Broward Cnty. v. Fla. Carry, Inc.
Citation | 313 So.3d 635 |
Decision Date | 24 March 2021 |
Docket Number | No. 4D20-359,4D20-359 |
Parties | BROWARD COUNTY, Florida Political Subdivision of the State of Florida, Appellant, v. FLORIDA CARRY, INC., Appellee. |
Court | Court of Appeal of Florida (US) |
Andrew J. Meyers, Broward County Attorney, and Rocio Blanco Garcia and Joseph K. Jarone, Assistant County Attorneys, Fort Lauderdale, for appellant.
W. Aaron Daniel and Elliot B. Kula of Kula & Associates, P.A., Miami, and Benedict P. Kuehne and Michael T. Davis of Kuehne Davis Law, P.A., Miami, for appellee.
The Florida Legislature passed the Joe Carlucci Uniform Firearms Act, which states that the legislature "hereby declares that it is occupying the whole field of regulation of firearms and ammunition." The legislature further stated any "existing ordinances, rules, or regulations are hereby declared null and void." Finally, the legislature stated in the statute that it was its policy and intent "to prohibit the enactment of any future ordinances or regulations relating to firearms, ammunition, or components thereof."
With this backdrop, Broward County enacted ordinances that regulate weapons, including guns, at various enumerated places throughout the county. Broward County added to the end of the ordinances that they "shall not be applicable to the extent preempted by Chapter 790."
We find that Broward County may not regulate indirectly what it cannot regulate directly. The Broward County ordinances clearly regulate guns. Under generally accepted definitions of guns, it is commonly understood that guns are firearms and firearms are guns. Further, the plain language of the portion of the ordinances regulating guns, on one hand, and the "provided that" clause attempting to exempt Chapter 790, Florida Statutes, on the other hand, do not give clear guidance to those enforcing these ordinances, nor to the citizenry expected to comply with these ordinances. Thus, we affirm the trial court's ruling that found the ordinances were firearm regulations and thus statutorily preempted.
In May 2014, Florida Carry, an organization with 31,000 members whose mission is to protect and advance the right to bear arms in Florida, sued Broward County for declaratory and injunctive relief concerning several Broward County ordinances. Florida Carry alleged that the ordinances at issue regulated the possession and use of firearms and thus were preempted by section 790.33, Florida Statutes (2014). Section 790.33 declares a legislative intent to occupy "the whole field of regulation of firearms and ammunition."
After the filing of the complaint, Broward County repealed some of the challenged ordinances and revised others. In response, Florida Carry filed an amended complaint, claiming that the 2014 revisions of three Broward County ordinances still violated section 790.33 : section 2-39 regulating weapons and guns at Fort Lauderdale-Hollywood International Airport, section 2-137.1 regulating weapons at North Perry Airport, and section 22½-9A regulating weapons by operators of common motor carriers, meaning for-hire ground transportation such as taxis. Specifically, the challenged ordinances provided as follows:
All three ordinances included the term "weapon," which is defined in section 2-2(jj), Broward County Code of Ordinances, as "a gun, knife, blackjack, slingshot, metal knuckles, or any explosive device, or any other similar instrument capable of being utilized to coerce, intimidate, or injure a person or property."
Broward County filed an answer and affirmative defenses. Among its affirmative defenses, Broward County alleged that Florida Carry lacked standing to bring the action because Broward County had "not promulgated or caused to be enforced any ordinances purporting to regulate firearms, ammunitions, or components thereof."
Broward County moved for summary judgment, arguing that the ordinances at issue regulated weapons and did not regulate firearms and ammunition. Florida Carry filed a cross-motion for summary judgment, arguing that the ordinances at issue governed weapons and that the term "weapon" was defined under Broward County Code to include guns. The trial court granted summary judgment in favor of Florida Carry, finding that the ordinances regulated firearms contrary to section 790.33.
We review de novo an order granting summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000). The interpretation of a statute is also reviewed de novo. Cont'l Cas. Co. v. Ryan Inc. E. , 974 So. 2d 368, 373 (Fla. 2008).
Article I, Section 8(a) of the Florida Constitution provides that "[t]he right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." In 1987, the Florida Legislature exercised that power granted by the Florida Constitution and enacted the Joe Carlucci Uniform Firearms Act, which preempted "the whole field of regulation of firearms and ammunition." § 790.33(1), Fla. Stat. (2014). This Act specifically prohibits local governments from enacting future ordinances regulating firearms and ammunition and declares "null and void" any existing ordinances that regulated firearms and ammunition. Id.
The Act states, in part:
§ 790.33, Fla. Stat.
In 2011, an amendment created a private right of action by "an organization whose membership is adversely affected" to seek declaratory and injunctive relief against "any ordinance ... promulgated or caused to be enforced in violation of this section." § 790.33(3)(f), Fla. Stat. (2014). The legislature also enacted civil penalties for any person who violates this preemption by enacting or causing to be enforced a firearm or ammunition regulation. § 790.33(3), Fla. Stat. (2014).
The plain language of section 790.33(2), as evidenced by its stated "policy and intent," could not be clearer: That all firearms regulations enacted by any jurisdiction are "null and void," and that "any future ordinances or regulations relating to firearms" a...
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Legal theories & defenses
...(Fla. 1st DCA 2020); Standing must be asserted as an affirmative defense or the defense is waived. See Broward Cty. v. Fla. Carry, Inc. , 313 So. 3d 635, 641 (Fla. 4th DCA 2021); Cowart v. City of West Palm Beach , 255 So. 2d 673, 674-675 (Fla. 1971); see also Fla. R. Civ. P. 1.210 (parties......