knowing and willful violation of the Legislature's occupation of the whole field of regulation of firearms and ammunition by the enactment or causation of enforcement of any local ordinance or administrative rule or regulation; providing additional intent of the section; eliminating provisions authorizing counties to adopt an ordinance requiring a waiting period between the purchase and delivery of a handgun; providing injunctive relief from the enforcement of an invalid ordinance, regulation, or rule; providing a civil penalty for knowing and willful violation of prohibitions; providing that public funds may not be used to defend or reimburse the unlawful conduct of any person charged with a knowing and willful violation of the act; providing for termination of employment or contract or removal from office of a person acting in an official capacity who knowingly and willfully violates any provision of the act; providing for declaratory and injunctive relief for specified persons or organizations; providing for specified damages and interest; providing exceptions to prohibitions of the section; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Page 1 of 7 CODING; Words stFicken are deletions; words underlined are additions. Packet Page -3310- hb0045 -05 -er n r� 9/13/2011 Item 16.K.2. F L O R I DA H O U S E O F R E P R E S E N T A T I V E S 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43' 44 45 46 47 48 49 50 51 52 53 54 55 56 ENROLLED CS /CS /CS /HB 45, Engrossed 1 2011 Legislature Section 1. Section 790.33, Florida Statutes, is amended to read: 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 a!Y 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. Tl=i�:s 4:rec 'Yiiira— rra- s•3-3ies- S-Gs —c3• eng 6fii t�1 ether- b t 3s i n ess r?s , ? en i ft g er-dinane= e Leh —ai-e— elegy -:� g n e d f eic t h e e—e f- e s `- =- i- r "' " e- pEehibitiRg the sale, }w ase ,t=,nsfewer zftanu-faetur -e-e€ firea;effts —er ; t; en as — a ffiethe4 of regula-t F= -- - ----- -- �rcair'ccirs cs9i3ZCre in e anflie t-- aaTi`iit-lcmss'- fibseetierr -aiiei pe:eied- e ainanee EegtiE±ng a- a i- g— perr±eE -ef up -te, but net eaeese i, 3— wer- king Eiays between lche ptti=eiiase and delivery —ef a• handgun. peE puE-peses of this subseet-ien,"pure4as : rfteana patent -e€ eiepesit, payarrent in full, er netif�6eat4:en of intee Page 2 of 7 CODING: Words stFisken are deletions; words underlined are additions. hb0045 -05-er Packet Page -3311- F L O R I D A H 0 U S E O F ENROLLED CS /CS /CS /HB 45, Engrossed 1 9/13/2011 Item 16.K.2. R E P R E S E N T A T I V E S 2011 Legislature 57 58 - 59 60 61 anel Ee$trietiens eentalneEi in this idbseet 62 (b) Gr- Eiifianeee— abitheEieeEi ]... this is ,s et shall , � aYY Y 63 to all sales of h:anekj ns to na; ,.,.., s by retail 64 65 stbaeetien. FeF— piarFeses of this a-bibeeetre , Urreta4n_ 66 estalglishffieFRean-s a —gun shep, 67 5hep, haLcdbaa-e ateFe, etelpar-tineRt Sterre -e1is etint steEe,- bait er- 68 taekle ohep, eF any etheE ster-e eL= sheg that .. ffe 1 .,ndE , fei- J 69 wtalk - --Win r- etai:srale- bttelees net ine3eele Eju e , ,,eter-s ,.hews eE 70 . 71 - (e)— ;pr-Ei�nanees authemeed by this suseetien sl:�a1l ft 72 regt±Ee any -Fep e Eta s g o f set 4 f� eatl e n- t e-- any setrr- e e -e u t- -ef•Eie -fie 73 F havielgian sales fftust 6e 74 a ai al5le- f er- if�spee:t�i en -Elerris-g -n e rfftal bidsi -ryes- h eia s, ]By afry 75 1 ate- -es-f e r- e emen= ag esey as Eief } n eei i Zz-e . 934.92. 76 (6) The- fellewieg s4all bee mempt- freffi any waiting per-4:eEk eeneeaIeel 78 fj: .Eear-Fa5 t o ei e r- -t h—jqr- e v i l een s--e € G :799.96 es whe are ,, 79 ze ear -e e n eea l eei f irreaEfRs ark 80 la. .,e ,.he lzie;:-- a -va!�A 14:eer =se, 81 2. —InEil 4:etrals whe al:i-eaely laiffbilly ' f 82 anEi whe -1shew a sales - rzeeei:pt fe^'" -anet he f =r'euaLaF ,, whe ar 83 t- ewn anet-her- flrreaL -Ltii -edgh a- r-4-ef pti ehase i effi the retail 84 es-t�1 i-si:kmen t ,, er- wee -liava etheL- f i r- esr -f er toad e- = Page 3 of 7 CODING: Words stFiekeR are deletions; words underlined are additions. hb0045 -05 -er Packet Page -3312- 11''1-1 A—N, 9/13/2011 Item 16.K.2. F L O R I D A H O U S E O F R E P R E S E N T A T I V E S 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111' 112' ENROLLED CS /CS /CS /HB 45, Engrossed 1 2011 Legislature 3. -, law - -en f e ri-effi en t —e f ee=r eE`tte n a l ei f i e el' as ie€ i n e•ei 4:n J�43�.vr 4. A law enfeEeement ageney as -de€ €fired in s- 994 -.92 6. Sales er- taFansaetlens between e'aa- lays- eE- ]Between eur-rent federal firearms lieensesf -eF 6. Any 4:ne1j::o =4:dua4 whe has 19een t- iEea- teneel ev dies: fafni: . l' - has been threatened d4t€i -death -er 19ed 1y -injur j , r=e . ided the 4:nEH:v�Eival Fffay -lawfully p e s sess -a- =area- rya -e el p re vi d eQ sueh threat has been eialyEepeFteel to leeat -law endereeFaent. (2)-4-3-)- 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. - Page 4of7 CODING; Words StF;Gken are deletions; words underlined are additions. Packet Page -3313- hb0045 -05 -er 9/13/2011 Item 16.K.2. F L O R I D A H 0 U S E O F R E P R E S E N T A T I V E S ENROLLED CS/CS /CS /HB 45, Engrossed 1 2011 Legislature 113 (a) Any person, county, agency, municipality, district, or 114 other entity that violates the Legislature's occupation of the 115 whole field of regulation of firearms and ammunition, as 116 declared in subsection (1), by enacting or causing to be 117 enforced any local ordinance or administrative rule or 118 regulation impinging upon such exclusive occupation of the field 119 shall be liable as set forth herein. 120 (b) If any county, city, town, or other local government 121 violates this section, the court shall declare the improper 122 ordinance, regulation, or rule invalid and issue a permanent 123 injunction against the local government prohibiting it from 124 enforcing such ordinance, regulation, or rule. It is no defense 125 that in enacting the ordinance, regulation, or rule the local 126 government was acting in good faith or upon advice of counsel. 127 (c) If the court determines that a violation was knowing 128 and willful, the court shall assess a civil fine of up to $5,000 129 against the elected or appointed local government official or 130 officials or administrative agency head under whose jurisdiction 131 the violation occurred. 132 (d) Except as required by applicable law, public funds ma 133 not be used to defend or reimburse the unlawful conduct of any 134 person found to have knowingly and willfully violated this 135 section. 136 (e) A knowing and willful violation of any provision of 137 this section by a person acting in an official capacity for any 138 entity enacting or causing to be enforced a local ordinance or 139 administrative rule or regulation prohibited under paragraph (a) 140 or otherwise under color of law shall be cause for termination Page 5 of 7 CODING: Words stFislcee are deletions; words underlined are additions. hb0045 -05 -er Packet Page -3314- i� /01—N. 9/13/2011 Item 16.K.2. F L O R I D A H O U S E O F R E P R E S E N T A T I V E S 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 ENROLLED CS /CS /CS/HB 45, Engrossed 1 2011 Legislature of employment or contract or removal from office by the (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 Page 6 of 7 CODING: Words stfiskee are deletions; words underlined are additions. Packet Page -3315- h b0045 -05-er I . F L O R I D A H 0 U S E O F 9/13/2011 Item 16.K.2. R E P R E S E N T A T i V E S ENROLLED CS /CS /CS /HB 45, Engrossed 1 2011 Legislature 169 firearm accessories issued to or used by peace officers in the 170 course of their official duties; 171 (c) Except as provided in s. 790.251, any entity subject 172 to the prohibitions of this section from regulating or 173 prohibiting the carrying of firearms and ammunition by an 174 employee of the entity during and in the course of the 175 employee's official duties; 176 (d) A court or administrative law judge from hearing and 177 resolving any case or controversy or issuing any opinion or 178 order on a matter within the jurisdiction of that court or 179 judge; or 180 (e) The Florida Fish and Wildlife Conservation Commission 181 from regulating the use of firearms or ammunition as a method of 182 taking wildlife and regulating the shooting ranges managed by 183 the commission. 184 (5) -Hb?- SHORT TITLE. -As created by chapter 87 -23, Laws of 185 Florida, this section ehmil be known aned may be cited as the 186 "Joe Carlucci Uniform Firearms Act." 187 Section 2. This act shall take effect October 1, 2011. Page 7of7 CODING; Words even are deletions; words underlined are additions. Packet Page -3316- hb0045 -05 -er 9/13/2011 Item 16.K.2. FINAL BILL ANALYSIS BILL #: CS /CS /CS /HB 45 SPONSOR: Rep. Gaetz FINAL HOUSE FLOOR ACTION: 85 Y's 33 N's GOVERNOR'S ACTION: Approved COMPANION BILLS: CS /CS /CS /S13 402 SUMMARY ANALYSIS CS /CS /CS /H13 45 passed the House on April 26, 2011, and subsequently passed the Senate on April 28, 2011. The bill was approved by the Governor on June 2, 2011, chapter 2011 -109, Laws of Florida, and becomes effective October 1, 2011. Section 790.33, F.S., currently preempts local governments from regulating firearms and ammunition unless expressly authorized to do so by general law. Subsection (2) of the statute provides such express authorization by giving counties the authority to adopt an ordinance requiring a waiting period of up to three working days between the purchase and delivery of a handgun. The bill removes the statutory language that authorizes counties to adopt an ordinance requiring a waiting period of up to three working days between the purchase and delivery of a handgun (counties still have the authority, pursuant to Art. Vill, Section 5(b) of the Florida Constitution to require a criminal history records check and a 3 to 5 -day waiting period in connection with the sale of any firearm occurring within such county). The bill replaces this provision with language prohibiting specified local governmental entities from regulating or attempting to regulate firearms or ammunition in any manner (except as specifically authorized by s. 790.33, F.S., by general law, or by the Florida Constitution) and provides exceptions to this prohibition. The bill sets forth various penalties for violating s. 790.33, F.S., including provisions that: • Require the court to declare ordinances, regulations, or rules that violate s. 790.33, F.S., invalid and issue a permanent injunction against the local government from enforcing such ordinance, regulation, or rule. It is not a defense that, in enacting the ordinance, regulation or rule, the local government was acting in good faith or upon advice of counsel; • Require the court to assess a civil fine of up to $5,000 against the elected or appointed local government official or administrative agency head under whose jurisdiction a violation occurred if the court determines that a violation was knowing and willful; • Specify that a knowing and willful violation of the statute by a person acting in an official capacity is cause for immediate termination of employment; and • Authorize a person or organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or enforced in violation of the statute to file suit for declaratory and injunctive relief and for all actual damages attributable to the violation. The damages and attorney's fees which may be awarded to prevailing plaintiffs could have a negative fiscal impact on state and local governmental entities who willfully violate the statute. This document does not reflect the intent or official position of the bill sponsor or House of Representatives. Page 11 Packet Page -3317- 1. SUBSTANTIVE INFORMATION A. EFFECT OF CHANGES: Current Situation 9/13/2011 Item 16.K.2. Preemption Section 790.33, F.S., known as the Joe Carlucci Uniform Firearms Act, became law in 19871 and expressly preempts the field of regulation of firearms and ammunition to the state, except as expressly provided by general law.' The intent of the act states: 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.' Local governments may use their home rule powers to enact ordinances not inconsistent with general law.' Local governments may legislate concurrently with the Legislature on any subject that has not been expressly preempted to the state.-5 Florida law recognizes both express and implied preemption, and express preemption must be made through a specific legislative statement, using clear language.' A municipality may not forbid what the Legislature has expressly authorized, nor may it authorize what the Legislature has expressly forbidden.' The Legislature has preempted regulation of numerous areas of law to the state, including operation of the state lottery,' use of electronic communication devices in motor vehicles,9 and interdistrict transfers of groundwater.1° In cases determining the validity of ordinances enacted in the face of state preemption, the effect has been to find such ordinances null and void." In 2000, the City of South Miami passed City Ordinance Number 14 -00 -1716, which required locking devices on firearms stored within the city. In 2002, Florida's Third District Court of Appeal held the ordinance null and void, stating that local governments were preempted from regulating firearms by section 790.33, F.S.'2 Despite the express preemption stated in section 790.33, F.S., and the court's decision in the City of South Miami case, local governments have regulated or considered regulating firearms in a variety of ways, including measures that would prohibit concealed carry permit holders Chapter 87 -23, L.O.F. 1 Section 790.33, F.S. 3 Section 790.33(3), F.S. 4 Art. VIII, s. I(f, g), Fla. Const.; see also Sarasota v. Browning, 28 So.3d 880, 885 -86 (Fla. 2010). 5 City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla. 2006). 6 Sarasota, 28 So.3d at 886. 7 Rinzler v. Carson, 262 So.2d 661, 668 (Fla. 1972). 8 Section 24.122, F.S. 9 Section 316.0075, F.S. 10 Section 373.2295(10), F.S. 11 See, e.g., Nat'l Rii le,4ss'n af,4m., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002). 12 Id �1 Page 12 Packet Page -3318- 9/13/2011 Item 16.K.2. from lawfully carrying their firearms on municipal or county property13 or ban high - capacity ammunition clips.14 Section 790.33(1), F.S., preempts local governments from regulating firearms and ammunition unless expressly authorized to do so by general law. The statute specifies that regulation includes the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation of firearms and ammunition. The statute does not currently specify that the storage of firearms is included within the term "regulation." Exceptions to Preemption Florida law and the Florida Constitution contain exceptions to the general rule that firearm regulation is preempted to the state. Currently, Section 790.33, F.S., contains a limited exception allowing local governments to enact ordinances governing a three -day handgun purchase waiting period.ls The following are exempt from waiting period ordinances under the Joe Carlucci Act: • Individuals who are licensed to carry concealed firearms under the provisions of s. 790.06, F.S., or who are licensed to carry concealed firearms under any other provision of state law and who show a valid license; • Individuals who already lawfully own another firearm and who show a sales receipt for another firearm, who are known to own another firearm through a prior purchase from the retail establishment, or who have another firearm for trade -in; • Law enforcement or correctional officers as defined in s. 943. 10, F.S.; • Law enforcement agencies as defined in s. 934.02, F.S.; • Sales or transactions between dealers or between distributors or between n dealers and distributors who have current federal firearms licenses; or • Any individual who has been threatened or whose family has been threatened with death or bodily injury, provided the individual may lawfully possess a firearm and provided such threat has been duly reported to local law enforcement. Adopted in 1998, Article VIII, s. 5(b) of the Florida Constitution authorizes counties to require a criminal records check and a 3 to 5 -day waiting period in connection with the sale16 of any firearm occurring within such county," Section 790.0655, F.S. adopted the exceptions from the waiting period for concealed weapons permit holders and handgun trade -ins as required by the 1998 amendment to the Constitution. The Constitution prevails over all local ordinances. Because the Joe Carlucci Act predates the Constitutional provision, and the exemptions listed in the Act were not specified in the Constitution, the exemptions are null and void. " Lee County Ordinance 06 -26 banned firearms from county parks. On October 26, 2010, the county passed ordinance 10- 41 which repealed the 2006 ban. 14 Palm Beach County considered an ordinance banning high capacity ammunition clips, but rescinded from consideration because of the preemption. Andy Reid, PBC Gun Control Advocates Suffer More Setbacks, SUNSENTINEL.coM, Feb. 15, 2011, http : / /www.palmbeachpost.conVnews /palm- beach - county- commissioner - presses -for- ban- on- I216890.htm1. 15 Section 790.33(2), F.S. (1988). Note: At the time of enactment in 1987, the Act provided the exception for a 48 -hour waiting period. 16 The term "sale" is defined as "the transfer of money or other valuable consideration for any firearm when any part of the transaction is conducted on property to which the public has the right of access." Art. VIII, s. 5(b), Fla. Const. 17 Concealed weapons permit holders do not have to comply with the waiting periods when purchasing a firearm. Art. VIII, n s. 5(b), Fla. Const. Page 13 Packet Page -3319- 9/13/2011 Item 16.K.2. Immunity for Legislative Acts The general rule under the common law is that legislators enjoy absolute immunity from liability for performance of legislative acts.18 Absolute immunity for legislators has historically been recognized as a "venerable tradition" which has withstood the development of the law since pre - colonial days.19 Courts have upheld absolute immunity for legislators at all levels of law- making, including federal, state, and local government levels.20 The courts' reasoning behind such holdings is that when legislators hold legislative powers, they use them for the public good, and are exempt from liability for mistaken use of their legislative powers.21 Furthermore, courts fear that allowing personal liability could distort legislative discretion, undermine the public good by interfering with the rights of the people to representation, tax the time and energy of frequently part-time citizen - legislators, and deter service in local govemment22 When unlawful ordinances have been enacted, the freedom from personal liability does not make the legislative product itself valid.23 In such instances, affected citizens have been able to challenge the validity of such ordinances by suing to have them declared invalid or have a court enjoin enforcement. 24 Courts have found that legislators may be subject to personal liability when they lack discretion.25 Such situations typically exist when legislators are subject to an affirmative duty, such as when a law or court order has directed them to levy a tax. Such acts are labeled "ministerial," as opposed to "legislative," acts. 16 Arguably, an express and clear preemption would remove discretion from local government officials seeking to engage in lawmaking in the preempted field. Liens on Municipal Property in Satisfaction of Judgments Section 55.11, F.S., states that "[n ]o money judgment or decree against a municipal corporation is a lien on its property nor shall any execution or any writ in the nature of an execution based on the judgment or decree be issued or levied." In other words, while a party may be awarded money damages in a suit against a municipality, municipal property may not be subject to a lien to satisfy such an award in the absence of express statutory authorization .27 In the absence of such authorization, a writ of mandamus is "the only vehicle for enforcing judgment against the government. "28 Thus, the Legislature may authorize the satisfaction of an award of damages by seizure of municipal property. 18 See Tenney v. Brandhove, 341 U.S. 367 (1951). 19 Bogan v. Scott- Harris, 523 U.S. 44 (1998). For additional examples of where absolute immunity of legislative acts has been recognized, see Harlow v. Fitzgerald, 457 U.S. 800 (1982); Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979); Hough v. Amato, 269 So.2d 537 (Fla. 1st DCA 1972); Jones v. Loving, 55 Miss. 109 (1877); Ross v. Gonzales, 29 S.W.2d 437 (Tex. Ct. App. 1930). 20 Bogan, 523 U.S. 44. 21 Id at 50 -51 (citing Jones v. Loving, 55 Miss. 109). 22 Id. at 52. 23 Tenney v. Brandhove, 341 U.S. at 379. 24 See, e.g., Bogan, 523 U.S. 44; Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979); Tenney, 341 U.S. 367. " Bogan, 523 U.S. at 51 -52. 26 See id. 27 See Berek v. Metro. Dade County, 396 So.2d 756, 759 n.4 (Fla. 3d DCA 1981). 28 N. Coats v. Metro. Dade County, 588 So.2d 1016, 1017 (Fla. 3d DCA 1991). Page 14 Packet Page -3320- 9/13/2011 Item 16.K.2. Effect of the Bill I ntent The bill preserves current language that the intent of the Legislature is to occupy the whole field of regulation of firearms and ammunition except as expressly provided by general law, or as provided by the Florida Constitution. The bill adds the following legislative intent language to s. 790.33, F.S.: 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 knowingly passed in violation of state law or under color of local or state authority. Clarification of Preemption In order to clarify the preemption, the bill adds additional details about the methods by which local governments or agencies may violate the preemption. The bill amends s. 790.33(1), F.S., to expand the preemption of regulation to also include the storage of firearms and ammunition. Thus, unless expressly authorized by the Constitution or general law, local governments will be preempted from regulating how firearms and ammunition are stored. In subsection (4) of s. 790.33, F.S., as created by the bill, a provision excepting certain zoning ordinances in the original Carlucci Act has been relocated and other exceptions to the prohibitions are set forth in the bill. Specifically, the bill does not prohibit: • Zoning ordinances that encompass firearms businesses along with other businesses (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 prohibited); • Law enforcement agencies from enacting and enforcing firearm- related regulations within their agencies; • The entities subject to the bill's prohibitions from regulating or prohibiting employees from carrying firearms or ammunition during the course of their official duties, except as provided in s. 790.251, F.S.; • A court or administrative law judge from resolving a case or issuing an order or opinion on any matter within the court or judge's jurisdiction; or • 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. The bill strikes subsection (2) of 790.33, which is the section regarding waiting periods and waiting period exemptions. Because these sections of the Joe Carlucci Act predate the relevant language in the Constitution and 790.0655, F.S., striking this language clarifies current state law. Packet Page -3321- Page 15 9/13/2011 Item 16.K.2. Penalties The bill prohibits a person, county, agency, municipality, district, or other entity from enacting or causing to be enforced local ordinances or administrative rules or regulations that violate the preemption statute and provides penalties. If any county, city, town, or other local government violates the above prohibition, the bill requires the court to declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against the local government from enforcing such ordinance, regulation, or rule. It is not a defense that, in enacting the ordinance, regulation or rule, the local government was acting in good faith or upon advice of counsel. The bill also requires the court to assess a civil fine of up to $5,000 against the elected or appointed local government official or administrative agency head under whose jurisdiction a violation occurred if the court determines that a violation was knowing and willful. Except as required by law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated the preemption statute. The bill provides that a knowing and willful violation by a person acting in an official capacity for any entity enacting or causing to be enforced a local ordinance or administrative rule or regulation shall be grounds for termination of employment or contract or removal from office by the Governor. The bill also allows for civil actions. A person or 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 the preemption statute may sue any county, agency, municipality, district or other entity for declaratory and injunctive relief and for all actual damages caused by the violation. In such suits, courts shall award the prevailing plaintiff: • Reasonable attorneys fees and costs, in accordance with the laws of the state, including a contingency fee multiplier as authorized by law; and • The actual damages incurred, but not more than $100,000. The bill provides that interest on awarded sums will accrue at the legal rate from the date of which suit was filed. II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT A. FISCAL IMPACT ON STATE GOVERNMENT: 1. Revenues: None. 2. Expenditures: See "Fiscal Comments." Packet Page -3322- Page ( 6 �Ql 9/13/2011 Item 16.K.2. B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 1. Revenues: None. 2. Expenditures: See "Fiscal Comments." C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: None. D. FISCAL COMMENTS: The damages and attorney's fees which may be awarded to prevailing plaintiffs could have a negative fiscal impact on state and local governmental entities who willfully violate the statute. Packet Page -3323- Page 17 9/13/2011 Item 16.K.2. Florida Attorney General Advisory Legal Opinion Number: AGO 2009 -24 Date: May 27, 2009 Subject: City council member carrying firearm in council meeting Mr. Matt E. Dannheisser Gulf Breeze City Attorney 504 North Baylen Street Pensacola, Florida 32501 RE: MUNICIPALITIES - FIREARMS - CONCEALED WEAPONS - MEETINGS - whether city council meeting is "place of business" in which city council member can carry firearm. so. 790.06 and 790.25, Fla. Stat. Dear Mr. Dannheisser: As City Attorney for the City of Gulf Breeze and on behalf of 110� Councilman Joseph B. Henderson, a member of the Gulf Breeze City Council, you have asked for my opinion on substantially the following question: Notwithstanding the provisions of section 790.06(12), Florida Statutes, may a member of a municipal city council who holds a concealed weapons license carry a concealed weapon during city council meetings pursuant to the "place of business" exception set forth in section 790.25(3)(n), Florida Statutes? In sum: It is my opinion that a member of a municipal city council may not carry a weapon or firearm during a city council meeting pursuant to the "place of business" exception set forth in section 790.25(3)(n), Florida Statutes. Further, it is irrelevant to resolution of this question that the city council member possesses a concealed weapons license as section 790.06, Florida Statutes, clearly prohibits the carrying of concealed weapons into any meeting of the governing body of a municipality. According to your letter, a council member on the City Council Packet Page -3324- 9/13/2011 Item 16.K.2. of the City of Gulf Breeze holds a concealed weapons license issued pursuant to section 790.06, Florida Statutes. This council member is aware of the prohibition set forth in section 790.06(12), Florida Statutes, prohibiting any person from carrying a weapon or firearm into any meeting of the governing body of a county, public school district, municipality, or special district. However, section 790.25(3)(n), Florida Statutes, provides that it is lawful for a person to possess firearms at "his or her home or place of business" and the council member has asked whether he may lawfully carry his firearm into city council meetings. You advise that regular meetings of the Gulf Breeze City Council occur on the first and third Mondays of each month. An executive session of the City Council, at which time matters to be considered during the council's regular meetings are discussed, but no final or official action is taken, are held on the Wednesday preceding each regular meeting. In addition, there are occasional special meetings of the Gulf Breeze City Council as well as workshop meetings at which members of the City Council are expected to attend. Moreover, certain members of the City Council are ex officio members of standing boards or committees established by ordinance. The membership on those boards or committees will generally rotate among council members. Council members receive only nominal compensation for their service on the Gulf Breeze City Council and are reimbursed for certain expenses incurred in connection with the performance of their duties. Section 790.25, Florida Statutes, describes the lawful ownership, possession, and use of firearms and other weapons. The Legislature has stated its intent for adopting these provisions: "The Legislature finds as a matter of public policy and fact that it is necessary to promote firearms safety and to curb and prevent the use of firearms and other weapons in crime and by incompetent persons without prohibiting the lawful use in defense of life, home, and property, and the use by United States or state military organizations, and as otherwise now authorized by law, including the right to use and own firearms for target practice and marksmanship on target practice ranges or other lawful places, and lawful hunting and other lawful purposes." [1] In recognition of this policy, the Legislature has set forth a number of lawful uses of firearms and other weapons, ammunition, Packet Page -3325- 9/13/2011 Item 16.K.2. and supplies in subsection (3) of the statute. The statute provides that sections 790.053 (making it unlawful to openly carry a firearm) and 790.06 (making it illegal to carry a concealed weapon or firearm without a license) do not apply in the enumerated instances and that it is lawful for the specified persons to own, possess, and use firearms for lawful purposes including the general authorization to possess firearms at home or at work. [2] However, despite the general language elsewhere in the statutes, section 790.06(12), Florida Statutes, provides that "[n]o license issued pursuant to this section shall authorize any person to carry a concealed weapon or firearm into . . . any meeting of the governing body of a county, public school district, municipality, or special district[.]" Thus, while the Gulf Breeze City Council member may be licensed to carry a concealed weapon, this license is irrelevant to the issue of whether a city council member may carry his or her weapon into a city council meeting as the absolute prohibition expressed in section 790.06(12), Florida Statutes, would overcome any more general authorization expressed elsewhere in Chapter 790, Florida Statutes.[3) Thus, it is my opinion that section 790.06(12), Florida Statutes, prohibits a member of a municipal city council from carrying a concealed weapon or firearm during a city council meeting. Sincerely, Bill McCollum Attorney General Packet Page -3326- NRA /ILA Firearms LaWSfor A SYNOPSIS OF STATE LAWS ON PURCHASE, POSSESSION AND CARRYING OF FIREARMS. QUICK REFERENCE CHART STATE CONsTrrU"TiONAL PRO'V'ISION "(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law. (b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph. (c) ... anyone violating the provisions of subsection (b) shall be guilty of a felony. (d) This restriction shall not apply to a trade in of another handgun." Article 1, Section 8. The legislature of the State of Florida, in a declaration of policy incorporated in its "Weapons and Firearms" statute, recognizes chat adult citizens of the state retain their constitutional right to keep and bear firearms for hunting and sporting activities and for defense of self, family, home, and business and as collectibles. PURCHASE AND POSSESSION No state permit is required to possess or purchase a rifle, shotgun or handgun. It is unlawful for any convicted felon to have in his or her care, custody, control, or possession anv firearm or to carry a concealed weapon unless his civil rights have been restored. It is unlawful for the following persons to own, possess or use any firearm: drug addicts, alcoholics, mental incompetents, and vagrants. A person may not have in his or her care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from commicring acts of domestic violence. It is unlawful to sell, give, barter, lend or transfer a firearm or other weapon other than an ordinary pocketknife to a minor less than the age of 18 without his parent's permission, or to any person of unsound mind. It is unlawful for any dealer to sell or transfer any firearm, pistol, Springfield rifle or other repeating rifle to a minor. A minor less than 18 years of age may not possess a firearm, other than an unloaded firearm at his home, unless engaged in lawful activities. No licensed gun dealer, manufacturer or importer shall sell or deliver any firearm to another person until he has obtained a completed form from the potential buyer or transferee and received approval from the Department of Law Enforcement by means of a toll -free telephone call. The Department of Law Enforcement shall destroy records of approval and non - approval 9/13/2011 Item 16.K.2. Compiled by: NRA - Institute for Legislarive Action 11250 Wapks Mill Road Fairfav, Virginia 22030 (800) 392 -8683 www, nraila.org within 48 hours after its response. The fee for the instant check shall be $8.00. Exempt from the instant check are licensed dealers, manufacturers, importers, collectors, persons with a concealed carrying license, law enforcement, correctional and correctional probation officers. Excluding weekends and legal holidays. there is a three -day waiting period to purchase a handgun from a retail establishment. Exempt from the waiting period are concealed weapons permit holders and those trading in another handgun. CARRYING Unless covered under the exceptions, it is unlawful to openly carry on or about the person any firearm, or to carry a concealed firearm on or about the person without a license. Exceptions: I. Persons having firearms at their home or place of business. 2 Enrolled members of clubs organized for target, skeet, or trapshooting, while at, or going to or from shooting practice. 3. Members of clubs organized for collecting antique or modern firearms while at or going to or from exhibitions. 4. Persons engaged in fishing, camping or hunting and while going to or from such activity. 5. Persons engaged in target shooting under safe conditions and in a safe place or while going to or from such place. 6. Persons who are firing weapons for target practice in a safe and secure indoor range. 7. Persons traveling by private conveyance if the weapon is securely encased, or in a public conveyance if the weapon is securely encased and not in the person's manual possession. 8. Persons carrying a pistol unloaded and in a secure wrapper from place of purchase to their home or to a place of repair and back. 9. Persons engaged in the business of manufacturing, repairing or dealing in firearms. 10. Military, law enforcement personnel and private guards while so employed. It is lawful to possess a concealed firearm for self - defense or other lawful purposes within the interior of a private conveyance, without a license, if the firearm is securely encased or is otherwise not readily accessible for immediate use. A firearm other than a handgun may be carried anywhere in a private conveyance when such firearm is being carried for a lawful use. This exemption does not authorize the carrying of a firearm concealed on the person. Employers may not prohibit their employees who are properly licensed under Florida law to carry a handgun, from storing any legally owned firearm inside a locked, privately -owned motor vehicle that is lawfully present in a parking lot maintained by the employer. An application for a license to carry a handgun concealed is made to the Department of Agriculture. The license is valid for seven years and is honored throughout the state. The application shall be completed, under oath, on a form promulgated by the Department of Agriculture and shall include the applicant's name, address, place and date of birth, race, and occupation. The initial license fee is not to exceed $85 plus the cost of processing the fingerprint card. The renewal fee is not to exceed $70 (fingerprint card is not required on renewal licenses), However, at the discretion of the Department of Agriculture, the fees may be lower than the statutory cap. Packet Page -3327- I{ifles and Shotguns Handguns Permit to Purchase No No Registration of Firearms No No Licensing of Owners No No Permit to Carry No Yes STATE CONsTrrU"TiONAL PRO'V'ISION "(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law. (b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph. (c) ... anyone violating the provisions of subsection (b) shall be guilty of a felony. (d) This restriction shall not apply to a trade in of another handgun." Article 1, Section 8. The legislature of the State of Florida, in a declaration of policy incorporated in its "Weapons and Firearms" statute, recognizes chat adult citizens of the state retain their constitutional right to keep and bear firearms for hunting and sporting activities and for defense of self, family, home, and business and as collectibles. PURCHASE AND POSSESSION No state permit is required to possess or purchase a rifle, shotgun or handgun. It is unlawful for any convicted felon to have in his or her care, custody, control, or possession anv firearm or to carry a concealed weapon unless his civil rights have been restored. It is unlawful for the following persons to own, possess or use any firearm: drug addicts, alcoholics, mental incompetents, and vagrants. A person may not have in his or her care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from commicring acts of domestic violence. It is unlawful to sell, give, barter, lend or transfer a firearm or other weapon other than an ordinary pocketknife to a minor less than the age of 18 without his parent's permission, or to any person of unsound mind. It is unlawful for any dealer to sell or transfer any firearm, pistol, Springfield rifle or other repeating rifle to a minor. A minor less than 18 years of age may not possess a firearm, other than an unloaded firearm at his home, unless engaged in lawful activities. No licensed gun dealer, manufacturer or importer shall sell or deliver any firearm to another person until he has obtained a completed form from the potential buyer or transferee and received approval from the Department of Law Enforcement by means of a toll -free telephone call. The Department of Law Enforcement shall destroy records of approval and non - approval 9/13/2011 Item 16.K.2. Compiled by: NRA - Institute for Legislarive Action 11250 Wapks Mill Road Fairfav, Virginia 22030 (800) 392 -8683 www, nraila.org within 48 hours after its response. The fee for the instant check shall be $8.00. Exempt from the instant check are licensed dealers, manufacturers, importers, collectors, persons with a concealed carrying license, law enforcement, correctional and correctional probation officers. Excluding weekends and legal holidays. there is a three -day waiting period to purchase a handgun from a retail establishment. Exempt from the waiting period are concealed weapons permit holders and those trading in another handgun. CARRYING Unless covered under the exceptions, it is unlawful to openly carry on or about the person any firearm, or to carry a concealed firearm on or about the person without a license. Exceptions: I. Persons having firearms at their home or place of business. 2 Enrolled members of clubs organized for target, skeet, or trapshooting, while at, or going to or from shooting practice. 3. Members of clubs organized for collecting antique or modern firearms while at or going to or from exhibitions. 4. Persons engaged in fishing, camping or hunting and while going to or from such activity. 5. Persons engaged in target shooting under safe conditions and in a safe place or while going to or from such place. 6. Persons who are firing weapons for target practice in a safe and secure indoor range. 7. Persons traveling by private conveyance if the weapon is securely encased, or in a public conveyance if the weapon is securely encased and not in the person's manual possession. 8. Persons carrying a pistol unloaded and in a secure wrapper from place of purchase to their home or to a place of repair and back. 9. Persons engaged in the business of manufacturing, repairing or dealing in firearms. 10. Military, law enforcement personnel and private guards while so employed. It is lawful to possess a concealed firearm for self - defense or other lawful purposes within the interior of a private conveyance, without a license, if the firearm is securely encased or is otherwise not readily accessible for immediate use. A firearm other than a handgun may be carried anywhere in a private conveyance when such firearm is being carried for a lawful use. This exemption does not authorize the carrying of a firearm concealed on the person. Employers may not prohibit their employees who are properly licensed under Florida law to carry a handgun, from storing any legally owned firearm inside a locked, privately -owned motor vehicle that is lawfully present in a parking lot maintained by the employer. An application for a license to carry a handgun concealed is made to the Department of Agriculture. The license is valid for seven years and is honored throughout the state. The application shall be completed, under oath, on a form promulgated by the Department of Agriculture and shall include the applicant's name, address, place and date of birth, race, and occupation. The initial license fee is not to exceed $85 plus the cost of processing the fingerprint card. The renewal fee is not to exceed $70 (fingerprint card is not required on renewal licenses), However, at the discretion of the Department of Agriculture, the fees may be lower than the statutory cap. Packet Page -3327- Fingerprinting must be conducted by a law enforcement agency of the state. The sheriff's office shall provide fingerprinting service to the applicant and may charge a fee not to exceed $5. The Department of Agriculture shall issue a license if the applicant: (a) is at least 21 and a resident of the United States; (b) does not suffer from a physical infirmity which prevents the safe handling of a firearm; (c) is not a convicted felon; (d) has not within a three -year period preceding submission of the application been convicted of a crime of violence or committed for drug abuse or been convicted of a minor drug offense; (e) has not been adjudicated guilty even with a suspended sentence for a felony or misdemeanor crime of domestic violence, unless three years has elapsed since probation or the record is sealed or expunged; (f)is not currently under any injunction restraining the applicant from acts of domestic violence or repeated acts of violence; (g) has not been adjudicated an incapacitated person, unless he has waited five years from the date of his court - ordered restoration to capacity, or been committed to a mental institution, unless he possesses a psychiatrist's certificate that he has not suffered from the disability for five years; (h) is not a chronic or habitual drunkard; W demonstrates competence with a firearm by a variety of means; and (j) states that he desires a legal means to carry a concealed weapon or firearm for lawful self - defense. A license shall not authorize any person to carry a concealed weapon or firearm into any place of nuisance, police station, detention facility, courthouse, polling place, meeting of any state, county, municipal, or special district governing body, any school, any professional or school athletic event not related to firearms, portion of an establishment licensed to dispense alcoholic beverages for consumption on the prernises, inside the sterile and passenger area of an airport, or any place where the carrying of firearms is prohibited by federal law. The Department of Agriculture must be notified within 30 days of changing a permanent address, destruction or losing a license. A duplicate license costs $15.00. A person must carry his license together with valid identification, such as a driver's license. The licensing law shall be liberally construed to carry out the Constitutional right to bear arms for self- defense. A resident of the United States who is a nonresident of Florida, may carry a concealed weapon or concealed firearm while in this state if that person is 21 years of age or older, has in his or her immediate possession a valid Iicense to carry a concealed weapon or firearm issued by the state of their residence, and abides by the Florida laws on carrying a concealed weapon or firearm. ANTIQUES AND REPLICAS Unless used in the commission of a crime, the tern firearm shall not include an antique firearm. An antique firearm is any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replicas thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade. MACHINE GUNS The possession of a machine gun, defined as any firearm which shoots, or is designed to shoot, automatically, more than one shot without manually reloading, by a single function of the trigger, is prohibited unless lawfully owned and possessed under provisions of federal law. 9/13/2011 Item 16.K.2. meet force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or others. Use of a firearm. BB gun, air or gas - operated guns, or electric weapons or devices by a minor under the age of 16 is prohibited unless the minor is under the supervision and in the presence of an adult who is acting with the consent of the minor's parent. Florida has mandatory sentence enhancements for any serious felony, such as murder, rape, aggravated assault, burglary or robbery, committed with a firearm. The penalty is increased if a machine gun or a semiautomatic firearm with magazine capacity of more than 20 centerfire cartridges is possessed during a serious felony or narcotics offense. It is unlawful to knowingly discharge a firearm in any public place, or on the right of way of any paved public road, highway or street or over any road, highway, street or occupied building, except in defense of life or property, in performance of official duties or where expressly approved for hunting. Except during the hunting season as established by law, it is unlawful to carry a firearm within the limit% of a national Forest area. Fxempt are persons who have obtained a special permit by the county commissioners or persons traveling on state roads when the firearm is securely locked within a vehicle. It is unlawful to have or carry a firearm in the presence of one or more persons and exhibit the firearm in a rude, careless, angry, or threatening manners, except in cases of self - defense. The state legislature has preempted the regulation of firearms and ammunition. No political subdivision of the state may bring legal action against a firearms or ammunition manufacturer or distributor for the legal manufacture, marketing, distribution, and sale of firearms and ammunition. Owners, operators, and users of sport shooting ranges have limited liability for the accumulation of any projectiles on their range. It is unlawful to sell, deliver, or use to assist in the commission of a crime arty bullet, which has a steel inner core, or core of equivalent hardness and truncated cone and which is designed for use in a handgun as an armor - piercing bullet. It is unlawful to store or leave a firearm in any place within reach or easy access of a person less than 18 years of age. This provision does not apply to: 1. A firearm stored in a securely locked box or container, or in a location which a reasonable person would have believed to be secure, or securely locked with a trigger lock; 2. A minor who obtains •a firearm by means of unlawful entry by any person; 3. Minors engaged in a lawful marksmanship competition or practice or ocher lawful recreational shooting activity; 4. Any person carrying the firearm on his or her body or within such close proximity thereto that he or she can retrieve and use it as easily and quickly as if he or she carried it on his or her body. Whoever, through culpable negligence, stores or leaves a loaded firearm within the reach or easy access of a minor less than 16 years of age commits a fclmry of the third degree, if the minor obtains the firearm and uses it to inflict injury or death upon himself or herself or any other person. This subsection does nor apply: 1. If the firearm was stored or left in a securely locked box or container or in a location which a reasonable person would have believed to be secure, or was securely locked with a trigger lock; 2. If the minor obtains the firearm as a result of an unlawful entry by any person; 3. 'Tb injuries resulting from target or sport shooting accidents or hunting accidents; or 4. To members of the Armed Forces, National Guard, or State Militia, or to police or other law enforcement officers, with respect to firearm possession by a minor which occurs during or incidental to the performance of their official duties. MISCELLANEOUS Source: FLA. SI,Kl' ANN. % 784.05; 790.001; 790.01; 790.15; 790.53; 790.06; 790.065; 790.655; 790.07; 790.10: 790.11; 790.15; 790.16; Under Florida law, there is no "duty to retreat" if you are attacked in any 790.17; 790.174; 790.175; 790.18; 790.19; 790.22; 790.221; 790.233; place you have a lawful right to be. Instead, you may stand your ground and 790.235; 790.33; 790.331; and 790.333 Packet Page -3328- Gun laws in Florida - Wikipedia, the free encyclopedia 9/13/2011 Item 16.K.2. �. Gun laws in Florida From Wikipedia, the free encyclopedia Gun laws in Florida regulate the sale, possession, and use of firearms and ammunition in the state of Florida in the United States. Florida is a "shall issue" state, and issues concealed carry permits to both residents and non - residents. Florida recognizes permits from any other state which recognizes Florida's permit, provided the non- resident individual is a resident of the other state and is at least 21 years old.l'l Contents ■ 1 Overview ■ 2 Vehicle Carry ■ 3 Open Carry ■ 4 Regulations ■ 5 Castle Doctrine j ■ 6 Firearm Sales ■ 7 See also ■ 8 References Overview - -_ - -- - - - --..... ------ - _ _... .._.._..__ .... - -. - _ _ ..._ .... _ ._.__ Subject/Law ;Long Handguns Relevant Statutes . _ .. - - - -- - Notes j guns State Permit to No No None 'Purchase? Firearm No registration? No None "Assault No weapon" law? -- - _ -- ------------ No None ...... .. _ Owner license 'No No None required? Concealed Carry permits 'No Chapter 790.06 (http: / /www.flsenate.gov /Statutes / index.cfm? 'carry only; no open carry issued? Yes , App_ mode = Display_ Statute &Search_String = &URL= 0700 - allowed, { 0799/0790 /Sections /0790.06.htmi) even with permit State Preemption of Chapter 790.33 (http: / /www.flsenate.gov /Statutes /index.cfm? j Yes Yes App_ mode = Display_ Statute& Search _String= &URL -0700- (local restrictions? 1 0799 /0790 /Sections /0790.33.html) NFA weapons Na No None ^, restricted? Peaceable No Journey laws? ; No None Federal rules ; observed. http : / /en.wikipedia.org /w /index.php ?title= CPacket Page +3329_a &printable =yes 8/15/2011 Gun laws in Florida - Wikipedia, the free encyclopedia 9/13/2011 Item 16.K.2. Vehicle Carry Vehicle carry without a permit is allowed either in a snapped holster in plain view, or when the firearm is concealed if the firearm is "securely encased ". "Securely encased" means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access. 121 (Note: this legal condition is not the same as "encased securely. ") VehicIe carry without a permit is permitted when concealed even if it is not "securely encased" if the firearm is not "readily accessible ". Vehicle carry on one's person inside a vehicle without a permit is not allowed. Open Carry Open carry when on foot in a public area is generally not permitted, but is allowed in certain circumstances, as defined in Florida statute 790.25(3). For example, open carry is permitted while hunting, fishing, or camping, or while target shooting, or while going to or from such activities.l31 When hunting on private land, or on properties expressly approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry, open carry is also permitted. State preemption laws prohibit localities from regulating firearms, other than with regards to zoning laws (i.e., for restricting where gun sellers may locate their businesses.) Regulations Firearm regulations are uniform throughout the state, and a carry permit is valid throughout the state, in all areas other than in a few specially- defined areas. These specially - defined prohibited areas include: • in or around specially- marked buildings /grounds (notably, mental hospitals and any hospitals with provisions to treat mental illness, where concealed carry is a felony even with a permit (F.S. 394.458). F.S 394.458 does state concealed carry is prohibited "unless authorized by law ". Since F.S. 790.06(12) does not prohibit concealed carry in hospitals that treat mental illness by permit holders, it can be inferred that concealed carry with a permit is allowed. Caution is advised since there currently is no case law. In other words, no case has been referred to a Grand Jury nor has any person been tried for violating the law. One Florida resident was arrested but the charges were subsequently dropped after their attorney successfully argued the permit holder was excepted. Be advised each county's prosecutor may have a different opinion. • any place of nuisance 790.25(2)b3 & 823.05 • Sheriff s Office, • Police Station, • Jail, • Prison, • Courthouse, • Polling Place, • any Governmental Judicial meeting, • any school or college, • lounges, • bars, • airports, • professional athletic event, and Packet Page _3330 http : / /en.wikipedia.org /w /index.php ?title -Ia &printable =yes 8/15/2011 11 N Gun laws in Florida - Wikipedia, the free encyclopedia ■ any federal buildings or property. Castle Doctrine 9/13/2011 Item 16.K.2. As of October 1, 2005, Florida became a "Stand- your - ground" state. The Florida law is a self - defense, self - protection law. It has four key components: 1. It establishes that law- abiding residents and visitors may legally presume the threat of bodily harm or death from anyone who breaks into a residence or occupied vehicle and may use defensive force, including deadly force, against the intruder. 2. In any other place where a person "has a right to be," that person has "no duty to retreat" if attacked and may "meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another to prevent the commission of a forcible felony." 3. In either case, a person using any force permitted by the law is immune from criminal prosecution or civil action and cannot be arrested unless a law enforcement agency determines there is probable cause that the force used was unlawful. 4. If a civil action is brought and the court finds the defendant to be immune based on the parameters of the law, the defendant will be awarded all costs of defense. As of July 1, 2008, Florida became a "Take your gun to work" state (F. S. 790.251). A new statewide Florida law went into effect on this date prohibiting most businesses from firing any employee with a Concealed Weapon License for keeping a legal firearm locked in their vehicle in the company parking lot. The purpose of the new law is to allow CWL holders to exercise their Second Amendment rights during their commutes to and from work. Exceptions listed in F.S. 790.251(7) include school property, correctional institutions, property where a nuclear- powered electricity generation facility is located, property upon which substantial activities involving national defense, aerospace, or homeland security are conducted, property upon which the primary business conducted is the manufacture, use, storage, or transportation of combustible or explosive materials, a motor vehicle owned /leased/rented by your employer, and any other property upon which possession of a firearm is prohibited pursuant to any federal law, contract with a federal government entity, or general law of Florida. A case was filed against Walt Disney World Resort by Edwin Sotomayor, a former Disney security guard who was fired, despite having a CWL, for having a firearm locked in his car on July 1, in violation of Disney's pre- existing and strict no weapons allowed policy. The case was later dropped by the plaintiff citing personal and financial reasons. Disney claims that they are exempt from the new state law, on the basis of their having a fireworks license for conducting nightly fireworks shows at Disney World. 141151 Firearm Sales Florida law allows private firearm sales between residents without requiring any processing through an FFL. Florida law also permits larger municipalities to elect to require a concealed carry permit for a buyer to purchase a gun at a gun show from another private individual without any delay, but in practice, this applies only to a few of the largest municipalities (Miami, Orlando, etc.) where it has been invoked. Currently, Florida's Concealed Weapon License is one of the most widely- recognized, state - issued concealed weapon permit. The resident Florida Concealed Weapon License is recognized in thirty-five different states, while the non - resident Florida Concealed Weapon License is recognized in thirty states. �. [61 Packet Page -3331 - http:/ /en.wikipedia.org /w /index.php ?title= l-Packet _ _ ..,..,.a &printable =yes 8/15/2011 Gun laws in Florida - Wikipedia, the free encyclopedia 9/13/2011 Item 16.K.2. See also ■ Gun laws in the United States (by state) References 1. ^ Florida Statutes, Chapter 790: Weapons and Firearms (http: / /www.flsenate.gov /Statutes /index.cfm? App_ mode= Display_Statute &URL= 0700 - 0799 / 0790 /0790ContentsIndex. html & StatuteYear =2010 &Title =% 2D %3E2010 %2D %3 EChapter%20790) 2. ^ Florida Statutes, Chapter 790.001(17): Weapons and Firearms (http: / /www.flsenate.gov /Statutes/ index .cfm ?App_mode= Display_Statute &Search String=&URL=0700- 0799 /0790 /Sections /0790.001.html) 3. ^ Florida Crimes Code Section 790.25 at Law and Legal Research (http://Iaw.oneele.com/florida/crimesngo.25.htm]) 4. ^ "Walt Disney World Fires Back on Guns at Work ", Orlando Sentinel, July 3, 2008 (http: / /www.orlandosentinel. com / business/ orl- disneyguns03O8ju ]03,0,197883.story) 5. ^ "After Protesting Gun Rule, Disney Guard is Fired ", Orlando Sentinel, July 8, 2008 (http: / /www.orlandosentinel. com / business /orl- disneygun08O8ju108,0,3 963293.story) 6. ^ Florida Department of Agriculture and Consumer Services - Division of Licensing (http://licgweb.doacs.state.fl.us/news/concealed — carry.htm 1) Retrieved from "http: / /en.wikipedia.org /wiki /Gun_ laws_in_Florida" Categories: Florida law I United States firearms law • This page was last modified on 21 May 2011 at 02:01. • Text is available under the Creative Commons Attribution- ShareAlike License; additional terms may apply. See Terms of use for details. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non - profit organization. http : / /en.wikipedia.org /w /index.php ?title =, Packet Page `_3332ya &printable =yes 8/15/2011