In 2011, Florida enacted an extreme preemption measure designed to severely restrict local authority to regulate firearms, and personally punish local legislators who cause a preempted law to be passed or enforced. Florida Statutes § 790.33(1) provides:
Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.
Not only does § 790.33 declare that the state of Florida occupies “the whole field” of firearms regulation, it also subjects local legislators to personal liability and removal from office for their votes in that field. In a subsection titled “penalties,” § 790.33(3) provides that “[a]ny person . . . that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition . . . by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable.”1 Specifically, a local official who knowingly and willfully violates the statute shall be fined up to $5,000;2 may not be indemnified for the costs of defending himself or herself;3 and may be removed from office by the governor.4 Florida’s law was the first in the nation to provide that a local legislator can be held financially liable and removed from office for “enacting or causing to be enforced” a local ordinance that impinges upon the field of firearms regulation.
Section 790.33 includes only narrow exceptions to preemption, listing five subject areas where local jurisdictions may lawfully continue to regulate the field of firearms.5 Section 790.33 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 prohibited;
(b) A duly organized law enforcement agency from enacting and enforcing regulations pertaining to firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their official duties;
(c) Except as provided in s. 790.251,6 any entity subject to the prohibitions of this section from regulating or prohibiting the carrying of firearms and ammunition by an employee of the entity during and in the course of the employee’s official duties;
(d) A court or administrative law judge from hearing and resolving any case or controversy or issuing any opinion or order on a matter within the jurisdiction of that court or judge; or
(e) The Florida Fish and Wildlife Conservation Commission from regulating the use of firearms or ammunition as a method of taking wildlife and regulating the shooting ranges managed by the commission.
Fla. Stat. §§ 125.0107 and 166.044 also prohibit counties and municipalities, respectively, from adopting any ordinance relating to the possession or sale of ammunition.
Following these preemption statutes, Florida courts have struck down several local regulations of firearms.
In Penelas v. Arms Technology, Inc., Miami-Dade County sued firearms manufacturers, alleging that the manufacturers’ products were defective, ultra hazardous, and created a public nuisance, seeking damages and injunctive relief.7 The Court of Appeal of Florida dismissed the County’s claims, holding that section 790.33 “expressly preempts to the state legislature the entire field of firearm and ammunition regulation” and stating that local governments cannot use the judiciary to attempt “to ‘enact’ regulatory measures in the guise of injunctive relief.”8
In National Rifle Ass’n of Am., Inc. v. City of South Miami, the Court of Appeal of Florida found that an ordinance requiring the use of locking devices on firearms stored within the City (South Miami, Fla. Code § 14-00-1716) was “null and void” due to a conflict with section 790.33, stating that the “legislature…has…expressly preempted the entire field of firearm and ammunition regulation.”9 The court also rejected an opinion by the Florida Attorney General10, opining that a locking device ordinance would not be preempted by section 790.33 because the statute does not mention firearm storage and the ordinance would not interfere with the “right to bear arms.”
Most recently, Florida courts have read the Florida Constitution Art. 1. § 8(a) state right to bear arms itself to further preempt the field of firearms regulation. In Florida Carry, Inc. v. University of North Florida, the Court of Appeals of Florida held that the Florida legislature had not delegated its authority to regulate the manner of bearing arms to state universities and struck down a university regulation prohibiting the carrying of encased firearms within motor vehicles parked on a university campus.11
The Attorney General of Florida has concluded that counties are prevented by section 790.33 from enacting ordinances that prohibit the discharge of firearms “in proximity to persons or property,” even when the ordinance is adopted for public health and safety purposes.12
Section 790.33 does not, however, prevent employers from regulating their employees’ use or possession of firearms while on the job. (Note, however, that in 2008, Florida adopted a law stating that employers may not prohibit an employee from possessing a legally owned firearm or ammunition locked inside or locked to a private motor vehicle in a parking lot. See the Florida Guns in Vehicles section for further information.) In Pelt v. Florida Dept. of Transportation, the court of appeal rejected a section 790.33 challenge to an employee’s suspension for carrying a licensed weapon on the job and firing it on break in violation of company policy.13 In upholding the employee’s five-day suspension, the court noted that section 790.33 was directed toward local government’s regulation of the conduct of its own citizens and found that “sound policy reasons” exist to allow employers to regulate their employees’ use and possession of firearms.
Furthermore, Florida prohibits legal actions against firearms manufacturers, distributors, or dealers by a local authority:
A legal action against a firearms or ammunition manufacturer, distributor or dealer, or firearms trade association, on behalf of a county, municipality, special district, or any other political subdivision or agency of the state, for damages, abatement, or injunctive relief resulting from or arising out of the lawful design, marketing, distribution, or sale of firearms or ammunition to the public is prohibited.14
A county, municipality, special district, or other political subdivision or agency of the state may not sue for or recover from a firearms or ammunition manufacturer, distributor or dealer, or firearms trade association, damages, abatement, or injunctive relief in any case that arises out of or results from the lawful design, marketing, distribution, or sale of firearms or ammunition to the public.15
However, actions against a firearms or ammunition manufacturer, distributor, or dealer are permitted for:
- Breach of contract or warranty in connection with a firearm or ammunition purchased by a county, municipality, special district, or other political subdivision or agency of the state; or
- Injuries resulting from the malfunction of a firearm or ammunition due to a defect in design or manufacture.16
Florida statutes provide an exception to local authority preemption under a state of emergency. Section 870.043 authorizes certain public officials, including county sheriffs and certain designated city officials, to declare a state of emergency if certain conditions are met. During a declared state of emergency, the following acts are prohibited:
- The sale of, or offer to sell, a firearm or ammunition;
- The intentional display of a firearm or ammunition by or in any store or shop; and
- The intentional possession of a firearm in a public place.
However, nothing in sections 870.01-870.06 may be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in a criminal act.
Similarly, section 252.36, which enumerates the powers of the Governor to address emergencies, states that he or she may “suspend or limit the sale, dispensing, or transportation of … firearms, explosives, and combustibles. However, nothing contained in sections 252.31-252.90 may be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in the commission of a criminal act.”
The Florida Legislature has also occupied the whole field of regulation of firearms and ammunition use at sport shooting and training ranges, including the environmental effects of projectile deposition at such ranges.17 Florida law provides that any sport shooting or training range shall be immune from lawsuits brought by political subdivisions for any claims associated with the use, release, placement, deposition, or accumulation of any projectile on or under that range, or any other property over which the range has a legal right of use, if the range owner or operator has made a good faith effort to comply with the appropriate environmental management practices.18 Nothing in this law is intended to impair or diminish the private property rights of owners of property adjoining a sport shooting or training range.19 The Attorney General of Florida has interpreted these provisions to mean that a county may enforce existing zoning and land use regulations against a proposed sports shooting range; however, no newly created or amended zoning or land use regulations may be enforced against existing ranges.20
A separate Florida law immunizes any person who operates or uses a sport shooting range from civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from operation or use of the range.21
Charter counties in Florida may also preempt city ordinances related to firearms in certain circumstances.22
Additionally, the Florida Constitution permits counties to adopt laws that would require such background checks for sales occurring in or on “property to which the public has the right of access” within the county. The Florida Constitution states that, “[e]ach county shall have the authority to require a criminal history records check…in connection with the sale of any firearm occurring within such county.”23 The term “sale” under this section “means 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.”24 Concealed weapons permit holders are not subject to these laws.25
- Fla. Stat. § 790.33(3)(a). ⤴︎
- Id. at 3(c). ⤴︎
- Id. at 3(d). ⤴︎
- Id. at 3(e). ⤴︎
- See Fla. Stat. § 790.33(4). ⤴︎
- The referenced section provides that employers may not prohibit employees from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot. ⤴︎
- 778 So.2d 1042 (Fla. Dist. Ct. App. 2001). ⤴︎
- Penelas, 778 So.2d at 1045. ⤴︎
- 812 So.2d 504, 505-06 (Fla. Dist. Ct. App. 2002). ⤴︎
- Op. Att’y Gen. 2000-42 (July 11, 2000 ⤴︎
- 133 So. 3d 966 (Fla. 1st DCA 2013). ⤴︎
- Op. Att’y Gen. Fla. 2005-40, 2005 Fla. AG LEXIS 46. ⤴︎
- 664 So.2d 320, 321 (Fla. Dist. Ct. App. 1995). ⤴︎
- Section 790.331(2). ⤴︎
- Section 790.331(3). ⤴︎
- Section 790.331(4). ⤴︎
- Section 790.333(8). ⤴︎
- Section 790.333(5)(a); see also section 790.333(4). ⤴︎
- Section 790.333(5)(b). ⤴︎
- Op. Att’y Gen. Fla. 2008-34, 2008 Fla. AG LEXIS 61. ⤴︎
- Section 823.16. ⤴︎
- See Broward County v. Ft. Lauderdale, 480 So. 2d 631 (Fla. 1985) (holding that a charter county may preempt city regulations regarding handgun sales). ⤴︎
- Fla. Const. art. VIII, § 5(b). ⤴︎
- Id. ⤴︎
- Id. ⤴︎