Citation(s) from the GunPolicy.org literature library
State of Florida. 2012 ‘Florida Statutes Annotated § 790.33(1), etc..’ Firearms Law Database - Local Authority to Regulate Firearms in Florida. San Francisco, CA: Giffords Law Center to Prevent Gun Violence. 3 January
Local Authority to Regulate Firearms in Florida
Florida has enacted a broad preemption statute concerning firearm regulations, under Florida Statutes Annotated § 790.33(1), which states:
Except as expressly provided by general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. This subsection shall not affect zoning ordinances which encompass firearms businesses along with other businesses. Zoning ordinances which 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 in conflict with this subsection and are prohibited.
Fla. Stat. §§ 125.0107 and 166.044 also prohibit counties and municipalities, respectively, from adopting any ordinance relating to the possession or sale of ammunition.
In Penelas v. Arms Technology, Inc., 778 So.2d 1042 (Fla. Dist. Ct. App. 2001), Miami-Dade County sued firearms manufacturers alleging, inter alia, that the manufacturers' products were defective, ultra hazardous, and created a public nuisance, seeking damages and injunctive relief. 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."
In National Rifle Ass'n of Am., Inc. v. City of South Miami, 812 So.2d 504, 505-06 (Fla. Dist. Ct. App. 2002), the Court of Appeal of Florida found that an ordinance requiring the use of locking devices on firearms stored within the City (South Miami, Fla. Code § 14-00-1716) 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." The court also rejected an opinion by the Florida Attorney General, opining 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."
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.
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, 664 So.2d 320, 321 (Fla. Dist. Ct. App. 1995), 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. 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.
Enacted in 1988, section 790.33(2) provides, as a limited exception to Florida's local preemption law, that any county may adopt an ordinance requiring a waiting period of up to, but not exceeding, three working days between the purchase and delivery of any retail sale of a handgun, excluding gun collector shows or exhibits, and gun shows. Section 790.33(2) appears to have been superseded by a 1990 amendment to the Florida Constitution which mandates a three-day waiting period.
In 1998, Florida voters, by referendum, further amended Article VIII, § 5 of the Florida Constitution to allow counties to require, by ordinance, a three to five-day waiting period, excluding weekends and legal holidays, and criminal history records checks on all firearms sales occurring within the county.
Concealed weapons permit holders are not subject to any of these background check or waiting period provisions.
Florida prohibits any legal actions against a firearms or ammunition manufacturer, distributor or dealer, or firearms trade association, on behalf of a county, municipality, special district, or any other political subdivision or agency of the state, for damages, abatement, or injunctive relief resulting from or arising out of the lawful design, marketing, distribution, or sale of firearms or ammunition to the public. Moreover, a county, municipality, special district, or other political subdivision or agency of the state may not sue for or recover from a firearms or ammunition manufacturer, distributor or dealer, or firearms trade association, damages, abatement, or injunctive relief in any case that arises out of or results from the lawful design, marketing, distribution, or sale of firearms or ammunition to the public.
Actions against a firearms or ammunition manufacturer, distributor, or dealer are permitted for:
- Breach of contract or warranty in connection with a firearm or ammunition purchased by a county, municipality, special district, or other political subdivision or agency of the state; or
- Injuries resulting from the malfunction of a firearm or ammunition due to a defect in design or manufacture.
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.
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.
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."
The Florida Legislature has 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. Florida law provides that any sport shooting or training range shall be immune from lawsuits brought by political subdivisions for any claims associated with the use, release, placement, deposition, or accumulation of any projectile on or under that range, or any other property over which the range has a legal right of use, if the range owner or operator has made a good faith effort to comply with the appropriate environmental management practices. Nothing in this law is intended to impair or diminish the private property rights of owners of property adjoining a sport shooting or training range. The Attorney General of Florida has interpreted these provisions to mean that a county may enforce existing zoning and land use regulations against a proposed sports shooting range; however, no newly created or amended zoning or land use regulations may be enforced against existing ranges.
A separate Florida law immunizes any person who operates or uses a sport shooting range from civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from operation or use of the range…