HomeMy WebLinkAbout2011 07 25 Public Hearing 500 Ordinance 2011-10 FirearmsCOMMISSION AGENDA
ITEM 500
Consent
Informational
Public Hearing X
Regular
July 25, 2011 MGR. /DEPT.
Regular Meeting Authorization
REQUEST: The Police Chief and City Attorney's Office request that the City Commission
consider and adopt Ordinance 2011 -10 on second reading.
SYNOPSIS: Section 790.33, Florida Statutes, currently provides for the state's preemption of
the whole field of regulation of firearms and ammunition to the exclusion of any city or county
ordinances, regulations or rules. Under this section, state law exclusively regulates the purchase,
sale, transfer, taxation, manufacture, ownership, possession and transportation of firearms and
ammunition.
House Bill 45, approved by the Governor on June 2, 2011, amends section 790.33 by imposing
financial penalties on governments, elected officials, or staff members that adopt policies or take
enforcement action violating the state's existing preemption. Under the new provisions of the
law, City officials or employees who willfully and knowingly violate the preemption would be
personally liable for a fine of up to $5,000.00. A willful and knowing violation of the preemption
is also grounds for termination of employment or contract, or removal from office by the
governor. Further, public funds may not be used to defend or reimburse the unlawful conduct of
any person found to have knowingly and willfully violated the preemption. An ordinance,
regulation or rule that violates the preemption is to be ruled invalid and a permanent injunction is
to be issued prohibiting its enforcement. A government could be liable for actual damages up to
$100,000.00 and for a plaintiff s attorney's fees.
There is a limited exception to the state's preemption included in the statute applicable to local
zoning ordinances that encompass firearms businesses (i.e. relegating them to certain zoning
districts); however, the purpose of any such zoning ordinance must not be to regulate firearms or
ammunition. Also, there is an exception for law enforcement agencies enacting and enforcing
regulations pertaining to firearms, ammunition, or firearms accessories issued to or used by peace
officers in the course of their official duties. Thus, any internal policies of the Police Department
related to firearms issued to or used by the City's sworn law enforcement officers do not violate
the state's preemption.
The amendments to section 790.33 become effective on October 1, 2011.
REGULAR MEETING -JULY 25, 2011
PUBLIC HEARING AGENDA ITEM 500
PAGE 2 OF 3
CONSIDERATIONS:
1. Given the passage of HB 45, the City Attorney's Office and Police Department have
reviewed the existing provisions of the City Code in an effort to evaluate whether any of the
City's ordinances could potentially violate the state's preemption of the field of regulation of
firearms and ammunition. We have found a few provisions that warrant revision or repeal.
2. Section 2- 255(c) of the City Code currently authorizes the City Commission to enact an
emergency resolution suspending or regulating the sale of firearms, among other things, during a
declared state of emergency. Under the broad preemption of section 790.33, Florida Statutes,
this provision of the City Code is null and void as it applies to the regulation of the sale of
firearms and should be amended.
3. Section 11 -5 of the City Code prohibits the discharge of firearms in any street, lot, public
square or other place within the city limits, unless authorized to do so by the chief of police or
other police officer. Section 790.15(1), Florida Statutes, prohibits the discharge of firearms in
any public place and any such discharge is a first - degree misdemeanor. This section should be
repealed given the state's preemption and the Florida Statutes regulating this issue.
4. Section 13 -31(g) of the City Code currently provides that using or firing explosives,
firearms or other similar devices so as to create a noise disturbance across a real property
boundary of public space or right -of -way is a violation of the City's noise ordinance. Because this
section has the effect of regulating the discharge of firearms similar to section 11 -5, amendment is
necessary so that section 13 -31(g) only applies to the use of explosives or other similar devices as
being a noise disturbance.
5. Making these modifications to the City Code in observance of the state's preemption of
the entire field of firearms and ammunition is intended to discourage violation of the state's
preemption by officers or employees of the City and to prevent the imposition of the harsh
personal penalties authorized by the amended statute.
FISCAL IMPACT: Effective October 1, 2011, Florida law will impose penalties on individual
officers and employees and local government agencies who violate the state's preemption. If the
ordinance is adopted, it will mitigate against such penalties being imposed on the City and its
officers and employees.
COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the
Mayor and City Commission, City Manager, City Attorney /Staff, and all eAlert /eCitizen
recipients; and is available on the City's website, LaserFiche, and the City's server. Additionally,
portions of this Agenda Item are typed verbatim on the respective meeting agenda which has also
been electronically forwarded to the individuals noted above; and which is also available on the
City's website, LaserFiche, and the City's server; has been sent to City staff, media /press
representatives who have requested agendas /agenda item information, Homeowner's
Associations /representatives on file with the City, and all individuals who have requested such
REGULAR MEETING -JULY 25, 2011
PUBLIC HEARING AGENDA ITEM 500
PAGE 3 OF 3
information; and has been posted outside City Hall; posted inside City Hall with additional copies
available for the general public; and posted at five (5) different locations around the City. This
Agenda Item is also available to any new individual requestors. A copy of this ordinance was
advertised in the Orlando Sentinel newspaper on July 9, 2011 within the Legal Notices Section.
City Staff is always willing to discuss this or any Agenda Item with any interested individuals.
RECOMMENDATIONS: The Police Chief and City Attorney recommend the City
Commission approve and adopt Ordinance 2011 -10 on second reading.
ATTACHMENTS: Ordinance 2011 -10
Copy of advertisement from the Orlando Sentinel
ORDINANCE NO. 2011-10
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, FLORIDA; AMENDING
SECTION 2 -255 OF THE CITY CODE, RELATING TO
EMERGENCY RESOLUTIONS FOR THE SUSPENSION OR
REGULATION OF THE SALE OF FIREARMS; AMENDING
SECTIONS 11 -5 AND 13 -31 OF THE CITY CODE RELATED
TO THE DISCHARGE OF FIREARMS; PROVIDING FOR
THE REPEAL OF PRIOR INCONSISTENT ORDINANCES
AND RESOLUTIONS, INCORPORATION INTO THE CODE,
SEVERABILITY, AND AN EFFECTIVE DATE.
WHEREAS, the City is granted the authority, under § 2(b), Art. VIII of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS, section 790.33, Florida Statutes, expressly preempts the entire field of
regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture,
ownership, possession, storage, and transportation thereof; and
WHEREAS, section 790.33(2)(a), declares all ordinances and regulations enacted by the
City which regulate firearms, ammunition, or components thereof to be null and void; and
WHEREAS, section 790.33 was recently amended by the Florida Legislature to, among
other things, create penalties for violations of the Legislature's preemption of the field of regulation
of firearms and ammunition, which penalties become effective on October 1, 2011, see Laws of Fla.
2011 -109 (2011); and
WHEREAS, under the amended law, the City and its elected and appointed officials can be
held personally liable for enacting or causing to be enforced any local ordinance or administrative
rule impinging upon the state's firearms preemption and may be subject penalties; and
WHEREAS, the penalties include the issuance of a permanent injunction prohibiting the
City from enforcing an ordinance violating the preemption; civil fines up to $5,000 assessed against
elected or appointed officials under whose jurisdiction the violation occurred; and termination of
employment or removal from office by the Governor; and
WHEREAS, the Winter Springs City Code currently contains certain provisions regulating
the discharge and sale of firearms, which would likely be considered preempted by section 790.33;
and
City of Winter Springs
Ordinance No. 2011 -10
Page 1 of 5
WHEREAS, in order to observe the state's preemption of the field of firearms and
ammunition, and to avoid the imposition of any penalties for the enforcement of these local laws,
the City Commission desires to amend the City Code as set forth herein; and
WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this
ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter
Springs.
NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOLLOWS:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by
reference as legislative findings of the City Commission of Winter Springs.
Section 2. Amendment to Chapter 2. The City of Winter Springs Code of Ordinances,
Chapter 2, Administration, is hereby amended as follows ( underlined type indicates additions and
art type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of
text existing in Chapter 2. It is intended that the text in Chapter 2 denoted by the asterisks and set
forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this
ordinance):
CHAPTER 2. ADMINISTRATION
* **
ARTICLE VII. EMERGENCY MANAGEMENT
DIVISION 1. GENERALLY
* **
Section 2 -255. Declaration of a state of emergency.
* **
(c) Emergency resolutions authorized by this article shall include but are not limited to
the following subjects:
Resolution Subject
A Evacuation
City of Winter Springs
Ordinance No. 2011 -10
Page 2 of 5
Section 3. Amendment to Chapter 11. The City of Winter Springs Code of Ordinances,
Chapter 11, Miscellaneous Offenses, is hereby amended as follows ( underlined type indicates
additions and art type indicates deletions, while asterisks (* * *) indicate a deletion from the
Ordinance of text existing in Chapter 11. It is intended that the text in Chapter 11 denoted by the
asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to
adoption of this ordinance):
CHAPTER 11. MISCELLANEOUS OFFENSES
* **
Section 11 -5. Discharging or brandishing firear Reserved.
I I P I I Z RAM R I I I P MAN I N, IN IM M I I &'M I iiiiiiii III 1 11
- - -
.. _.
Curfews; declaration of areas off limits
Suspension or regulation of sale of alcoholic beverages, firearms, explosives or
combustibles
Prohibiting the sale of merchandise, goods or services at more than the normal
average retail price
Water use restrictions
Suspension of local building regulations
Rationing of fuel, ice and other essentials
Emergency procurement procedures
Section 3. Amendment to Chapter 11. The City of Winter Springs Code of Ordinances,
Chapter 11, Miscellaneous Offenses, is hereby amended as follows ( underlined type indicates
additions and art type indicates deletions, while asterisks (* * *) indicate a deletion from the
Ordinance of text existing in Chapter 11. It is intended that the text in Chapter 11 denoted by the
asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to
adoption of this ordinance):
CHAPTER 11. MISCELLANEOUS OFFENSES
* **
Section 11 -5. Discharging or brandishing firear Reserved.
I I P I I Z RAM R I I I P MAN I N, IN IM M I I &'M I iiiiiiii III 1 11
- - -
.. _.
* **
Section 4. Amendment to Chapter 13. The City of Winter Springs Code of Ordinances,
Chapter 13, Nuisances, is hereby amended as follows ( underlined type indicates additions and
City of Winter Springs
Ordinance No. 2011 -10
Page 3 of 5
strikeon type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of
text existing in Chapter 13. It is intended that the text in Chapter 13 denoted by the asterisks and set
forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this
ordinance):
CHAPTER 13. NUISANCES
* **
ARTICLE II. NOISE
* **
DIVISION 3. PROHIBITED ACTS
* **
Section 13 -31. Specific — Noise disturbances prohibited.
The following acts, and the causing thereof, are declared to be in violation of this article:
* **
(g) Explosives, firrarnns. Using or firing explosives, firearms, or similar devices which
create impulsive sound so as to cause a noise disturbance across a real property boundary or
on a public space or right -of -way, without first obtaining a special variance pursuant to this
article.
* **
Section 5. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances andresolutions adopted by the City Commission, or parts of prior ordinances
and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 6. Incorporation Into Code. This Ordinance shall be incorporated into the
Winter Springs City Code and any section or paragraph, number or letter, and any heading may be
changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like
errors may be corrected and additions, alterations, and omissions, not affecting the construction or
meaning of this Ordinance and the City Code may be freely made.
Section 7. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this ordinance is for any reason held invalid or unconstitutional by any court of
City of Winter Springs
Ordinance No. 2011 -10
Page 4 of 5
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this ordinance.
Section 8. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to the City
Charter.
ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular
meeting assembled on the day of , 2011.
CHARLES LACEY, Mayor
ATTEST:
ANDREA LORENZO - LUACES
City Clerk
APPROVED AS TO LEGAL FORM AND SUFFICIENCY
FOR THE CITY OF WINTER SPRINGS ONLY.
ANTHONY A. GARGANESE
City Attorney
First Reading:
Legal Ad Published:
Effective Date:
July 11, 2011
City of Winter Springs
Ordinance No. 2011 -10
Page 5 of 5
Orlando S entinel
Winter Spings Police Dept
300 N. Moss Rd
Winter Springs, FL 32708
Before the undersigned authority personally appeared Jennifer
IrwinlTamela Vargas /Deborah M. Toney, who on oath says that s /he
is the Legal Advertising Representative of Orlando Sentinel, a daily
newspaper published in Seminole County, Florida; that the attached
copy of advertisement, being a Public Hearing in the matter of July
25, 2011 in the Seminole County was published in said
newspaper in the issue(s); of
07/09/11
Affiant further says that the said Orlando Sentinel is a newspaper
published in said Seminole County, Florida, and that the said
newspaper has heretofore been continuously published in said
Seminole County, Florida, each week day and has been entered as
second -class mail matter at the post office in said Seminole County,
Florida, for a period of one year next preceding the first publication
of the attached copy of advertisement; and affiant further says that
s /he has neither paid nor promised any person, firm or corporation
any discount, rebate, commission or refund for the purpose of
securing this advertisement for publication in the said newspaper.
The foregoing instrument was acknowledged before me this
day of July, 2011, Jennifer IrwinJTamela Vargas /Deborah
M. Toney, who is personally known to me and who did take an oath.
NOTICE IS HEREBY OMEN THAT
THE CITY OF WINTER SPRINGS
CITY COMMISSION
PROPOSES TO ADOPT AND WILL
HOLD A PUBLIC HEARING FOR
THE FOLLOWING:
MONDAY JULY 25, 2011 AT 5.15 P.M.
O R CO MM I S SIONEMAMBERS E
LOCATED AT THE WINTER SPRINGS CITY
HALL lin EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA
ing o`t (407) 327.1000, Extension 236.
These are public hearings. If You de-
cide to appeal any recommendation/
decision mode by the City Commission
with respect to any mailer considered
at this meeting8, you will need a record
of the Proeeetlings, and for such pur-
poses, you may need to ensure that a
verbatlm retard al the proceedings is
made upon which the opp ee based.
Interested parties are advised that
they may appear at the meeting and
be heard with respect to the proposed
ordinance and resolution.
CSE1142244 0711912Ot1
1142244
ORDINANCE NO. 2011-10
AN ORDINANCE OT THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, FLORIDA; AMENDING
SECTION 2-255 pF THE CITY C4AE, RELATING TO
EMERGENCY RESOLUTIONS FOR THE SUSPENSION OR
REGULATION Or THE SALE OF FIREARMS; AMENDING
SECTIONS 11-5 AND 13-31 OF THE CITY CODE RELATED
TO THE DISCHARGE OF FIREARMS; PROVIDING FOR
THE REPEAL OF PRIOR INCONSISTENT ORDINANCES
AND RESOLUTIONS, INCOR.PORATION INTO THE CODE,
SEVERABILITY, AND AN EFFECTIVE DATE.
WHEREAS, the City is granted the authority, under § 2(b), Art. VIII of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS, section 790.33, Florida Statutes, expressly preempts the entire field of
regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture,
ownership, possession, storage, and transportation thereof; and
WHEREAS, section 790.33(2)(a), declares all ordinances and regulations enacted by the
City which regulate firearms, ammunition, or components thereof to be null and void; and
WHEREAS, section 790.33 was recently amended by the Florida Legislature to, among
other things, create penalties for violations of the Legislature's preemption of the field of regulation
of firearms and ammunition, which penalties become effective on October 1, 2011, see Laws of Fla.
2011-109 (2011); and
WHEREAS, under the amended law, the City and its elected and appointed officials can be
held personally liable for enacting or causing to be enfarced any local ordinance or administrative
rule impinging upon the state's firearms preemption and may be subject penalties; and
WHEREAS, the penalties include the issuance of a permanent injunction prohibiting the
City from enforcing an ardinance violating the preemption; civil fines up to $5,000 assessed against
elected or appointed officials under whose jurisdiction the violation occurred; and termination of
employment or removal from office by the Governor; and
WHEREAS, the Winter Springs City Code currently contains certain provisions regulating
the discharge and sale of firearms, which would likely be considered preempted by section 790.33;
and
City of Winter Springs
Ordinance No. 2011-10
Page 1 of 5
WHEREAS, in order to observe the state's preemption of the field of firearms and
ammunition, and to avoid the imposition of any penalties for the enforcement of these local laws,
the City Commission desires to amend the City Code as set forth herein; and
WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this
ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter
Springs.
NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOLLOWS:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by
reference as legislative findings of the City Commission of Winter Springs.
Section 2. Amendment to Chapter 2. The City of Winter Springs Code of Ordinances,
Chapter 2, Administration, is hereby amended as follows (underlined type indicates additions and
s�i� type indicates deletions, while asterisks (* **) indicate a deletion from the Ordinance of
text existing in Chapter 2. It is intended that the text in Chapter 2 denoted by the asterisks and set
forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this
ordinance):
CHAPTER 2. ADMINISTRATION
��*
ARTICLE VII. EMERGENCY MANAGEMENT
DIVISION 1. GENERALLY
*��
Section 2-255. Declaration of a state of emergency.
���
(c) Emergency resolutions authorized by this article shall include but are not limited to
the following subjects:
esolution ubject
vacuation
City of Winter Springs
Ordinance No. 2011-10
Page 2 of 5
urfews; declaration of areas off limits
uspension or regulation of sale of alcoholic beverages, � explosives or
ombustibles
rohibiting the sale of inerchandise, goods or services at more than the normal
verage retail price
ater use restrictions
uspension of local building regulations
ationing of fuel, ice and other essentials
mergency procurement procedures
***
Section 3. Amendment to Chapter ll. The City of Winter Springs Code of Ordinances,
Chapter 11, Miscellaneous Offenses, is hereby amended as follows (underlined type indicates
additions and s�ri�ea�tt� type indicates deletions, while asterislcs (* **) indicate a deletion from the
Ordinance of text existing in Chapter 11. It is intended that the text in Chapter 11 denoted by the
asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to
adoption of this ordinance):
CHAPTER 11. MISCELLANEOUS OFFENSES
���
Section 11-5. . Reserved.
, �
,
*��
Section 4. Amendment to Chapter 13. The City of Winter Springs Code of Ordinances,
Chapter 13, Nuisances, is hereby amended as follows (underlined type indicates additions and
City of Winter Springs
prdinance No. 2011-10 � �
Page 3 of 5
s-�ri#ea�nt type indicates deletions, while asterisks (* **) indicate a deletion from the Ordinance of
text existing in Chapter 13. It is intended that the text in Chapter 13 denoted by the asterisks and set
forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this
ordinance):
CHAPTER 13. NUISANCES
���
ARTICLE II. NOISE
**�
DIVISION 3. PROHIBITED ACTS
,��*
Section 13-31. Specific — Noise disturbances prohibited.
The following acts, and the causing thereof, are declared to be in violation of this article:
*��
(g) Explosives; ftr��. Using or firing explosives;�rrearn� or similar devices which
create impulsive sound so as to cause a noise disturbance across a real property boundary or
on a public space or right-of-way, without first obtaining a special variance pursuant to this
article.
*��
Section 5. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances
and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 6. Incorporation Into Code. This Ordinance shall be incorporated into the
Winter Springs City Code and any section or paragraph, number or letter, and any heading may be
changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like
errors may be corrected and additions, alterations, and omissions, not affecting the construction or
meaning of this Ordinance and the City Code may be freely made.
Section 7. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this ordinance is for any reason held invalid or unconstitutional by any court of
City of Winter Springs
Ordinance No. 2011-10
Page 4 of 5
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall nvt affect tlie
validity of the remaining portions of this ordinance.
Section 8. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to the City
Charter.
ADOPTED by the City Commission of the City of Wintex SUrin�s, Florida; in a regular
meeting assembled on the 25th day of July 2011. ' :- - '
,
� � �� �
C A x. S LA ,�i�`�j` � r .
ATT S . ' ' `
RENZO-LUACES
City lerk
APPROV AS TO LEGAL FORM AND SUFFICIENCY
FOR T TY OF WINTER SPRINGS ONLY.
ANTHONY A. GARGANESE
City Attorney
First Reading: July 11, 2011
Legal Ad Published: July 9, 2011
Effective Date: July 25, 2011
City of Winter Springs
Ordinance No. 2011-10
Page 5 of 5