Local Firearm ordinances and preemption

Discuss Florida duck hunting with other hunters alike.

Moderators: hunt-chessies, badandy970, BigBend, Belly up dux

Local Firearm ordinances and preemption

Postby whaknstak » Tue Jan 15, 2013 11:22 pm

We have had some confusion on here regarding the enforcablity of local firearm ordinaces and where you can or cannot discharge a firearm. PLEASE NOTE SOME OF THE INFORMATION CONTAINED BELOW IS MY PERSONAL OPINION DERIVED FROM COUNTLESS HOURS OF RESEARCH OF PUBLIC DOCUMENTS, AND IS NO WAY, SHAPE, OR FORM LEGAL ADVICE. This is simply post to help guide you in the right direction, and I encourage everyone to fact check everything i type here in this post for yourself. I will give a history of the law and then link to the applicable statutes.

In 1987 when FL adopted statewide concealed carry legislation they passed a law that said that only the state of Florida could regulate firearms. This was to cut down on the confusion between counties, as each county had its own ordinaces and rules, and a FL resident prior to 1987 had to know 67 different sets of rules. So they passed a law that said that any ordinance or rule enacted by a local governing body was declared null and void, and unenforcable from that point forward. However, when they passed that law they did not include a penalty for violating it (sounds crazy but it happened) In 2011 the FL legislature voted and ammending statute 790.33 to include enforcible punishments for violating preemption, including civil penalties for the municipalitites as well as the governing official in House Bill 45 The passing of this ammendment to .33 meant that the signs in city parks, local municipality owned property, and even the capitol building were in violation of state law and preemption. A state group called Florida Carry since the passing of HB 45 has been working to get the unlawful signs removed across the state, and is suing local municipalities that refuse to comply with florida law. If you come across signage you belive to be illegal, please refer the info to me, or directly to Florida Carry via their website, as they are working to preserve all of our 2A rights in this state.

Here are the laws. Please read them in detail.

790.33 Field of regulation of firearms and ammunition preempted.—
(1) PREEMPTION.—Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.
(2) POLICY AND INTENT.—
(a) It is the intent of this section to provide uniform firearms laws in the state; to declare all ordinances and regulations null and void which have been enacted by any jurisdictions other than state and federal, which regulate firearms, ammunition, or components thereof; to prohibit the enactment of any future ordinances or regulations relating to firearms, ammunition, or components thereof unless specifically authorized by this section or general law; and to require local jurisdictions to enforce state firearms laws.

(b) It is further the intent of this section to deter and prevent the violation of this section and the violation of rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof, by the abuse of official authority that occurs when enactments are passed in violation of state law or under color of local or state authority.

(3) PROHIBITIONS; PENALTIES.—
(a) Any person, county, agency, municipality, district, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein.

(b) If any county, city, town, or other local government violates this section, the court shall declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against the local government prohibiting it from enforcing such ordinance, regulation, or rule. It is no defense that in enacting the ordinance, regulation, or rule the local government was acting in good faith or upon advice of counsel.

(c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred.

(d) Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section.

(e) A knowing and willful violation of any provision of this section by a person acting in an official capacity for any entity enacting or causing to be enforced a local ordinance or administrative rule or regulation prohibited under paragraph (a) or otherwise under color of law shall be cause for termination of employment or contract or removal from office by the Governor.

(f) A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or other entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation. A court shall award the prevailing plaintiff in any such suit:
1. Reasonable attorney’s fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law; and

2. The actual damages incurred, but not more than $100,000.

Interest on the sums awarded pursuant to this subsection shall accrue at the legal rate from the date on which suit was filed.

(4) EXCEPTIONS.—This section does not prohibit:
(a) Zoning ordinances that encompass firearms businesses along with other businesses, except that zoning ordinances that are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited;

(b) A duly organized law enforcement agency from enacting and enforcing regulations pertaining to firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their official duties;

(c) Except as provided in s. 790.251, any entity subject to the prohibitions of this section from regulating or prohibiting the carrying of firearms and ammunition by an employee of the entity during and in the course of the employee’s official duties;

(d) A court or administrative law judge from hearing and resolving any case or controversy or issuing any opinion or order on a matter within the jurisdiction of that court or judge; or

(e) The Florida Fish and Wildlife Conservation Commission from regulating the use of firearms or ammunition as a method of taking wildlife and regulating the shooting ranges managed by the commission.

790.15 Discharging firearm in public or on residential property.—
(1) Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street, who knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises, or who recklessly or negligently discharges a firearm outdoors on any property used primarily as the site of a dwelling as defined in s. 776.013 or zoned exclusively for residential use commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section does not apply to a person lawfully defending life or property or performing official duties requiring the discharge of a firearm or to a person discharging a firearm on public roads or properties expressly approved for hunting by the Fish and Wildlife Conservation Commission or Florida Forest Service.
(2) Any occupant of any vehicle who knowingly and willfully discharges any firearm from the vehicle within 1,000 feet of any person commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) Any driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly directs any other person to discharge any firearm from the vehicle commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

790.25 Lawful ownership, possession, and use of firearms and other weapons.—
(1) DECLARATION OF POLICY.—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.

(2) USES NOT AUTHORIZED.—
(a) This section does not authorize carrying a concealed weapon without a permit, as prohibited by ss. 790.01 and 790.02.

(b) The protections of this section do not apply to the following:
1. A person who has been adjudged mentally incompetent, who is addicted to the use of narcotics or any similar drug, or who is a habitual or chronic alcoholic, or a person using weapons or firearms in violation of ss. 790.07-790.115, 790.145-790.19, 790.22-790.24;

2. Vagrants and other undesirable persons as defined in 1s. 856.02;

3. A person in or about a place of nuisance as defined in s. 823.05, unless such person is there for law enforcement or some other lawful purpose.

(3) LAWFUL USES.—The provisions of ss. 790.053 and 790.06 do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:
(a) Members of the Militia, National Guard, Florida State Defense Force, Army, Navy, Air Force, Marine Corps, Coast Guard, organized reserves, and other armed forces of the state and of the United States, when on duty, when training or preparing themselves for military duty, or while subject to recall or mobilization;

(b) Citizens of this state subject to duty in the Armed Forces under s. 2, Art. X of the State Constitution, under chapters 250 and 251, and under federal laws, when on duty or when training or preparing themselves for military duty;

(c) Persons carrying out or training for emergency management duties under chapter 252;

(d) Sheriffs, marshals, prison or jail wardens, police officers, Florida highway patrol officers, game wardens, revenue officers, forest officials, special officers appointed under the provisions of chapter 354, and other peace and law enforcement officers and their deputies and assistants and full-time paid peace officers of other states and of the Federal Government who are carrying out official duties while in this state;

(e) Officers or employees of the state or United States duly authorized to carry a concealed weapon;

(f) Guards or messengers of common carriers, express companies, armored car carriers, mail carriers, banks, and other financial institutions, while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state;

(g) Regularly enrolled members of any organization duly authorized to purchase or receive weapons from the United States or from this state, or regularly enrolled members of clubs organized for target, skeet, or trap shooting, while at or going to or from shooting practice; or regularly enrolled members of clubs organized for modern or antique firearms collecting, while such members are at or going to or from their collectors’ gun shows, conventions, or exhibits;

(h) A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition;
(i) A person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person while engaged in the lawful course of such business;

(j) A person firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law or going to or from such place;

(k) A person firing weapons in a safe and secure indoor range for testing and target practice;

(l) A person traveling by private conveyance when the weapon is securely encased or in a public conveyance when the weapon is securely encased and not in the person’s manual possession;

(m) A person while carrying a pistol unloaded and in a secure wrapper, concealed or otherwise, from the place of purchase to his or her home or place of business or to a place of repair or back to his or her home or place of business;

(n) A person possessing arms at his or her home or place of business;

(o) Investigators employed by the several public defenders of the state, while actually carrying out official duties, provided such investigators:
1. Are employed full time;

2. Meet the official training standards for firearms established by the Criminal Justice Standards and Training Commission as provided in s. 943.12(5) and the requirements of ss. 493.6108(1)(a) and 943.13(1)-(4); and

3. Are individually designated by an affidavit of consent signed by the employing public defender and filed with the clerk of the circuit court in the county in which the employing public defender resides.

(p) Investigators employed by the capital collateral regional counsel, while actually carrying out official duties, provided such investigators:
1. Are employed full time;

2. Meet the official training standards for firearms as established by the Criminal Justice Standards and Training Commission as provided in s. 943.12(1) and the requirements of ss. 493.6108(1)(a) and 943.13(1)-(4); and

3. Are individually designated by an affidavit of consent signed by the capital collateral regional counsel and filed with the clerk of the circuit court in the county in which the investigator is headquartered.

(4) CONSTRUCTION.—This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act is supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights. This act shall supersede any law, ordinance, or regulation in conflict herewith.

(5) POSSESSION IN PRIVATE CONVEYANCE.—Notwithstanding subsection (2), it is lawful and is not a violation of s. 790.01 for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for a lawful use. Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed in favor of the lawful use, ownership, and possession of firearms and other weapons, including lawful self-defense as provided in s. 776.012.

Per the above statute, you do not need a firearms license to carry within the confines of .25, and .053 (Prohibition of open carry) does not apply. Therefore you may open carry in this state without a license while hunting, fishing, camping, or lawfully shooting activity as well as going to and from. Do not carry a concealed firearm without a license as that is a felony.

Parin 5 also dissmisses the famous "three step rule" there has never been such a thing, it is a myth that has been spread for years. You may carry a concealed handgun as long as it is securely encased (in a closed container with a lid, or snapped in a holster per 790.001 "Definitions") That means in your glove box or center console. It makes no metion whether or not it must be unloaded, chambered, holstered, or dissassembled. As long as it is inside that box, you meet the statutory requirement of "securely encased". If your hunting, it is legal to wear on your hip openly.



Article IV Section 9 Florida Constitution

Fish and wildlife conservation commission.—There shall be a fish and wildlife conservation commission, composed of seven members appointed by the governor, subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and shall also exercise regulatory and executive powers of the state with respect to marine life, except that all license fees for taking wild animal life, fresh water aquatic life, and marine life and penalties for violating regulations of the commission shall be prescribed by general law. The commission shall establish procedures to ensure adequate due process in the exercise of its regulatory and executive functions. The legislature may enact laws in aid of the commission, not inconsistent with this section, except that there shall be no special law or general law of local application pertaining to hunting or fishing. The commission’s exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from license fees for the taking of wild animal life and fresh water aquatic life shall be appropriated to the commission by the legislature for the purposes of management, protection, and conservation of wild animal life and fresh water aquatic life. Revenue derived from license fees relating to marine life shall be appropriated by the legislature for the purposes of management, protection, and conservation of marine life as provided by law. The commission shall not be a unit of any other state agency and shall have its own staff, which includes management, research, and enforcement. Unless provided by general law, the commission shall have no authority to regulate matters relating to air and water pollution.

https://www.flrules.org/gateway/browse.asp?toType=r

In summation, if you are not hunting an area because of a local ordinances that says no hunting, or no discharging of firearms, there is a good chance that hunting that area is perfectly legal by florida law. Only the FWC can regulate hunting and fishing per IV section 9 of the constitution, and only the legislature can regulate where you fire your gun. So any and all local ordinances that are contrary to state law or FWC rules is null and void, and unenforcable. If you were to be arrested for violating an illegal ordinance, the agency as well as the offficer are subject to lawsuit and liability. Some areas have special regulations that differ from the normal laws, but those will be documented under the Florida Administrative Code linked above. If there are not documented special regs for that particular area, then you would abide by state law concerning that area. Please research the areas you hunt, and find out what type of laws are governing that area.

I hope this post will help fellow outdoorsman with some of the new laws in our state, as well as open the door to some easily available resources for each of us to fact check things we are not sure about. AGAIN, THESE ARE MY OPINIONS AFTER STUDYING STATE LAW FOR THE LAST THREE YEARS. I AM NOT AN ATTONEY. PLEASE REVIEW THE ABOVE MATERIAL AND VERIFY ANY AND ALL INFORMATION FOR YOURSELF.
"Do you care about freedom? Dreams may have inspired it, and wishes prompted it, but only war and weapons have made it yours."

Col Jeff Cooper
User avatar
whaknstak
hunter
 
Posts: 1037
Joined: Fri Jan 14, 2011 9:24 pm
Location: N Florida


Re: Local Firearm ordinances and preemption

Postby waterdogds » Wed Jan 16, 2013 4:12 am

Great post Mitchell. I appreciate your time and effort regarding this matter. Thank you. :thumbsup:
"He who knows nothing is closer to the truth than he whose mind is filled with falsehoods and errors." Thomas Jefferson
User avatar
waterdogds
hunter
 
Posts: 1890
Joined: Sat Nov 19, 2011 7:45 am
Location: Sopchoppy, Florida

Re: Local Firearm ordinances and preemption

Postby whaknstak » Sun Dec 01, 2013 9:44 am

Mods,

This comes up all the time by new members. Any chance we could pin this thread? I feel it rather important to our sport to have informed hunters.
"Do you care about freedom? Dreams may have inspired it, and wishes prompted it, but only war and weapons have made it yours."

Col Jeff Cooper
User avatar
whaknstak
hunter
 
Posts: 1037
Joined: Fri Jan 14, 2011 9:24 pm
Location: N Florida

Re: Local Firearm ordinances and preemption

Postby whaknstak » Sun Dec 15, 2013 7:43 pm

Bump for a friend
"Do you care about freedom? Dreams may have inspired it, and wishes prompted it, but only war and weapons have made it yours."

Col Jeff Cooper
User avatar
whaknstak
hunter
 
Posts: 1037
Joined: Fri Jan 14, 2011 9:24 pm
Location: N Florida

Re: Local Firearm ordinances and preemption

Postby jakefromflorida » Sat Dec 21, 2013 5:35 pm

Ttt, needed this info coming up this week. Great thread, people should utilize it. Thanks to the op for your time. I am printing a copy of most of these statues...


Sticky!
Indaswamp wrote:
t_baker wrote:Nice work Jakefromstatefarm.

Crap. On. A. Cracker!! :lol3: :lol3: :lol3: :lol3: :lol3: LMAO!!!
"She sounds hideous!" :lol3: :lol3: :lol3: :lol3: :lol3: :lol3:
User avatar
jakefromflorida
hunter
 
Posts: 275
Joined: Mon Sep 09, 2013 5:25 am

Re: Local Firearm ordinances and preemption

Postby whaknstak » Sat Dec 21, 2013 7:24 pm

jakefromflorida wrote:Ttt, needed this info coming up this week. Great thread, people should utilize it. Thanks to the op for your time. I am printing a copy of most of these statues...


Sticky!


Your most welcome. Glad you are able to benefit from t. That's why I wrote it; to help fellow hunters.
"Do you care about freedom? Dreams may have inspired it, and wishes prompted it, but only war and weapons have made it yours."

Col Jeff Cooper
User avatar
whaknstak
hunter
 
Posts: 1037
Joined: Fri Jan 14, 2011 9:24 pm
Location: N Florida

Re: Local Firearm ordinances and preemption

Postby whaknstak » Mon Jan 20, 2014 3:59 am

Bump for lazy folks. Sticky?
"Do you care about freedom? Dreams may have inspired it, and wishes prompted it, but only war and weapons have made it yours."

Col Jeff Cooper
User avatar
whaknstak
hunter
 
Posts: 1037
Joined: Fri Jan 14, 2011 9:24 pm
Location: N Florida

Re: Local Firearm ordinances and preemption

Postby aunt betty » Mon Jan 20, 2014 7:54 am

Man that's a lot of words...I couldn't read it all...conflicting laws, suing to remove signs that violate it. Breakin' the Law
Breakin' the Law..

Heh heh heh...hehehehe
Ahahahah
Hehe hehe
Lol
Image
INTERNET CREDIBILITY is...an OXYMORON. :moon:
User avatar
aunt betty
memberhip was not approved
 
Posts: 11696
Joined: Fri Nov 19, 2010 8:09 pm
Location: Go HOGS!

Re: Local Firearm ordinances and preemption

Postby whaknstak » Mon Jan 20, 2014 8:44 am

aunt betty wrote:Man that's a lot of words...I couldn't read it all...conflicting laws, suing to remove signs that violate it. Breakin' the Law
Breakin' the Law..

Heh heh heh...hehehehe
Ahahahah
Hehe hehe
Lol
Image


Do you live or hunt in Florida? If so, it would be worthwhile to actually read it. If not it's simply superfluous information.
"Do you care about freedom? Dreams may have inspired it, and wishes prompted it, but only war and weapons have made it yours."

Col Jeff Cooper
User avatar
whaknstak
hunter
 
Posts: 1037
Joined: Fri Jan 14, 2011 9:24 pm
Location: N Florida


Return to Florida Duck Hunting

Who is online

Users browsing this forum: Ringer68 and 2 guests