Broward Cnty. v. Fla. Carry, Inc.

Citation313 So.3d 635
Decision Date24 March 2021
Docket NumberNo. 4D20-359,4D20-359
Parties BROWARD COUNTY, Florida Political Subdivision of the State of Florida, Appellant, v. FLORIDA CARRY, INC., Appellee.
CourtCourt 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.

Levine, C.J.

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:

Sec. 2-39. - Airport security and animal control at Fort Lauderdale-Hollywood International Airport.
....
(e) Weapons.
(1) Unless duly authorized by state or federal law, no person, other than federal, state, or local law enforcement officers on duty, shall carry or transport any weapon on the Airport in a manner contrary to governing law, provided that this prohibition shall not be applicable to the extent preempted by Chapter 790, Florida Statutes (firearms, ammunition, or components thereof).
(2) No person shall discharge any gun on the Airport, except as authorized by state or federal law, such as in the performance of official duties requiring the discharge thereof or in the lawful defense of life or property, provided that this prohibition shall not be applicable to the extent preempted by Chapter 790, Florida Statutes (firearms, ammunition, or components thereof).
(3) No person shall furnish, give, sell, or trade any weapon or simulated weapon on the Airport unless authorized under appropriate lease with or permit issued by the County, provided that this prohibition shall not be applicable to the extent preempted by Chapter 790, Florida Statutes (firearms, ammunition, or components thereof).
Sec. 2-137.1. - Airport security at North Perry Airport.
....
(e) Weapons.
(1) Unless duly authorized by state or federal law, no person, other than federal, state, or local law enforcement officers on duty, shall carry or transport any weapon on the Airport in a manner contrary to governing law, provided that this prohibition shall not be applicable to the extent preempted by Chapter 790, Florida Statutes (firearms, ammunition, or components thereof).
(2) No person shall furnish, give, sell, or trade any weapon or simulated weapon on the Airport unless authorized under appropriate lease with or permit issued by the County, provided that this prohibition shall not be applicable to the extent preempted by Chapter 790, Florida Statutes (firearms, ammunition, or components thereof).
Sec. 22½-9A. - Operations—Minimum standards of conduct.
....
(v) Possession of switchblades, knives, clubs, or other weapons by operators, whether in the vehicle or on the person, is prohibited, provided that this prohibition shall not be applicable to the extent preempted by Chapter 790, Florida Statutes (firearms, ammunition, or components thereof).

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).

Legislature Clearly and Unambiguously Prohibits Firearm Regulation

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:

(1) Preemption.--Except as expressly provided by the State Constitution or 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, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.
(2) Policy and intent.--
(a) It is the intent of this section to provide uniform firearms laws in the state; to declare all ordinances and regulations null and void which have been enacted by any jurisdictions other than state and federal, which regulate firearms, ammunition, or components thereof; to prohibit the enactment of any future ordinances or regulations relating to firearms, ammunition, or components thereof unless specifically authorized by this section or general law; and to require local jurisdictions to enforce state firearms laws.
(b) It is further the intent of this section to deter and prevent the violation of this section and the violation of rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof, by the abuse of official authority that occurs when enactments are passed in violation of state law or under color of local or state authority.

§ 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
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...(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......

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