Florida Carry, Inc. v. City of Tallahassee

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Leon County. George S. Reynolds, III, Judge.

          Eric J. Friday of Fletcher & Phillips, Jacksonville; Lesley McKinney of Law Office of David M. Goldman, Jacksonville, for Appellants/Cross-Appellees.

          Jason Gonzalez of Shutts & Bowen LLP, Tallahassee; Robert Dowlut, Bethseda, MD, for Amicus Curiae National Rifle Association, in support of Appellants/Cross-Appellees.

          Louis 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.

          Pamela Jo Bondi, Attorney General, Blaine H. Winship, Special Counsel, Tallahassee, for Intervenor.

          Edward 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.

          Brook 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 of Appellees/Cross-Appellants.

          Harry 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.

          LEWIS, J.

         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.

         FACTUAL HISTORY

         In 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.

         In May 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 ordinances.

         In 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.

         In the 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?

         After 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 ...