FLORIDA CARRY, INC. AND THE SECOND AMENDMENT FOUNDATION, INC., Appellants/ Cross-Appellees,
CITY OF TALLAHASSEE, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA; JOHN MARKS, MAYOR OF THE CITY OF TALLAHASSEE; NANCY MILLER, CITY COMMISSIONER OF THE CITY OF TALLAHASSEE; ANDREW GILLUM, CITY COMMISSIONER OF THE CITY OF TALLAHASSEE; AND GIL ZIFFER, CITY COMMISSIONER OF THE CITY OF TALLAHASSEE, Appellees/ Cross-Appellants.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Leon County. George S.
Reynolds, III, Judge.
J. Friday of Fletcher & Phillips, Jacksonville; Lesley
McKinney of Law Office of David M. Goldman, Jacksonville, for
Gonzalez of Shutts & Bowen LLP, Tallahassee; Robert
Dowlut, Bethseda, MD, for Amicus Curiae National Rifle
Association, in support of Appellants/Cross-Appellees.
C. Norvell, Assistant City Attorney, Tallahassee; Marc J.
Fagel and Lauren G. Escher of Gibson, Dunn & Crutcher
LLP, San Francisco, CA, for Appellees/Cross-Appellants.
Jo Bondi, Attorney General, Blaine H. Winship, Special
Counsel, Tallahassee, for Intervenor.
G. Guedes, Jamie A. Cole, and Adam Schwartzbaum of Weiss
Serota Helfman Cole & Bierman, P.L., Coral Gables, for
Amicus Curiae City of Weston, Florida, and City of Miramar,
Florida, in support of Appellees/Cross-Appellants.
Dooley and David J. Rosen of Keker & Van Nest LLP, San
Franciso, CA; Ruth E. Vafek of Ausley & McMullen, P.A.,
Tallahassee for Amici Curiae The Law Center to Prevent Gun
Violence, The League of Women Voters of Florida, States
United to Prevent Gun Violence, concerned local elected
officials, and concerned state elected officials, in support
Morrison, Jr., Tallahassee; Susan H. Churuti of Bryant Miller
Olive P.A., Tampa; and Elizabeth W. Neiberger of Bryant
Miller Olive P.A., Miami, for Amicus Curiae The Florida
League of Cities, in support of Appellees/Cross-Appellants.
Florida Carry, Inc. and The Second Amendment Foundation,
Inc., appeal a Final Summary Judgment entered by the trial
court in favor of Appellees, the City of Tallahassee
("City"), John Marks, Nancy Miller, Andrew Gillum,
and Gil Ziffer. Appellants argue on appeal that the trial
court erroneously determined that section 790.33(3)(f),
Florida Statutes (2013), is a standing provision rather than
a provision prohibiting certain conduct and that the
City's re-publication of two firearms ordinances that
have been declared null and void by the Legislature's
preemption of the field of firearms regulation constitutes
"promulgation" as that term is used in section
790.33(3)(f) and is prohibited by law. For the reasons that
follow, we reject Appellants' arguments and, therefore,
affirm as to the issue raised on appeal. On cross-appeal,
Cross-Appellants/Appellees assert that the trial court erred
in dismissing their counterclaim wherein they asserted that
section 790.33's "penalty provisions" violate
the rights of absolute legislative immunity and free speech.
Concluding that the trial court correctly determined that
dismissal of the counterclaim was appropriate, we affirm as
to the issue raised on cross-appeal as well.
1987, the State preempted the field of firearms regulation by
enacting section 790.33, Florida Statutes, which provided in
part that the State is "occupying the whole field of
regulation of firearms and ammunition . . . 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." At that time, the City had two
ordinances that conflicted with the newly enacted provisions
of section 790.33. One of the ordinances dated back to 1957,
and the other dated back to 1984. The 1957 provision is now
referred to as section 12-61(a) of the Tallahassee Code and
provides, "No person shall discharge any firearms except
in areas five acres or larger zoned for agricultural
uses." This provision was in effect in the 1957 version
of the Tallahassee Code and was restated in the 2003
re-codification in its current form. The 1984 provision,
which was amended in 1988, is now referred to as section
13-34(b)(5) of the Tallahassee Code and makes it unlawful for
any person to discharge a firearm in a park or recreational
facility owned, managed, maintained, or controlled by the
City. This provision was also restated in the 2003
re-codification in its current form. Other than the
restatement in the 2003 re-codification, neither section
12-61 nor section 13-34(b) has been revised or amended since
1957 and 1988, respectively. The parties stipulated that no
instance of enforcement of either ordinance has been
identified in the past ten years. In 2011, the Legislature
amended section 790.33, creating what the parties term as
"penalty provisions" against local officials
involved in the enactment or enforcement of firearms
regulations, including a civil fine, loss of public funds in
defense of a claim, and removal from office. By memorandum
dated June 30, 2011, the Tallahassee Police Chief advised all
officers and all personnel within the Tallahassee Police
Department that the Florida Legislature had preempted the
firearms provisions of sections 12-61 and 13-34 and that the
ordinances were unenforceable.
2014, Appellants filed a Complaint for Declaratory Judgment
and Injunctive Relief against Appellees. In Count I,
Appellants sought a declaration on the validity and
enforceability of the two ordinances at issue in light of
section 790.33 and an order requiring the City to repeal the
ordinances. In Count II, Appellants petitioned for injunctive
relief pursuant to section 790.33(3)(b), requesting that the
court enjoin Appellees from enforcing and promulgating the
ordinances and requiring their repeal. Count III was a claim
for declaratory relief and a petition for injunctive relief
pursuant to section 790.33(3)(f). Therein, Appellants alleged
that at a February City Commission meeting, the individual
Appellees participated in advisory discussions with the City
Attorney, public comment, debate, and a vote to determine the
status of the two ordinances at issue in light of the
prohibitions of section 790.33. According to Appellants, the
individual Appellees voted to indefinitely table the
discussion of repealing the two ordinances. In Count IV,
Appellants sought an injunction prohibiting the continued
promulgation and enforcement of the ordinances at issue and a
writ of mandamus ordering Appellees to repeal/amend the
Defendants' Answer and Counterclaim for Declaratory
Relief, Appellees sought a declaratory judgment declaring
certain portions of section 790.33 unconstitutional.
Appellees asserted that the penalty provisions provided for
in section 790.33 violated legislative immunity and the right
of free expression. Thereafter, the parties filed motions for
summary judgment as did the Attorney General who intervened
in the case in order to address Appellees' counterclaim.
Final Summary Judgment, the trial court set
forth in part:
It is undisputed the individual Defendants have done nothing
to enact any ordinance or regulation relating to the use of
firearms, during the time they have been in office. The big
complaint against the individual Defendants is that they
refused to vote on the proposed repeal of the two challenged
ordinances by "tabling" the matter indefinitely.
This brings us to the issue of, can this Court compel the
City Commission to "untable" the proposed repeal of
the Ordinances in question and require a vote? There is
little authority for a court to mandate a governing body to
vote on a legislative matter before it. . . .
This Court does not believe it has the authority under the
circumstances of this case to mandate the Commission to vote
on the requested legislation that was previously considered
and "tabled." "Laying a matter on the
table" or "tabling" is a well-known and
commonly used rule of procedure utilized to postpone voting
on an issue under consideration and it leaves the
"tabled" matter in a state of non-action. . . .
No doubt, the Commissioners in this case understood the
preemption issue and acted defiantly in refusing to repeal
the challenged ordinances, but the Court finds that tabling a
request to repeal a preempted City Ordinance is not a
violation of section 790.33(3)(a) because it is not ". .
. enacting or causing to be enforced any local
ordinance or administrative rule or regulation impinging upon
such exclusive occupation of the field . . . ." (e.s.)
Therefore, the Court finds that the individual City
Commissioners are not liable, such that a mandatory fine
should be imposed pursuant to sec. 790.33(3)(c), F.S. because
the individual Commissioners by "tabling" the
matter refused to vote to repeal the challenged ordinances.
So, if the individual Commissioners can't be mandated to
vote on the proposed repeal of the pre-empted ordinances, can
they be mandated to discontinue promulgating/publishing them
in the City Code book and online as if they were valid?
noting that there was no evidence that either ordinance was
being enforced, the trial court set forth under the heading
"Re-publishing does not equal
'promulgation'" the following:
What does the word "promulgated" mean in the
context in which it is used in section 790.33(3)(f), F.S.?
The exact statutory ...