Florida Senate - 2011                                     SB 402
       By Senator Negron
       28-00034-11                                            2011402__
    1                        A bill to be entitled                      
    2         An act relating to 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., or by
   10         general law; providing a penalty for knowing and
   11         willful violations; eliminating provisions authorizing
   12         counties to adopt an ordinance requiring a waiting
   13         period between the purchase and delivery of a handgun;
   14         providing additional intent of the section; providing
   15         that public funds may not be used to defend the
   16         unlawful conduct of any person charged with a knowing
   17         and willful violation of the section; providing
   18         exceptions; providing fines for governmental entities
   19         in whose service or employ the provisions of the
   20         section are knowingly and willfully violated;
   21         providing for deposit of fines; providing for
   22         investigation of complaints of criminal violations of
   23         the section and prosecution of violators by the state
   24         attorney; providing for termination of employment or
   25         contract or removal from office of a person acting in
   26         an official capacity who knowingly and willfully
   27         violates any provision of the section; providing for
   28         declarative and injunctive relief for specified
   29         persons or organizations; providing for specified
   30         damages and interest; providing for seizure of certain
   31         municipal vehicles for specified nonpayment of
   32         damages; providing exceptions to prohibitions of the
   33         section; providing an effective date.
   35  Be It Enacted by the Legislature of the State of Florida:
   37         Section 1. Section 790.33, Florida Statutes, is amended to
   38  read:
   39         790.33 Field of regulation of firearms and ammunition
   40  preempted.—
   41         (1) PREEMPTION.—Except as expressly provided by general
   42  law, the Legislature hereby declares that it is occupying the
   43  whole field of regulation of firearms and ammunition, including
   44  the purchase, sale, transfer, taxation, manufacture, ownership,
   45  possession, storage, and transportation thereof, to the
   46  exclusion of all existing and future county, city, town, or
   47  municipal ordinances or regulations relating thereto. Any such
   48  existing ordinances or regulations are hereby declared null and
   49  void. This subsection shall not affect zoning ordinances which
   50  encompass firearms businesses along with other businesses.
   51  Zoning ordinances which are designed for the purpose of
   52  restricting or prohibiting the sale, purchase, transfer, or
   53  manufacture of firearms or ammunition as a method of regulating
   54  firearms or ammunition are in conflict with this subsection and
   55  are prohibited.
   56         (2) PROHIBITIONS.—The following entities may not, when
   57  acting in their official capacity or otherwise under color of
   58  law, regulate or attempt to regulate firearms or ammunition in
   59  any manner, whether by the enactment or enforcement of any
   60  ordinance, regulation, measure, directive, rule, enactment,
   61  order, policy, or exercise of proprietary authority, or by any
   62  other means, except as specifically authorized by this section
   63  or by general law:
   64         (a) A local government.
   65         (b) A special district.
   66         (c) A political subdivision.
   67         (d) A governmental authority, commission, or board.
   68         (e) A state governmental agency.
   69         (f) Any official, agent, employee, or person, whether
   70  public or private, who works or contracts with any state or
   71  other governmental entity.
   72         (g) Any entity that serves the public good when such
   73  service is provided in whole or in part by any governmental
   74  entity or utilizes public support or public funding.
   75         (h) Any public entity other than those specified in this
   76  subsection, including, but not limited to, libraries, convention
   77  centers, fairgrounds, parks, and recreational facilities.
   78         (i) Any body to which authority or jurisdiction is given by
   79  any unit or subdivision of any government or that serves the
   80  public good in whole or in part with public support,
   81  authorization, or funding or that has the authority to establish
   82  rules or regulations that apply to the public use of facilities,
   83  property, or grounds.
   85         (a) Any county may have the option to adopt a waiting
   86  period ordinance requiring a waiting period of up to, but not to
   87  exceed, 3 working days between the purchase and delivery of a
   88  handgun. For purposes of this subsection, “purchase” means
   89  payment of deposit, payment in full, or notification of intent
   90  to purchase. Adoption of a waiting-period ordinance, by any
   91  county, shall require a majority vote of the county commission
   92  on votes on waiting-period ordinances. This exception is limited
   93  solely to individual counties and is limited to the provisions
   94  and restrictions contained in this subsection.
   95         (b) Ordinances authorized by this subsection shall apply to
   96  all sales of handguns to individuals by a retail establishment
   97  except those sales to individuals exempted in this subsection.
   98  For purposes of this subsection, “retail establishment” means a
   99  gun shop, sporting goods store, pawn shop, hardware store,
  100  department store, discount store, bait or tackle shop, or any
  101  other store or shop that offers handguns for walk-in retail sale
  102  but does not include gun collectors shows or exhibits, or gun
  103  shows.
  104         (c) Ordinances authorized by this subsection shall not
  105  require any reporting or notification to any source outside the
  106  retail establishment, but records of handgun sales must be
  107  available for inspection, during normal business hours, by any
  108  law enforcement agency as defined in s. 934.02.
  109         (d) The following shall be exempt from any waiting period:
  110         1. Individuals who are licensed to carry concealed firearms
  111  under the provisions of s. 790.06 or who are licensed to carry
  112  concealed firearms under any other provision of state law and
  113  who show a valid license;
  114         2. Individuals who already lawfully own another firearm and
  115  who show a sales receipt for another firearm; who are known to
  116  own another firearm through a prior purchase from the retail
  117  establishment; or who have another firearm for trade-in;
  118         3. A law enforcement or correctional officer as defined in
  119  s. 943.10;
  120         4. A law enforcement agency as defined in s. 934.02;
  121         5. Sales or transactions between dealers or between
  122  distributors or between dealers and distributors who have
  123  current federal firearms licenses; or
  124         6. Any individual who has been threatened or whose family
  125  has been threatened with death or bodily injury, provided the
  126  individual may lawfully possess a firearm and provided such
  127  threat has been duly reported to local law enforcement.
  128         (3) POLICY AND INTENT.—
  129         (a) It is the intent of this section to provide uniform
  130  firearms laws in the state; to declare all ordinances and
  131  regulations null and void which have been enacted by any
  132  jurisdictions other than state and federal, which regulate
  133  firearms, ammunition, or components thereof; to prohibit the
  134  enactment of any future ordinances or regulations relating to
  135  firearms, ammunition, or components thereof unless specifically
  136  authorized by this section or general law; and to require local
  137  jurisdictions to enforce state firearms laws.
  138         (b) It is further the intent of this section to deter and
  139  prevent the violation of this section, the abuse of official
  140  authority that occurs when local enactments are knowingly passed
  141  in violation of state law, and the violation under color of
  142  local authority of rights protected under the constitution and
  143  laws of this state.
  144         (4) PENALTIES.—
  145         (a) Any person who, or entity that, knowingly and willfully
  146  violates a provision of this section commits a felony of the
  147  third degree, punishable as provided in s. 775.082 or s.
  148  775.083.
  149         (b)1. Except as required by s. 16, Art. I of the State
  150  Constitution or the Sixth Amendment to the United States
  151  Constitution, public funds may not be used to defend the
  152  unlawful conduct of any person charged with a knowing and
  153  willful violation of this section, unless the charges against
  154  such person are dismissed or such person is determined to be not
  155  guilty at trial.
  156         2. Notwithstanding subparagraph 1., public funds may be
  157  expended to provide the services of the office of public
  158  defender or court-appointed conflict counsel as provided by law.
  159         (c) The governmental entity in whose service or employ a
  160  provision of this section is violated may be assessed a fine of
  161  not more than $5 million if the court determines that the
  162  violation was willful and that any person at the governmental
  163  entity with oversight of the offending official, designee,
  164  contractee, or employee knew or in the exercise of ordinary care
  165  should have known the act was a violation. Fines assessed under
  166  this section shall be deposited in equal amounts into the
  167  administrative account of the state attorney and the
  168  administrative account of the court in the jurisdiction in which
  169  the offense occurred and was prosecuted.
  170         (d) The state attorney in the appropriate jurisdiction
  171  shall investigate complaints of criminal violations of this
  172  section and, where the state attorney determines probable cause
  173  of a violation exists, shall prosecute violators. Any state
  174  attorney who fails to execute his or her duties under this
  175  section may be held accountable under the appropriate Florida
  176  rules of professional conduct.
  177         (e) A knowing and willful violation of any provision of
  178  this section by a person acting in an official capacity for any
  179  of the entities specified in this section or otherwise under
  180  color of law shall be cause for immediate termination of
  181  employment or contract or removal from office by the Governor.
  182         (f) A person or an organization whose membership is
  183  adversely affected by any ordinance, regulation, measure,
  184  directive, rule, enactment, order, or policy promulgated or
  185  enforced in violation of this section may file suit in an
  186  appropriate court for declarative and injunctive relief and for
  187  all actual and consequential damages attributable to the
  188  violation. A court shall award the prevailing plaintiff in any
  189  such suit:
  190         1. Attorney’s fees in the trial and appellate courts to be
  191  determined by the rate used by the federal district court with
  192  jurisdiction over the political subdivision for civil rights
  193  actions;
  194         2. Liquidated damages of three times the attorney’s fees
  195  under subparagraph 1.; and
  196         3. Litigation costs in the trial and appellate courts.
  198  Interest on the sums awarded pursuant to this subsection shall
  199  accrue at 15 percent from the date on which suit was filed.
  200  Where applicable, payment may be secured by seizure against any
  201  municipal vehicles used or operated for the benefit of any
  202  elected officeholder in the appropriate municipality if not paid
  203  within 72 hours after the order’s enrollment and publication.
  204         (5) EXCEPTIONS.—This section does not prohibit:
  205         (a) Zoning ordinances that encompass firearms businesses
  206  along with other businesses, except that zoning ordinances that
  207  are designed for the purpose of restricting or prohibiting the
  208  sale, purchase, transfer, or manufacture of firearms or
  209  ammunition as a method of regulating firearms or ammunition are
  210  in conflict with this subsection and are prohibited;
  211         (b) A duly organized law enforcement agency from enacting
  212  and enforcing regulations pertaining to firearms, ammunition, or
  213  firearm accessories issued to or used by peace officers in the
  214  course of their official duties;
  215         (c) Except as provided in s. 790.251, any entity listed in
  216  paragraphs (2)(a)-(i) from regulating or prohibiting the
  217  carrying of firearms and ammunition by an employee of the entity
  218  during and in the course of the employee’s official duties; or
  219         (d) A court or administrative law judge from hearing and
  220  resolving any case or controversy or issuing any opinion or
  221  order on a matter within the jurisdiction of that court or
  222  judge.
  223         (6)(b)SHORT TITLE.—As created by chapter 87-23, Laws of
  224  Florida, this section shall be known and may be cited as the
  225  “Joe Carlucci Uniform Firearms Act.”
  226         Section 2. This act shall take effect upon becoming a law.