Florida Senate - 2011                              CS for SB 402
       By the Committee on Criminal Justice; and Senator Negron
       591-01821-11                                           2011402c1
    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 a
   11         penalty for knowing and willful violations;
   12         eliminating provisions authorizing counties to adopt
   13         an ordinance requiring a waiting period between the
   14         purchase and delivery of a handgun; providing
   15         additional intent of the section; providing that
   16         public funds may not be used to defend the unlawful
   17         conduct of any person charged with a knowing and
   18         willful violation of the section; providing
   19         exceptions; providing fines for governmental entities
   20         in whose service or employ the provisions of the
   21         section are knowingly and willfully violated;
   22         providing for investigation of complaints of criminal
   23         violations of the section and prosecution of violators
   24         by the state attorney; providing for termination of
   25         employment or contract or removal from office of a
   26         person acting in an official capacity who knowingly
   27         and willfully violates any provision of the section;
   28         providing for declarative and injunctive relief for
   29         specified persons or organizations; providing for
   30         specified damages and interest; providing for seizure
   31         of certain 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 the State
   42  Constitution or general law, the Legislature hereby declares
   43  that it is occupying the whole field of regulation of firearms
   44  and ammunition, including the purchase, sale, transfer,
   45  taxation, manufacture, ownership, possession, storage, and
   46  transportation thereof, to the exclusion of all existing and
   47  future county, city, town, or municipal ordinances or
   48  regulations relating thereto. Any such existing ordinances or
   49  regulations are hereby declared null and void. This subsection
   50  shall not affect zoning ordinances which encompass firearms
   51  businesses along with other businesses. Zoning ordinances which
   52  are designed for the purpose of restricting or prohibiting the
   53  sale, purchase, transfer, or manufacture of firearms or
   54  ammunition as a method of regulating firearms or ammunition are
   55  in conflict with this subsection and 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  by general law, or by the State Constitution:
   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.
  166         (d) The state attorney in the appropriate jurisdiction
  167  shall investigate complaints of criminal violations of this
  168  section and, where the state attorney determines probable cause
  169  of a violation exists, shall prosecute violators. Any state
  170  attorney who fails to execute his or her duties under this
  171  section may be held accountable under the appropriate Florida
  172  rules of professional conduct.
  173         (e) A knowing and willful violation of any provision of
  174  this section by a person acting in an official capacity for any
  175  of the entities specified in this section or otherwise under
  176  color of law shall be cause for immediate termination of
  177  employment or contract or removal from office by the Governor.
  178         (f) A person or an organization whose membership is
  179  adversely affected by any ordinance, regulation, measure,
  180  directive, rule, enactment, order, or policy promulgated or
  181  enforced in violation of this section may file suit in an
  182  appropriate court for declarative and injunctive relief and for
  183  all actual and consequential damages attributable to the
  184  violation. A court shall award the prevailing plaintiff in any
  185  such suit:
  186         1. Attorney’s fees in the trial and appellate courts to be
  187  determined by the rate used by the federal district court with
  188  jurisdiction over the political subdivision for civil rights
  189  actions;
  190         2. Liquidated damages of three times the attorney’s fees
  191  under subparagraph 1.; and
  192         3. Litigation costs in the trial and appellate courts.
  194  Interest on the sums awarded pursuant to this subsection shall
  195  accrue at 15 percent per annum from the date on which suit was
  196  filed. Where applicable, payment may be secured by seizure of
  197  any vehicles used or operated for the benefit of any elected
  198  officeholder or official found to have violated this section if
  199  not paid within 72 hours after the order’s filing.
  200         (5) EXCEPTIONS.—This section does not prohibit:
  201         (a) Zoning ordinances that encompass firearms businesses
  202  along with other businesses, except that zoning ordinances that
  203  are designed for the purpose of restricting or prohibiting the
  204  sale, purchase, transfer, or manufacture of firearms or
  205  ammunition as a method of regulating firearms or ammunition are
  206  in conflict with this subsection and are prohibited;
  207         (b) A duly organized law enforcement agency from enacting
  208  and enforcing regulations pertaining to firearms, ammunition, or
  209  firearm accessories issued to or used by peace officers in the
  210  course of their official duties;
  211         (c) Except as provided in s. 790.251, any entity listed in
  212  paragraphs (2)(a)-(i) from regulating or prohibiting the
  213  carrying of firearms and ammunition by an employee of the entity
  214  during and in the course of the employee’s official duties; or
  215         (d) A court or administrative law judge from hearing and
  216  resolving any case or controversy or issuing any opinion or
  217  order on a matter within the jurisdiction of that court or
  218  judge.
  219         (6)(b)SHORT TITLE.—As created by chapter 87-23, Laws of
  220  Florida, this section shall be known and may be cited as the
  221  “Joe Carlucci Uniform Firearms Act.”
  222         Section 2. This act shall take effect upon becoming a law.