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Home My WebLink About09-27-2000 City of Winter Springs/Firearm OrdinanceBROWN, WARD, SALZMAN & WEISS, P.A. ATTORNEYS AT LAW Usher L. Brown John H. Ward • Gary S. Salzman° Jeffrey S. Weiss Suzanne D'Agresta Anthony A. Garganese° Scott D. Danahy James G. Vickaryous Allison Carmine McDonald Alfred Truesdell Arthur R. "Randy" Brown, Jr. Board Certified Civil Trial Lawyer ° Board Certified Business Litigation Lawyer ° Board Certified City, County & Local Government Law Andrea Lorenzo-Luaces City Clerk City of Winter Springs 1126 E. State Road 434 Winter Springs, FL 32708 4 G� September 27, 2000 RE: City of Winter Springs/Firearm Ordinance Dear Andrea: 111 North Orange Ave., Suite 875 Post Office Box 2873 Orlando, FL 32802-2873 (407)425-9566 (407) 425-9596 FAX Email: firm@orlandolaw.net Website: www.orlandolaw.net Please see that the enclosed correspondence is properly filed in the Archives of the City of Winter Springs. Anthony A. Garganese,)Qity Attorney AAG:mw Enclosure BROWN, WARD, SALZMAN & WEISS, P.A. ATTORNEYS AT LAW Usher L. Brown' John H. Ward' Gary S. Salzman° Jeffrey S. Weiss Suzanne D'Agresta Anthony A. Garganese° Scott D. Danahy James G. Vickaryous Allison Carmine McDonald Alfred Truesdell Arthur R. "Randy" Brown, Jr. ' Board Certified Civil Trial Lawyer ° Board Certified Business Litigation Lawyer ° Board Certified City, County & Local Government Law September 25, 2000 The Honorable Mayor Paul Partyka and Members of the City Commission of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 Re: City of Winter Springs/General/Firearm Ordinance Our File No. 1193 Dear Mayor Partyka and Commission Members: 111 North Orange Ave., Suite 875 Post Office Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (407) 425-9596 FAX Email: firm@orlandolaw.net Website: www.orlandolaw.net At the last City Commission meeting, Commissioner Martinez requested that I locate and review a City of South Miami., Florida ordinance regarding required locking devices for firearms. Enclosed herein for your review is the City of South Miami's Ordinance number 14-00-1716. Generally, the ordinance provides that where a person leaves or stores a firearm where a minor might gain access to the firearm, the firearm will be secured with a locking device. Further, the ordinance states that the Florida Legislature did not preempt a city's right to regulate the storage of firearms. In addition, I have located a Florida Attorney General Opinion dated July 11, 2000, as requested by The Honorable John Grant, Senator from Tampa, Florida. Opinion AGO 2000-42 states that the Florida Legislature intended to preempt local regulations that interfere with an individual's right to bear arms. A requirement that firearm owners secure their firearms with a locking device does not appear to interfere with that right. Further, the existence of a Florida statute requiring that firearms be secured does not necessarily preclude a municipality from adopting a more stringent standard than the statute itself. The Honorable Mayor Paul Partyka and Members of the City Commission of Winter Springs September 25, 2000 Page 2 I trust you will find this letter responsive to Commissioner Martinez's request. Should the City Commission desire to adopt a similar ordinance, I will be happy to prepare such an ordinance. Anthony A. Garganese City Attorney AAG:kj Enclosures F: IDOCSICity of Winter SpringslGenerallfirearm locking devices.kj ORDINANCE NO. 14-00-1716 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO PUBLIC SAFETY; AMENDING SEC. 15-7, OF THE CODE OF ORDINANCES TO . BE ENTITLED "LOCKING DEVICES REQUIRED FOR FIREARMS"; REQUIRING LOCKING DEVICES ON FIREARMS STORED IN THE CITY OF SOUTH MIAMI; CREATING A PUBLIC DUTY; PROVIDING CIVIL PENALTIES; PROVIDING FOR SEVERABILITY, ORDINANCES IN CONFLICT, AND AN EFFECTIVE DATE. WHEREAS, the Mayor and City Coininission of the City of South Miami are charged with protecting the public health, safety and welfare; and, WHEREAS, each year in the nation, in the State of Florida and in Miatni-Dade County, Florida, a multitude of children gain access to firearms that are stored in their h()mes with the painful result that inany innocent persons are injured, maimed or killed; WHEREAS, the Mayor and City Commission recognize that the Florida Legislature preempted the field of regulation of firearms as provided by sec. 790.33, Florida Statutes, and that it specified the- subject matter over which municipalities are excluded from enacting ordinances. Providently, by specifying the subject matter that municipalities may not regulate the Florida Legislature omitted mention of regulation of the storage of firearms. The Mayor and City Commission acknowledge that the Florida f.cgislature is presumed to have intentionally omitted the regulation of the storage of firearms from its preemption of the specified subject matter. By enacting this ordinance, it is the intent of the Mayor and City Commission to provide for public safety in the storage for iirearins in the limited area that is not preempted by the Florida Legislature; --and, WHEREAS, the Mayor and City Commission desire to establish a standard of care for the safe storage of firearms in residences to reduce the likelihood that children and others will he injured by guns. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA- Section 1. Section 15-7, entitled "Reserved", of the City of South Miami Code of Ordinances is amended to read: b/Z 30bd 'Rdss: E 00-V�-dN °6vemos06 !Nd310 A110 �h8 1N3S -as- . • - . Dare„ o ..ou.v�ruo•n.�seee auMff.JQ -- oi.CQCS]04f1f` `.Wd66: L 00/0l/8 :PGATOOea Sec. 15-7. Locking devices required for firearms. (1) "Locking device" means a device that when installed on a firearm and secured by mcans of a kcy or a mechanically or electronically operated combination lock prevents the firearm from being discharged without first deactivating or removing the device. (2) If a person stores or leaves a firearm at any location where the person knows or reasonably should know that a tumor might gain access to the firearm, the person shall secure the firearm with a locking device except when it is carved on his or her body or is located within such close proximity that the person can retrieve the firearm and prevent access to it by a minor. (3) A violation of this section is a breach of a duty of safety owed by the person who owns or possesses the firearm to all minors who might gain access to it and to the general public. (4) A violation of this section is punishable as a class V civil violation. No courtesy notice shall be issued to the violator. Section 2. if any section, clause, sentence, or phrase of this ordinance is for any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this ordinance. Section 3. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are repealed. Section_4. This ordinance shall be published in the City of South Miami Code of Ordinances. Section 5. This ordinance shall take effect immediately upon approved. PASSED AND ADOPTED this UL day of June , 2000. ATTEST: APPROVED: CITY CLERK MAYOR 1'" Reading — 5/2/00 2" d Reading — 6/6/00 2 V/e 30dd !INd95: E 00-et-dN `•9tie9e9990e `Ad310 A110s :A8 1N35 _e_ r .. .. ....�..... ... .......-.�.,.. r.. ..... r...... ..+ n._r.nr.nnernn !UUAFtQ: L r1n/FL/S :OGATOOGH COMMISSION VOTE;: 5-0 READ AND APPROVED AS TO FORM Mayor Robaina: Yea Vice Mayor Feliu: Yea Commissioner Wiscombe= Yea CITY A'1`TORNE?Y Commissioner Bcthel: Yea Commissioner Russell: Yea ADc11. A l (V Downcnts\Gty of South Miumi!0022.001\2960.doc U V/V 3JVd :YVd55: E 00-EE-as `•gVC9699506 !)Id310 A.LIQ :A9 1N35 "' ----.. ..�...—_�_.� ...,.. e.... .. ... — — — — - — — — !wAdRC: I r1n/P-L/A :08AT908H Page 12 Citation Search Result Rank 1 of 3 Database Fla. AGO 2000-42 FL -AG (Cite as: 2000 WL 972870 (F1a.A.G.)) Office of the Attorney General State of Florida *1 AGO 2000-42 July 11, 2000 RE: MUNICIPALITIES--FIREARMS--authority of municipality to enact ordinance requiring locking devices on all firearms stored in the city. s. 790.33, Fla. Stat. The Honorable John Grant Senator, District 13 610 West Waters Avenue Suite A Tampa, Florida 33604 Dear Senator Grant: You ask substantially the following question: May a municipality enact an ordinance requiring the use of locking devices on firearms stored within the city? In sum: This office must presume the validity of a duly enacted ordinance until a court declares otherwise. Section 790.33, Florida Statutes, however, should be construed in view of the statute's purpose which is to preempt local regulations that interfere with an individual's right to bear arms. A requirement that gun owners secure their firearms with a gun lock would not appear to interfere with that right, nor does the existence of statutes requiring that firearms be secured necessarily preclude a municipality from,adopting a more stringent standard. You state that the City of South Miami has enacted an ordinance requiring the use of locking devices on firearms stored within the city. You express your concern that the ordinance violates the Joe Carlucci Uniform Firearms Act, sect ion--V90.33, Florida Statutes. That statute declares that the state preempts 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 . . . or municipal ordinances or regulations relating thereto." [FN1] You also are concerned that the ordinance is in conflict with various statutes that require firearm owners to safely secure their firearms. [FN2] Tragically, a number of Florida children have been accidentally killed or seriously wounded by negligently stored firearms. In addition, the increase in the incidence of school shootings across the country that have resulted in death and serious injury to students, teachers, and staff has made the issue of juvenile gun violence one of extreme importance to the citizens of this state. Gun safety for children has become a major issue in the Miami -Dade County area where several children have been killed or wounded in recent months in gun Copr. ® West 2000 No Claim to Orig. U.S. Govt. Works Fla. AGO 2000-42 (Cite as: 2000 WL 972870, *1 (F1a.A.G.)) Page 13 accidents. [FN3] In recognition of these problems, the City of South Miami passed City Ordinance Number 14-00-1716, requiring locking devices on firearms stored within the city. In adopting the ordinance, the Mayor and City Commission of the City of South Miami were aware that section 790.33, Florida Statutes, preempts the field of regulation of firearms; however, it is the city's position that while section 790.33 preempts the city from regulating who may possess a firearm, it does not preempt the city from placing restrictions on how the firearm is stored. *2 Section 790.33, Florida Statutes, does not specifically refer to the storage of firearms; by such omission, the city concludes that it is not precluded from regulating in this limited area. An examination of section 790.33, Florida Statutes, indicates that the intent or purpose of the statute is to preclude local government from interfering with the right of people to bear arms. In interpreting the statute and its terms, such intent must be given effect. [FN4] Thus, while section 790.33, Florida Statutes, seeks to preempt local regulations regarding the possession of firearms, the use of the term "possession" in the statute should be construed in view of the statute's purpose, i.e., to prevent local regulations that interfere with an individual's right to bear arms. A requirement that gun owners secure their firearms with a gun lock does not necessarily interfere with that right. Moreover, this office must presume the validity of the South Miami ordinance until and unless a court of competent jurisdiction makes a determination to the contrary. [FN5] You have also expressed your concern about a possible conflict between the City of South Miami ordinance and other state statutes which require the safe storage of weapons. [FN6] In considering a conflict between state law and a county or municipal ordinance, the courts have generally required that the two must contradict each other in the sense that both legislative provisions (the ordinance and the statute) cannot coexist. Thus, an ordinance and legislative enactment are in "conflict" if, in order to comply with one, a violation of the other is required. It is not a conflict, however, if an ordinance is more stringent than the statute. [FN7] Compliance with a city ordinance requiring locking devices on firearms located within the city would not appear to prohibit compliance with the provisions of the state statutes requiring that firearms be safely secured. Accordf'ngly, I am of the opinion that section 790.33, Florida Statutes, should be construed in view of the statute's purpose, which is tb preempt local regulations that interfere with an individual's right to bear arms. A requirement that gun owners secure their firearms with a gun lock would not appear to interfere with that right. Nor does the existence of statutes requiring that firearms be secured necessarily preclude a municipality from adopting a more stringent standard. Sincerely, Robert A. Butterworth Attorney General [FN1]. Section 790.33(1), Fla. Stat. Copr. c West 2000 No Claim to Orig. U.S. Govt. Works Fla. AGO 2000-42 (Cite as: 2000 WL 972870, *2 (F1a.A.G.)) [FN2]. See, ss. 784.05, 790.173-790.175, Fla. Stat. [FN3]. Ponce, Eunice, Miami Herald, "City Oks Gun Locks," June 6, 2000. Page 14 [FN4]. See, e.g., In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So. 2d 1130 (Fla. 1990) (legislative intent is the polestar by which court must be guided in interpreting statutory provisions); Byrd v. Richardson -Greenshields Securities, Inc., 552 So. 2d 1099 (Fla. 1989) (courts obligated to honor obvious legislative intent and policy behind legislative enactment); Lowry v. Parole and Probation Commission, 473 So. 2d 1248 (Fla. 1985). [FN5]. See, e.g., Jetton v. Jacksonville Electric Authority, 399 So. 2d 396 (Fla. 1st DCA 1981) (there is a presumption that legislative enactments are constitutional); State v. City of Miami Beach, 234 So. 2d 103 (Fla. 1970); cf., White v. Crandon, 156 So. 303 (Fla. 1934) (statutes presumptively valid and must be given effect until judicially declared unconstitutional or invalid). [FN6]. You refer to ss. 784.05, 790.173-790.175, Fla. Stat. Section 784.05(3) makes it a third degree felony for a person to store or leave a loaded firearm within the reach or easy access of a minor, if the minor obtains the firearm and uses it to inflict injury or death upon himself or herself or any other person. Section 790.174 requires the safe storage of firearms by placement in a secure box or by placing a trigger lock on the device. [FN7]. See, e.g., F.Y.I. Adventures, Inc. v. City of Ocala, 698 So. 2d 583 (Fla. 5th DCA 1997) (question to be resolved is whether compliance with the ordinance violates the state law or makes compliance with state law impossible); Shetler v. State, 681 So. 2d 730 (Fla. 2d DCA 1996); Board of County Commissioners of Dade Fla. AGO 2000-42, 2000 WL 972870 (F1a.A.G.) END OF DOCUMENT Copr. c West 2000 No Claim to Orig. U.S. Govt. Works