Preemption Statute

In 2011, Florida enacted an extreme preemption measure designed to severely restrict local authority to regulate firearms. The measure even includes language intended to personally punish local legislators who cause a preempted law to be passed or enforced. As described below, the punishment provisions were enjoined in 2019 by a trial court judge, but reinstated in 2021 by the Florida Court of Appeals. Florida Statutes section 790.33(1) provides in full:

Section 790.33 declares that the state of Florida occupies “the whole field” of firearms regulation. Furthermore, the text of the law subjects local legislators to personal liability and removal from office for their votes in that field.¹ In 2019, a Florida trial court judge voided these penalty provisions after more than 30 municipalities and counties and over 70 local officials filed a constitutional challenge.² However, Florida appealed portions of this ruling, and the Florida Court of Appeals reversed the trial court’s decision and found the penalties provisions at issue valid and enforceable.³ The trial court’s ruling invalidating Fla. Stat. § 790.33(3)(e), which provides for employment termination and removal from office by the Governor, remains in effect.⁴ In its ruling, the Florida Court of Appeals did not shy away from noting that, although it was considering the legality of the penalties in the state’s preemption statute, it was implicitly ruling on the bounds of the Second Amendment.⁵ Unless and until the Florida Supreme Court is given the opportunity to consider this case, the penalty provisions reinstated by the Florida Court of Appeals will remain in effect.

The subsection in question, section 790.33(3), titled “penalties,” provides:

Specifically, a local official who knowingly and willfully violates the statute shall be fined up to $5,000;⁶ may not be indemnified for the costs of defending himself or herself;⁷ and may be removed from office by the governor.⁸ Florida’s law was the first in the nation to provide that a local legislator can be held financially liable and removed from office for “enacting or causing to be enforced” a local ordinance that impinges upon the field of firearms regulation. If they are enforced in the future, the penalty provisions would improperly, and unconstitutionally, require courts to interfere in the legislative process by imposing penalties on legislators for their votes, even if they believed in good faith they were supporting a permissible ordinance that was not preempted. Florida’s Court of Appeals has now given such enforcement actions the go-ahead.⁹

Florida Statutes sections 125.0107 and 166.044 also prohibit counties and municipalities, respectively, from adopting any ordinance relating to the possession or sale of ammunition.

Exceptions

Section 790.33 includes only narrow exceptions to preemption, listing five subject areas where local jurisdictions may lawfully continue to regulate the field of firearms.¹⁰ Because of the penalty provisions,¹¹ local legislators will be unlikely to legislate at the margins of the exceptions, narrowing the effective scope of these exceptions. Section 790.33 does not prohibit:

• Zoning ordinances that encompass firearms businesses along with other businesses (except that zoning ordinances that are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are prohibited)
• A duly organized law enforcement agency from enacting and enforcing regulations pertaining to firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their official duties
• Except as provided in section 790.251¹² any entity subject to the prohibitions of this section from regulating or prohibiting the carrying of firearms and ammunition by an employee of the entity during and in the course of the employee’s official duties
• A court or administrative law judge from hearing and resolving any case or controversy or issuing any opinion or order on a matter within the jurisdiction of that court or judge
• The Florida Fish and Wildlife Conservation Commission from regulating the use of firearms or ammunition as a method of taking wildlife and regulating the shooting ranges managed by the commission

Interpretation

Following these preemption statutes, Florida courts have struck down several local regulations of firearms.

In Penelas v. Arms Technology, Inc., Miami-Dade County sued firearms manufacturers, alleging that the manufacturers’ products were defective, ultra hazardous, and created a public nuisance, seeking damages and injunctive relief.¹³ The Court of Appeal of Florida dismissed the County’s claims, holding that section 790.33 “expressly preempts to the state legislature the entire field of firearm and ammunition regulation” and stating that local governments cannot use the judiciary to attempt “to ‘enact’ regulatory measures in the guise of injunctive relief.”¹⁴

In National Rifle Ass’n of Am., Inc. v. City of South Miami, the Court of Appeal of Florida found that an ordinance requiring the use of locking devices on firearms stored within the City¹⁵ was “null and void” due to a conflict with section 790.33, stating that the “legislature…has…expressly preempted the entire field of firearm and ammunition regulation.”¹⁶ The court also rejected an opinion by the Florida Attorney General,¹⁷ which had opined that a locking device ordinance would not be preempted by section 790.33 because the statute does not mention firearm storage and the ordinance would not interfere with the “right to bear arms.”¹⁸

Florida courts have read the Florida Constitution Art. 1. section 8(a) state right to bear arms itself to further preempt the field of firearms regulation. In Florida Carry, Inc. v. University of North Florida, the Court of Appeal of Florida held that the Florida legislature had not delegated its authority to regulate the manner of bearing arms to state universities and struck down a university regulation prohibiting the carrying of encased firearms within motor vehicles parked on a university campus.¹⁹ This reading of the Florida Constitution’s right to bear arms provision was recently reaffirmed in Fla. Carry, Inc. v. City of Tallahassee.²⁰

The Attorney General of Florida has concluded that counties are prevented by section 790.33 from enacting ordinances that prohibit the discharge of firearms “in proximity to persons or property,” even when the ordinance is adopted for public health and safety purposes.²¹

Section 790.33 does not, however, prevent employers from regulating their employees’ use or possession of firearms while on the job. (Note, however, that in 2008, Florida adopted a law stating that employers may not prohibit an employee from possessing a legally owned firearm or ammunition locked inside or locked to a private motor vehicle in a parking lot. See the Florida Guns in Vehicles section for further information.) In Pelt v. Florida Dept. of Transportation, the court of appeal rejected a section 790.33 challenge to an employee’s suspension for carrying a licensed weapon on the job and firing it on break in violation of company policy.²² In upholding the employee’s five-day suspension, the court noted that section 790.33 was directed toward local government’s regulation of the conduct of its own citizens and found that “sound policy reasons” exist to allow employers to regulate their employees’ use and possession of firearms.²³

Other Statutory Provisions

Florida statutes provide an exception to local authority preemption under a state of emergency. Section 870.043 authorizes certain public officials, including county sheriffs and certain designated city officials, to declare a state of emergency if certain conditions are met. During a declared state of emergency, the following acts are prohibited:

• The sale of, or offer to sell, a firearm or ammunition;
• The intentional display of a firearm or ammunition by or in any store or shop; and
• The intentional possession of a firearm in a public place.²⁴

However, nothing in sections 870.01-870.06 may be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in a criminal act.²⁵

Similarly, section 252.36, which enumerates the powers of the Governor to address emergencies, states that he or she may “suspend or limit the sale, dispensing, or transportation of … firearms, explosives, and combustibles. However, nothing contained in sections 252.31-252.90 may be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in the commission of a criminal act.”²⁶

The Florida Legislature has also occupied the whole field of regulation of firearms and ammunition use at sport shooting and training ranges, including the environmental effects of projectile deposition at such ranges.²⁷

Charter counties in Florida may also preempt city ordinances related to firearms in certain circumstances.²⁸

Additionally, the Florida Constitution permits counties to adopt laws that would require background checks and impose a 3- to 5-day waiting period for sales occurring in or on “property to which the public has the right of access” within the county.²⁹ The Florida Constitution states that, “[e]ach county shall have the authority to require a criminal history records check…in connection with the sale of any firearm occurring within such county.”³⁰ The term “sale” under this section “means the transfer of money or other valuable consideration for any firearm when any part of the transaction is conducted on property to which the public has the right of access.”³¹ Concealed weapons permit holders are not subject to these laws.³²

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry and firing ranges, see Immunity Statutes in Florida.

1. Fla. Stat. § 790.33(3).[↩]
2. See City of Weston v. DeSantis, 2019 Fla. Cir. LEXIS 10093 (Leon Cty, Fla., Cir. Ct. 2019) (invalidating penalty provisions as violating the state and federal constitutional principles of legislative immunity and governmental function immunity, rooted in the doctrine of the separation of powers), rev’d 2021 Fla. App. LEXIS 5071 (Fla. App. April 9, 2021) (“City of Weston II“).[↩]
3. See City of Weston II, 2021 Fla. App. LEXIS 5071 (Fla. App. April 9, 2021).[↩]
4. City of Weston II, 2021 Fla. App. Lexis 5071, at *13, n.3 (“Appellants have not argued their challenge to the trial court’s ruling on the third statute, section 790.33(3)(e), under which a knowing and willful violation of preemption is cause for ‘termination of employment or contract or removal from office by the Governor.’ We therefore do not address this statute.”).[↩]
5. Id., at *8, n.1 (“Lest we overlook the fundamentally important broader context in which the present issues arise, we observe that, implicitly, [the municipalities and local officials] sought to test the boundaries of the Second Amendment to the United States Constitution . . . .”).[↩]
6. Id. at 3(c).[↩]
7. Id. at 3(d).[↩]
8. Id. at 3(e).[↩]
9. See City of Weston II, 2021 Fla. App. Lexis 5071 (Fla. App. April 9, 2021) (finding the penalty provisions of Fla. Stat. § 790.33(3) valid and enforceable).[↩]
10. See Fla. Stat. § 790.33(4).[↩]
11. Fla. Sta. § 790.33(3); City of Weston II, 2021 Fla. App. Lexis 5071 (Fla. App. April 9, 2021) (finding the penalty provisions of Fla. Stat. § 790.33(3) valid and enforceable).[↩]
12. The referenced section provides that employers may not prohibit employees from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot.[↩]
13. 778 So.2d 1042 (Fla. Dist. Ct. App. 2001).[↩]
14. Id. at 1045.[↩]
15. South Miami, Fla. Code § 14-00-1716.[↩]
16. 812 So.2d 504, 505-06 (Fla. Dist. Ct. App. 2002).[↩]
17. Op. Att’y Gen. 2000-42 (July 11, 2000).[↩]
18. Id. at 505.[↩]
19. 133 So. 3d 966 (Fla. Dist. Ct. App. 2013).[↩]
20. 212 So. 3d 452, 460 (Fla. Dist. Ct. App. 1st Dist. 2017), reh’g denied, Fla. Carry, Inc. v. City of Tallahassee, 2017 Fla. App. LEXIS 4686 (Fla. Dist. Ct. App. 1st Dist. 2017).[↩]
21. Op. Att’y Gen. Fla. 2005-40, 2005 Fla. AG LEXIS 46.[↩]
22. 664 So.2d 320, 321 (Fla. Dist. Ct. App. 1995).[↩]
23. Id.[↩]
24. Fla. Stat. § 870.044.[↩]
25. Id.[↩]
26. Fla. Stat. § 252.36(5)(h).[↩]
27. Fla. Stat. § 790.333(8).[↩]
28. See Broward County v. Ft. Lauderdale, 480 So. 2d 631, 635 (Fla. 1985) (holding that a charter county may preempt city regulations regarding handgun sales).[↩]
29. Fla. Const. art. VIII, § 5(b).[↩]
30. Id.[↩]
31. Id.[↩]
32. Id.[↩]