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.
   32  Be It Enacted by the Legislature of the State of Florida:
   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.
   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.
  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.
  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.