Florida Senate - 2011 CS for CS for SB 402
By the Committees on Community Affairs; and Criminal Justice;
and Senators Negron and Evers
578-02780-11 2011402c2
1 A bill to be entitled
2 An act relating to the regulation of firearms and
3 ammunition; amending s. 790.33, F.S.; clarifying and
4 reorganizing provisions that preempt to the state the
5 entire field of regulation of firearms; prohibiting
6 specified persons and entities, when acting in their
7 official capacity, from regulating or attempting to
8 regulate firearms or ammunition in any manner except
9 as specifically authorized by s. 790.33, F.S., by
10 general law, or by the State Constitution; providing
11 additional intent; eliminating provisions authorizing
12 counties to adopt an ordinance requiring a waiting
13 period between the purchase and delivery of a handgun;
14 providing a penalty for knowing and willful violations
15 of prohibitions; providing for investigation of
16 complaints of violations of the act and prosecution of
17 violators by the state attorney; providing that public
18 funds may not be used to defend the unlawful conduct
19 of any person charged with a knowing and willful
20 violation of the act; providing exceptions; providing
21 for termination of employment or contract or removal
22 from office of a person acting in an official capacity
23 who knowingly and willfully violates any provision of
24 the act; providing for declarative and injunctive
25 relief for specified persons or organizations;
26 providing for specified damages and interest;
27 providing for seizure of certain vehicles for
28 specified nonpayment of damages; providing exceptions
29 to prohibitions of the act; providing an effective
30 date.
31
32 Be It Enacted by the Legislature of the State of Florida:
33
34 Section 1. Section 790.33, Florida Statutes, is amended to
35 read:
36 790.33 Field of regulation of firearms and ammunition
37 preempted.—
38 (1) PREEMPTION.—Except as expressly provided by the State
39 Constitution or general law, the Legislature hereby declares
40 that it is occupying the whole field of regulation of firearms
41 and ammunition, including the purchase, sale, transfer,
42 taxation, manufacture, ownership, possession, storage, and
43 transportation thereof, to the exclusion of all existing and
44 future county, city, town, or municipal ordinances or any
45 administrative regulations or rules adopted by local or state
46 government relating thereto. Any such existing ordinances,
47 rules, or regulations are hereby declared null and void. This
48 subsection shall not affect zoning ordinances which encompass
49 firearms businesses along with other businesses. Zoning
50 ordinances which are designed for the purpose of restricting or
51 prohibiting the sale, purchase, transfer, or manufacture of
52 firearms or ammunition as a method of regulating firearms or
53 ammunition are in conflict with this subsection and are
54 prohibited.
55 (2) LIMITED EXCEPTION; COUNTY WAITING-PERIOD ORDINANCES.—
56 (a) Any county may have the option to adopt a waiting
57 period ordinance requiring a waiting period of up to, but not to
58 exceed, 3 working days between the purchase and delivery of a
59 handgun. For purposes of this subsection, “purchase” means
60 payment of deposit, payment in full, or notification of intent
61 to purchase. Adoption of a waiting-period ordinance, by any
62 county, shall require a majority vote of the county commission
63 on votes on waiting-period ordinances. This exception is limited
64 solely to individual counties and is limited to the provisions
65 and restrictions contained in this subsection.
66 (b) Ordinances authorized by this subsection shall apply to
67 all sales of handguns to individuals by a retail establishment
68 except those sales to individuals exempted in this subsection.
69 For purposes of this subsection, “retail establishment” means a
70 gun shop, sporting goods store, pawn shop, hardware store,
71 department store, discount store, bait or tackle shop, or any
72 other store or shop that offers handguns for walk-in retail sale
73 but does not include gun collectors shows or exhibits, or gun
74 shows.
75 (c) Ordinances authorized by this subsection shall not
76 require any reporting or notification to any source outside the
77 retail establishment, but records of handgun sales must be
78 available for inspection, during normal business hours, by any
79 law enforcement agency as defined in s. 934.02.
80 (d) The following shall be exempt from any waiting period:
81 1. Individuals who are licensed to carry concealed firearms
82 under the provisions of s. 790.06 or who are licensed to carry
83 concealed firearms under any other provision of state law and
84 who show a valid license;
85 2. Individuals who already lawfully own another firearm and
86 who show a sales receipt for another firearm; who are known to
87 own another firearm through a prior purchase from the retail
88 establishment; or who have another firearm for trade-in;
89 3. A law enforcement or correctional officer as defined in
90 s. 943.10;
91 4. A law enforcement agency as defined in s. 934.02;
92 5. Sales or transactions between dealers or between
93 distributors or between dealers and distributors who have
94 current federal firearms licenses; or
95 6. Any individual who has been threatened or whose family
96 has been threatened with death or bodily injury, provided the
97 individual may lawfully possess a firearm and provided such
98 threat has been duly reported to local law enforcement.
99 (2)(3) POLICY AND INTENT.—
100 (a) It is the intent of this section to provide uniform
101 firearms laws in the state; to declare all ordinances and
102 regulations null and void which have been enacted by any
103 jurisdictions other than state and federal, which regulate
104 firearms, ammunition, or components thereof; to prohibit the
105 enactment of any future ordinances or regulations relating to
106 firearms, ammunition, or components thereof unless specifically
107 authorized by this section or general law; and to require local
108 jurisdictions to enforce state firearms laws.
109 (b) It is further the intent of this section to deter and
110 prevent the violation of this section and the violation of
111 rights protected under the State Constitution and laws of this
112 state related to firearms or ammunition, or components thereof,
113 by the abuse of official authority which occurs when enactments
114 are knowingly passed in violation of state law or under color of
115 local or state authority.
116 (3) PROHIBITIONS; PENALTIES.—
117 (a) Any person who knowingly and willfully violates the
118 Legislature’s occupation of the whole field of regulation of
119 firearms and ammunition, as declared in subsection (1), by
120 enacting or enforcing any local ordinance or administrative rule
121 or regulation commits a noncriminal violation as defined in s.
122 775.08 and punishable as provided in s. 775.082 or s. 775.083.
123 (b) The state attorney in the appropriate jurisdiction
124 shall investigate complaints of noncriminal violations of this
125 section and, if the state attorney determines that probable
126 cause of a violation exists, shall prosecute violators in the
127 circuit court where the complaint arose. Any state attorney who
128 fails to execute his or her duties under this section may be
129 held accountable under the appropriate Florida rules of
130 professional conduct.
131 (c) If the court determines that the violation was knowing
132 and willful, the court shall assess a fine of not less than
133 $5,000 and not more than $100,000 against the elected or
134 appointed local government official or officials or
135 administrative agency head under whose jurisdiction the
136 violation occurred. The elected or appointed local government
137 official or officials or administrative agency head shall be
138 personally liable for the payment of all fines, costs, and fees
139 assessed by the court for the noncriminal violation.
140 (d) Except as required by s. 16, Art. I of the State
141 Constitution or the Sixth Amendment to the United States
142 Constitution, public funds may not be used to defend the
143 unlawful conduct of any person charged with a knowing and
144 willful violation of this section.
145 (e) A knowing and willful violation of any provision of
146 this section by a person acting in an official capacity for any
147 of the entities specified in this section or otherwise under
148 color of law shall be cause for immediate termination of
149 employment or contract or removal from office by the Governor.
150 (f) A person or an organization whose membership is
151 adversely affected by any ordinance, regulation, measure,
152 directive, rule, enactment, order, or policy promulgated or
153 enforced in violation of this section may file suit in an
154 appropriate court for declarative and injunctive relief and for
155 all actual and consequential damages attributable to the
156 violation. A court shall award the prevailing plaintiff in any
157 such suit:
158 1. Attorney’s fees in the trial and appellate courts to be
159 determined by the rate used by the federal district court having
160 jurisdiction over the political subdivision for civil rights
161 actions;
162 2. Liquidated damages of three times the attorney’s fees
163 under subparagraph 1.; and
164 3. Litigation costs in the trial and appellate courts.
165
166 Interest on the sums awarded pursuant to this subsection shall
167 accrue at 15 percent per annum from the date on which suit was
168 filed. Where applicable, payment may be secured by seizure of
169 any vehicles used or operated for the benefit of any elected
170 officeholder or official found to have violated this section if
171 not paid within 72 hours after the order’s filing.
172 (4) EXCEPTIONS.—This section does not prohibit:
173 (a) Zoning ordinances that encompass firearms businesses
174 along with other businesses, except that zoning ordinances that
175 are designed for the purpose of restricting or prohibiting the
176 sale, purchase, transfer, or manufacture of firearms or
177 ammunition as a method of regulating firearms or ammunition are
178 in conflict with this section and are prohibited;
179 (b) A duly organized law enforcement agency from enacting
180 and enforcing regulations pertaining to firearms, ammunition, or
181 firearm accessories issued to or used by peace officers in the
182 course of their official duties;
183 (c) Except as provided in s. 790.251, any entity covered by
184 this section from regulating or prohibiting the carrying of
185 firearms and ammunition by an employee of the entity during and
186 in the course of the employee’s official duties;
187 (d) A court or administrative law judge from hearing and
188 resolving any case or controversy or issuing any opinion or
189 order on a matter within the jurisdiction of that court or
190 judge; or
191 (e) The Fish and Wildlife Conservation Commission from
192 regulating the use of firearms or ammunition as a method of
193 taking wildlife and regulating the shooting ranges managed by
194 the commission.
195 (5)(b) SHORT TITLE.—As created by chapter 87-23, Laws of
196 Florida, this section shall be known and may be cited as the
197 “Joe Carlucci Uniform Firearms Act.”
198 Section 2. This act shall take effect upon becoming a law.