September 15, 2018 Feature

Florida Cities Challenge Penalties Imposed on Local Officials for Adoption of Local Gun Regulations

By Martha H. Chumbler

In the wake of the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, nine Florida cities and many of their mayors and commissioners have filed suit challenging the constitutionality of Florida Statutes § 790.33(3). The statute, first enacted in 1987, imposes penalties for the local adoption of all but a few very narrow categories of gun regulations. It preempts to the state “the whole field of regulation of firearms and ammunition” except as otherwise provided in Florida’s Constitution and in general law. Before the 2011 amendment to add subsection (3), a local government adoption of a regulation that violated this preemption could result, if challenged, in a court order declaring the local regulation null and void. Subsection (3), herein “the Penalty Provisions,” imposes more draconian consequences, subjecting individual local officials to personal liability and possible removal from office for a violation.

Specifically, § 790.33(3) provides that if a local government “knowingly and willfully” violates the state preemption, the elected or appointed officials or agency head under whose jurisdiction the violation occurred each will face a fine of up to $5,000. The enactment or enforcement of a local provision violating the preemption shall be cause to terminate the employment of local government employees or removal from office, by the governor, for local elected or appointed officials. Anyone adversely affected by a local gun regulation found to violate the preemption is entitled to recover his or her costs and attorney fees incurred in a legal challenge as well as actual damages up to $100,000. The Penalty Provisions expressly prohibit the use of any public funds for the defense or reimbursement of those local government employees and officials whose actions are challenged.

There are a few exemptions. Local governments still may adopt zoning ordinances that affect businesses involving firearms so long as they are not designed to regulate firearms and ammunition. Law enforcement agencies may adopt regulations relating to the firearms issued to or used by their officers during the course of their duties, and local governments may regulate or even prohibit possession by their own employees during the course of their employment. In addition to these exemptions in § 790.33, the Florida Constitution specifically authorizes counties—but not municipalities—to require background checks and a three- to five-day waiting period in a sale of firearms, but only when the sale occurs on property that is open to the public. It is generally understood that this limits the allowable regulation to sales made at gun shows. The constitutional provision does not apply to anyone who holds a concealed carry permit.

The Florida cities’ pending lawsuit includes seven counts, all of which seek a declaration that the Penalty Provisions are unconstitutional. The complaint asserts that allowing the governor to remove a local official from office exceeds the governor’s constitutional authority relating to such removal. Article IV, section 7(c), of the Florida Constitution only allows the governor to remove elected municipal officers who have been criminally indicted and, even then, the governor’s authority to limited to a suspension. Another Florida state circuit court has ruled the removal provision unconstitutional as to county officials.

The complaint further alleges that the Penalty Provisions attempt to redefine the enactment of ordinances regulating firearms as ministerial acts, thus invading the legislative and governmental function immunities to which local elected officials are entitled under long-standing case law. The plaintiffs contend that the adoption of ordinances is discretionary and, by its very nature, a policymaking function that should be not subject local lawmakers to individual liability.

The complaint includes the claim that the Penalty Provisions are arbitrary and without rational basis. As evidence of this, the plaintiffs point to the absence of similar penalties for violations of other preemption statutes. Whereas local governments may not, under the statute, regulate the possession or use of firearms on property the government owns, private persons and businesses can freely impose such restriction on their private property. Additional counts include allegations that the Penalty Provisions are overbroad and vague and violate local constituents’ constitutional right to petition local officials.

This litigation is now in the early stages. The defendants, who include the governor, attorney general, agriculture commissioner, law enforcement commissioner, auditor general, and chief state financial officer, have not filed their answers. Several other cities and local officials have publicly announced their intent to join the lawsuit in support of the plaintiffs, and at least one private individual has filed a motion to appear as amicus in support of the Penalty Provisions.

The case is City of Weston v. Scott, No. 2018 CA 000699 (Fla. Cir. Ct. filed Apr. 2, 2018).

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By Martha H. Chumbler

Martha H. Chumbler is of counsel with Carlton Fields in Tallahassee, Florida, where she practices primarily in the area of state administrative law. She is Vice-Chair of the Section of State and Local Government Law.