Florida Senate - 2011 COMMITTEE AMENDMENT
Bill No. CS for SB 402
Barcode 488558
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/21/2011 .
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The Committee on Community Affairs (Wise) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 790.33, Florida Statutes, is amended to
6 read:
7 790.33 Field of regulation of firearms and ammunition
8 preempted.—
9 (1) PREEMPTION.—Except as expressly provided by the State
10 Constitution or general law, the Legislature hereby declares
11 that it is occupying the whole field of regulation of firearms
12 and ammunition, including the purchase, sale, transfer,
13 taxation, manufacture, ownership, possession, storage, and
14 transportation thereof, to the exclusion of all existing and
15 future county, city, town, or municipal ordinances or any
16 administrative regulations or rules adopted by local or state
17 government relating thereto. Any such existing ordinances,
18 rules, or regulations are hereby declared null and void. This
19 subsection shall not affect zoning ordinances which encompass
20 firearms businesses along with other businesses. Zoning
21 ordinances which are designed for the purpose of restricting or
22 prohibiting the sale, purchase, transfer, or manufacture of
23 firearms or ammunition as a method of regulating firearms or
24 ammunition are in conflict with this subsection and are
25 prohibited.
26 (2) LIMITED EXCEPTION; COUNTY WAITING-PERIOD ORDINANCES.—
27 (a) Any county may have the option to adopt a waiting
28 period ordinance requiring a waiting period of up to, but not to
29 exceed, 3 working days between the purchase and delivery of a
30 handgun. For purposes of this subsection, “purchase” means
31 payment of deposit, payment in full, or notification of intent
32 to purchase. Adoption of a waiting-period ordinance, by any
33 county, shall require a majority vote of the county commission
34 on votes on waiting-period ordinances. This exception is limited
35 solely to individual counties and is limited to the provisions
36 and restrictions contained in this subsection.
37 (b) Ordinances authorized by this subsection shall apply to
38 all sales of handguns to individuals by a retail establishment
39 except those sales to individuals exempted in this subsection.
40 For purposes of this subsection, “retail establishment” means a
41 gun shop, sporting goods store, pawn shop, hardware store,
42 department store, discount store, bait or tackle shop, or any
43 other store or shop that offers handguns for walk-in retail sale
44 but does not include gun collectors shows or exhibits, or gun
45 shows.
46 (c) Ordinances authorized by this subsection shall not
47 require any reporting or notification to any source outside the
48 retail establishment, but records of handgun sales must be
49 available for inspection, during normal business hours, by any
50 law enforcement agency as defined in s. 934.02.
51 (d) The following shall be exempt from any waiting period:
52 1. Individuals who are licensed to carry concealed firearms
53 under the provisions of s. 790.06 or who are licensed to carry
54 concealed firearms under any other provision of state law and
55 who show a valid license;
56 2. Individuals who already lawfully own another firearm and
57 who show a sales receipt for another firearm; who are known to
58 own another firearm through a prior purchase from the retail
59 establishment; or who have another firearm for trade-in;
60 3. A law enforcement or correctional officer as defined in
61 s. 943.10;
62 4. A law enforcement agency as defined in s. 934.02;
63 5. Sales or transactions between dealers or between
64 distributors or between dealers and distributors who have
65 current federal firearms licenses; or
66 6. Any individual who has been threatened or whose family
67 has been threatened with death or bodily injury, provided the
68 individual may lawfully possess a firearm and provided such
69 threat has been duly reported to local law enforcement.
70 (2) (3) POLICY AND INTENT.—
71 (a) It is the intent of this section to provide uniform
72 firearms laws in the state; to declare all ordinances and
73 regulations null and void which have been enacted by any
74 jurisdictions other than state and federal, which regulate
75 firearms, ammunition, or components thereof; to prohibit the
76 enactment of any future ordinances or regulations relating to
77 firearms, ammunition, or components thereof unless specifically
78 authorized by this section or general law; and to require local
79 jurisdictions to enforce state firearms laws.
80 (b) It is further the intent of this section to deter and
81 prevent the violation of this section and the violation of
82 rights protected under the constitution and laws of this state
83 related to firearms, ammunition, or components thereof, by the
84 abuse of official authority that occurs when enactments are
85 knowingly passed in violation of state law or under color of
86 local or state authority.
87 (3) PROHIBITIONS; PENALTIES. -
88 (a) Any person who knowingly and willfully violates the
89 Legislature's occupation of the whole field of regulation of
90 firearms and ammunition, as declared in subsection (1), by
91 enacting or enforcing any local ordinance or administrative rule
92 or regulation commits a noncriminal violation as defined in s.
93 775.08 and punishable as provided in s. 775.082 and s. 775.083.
94 (b) The state attorney in the appropriate jurisdiction
95 shall investigate complaints of noncriminal violations of this
96 section and, where the state attorney determines that probable
97 cause of a violation exists, shall prosecute violators in the
98 circuit court where the complaint arose. Any state attorney who
99 fails to execute his or her duties under this section may be
100 held accountable under the appropriate Florida rules of
101 professional conduct.
102 (c) If the court determines that the violation was knowing
103 and willful the court shall assess a fine of not less than
104 $5,000 and not more than $100,000 against the elected or
105 appointed local government official or officials or
106 administrative agency head under whose jurisdiction the
107 violation occurred. The elected or appointed local government
108 official or officials or administrative agency head shall be
109 personally liable for the payment of all fines, costs and fees
110 assessed by the court for the noncriminal violation.
111 (d) Except as required by s. 16, Art. I of the State
112 Constitution or the Sixth Amendment to the United States
113 Constitution, public funds may not be used to defend the
114 unlawful conduct of any person charged with a knowing and
115 willful violation of this section.
116 (e) A knowing and willful violation of any provision of
117 this section by a person acting in an official capacity for any
118 of the entities specified in this section or otherwise under
119 color of law shall be cause for immediate termination of
120 employment or contract or removal from office by the Governor.
121 (f) A person or an organization whose membership is
122 adversely affected by any ordinance, regulation, measure,
123 directive, rule, enactment, order, or policy promulgated or
124 enforced in violation of this section may file suit in an
125 appropriate court for declarative and injunctive relief and for
126 all actual and consequential damages attributable to the
127 violation. A court shall award the prevailing plaintiff in any
128 such suit:
129 1. Attorney’s fees in the trial and appellate courts to be
130 determined by the rate used by the federal district court with
131 jurisdiction over the political subdivision for civil rights
132 actions;
133 2. Liquidated damages of three times the attorney’s fees
134 under subparagraph 1.; and
135 3. Litigation costs in the trial and appellate courts.
136
137 Interest on the sums awarded pursuant to this subsection shall
138 accrue at 15 percent per annum from the date on which suit was
139 filed. Where applicable, payment may be secured by seizure of
140 any vehicles used or operated for the benefit of any elected
141 officeholder or official found to have violated this section if
142 not paid within 72 hours after the order’s filing.
143 (4) EXCEPTIONS.—This section does not prohibit:
144 (a) Zoning ordinances that encompass firearms businesses
145 along with other businesses, except that zoning ordinances that
146 are designed for the purpose of restricting or prohibiting the
147 sale, purchase, transfer, or manufacture of firearms or
148 ammunition as a method of regulating firearms or ammunition are
149 in conflict with this subsection and are prohibited;
150 (b) A duly organized law enforcement agency from enacting
151 and enforcing regulations pertaining to firearms, ammunition, or
152 firearm accessories issued to or used by peace officers in the
153 course of their official duties;
154 (c) Except as provided in s. 790.251, any entity covered by
155 this section from regulating or prohibiting the carrying of
156 firearms and ammunition by an employee of the entity during and
157 in the course of the employee’s official duties; or
158 (d) A court or administrative law judge from hearing and
159 resolving any case or controversy or issuing any opinion or
160 order on a matter within the jurisdiction of that court or
161 judge.
162 (e) The Florida Fish and Wildlife Conservation Commission
163 from regulating the use of firearms or ammunition as a method of
164 taking wildlife and regulating the shooting ranges managed by
165 the Commission.
166 (5)(b) SHORT TITLE.—As created by chapter 87-23, Laws of
167 Florida, this section shall be known and may be cited as the
168 “Joe Carlucci Uniform Firearms Act.”
169 Section 2. This act shall take effect upon becoming a law.
170
171 ================= T I T L E A M E N D M E N T ================
172 And the title is amended as follows:
173 Delete everything before the enacting clause
174 and insert:
175 A bill to be entitled
176 An act relating to the regulation of firearms and
177 ammunition; amending s. 790.33, F.S.; clarifying and
178 reorganizing provisions that preempt to the state the
179 entire field of regulation of firearms; prohibiting
180 specified persons and entities, when acting in their
181 official capacity, from regulating or attempting to
182 regulate firearms or ammunition in any manner except
183 as specifically authorized by s. 790.33, F.S., by
184 general law, or by the State Constitution; providing
185 additional intent of the section; eliminating
186 provisions authorizing counties to adopt an ordinance
187 requiring a waiting period between the purchase and
188 delivery of a handgun; providing a penalty for knowing
189 and willful violations of prohibitions; providing for
190 investigation of complaints of violations of the
191 section and prosecution of violators by the state
192 attorney; providing that public funds may not be used
193 to defend the unlawful conduct of any person charged
194 with a knowing and willful violation of the section;
195 providing exceptions; providing for termination of
196 employment or contract or removal from office of a
197 person acting in an official capacity who knowingly
198 and willfully violates any provision of the section;
199 providing for declarative and injunctive relief for
200 specified persons or organizations; providing for
201 specified damages and interest; providing for seizure
202 of certain vehicles for specified nonpayment of
203 damages; providing exceptions to prohibitions of the
204 section; providing an effective date.