Florida/Georgia Personal Injury & Workers Compensation

...ance, is an attempt to regulate firearms and ammunition through the medium of the judiciary. Clearly this round-about attempt is being made because of the County's frustration at its inability to directly regulate firearms, an exercise proscribed by section 790.33, Florida Statutes (1999) which expressly preempts to the state legislature the entire field of firearm and ammunition regulation....

...y standards therefor. The declaration the *505 appellants are seeking includes a determination that the City's ordinance is ultra vires because the legislature expressly preempted the entire field of firearm and ammunition regulation by enactment of section 790.33, Florida Statutes (2000)....

...r general law; and to require local jurisdictions to enforce state firearms laws." In Penelas v. Arms Technology, Inc., 778 So.2d 1042 (Fla. 3d DCA), rev. denied, 799 So.2d 218 (Fla.2001), this court specifically stated that the legislature, through section 790.33, has indeed expressly preempted the entire field of firearm and ammunition regulation....

...aratory Judgment Act, we hold that this action is not premature and that the trial court erred in entering its final *506 summary judgment for the City. We also hold that the City's ordinance no. 14-00-1716 is null and void as it is in conflict with section 790.33, Florida Statutes....

...Sheriff of Palm Beach .County’s (the “Sheriff’) purported policy of “not return[ing] firearms seized as a result of a safety call or safety check without a court order.” - We hold that Appellant sufficiently alleged a cause of action under section 790.33, Florida Statutes (2014), and, therefore, reverse and remand for further proceedings....

...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. § 790.33(1), Fla. Stat. (2014). To that end, section 790.33(3)(f) creates a private cause of action for declaratory and injunctive relief as well as actual damages .up to $100,000 for anyone who is “adversely affected by any ordinance; regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation” of section 790.33. § 790.33(3)(f), Fla....

...Thus, Appellant could maintain a suit against the Sheriff if the Sheriff had a policy regulating firearms which was not authorized by an existing statute and enforced the policy against Appellant. The Sheriff argues that Appellant could not maintain a cause of action under section 790.33 because the “policy” alleged in Appellant’s complaint — i.e....

...Brown's Repair Serv., Inc., 780 So.2d 180, 181-82 (Fla. 2d DCA 2001). With respect to the identity of the thing being sued for, Appellant’s replevin action sought the return of his property while Appellant’s instant suit sought money damages for the Sheriffs violation of section 790.33 and an injunction preventing the Sheriff from enforcing its allegedly illegal policy....

...ecessary to maintain the suit are the same in both actions.’ ” Tyson, 890 So.2d at 1209 (quoting Albrecht v. State, 444 So.2d 8, 12 (Fla.1984)). In this case, the facts and evidence necessary to prove Ap *884 pellant’s claim for a violation of section 790.33 are not identical to those necessary to prove he was entitled to the return of firearms in the replevin suit....

...’s personal property, was not the fruit of criminal activity, and was not being held as evidence.” Eight Hundred, Inc. v. State, 895 So.2d 1185, 1186 (Fla. 5th DCA 2005). Conversely, as discussed above, in order to allege a cause of action under section 790.33, the complaining party must allege and prove that it was “adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation” of section 790.33. § 790.33(3)(f), Fla. Stat. (2014). Conclusion Based on the foregoing, we hold that Appellant sufficiently pled a cause of action under section 790.33 and, therefore, the trial court erred in dismissing his suit with prejudice....

...hat she wishes to store the firearm in her vehicle while on campus. The complaint argued that UNF had no authority to adopt the regulation in question because the Florida legislature had expressly preempted the entire field of firearms regulation in section 790.33(1), Florida Statutes (2011)....

...ida Statutes, to waive the exception that would allow a student to possess a firearm in a vehicle? *970 2. Does the University of North Florida qualify as a “local or state government” such that its policies and regulations could be preempted by section 790.33, Florida Statutes? 3. Does the provision of the student handbook at issue in this case qualify as an “ordinance,” “rule,” or “administrative regulation” within the meaning of section 790.33, Florida Statutes? The panel then requested supplemental briefing from the parties on the questions above....

...We respectfully disagree. Whatever the scope of authority granted to the universities under article IX, section 7, it does not encompass a university regulation that prohibits the carrying of a securely encased firearm within a vehicle parked in a university parking lot. Section 790.33, Florida Statutes The legislature’s primacy in firearms regulation derives directly from the Florida Constitution....

...stitutional term “law” in the phrase “authorized by law” to mean an enactment by the legislature not by a city commission or any other political body). Indeed, the legislature has reserved for itself the whole field of firearms regulation in section 790.33(1), which provides: (1) Preemption....

...To rule otherwise and permit a state agency to enact rules or policies restricting the right to bear arms without a specific legislative delegation would render the 2011 amendment super *973 fluous. 1 Evidence of the legislature’s intent to preempt the entire field of firearm regulation is located in subsection 790.33(4)(e), which provides that section 790.33(1) does not prohibit the Florida Fish and Wildlife Conservation Commission (FWCC) from regulating the use of firearms as a method of taking wildlife and from regulating shooting ranges. Like state universities, the FWCC derives its authority from the Florida Constitution. See Art. IV, § 9, Fla. Const. If, in implementing the exclusive constitutional authority to regulate firearms in section 790.33 the legislature did not intend to preempt such constitutional agencies in the first place, it would have been completely unnecessary to exempt the FWCC, a constitutional agency. In other words, subsection 790.33(4)(e) would be superfluous if the dissent’s analysis were correct. It follows logically then that section 790.33 must be read to preempt even those state agencies deriving their authority directly from the Florida Constitution....

...f state government). University boards of trustees are also part of the executive branch of state government. See § 1001.71(3), Fla. Stat. (2011). While universities may be excluded from the definition of an agency in regard to particular statutes, section 790.33 contains no such exclusion....

...Absent this specific exclusion in the statute at hand, universities must qualify as part of “state government.” The regulation adopted by UNF in this case qualifies as an administrative rule “adopted by local or state government,” which the legislature has expressly preempted. See § 790.33(1), Fla....

...1st DCA 2013) (eri banc) (“UNF decision”) 1 ; and (3) the trial court erred in granting in part Appellee Machen’s motion to dismiss on the basis that Appellee Ma-chen is immune from liability for damages pursuant to sections 768.28(9)(a) and 790.33, Florida Statutes (2013)....

...icies which, according to Appellant, prohibited firearms in vehicles parked on UF’s property. On February 21, 2014, Appellant filed a First Amended Complaint against Appellees, alleging . five counts. In Count I, Appellant alleged that UF violated section 790.33, Florida Statutes, in which the Legislature declared its occupation of the “whole field of regulation of firearms and ammunition” in Florida. Appellant further alleged, that the Florida Constitution reserves to the Legislature the exclusive authority to regulate the manner of bearing arms, that UF had passed rules or regulations expressly prohibited by section 790.33, that section 790.25(3)(n), Florida Statutes (2013), provides that a person may possess a firearm in his or her home or place of business, and that section 790.115, Florida Statutes (2013), which prohibits firearms on school property with certain exceptions, is in conflict 'with section 790.25(3)(n)....

...for employees by chapter 790, an order repealing all preempted and unauthorized Florida Administrative Code regulations regarding the possession of firearms on campus, and attorney’s fees and costs. In Count II, Appellant asserted á violation of section 790.33 by Appellee Machen, alleging that Machen, as the chief administrative officer of UF, passed, authorized, and/or allowed the passage of rules or regulations expressly prohibited by section 790.33....

...e. In the order at issue on appeal, the trial court first addressed Appellee Machen’s motion to dismiss and concluded that Ma-chen was immune from Appellant’s damages claim under section 768.28(9)(a), Florida Statutes. It further determined that section 790.33 would not alter Machen’s immunity from a damages claim since “it only permits limited damages claims against the agency itself, not against the agency head.” As for whether Machen had immunity from a claim for civil fines under section 790.33, the trial court determined that that issue was not ripe for determination because a proper claim for such damages had not been made....

...al court erred in granting summary judgment in Appellees’ favor as to its claim that UF’s prohibition of firearms in university housing violates the Legislature’s preemption of the field of regulation of firearms and ammunition as set forth in section 790.33, Florida Statutes....

...ted 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(1), (2), Fla....

...We, therefore, affirm the trial court’s summary judgment entered in favor of Appellees as to Appellant’s housing claim based upon our conclusion that UF’s policy prohibiting firearms in university housing is authorized by law and does not violate section 790.33 or the Florida Constitution....

...and the benefit of this immunity is effectively lost if the person entitled to assert it is required to go to trial.’” Furtado v. Yun Chung Law, 51 So.3d 1269, 1277 (Fla. 4th DCA 2011) (emphasis in original) (citation omitted). We also note that section 790.33 makes no mention or citation to section 768.28....

...(2004) (‘This section shall not be construed to waive the limits of sovereign immunity set forth in s. 768.28.’)”). Thus, even if Appellant’s cause of action against Appellee Ma-chen was characterized as being tortious in nature, the fact that section 790.33 makes no mention of section 768.28 supports Appellant’s position and our determination that section 768.28 does not apply in this case....

...A court shall award the prevailing plaintiff in any such suit: • 1. Reasonable attorney’s fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law; and 2. The actual damages incurred, but not more than $100,000. § 790.33, Fla....

...It is true, as Appellant contends, that subsection (3)(a) speaks to “any person, county, agency, municipality, district, or other entity” that violates the Legislature’s occupation of the whole field of reg *151 ulation of .firearms and ammunition and that it states “shall be liable as set forth herein.” However, section 790.33(3)(c) allows for civil fines up to $5,000 against the “elected or appointed local government official or officials or administration head” under whose jurisdiction the violation occurred. Section 790.33(3)(e) addresses cause for termination of employment “by a person acting in an official capacity for any entity” enacting or causing to be enforced prQhibited ordinances or rules....

...records requirements of chapter 119, or fails to provide access within a reasonable time,-: is subject to sanctions and penalties under s. 119.10.”) (Emphasis added). Based upon such, Appellee Ma-chen is not liable for actual damages under section.790.33....

...4 - Accordingly', we affirm the trial court’s order granting summary judgment in Ap-pellees’ favor on both the housing and motor vehicle claims, and we affirm the trial court’s order granting in part Appel- *152 lee Machen’s motion to dismiss on the basis of section 790.33, not section 768.28....

...n of the use of space, property, equipment, and resources and the imposition of charges for those items. (Emphasis added). . We note that Appellee Machen did not file a cross-appeal as to the trial court’s determination that he could be sued under section 790.33 for declaratory and injunctive relief.

...here by way of background. On June 2, 2011, Governor Rick Scott signed into law “[a]n Act relating to the privacy of firearm owners” (hereinafter, the “Firearm Owners’ Privacy Act” or the “Act”). CS/CS/HB 155 (codified at Fla. Stats. §§ 790.338, 381.026, 456.072, 395.1055). The bill created Fla. Stat. § 790.338 , entitled “Medical privacy concerning firearms; prohibitions; penalties; exceptions,” and amended other scattered statutes. Pursuant to § 790.338, licensed health care practitioners or facilities (collectively, “practitioners”) may not (i) intentionally record any disclosed information concerning firearm ownership in a patient’s medical record if the practitioner knows the inf...

...constitutional right to possess (i.e., keep) firearms.” (Id. at 4-5). At the summary-judgment stage of litigation, the State appears to recast its reading of the Act as mainly an anti-discrimination and harassment bill. The State maintains that “Section 790.338 is a run-of-the-mill anti-discrimination law....” (Defs’ Resp. to Pis.’ Mot. for Summ. J. 1). The State notes, “Section 790.338 prohibits discriminatory or harassing conduct, but incidentally burdens speech, if at all, by limiting the type of questions a practitioner can make in the medical treatment setting in the absence of medical necessity (subsection 2) a...

...e decision will redress the injury. Id. at 560-61 , 112 S.Ct. 2130 . The State contends that Plaintiffs fail to establish an injury-in-fact. I agree with the State that Plaintiffs do not establish an injury-in-fact with respect to every provision of § 790.338. Plaintiffs, who consist of physicians and physician groups, have not demonstrated that the following provisions have a chilling effect on their speech: § 790.338(3), which relates to emergency medical technicians and paramedics; § 790.338(4), which provides that a patient may decline to answer or provide information about firearms and states that the Act does not alter existing law regarding a physician’s ability to choose her patients; and § 790.338(7), which applies to insurers. These provisions do not affect Plaintiffs’ free speech rights because they do not apply to practitioners, they do not proscribe practitioners’ speech, or they pertain solely to patients’ rights to refuse to answer questions. As to § 790.338(1), (2), (5), and (6), Plaintiffs have established an injury-in-fact....

...Plaintiffs would then be free to resume the use of questionnaires including questions about firearm ownership, which would be included in the patient’s medical record, and counseling patients regarding firearm safety. For the reasons provided, I find that Plaintiff have standing to challenge § 790.338(1), (2), (5), and (6)....

...ion of medical care, as well as to prevent practitioners from harassing and discriminating against patients based on their ownership or possession of firearms. The State now sets forth a somewhat revised justification of the law, maintaining that “Section 790.338 is a run-of-the-mill anti-discrimination law.” According to the State, the record-keeping provision “works in tandem ■with the prohibitions against discrimination and harassment,” and the inquiry-restriction provision “serve...

...mination, and anti-harassment provisions do not consist of the least restrictive means to accomplish the State’s ends. The non-objectionable portions of the law already adequately protect the privacy interests that the State seeks to ensure. Under § 790.338(4), a patient may decline to answer or provide any information regarding firearm ownership or possession. Under the first clause of § 790.338(2), the practitioner must respect a patient’s right to privacy....

...Civil Liberties Union, 521 U.S. 844, 871-72 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997). The State does not respond to Plaintiffs’ arguments that the phrase “relevant to the patient’s medical care or safety, or .the safety of others,” which appears in § 790.338(1) and (2), is unconstitutionally vague....

...Corp., 640 F.3d 1278, 1285 (11th Cir.2011) (“[A] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (quoting Corley v. United States, 556 U.S. 303 , 129 S.Ct. 1558 , 173 L.Ed.2d 443 (2009))). Section 790.338(6) *1269 provides that a practitioner “should refrain from unnecessarily harassing a patient about firearm ownership during an examination.” What constitutes “unnecessary harassment” is left to anyone’s guess....

...he one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken. Id. at 1348 . The Firearm Owners’ Privacy Act contains seven subsections. As I noted above, Plaintiffs do not have standing to challenge § 790.338(3), (4), and (7)....

...ntities. The legislature’s purpose in permitting patients to maintain as private or confidential information about firearms private can be accomplished through subsection (4), which provides that a patient may decline to disclose such information. Section 790.338(3), (4), and (7) are separable in substance from the invalid portions of the law; it cannot be said that the legislature would never have passed these subsections without the invalid portions of the law. A complete act remains even if the invalid portions of the law are stricken. The State also argues that certain clauses in § 790.338(2) and (6) can be severed from any invalid portions of those subsections. Specifically, the State seeks to salvage § 790.338(2)’s clause that a practitioner “shall respect a patient’s right to privacy” and § 790.338(6)’s clause that a practitioner “shall respect a patient’s legal right to own or possess a firearm.” “The *1270 fact that an invalid portion of a statute is not self-contained in separate sections does not prohibit the court from...

...Conclusion For the reasons provided, the Defendants’ Second Amended Motion for Summary Judgment (ECF No. 93) is GRANTED in part and DENIED in part, and the Plaintiffs’ Motion for Summary Judgment (ECF No. 86) is GRANTED. 7 The State is permanently enjoined from enforcing § 790.338(1), (2), (5), and (6). The State is also permanently enjoined from enforcing § 790.338(8), to the extent that it provides that violations of § 790.338(1) and (2) constitute grounds for disciplinary action. The State is further permanently enjoined from enforcing § 456.072(l)(mm), to the extent that it provides that violations of § 790.338(1), (2), (5), and (6) shall constitute grounds for which disciplinary actions specified under § 456.072(2) may be taken....

...A separate judgment will be issued forthwith pursuant to Rule 58 of the Federal Rules of Civil Procedure. . The law also contains provisions governing emergency medical technicians or paramedics and insurance companies, and provides that a patient may refuse to answer questions regarding firearms. See § 790.338(3), (4), (7)....

...These provisions are not subject to the Plaintiffs’ challenge in this action, and, as noted below, Plaintiffs do not have standing to challenge them. (See Compl. ¶¶ 58-62). . The State also argues that Plaintiffs do not have standing to challenge § 790.33 8(2)’s clause that a practitioner "shall respect a patient's right to privacy” and § 790.338(6)’s clause that a practitioner "shall respect a patient’s legal right to own or possess a firearm.” Plaintiffs challenge the entirety of each of these provisions....

...declaratory and injunctive relief against Appellees, the Florida Senate and the Florida House of Representatives, on the basis that neither was a proper defendant. We affirm. Neither legislative body has been designated as the enforcing authority of section 790.33, the statute at issue....

...indispensable party to this gerrymandering claim, we nevertheless do hold that he is a proper party, one certainly with a cognizable interest in the action”). AFFIRMED. LEWIS, ROBERTS, and ROWE, JJ., concur. . In 1987, the Legislature declared in section 790.33 that it was "occupying the whole field of regulation of firearms and ammunition” in Florida to the exclusion of all existing and future county, city, town, or municipal ordinances. In 2011, the Legislature amended the statute to include various penalties for any person or entity violating its occupation of the field of regulation of firearms and ammunition. See § 790.33(3), Fla....

...rial 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 2 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 ....

...elating 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 3 of section 790.33....

...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....

...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....

...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 5 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. I...

.... No doubt, the Commissioners in this case understood the pre- emption issue and acted defiantly in refusing to repeal the challenged ordinances, but the Court finds that tabling a request to repeal a pre- empted City Ordinance is not a violation of section 790.33(3)(a) because it is not “....

...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 6  imposed pursuant to sec. 790.33(3)(c), F.S....

...her 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 usage is as follows: Section 790.33(3)(f) states as follows: A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or...

...from the Latin verb mulgere, which means “to milk.” The underlying idea and meaning of the verb promulgare is of “bringing out into the light of day.” . . . Based on the foregoing, the Court finds that the word “promulgated,” as used in section 790.33(3)(f), F.S., does not mean to publish or re-publish, rather based on the context in which it is used “promulgated” is used in its legislative sense as in legislatively adopting or enacting an “....

...Next, the Court must resolve whether the Defendants are in willful violation of the statute due to their continued publication and re- publication of two admittedly pre-empted ordinances: the purported “promulgation.” The first question is does paragraph (f) of subsection 790.33(3), F.S. even prohibit the purported “promulgation” that 8 Plaintiffs allege? Plaintiffs have seized upon the reference to “promulgated” in section 790.33(3)(f), which confers standing on a party. Section 790.33(3)(f) states as follows: A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforc...

...other entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation (e.s.) The text is clear that section 790.33(3)(f) does not by itself prohibit any specific act; it only confers standing on person(s) or organization(s) adversely affected by violations of section 790.33(3)(a). Therefore, section 790.33(3)(f) cannot serve as the basis for any purported violation. In contrast, paragraph (a) of section 790.33(3) clearly lays out the prohibited activity: [“]Any person, county, agency, municipality, district, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and ammu...

.... Even when the court determines the legislature intended something not expressed in the wording, the judiciary lacks the authority under organic law to depart from the plain meaning of an unambiguous statute.” . . . Accordingly, the Court finds that section 790.33(3)(a) – the prohibition section – only addresses “. . . enacting or causing to be enforced any local ordinance or administrative rule or regulation . . . .” and that even if the word “promulgated” as that term is used in 9 790.33(3)(f) was only given the meaning of publication it still would not fall within the ambit of the prohibitions set forth in section 790.33(3)(a). Lastly, the Court has considered whether the city’s re- codification of the challenged provisions in 2003 was a new enactment of the old challenged ordinances. Both provisions of the challenged City Code, the one enacted before and the one after the enactment of Sec. 790.33, F.S....

...(e.s.) Therefore the Court finds that the re-codification by the City in 2003 was not a new enactment or new adoption of the two challenged ordinances because the re-codification of the two ordinances in 2003 was not a new “enactment” as prohibited by section 790.33(3)(a), F.S. This Court finds that all the City is guilty of is offering or distributing, either electronically or in paper, copies of the City Code book of enacted ordinances which unfortunately contain the two challenged outdated prov...

...However, there has been no enactment of a new law by the City or the Commissioners such that it or they would be in violation of the statute. .... Contrary to Plaintiffs’ assertions, the Court, for reasons stated finds no violation of 790.33(3)(a) – the prohibition section – because the City has continued to allowed [sic] the two challenged city ordinances in question to be published and re-published both in written and electronic form in spite of their pre-emption by state statute....

...aintiffs, nor this 10  Court’s. With respect to Appellees’ counterclaim, the trial court found that the “individual Defendants” were not and could not be subject to the penalty provisions of section 790.33(3) because the Commissioners refused to vote on the request to repeal the two ordinances and tabled the requested repeal by Appellants, the challenged ordinances were republished during the time the named Commissioners were in offic...

...�The phrase ‘by law’ indicates that the regulation of the state right to keep and bear arms is assigned to the legislature and must be enacted by statute.” Fla. Carry, Inc. v. Univ. of N. Fla., 133 So. 3d 966, 972 (Fla. 1st DCA 2013). Section 790.33, Florida Statutes (2013), the pertinent provision for purposes of this appeal, is entitled “Field of regulation of firearms and ammunition preempted” and provides: (1) PREEMPTION.—Except as expressly provided by the Stat...

...of this state, including a contingency fee multiplier, as authorized by law; and 2. The actual damages incurred, but not more than $100,000. (Emphasis added). Appellants first contend that the trial court erred in agreeing with Appellees that subsection (3) of section 790.33 contains distinct prohibition, penalty, remedy, and standing provisions....

...According to Appellants’ interpretation, subsections (3)(a) through (f) contain both prohibitions and penalties without any separation or distinction as to whether a particular subdivision is a prohibition or penalty. They then assert that the act of promulgation, as referred to in section 790.33(3)(f), is prohibited. We disagree with Appellants’ arguments for the following reasons. 14  Section 790.33(3)(a) clearly sets forth what is prohibited by law, which is the enactment or enforcement of firearms regulations, whereas section 790.33(3)(f) addresses standing to sue any county, agency, municipality, district or other entity for declaratory and injunctive relief and damages....

...Indeed, the Fourth District recently described subsection (3)(f) as “creat[ing] a private cause of action for declaratory and injunctive relief as well as actual damages . . . .” Dougan v. Bradshaw, 198 So. 3d 878, 881 (Fla. 4th DCA 2016). Appellants contend that the trial court’s interpretation that section 790.33(3)(f) does not prohibit any activity renders the subsection meaningless and absurd because, under that interpretation, Appellants would have standing “where a local government has promulgated an ordinance, but that the continued promulgation itself is not a violation of the statute.” The problem with this argument, however, is that the Legislature rendered the ordinances at issue null and void. See § 790.33(1), Fla....

...(“Any such existing ordinances, rules, or regulations are hereby declared null and void.”). Thus, while the ordinances may still be “on the books,” they are unenforceable and invalid. Because it is undisputed that Appellees did not enforce or enact the ordinances at issue, the only two acts prohibited by section 790.33(3)(a), Appellees were entitled to summary judgment. As the trial court reasoned, even if section 790.33(3)(f) could be construed as containing prohibited acts, summary judgment in Appellees’ favor would still have 15 been appropriate given that the re-publication of the ordinances and their existence in the City’s Code does not constitute promulgation....

...provision of chapter 790, which addresses weapons and firearms, the statutory provision at issue there addressed the promulgation of forms. It did not address 16 rules, ordinances, and regulations as does section 790.33....

...The trial court in this case cited the Webster’s New Collegiate Dictionary definitions of “promulgate,” which are “to make known or public” and “to put into action or force.” The trial court concluded that the word “promulgated,” as used in section 790.33, did not mean to publish or re-publish, but “rather based on the context in which it is used ‘promulgated’ is used in its legislative sense as in legislatively adopting or enacting ....

....”). These statutes indicate that the Legislature intended the word “promulgate” in the given circumstances to mean something akin to proclaiming or declaring. After considering the context in which the term “promulgated” is used in section 790.33(3)(f), we agree with the trial court’s interpretation....

...ordinances in the field of firearms regulation. If “promulgated” is construed to mean something different than “enacted” in this context, then those persons or entities who are adversely affected could sue for something that was not expressly prohibited by section 790.33(3)(a). In support of its interpretation, the trial court cited a Fifth Judicial Circuit Court case where the trial court addressed the statute and a certain provision of the Leesburg Code of Ordinances, which, according to the court, was repealed in light of section 790.33. See Fla. Carry, Inc. v. City of Leesburg, Fla., No. 2012-CA- 001001, 2015 WL 4945748, at *1 (Fla. 5th Cir. Ct. May 13, 2015). The trial court concluded that section 790.33, “although a somewhat lengthy statute,” contained only one brief subsection – subsection (a) – actually prohibiting actions by local governments and listing activities that would subject them to liability under the statute. Id. Because the plaintiff offered no evidence demonstrating that the City of Leesburg enacted the ordinance at issue or caused it to be enforced after the effective date of section 790.33, the trial court found that the City had not violated the statute....

...After noting that the repeal of the ordinance rendered the plaintiff’s request to enjoin the defendants moot, the court also set forth, “The request for an injunction is also moot because the Ordinance was already nullified and made void by the express language of s. 790.33.” Id. The trial court further set forth: 8. Plaintiff also claimed the mere presence of the Ordinance in the City of Leesburg’s code book was a violation of § 790.33, relying on subsection 3(f) which states that a person or organization adversely affected by an ordinance “… promulgated or caused to be enforced in violation of this section …” may file an action seeking relief under the statute....

...21 While Appellants’ frustration with the City’s inaction and the individual Appellees’ unwillingness to engage in what some might describe as a simple task of repealing void ordinances is understandable, section 790.33, as it currently stands, does not prohibit the re-publication or re-printing of the void ordinances. Instead, the more reasonable interpretation of “promulgated,” as the term is used in section 790.33(3)(f), is that the ordinances at issue were promulgated at the time they were enacted and initially published....

...preempted ordinances were lawful and not enacted ultra vires, Appellants aver that summary judgment in Appellees’ favor despite their admitted failure to cease promulgation of the ordinances was contrary to both the express terms of and the express policy and intent behind section 790.33....

...r favor, thereby making them the prevailing parties for the purpose of awarding attorney’s fees and costs. This contention is also meritless. While the trial court did “order and adjudge” that the two ordinances were void and unenforceable, section 790.33 rendered “existing” ordinances null and void....

...and costs. CROSS-APPEAL Turning to the cross-appeal, Cross-Appellants/Appellees contend that the trial court erred in dismissing their counterclaim wherein they asserted that the penalty provisions contained within section 790.33(3)(c)-(e) violated the principles of absolute legislative immunity and their right to free speech....

...Id. In determining that there was no case or controversy to address with respect to Cross-Appellants/Appellees’ counterclaim, the trial court relied upon its determination that the individual Cross-Appellants/Appellees were not and could not be subject to the provisions of section 790.33(3) because there “has been no enactment or adoption of a new ordinance relating to the regulation of firearms that they voted to enact or adopt” and because the continued re-publication of ordinances enacted years before the enactment of section 790.33(3) did not constitute promulgation as the term is used in section 790.33(3)(f)....

...Had this been a situation where Cross-Appellants/Appellees were penalized through a fine, denied the use of public funds for their legal defense, or removed from office by the Governor, the counterclaim would certainly need to be addressed. However, not only was there no violation of section 790.33(3)(a) that has occurred in this case, but there were also no penalties imposed....

...Lynchard: On behalf of the Santa Rosa County Board of Commissioners, you have asked for my opinion on substantially the following questions: 1. May Santa Rosa County regulate the recreational discharge of firearms in residentially zoned areas in light of section 790.33 , Florida Statutes? 2....

...Is the "NRA Range Source Book" (National Rifle Association) the relevant standard referenced in section 823.16 (6), Florida Statutes? In sum: 1. Santa Rosa County may not regulate the recreational discharge of firearms in residentially zoned areas as the regulation of firearms is preempted to the state pursuant to section 790.33 , Florida Statutes....

...k" contains the applicable National Rifle Association Standards. You have posed several questions "regarding the ability of a county or other municipality to regulate the recreational discharge of firearms in a residentially zoned area in light of F.S. 790.33 ." In answering your questions, I am mindful of local governments' concern for the safety and well-being of their residents and I note that this opinion is limited to the issue of preemption and a county's authority to expand on the protections already in the law....

...In light of the interrelated nature of these issues, your questions are answered together. Chapter 790 , Florida Statutes, operates to regulate the entire field of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof. 1 Section 790.33 (1), Florida Statutes, as amended by Chapter 2011-109 , Laws of Florida, 2 states: "Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulati...

...sting 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." In section 790.33 , Florida Statutes, the Legislature, in furtherance of its intent to "provide uniform firearms laws in the state[,]" 3 has expressly stated that "it is occupying the whole field of regulation of firearms and ammunition." Moreover, in a...

...9 , Laws of Florida, the Legislature reaffirmed its intent to preempt the field of firearms regulation and mandated penalties for official acts that contravene state preemption. 4 Particularly in light of its recent reaffirmation by the Legislature, section 790.33 , Florida Statutes, provides a clear answer to your principal question: a county may not regulate the recreational discharge of firearms in residentially zoned areas when the discharge is not on a "shooting range," but merely recreational shooting on private property. In addition to being mandated by the plain language of section 790.33 , Florida Statutes, 5 this conclusion adheres to the position taken by this office in Attorney General Opinion 2005-40. That opinion concluded that section 790.33 , Florida Statutes, prohibited Indian River County from adopting an ordinance that would have prohibited the discharge of firearms within 300 yards of a building or public road or right-of way....

...erization of the Legislature's use of the term "shooting range." The definition of "Sport shooting range" set forth in section 823.16 (1)(c), Florida Statutes, 7 is nearly identical to the definition of "Sport shooting and training range" set out in section 790.333 (3)(h), Florida Statutes. 8 In section 790.333 (1)(a) and (c), Florida Statutes, the Legislature noted the importance of shooting ranges for firearms training programs and adopted a finding that "in excess of 400 sport shooting and training ranges exist on public and private lands...

...rom the statutory text and without any clarifying legislative history, this office is unable to opine on whether the "NRA Range Source Book" contains the applicable National Rifle Association standards. Sincerely, Pam Bondi Attorney General PB/tgh 1 Section 790.33 (1), Fla. Stat. 2 Effective October 1, 2011. See s. 2, Ch. 2011-109 , Laws of Fla. 3 Section 1(2)(a), Ch. 2011-109 , Laws of Fla. 4 See s. 1, Ch. 2011-109 , Laws of Fla. The language of preemption contained in s. 790.33 (1), Fla....

...2d 504 (Fla. 3d DCA 2002), in which a city's firearms ordinance establishing safety standards for firearms was determined to be ultra vires based on the legislative preemption of "the entire field of firearm and ammunition regulation by enactment of section 790.33 , Florida Statutes (2000)[,]" despite the absence of any mention of storage or safety within the scope of the statute....

...The 2008 opinion deals with shooting ranges and the regulation of new construction of such ranges. The 2005 opinion is concerned with the discharge of firearms under the provisions of s. 790.15 , Fla. Stat., but does not discuss or comment on shooting ranges, which are regulated separately from the general provisions of s. 790.33 , Fla....

...I see no conflict between these opinions. 7 Section 823.16 (1)(c), Fla. Stat., defines a "sport shooting range" or "range" as "an area designed and operated for the use of rifles, shotguns, pistols, silhouettes, skeet, trap, black powder, or any other similar type of sport shooting." 8 Section 790.333 (3)(h), Fla....

...d not constitute a "regulation" of gunsmiths or gun dealers. Chapter 2011-109 , Laws of Florida, amended provisions of Chapter 790 , Florida Statutes, and is specifically intended to preempt "the entire field of regulation of firearms." As stated in section 790.33 (1), Florida Statutes: "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 pur...

...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." 8 The language of preemption contained in section 790.33 (1), Florida Statutes, providing that the Legislature has determined to occupy "the whole field" of firearms regulation is expansive....

...However, in drafting local business tax ordinances, municipalities must be mindful that the provision of a local business tax may only impose restrictions or burdens on firearms-related businesses to the same extent that any other similar business may be burdened. In sum, it is my opinion that while section 790.33 , Florida Statutes, as amended by Chapter 2011-109 , Laws of Florida, preempts the entire field of regulation of firearms to the state, it does not affect the authority of a municipality to impose a local business tax as authorized by...

...Sincerely, Pam Bondi Attorney General PB/tgh 1 Chapter 2006-152 , Laws of Fla., changed the name of the "local occupational license tax act" to the "local business tax act." 2 Section 16.01 (3), Fla. Stat. Based on the material included with your opinion request, I would direct the city's attention to s. 790.335 , Fla....

...-56 of the Tallahassee Code establishing a business tax rate schedule, business classifications such as those imposed on merchants are based on the square footage of the business location plus a fee based on the number of workers employed. 8 And see s. 790.33 (4), Fla....

...Government, or any student whose possession of a weapon as described above is approved by the FSU Police Department for a bona fide educational purpose. Appellants filed the complaint on September 8, 2015. The complaint alleged the FSU Student Conduct Code violated section 790.33, Florida Statutes (2015), which — with certain exceptions not applicable here — preempts regulation of firearms by entities other than the Florida Legislature....

...Those motions were denied, and Appellants brought this appeal. Our Prior Caselaw Regarding Firearms on University Campuses The Florida Legislature has preempted the field of regulation of firearms through the language in section 790.33, Florida Statutes (2015), which reads, in pertinent 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...

...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. Further, section 790.33 more specifically defines the actions prohibited by the statute and also creates potential causes of action for affected parties, as follows: (3) PROHIBITIONS; PENALTIES.— (a) Any person, county, agency, municipality, di...

...uding a contingency fee multiplier, as authorized by law; and 2. The actual damages incurred, but not more than $100,000. This court, in UNF, held that the preemption of the regulation of firearms and ammunition in section 790.33 applies to state universities....

...We also held that the University of North Florida’s 6 Student Conduct Code firearm regulation “qualifies as an administrative rule ‘adopted by local or state government,’ which the legislature has expressly preempted.” Id. at 973 (citing § 790.33(1), Fla. Stat.). In Florida Carry, Inc. v. University of Florida, 180 So. 3d 137, 148-49 (Fla. 1st DCA 2015) (UF), we held that officers, employees, and agents of the State or its subdivisions were not immune from suit under section 790.33 by operation of the limitation in the waiver of sovereign immunity contained in section 768.28(9)(a), Florida Statutes. However, we agreed that even though sovereign immunity did not apply, the plain language of section 790.33(3)(f) precluded the award of damages against individuals. UF, 180 So. 3d at 150-51. 3 In Florida Carry, Inc. v. City of Tallahassee, 212 So. 3d 452, 461-62 (Fla. 1st DCA 2017), we determined that in order for a local ordinance, administrative rule, or regulation to violate section 790.33(a), Florida Statutes, the local ordinance, administrative rule, or regulations had to be enacted or enforced. Furthermore, to pursue the remedies under section 790.33(3)(f), the “ordinance, regulation, measure, directive, rule, enactment, order, or policy” had to be “promulgated or caused to be enforced in violation of this section.” City of Tallahassee, 212 So. 3d at 462-63. We then went on to hold that mere re-publication of an ordinance or rule is not sufficient to find a violation of section 790.33, Florida Statutes....

...3d at 465. CWL Licensees’ Possession of Defensive Devices on Campus Appellants sued each Appellee in separate counts claiming violations of section 790.06. The trial court concluded that FSU was correct in banning from campus all defensive devices as 3 Section 790.33(3)(c) does provide for a civil fine against the “local government official or officials or administrative agency head under whose jurisdiction the violation occurred” for “knowing and willful” violations....

...1999) (allowing an appellate court to affirm a trial court decision “if a trial court reaches the right result, but for the wrong reasons” so long as “there is any basis which would support the judgment in the record”). The preemption in section 790.33(1) does not apply to defensive devices; only the regulation of firearms and ammunition is preempted....

...Stat. Firearms and ammunition, as defined in section 790.001(6) & (19), Florida Statutes, are clearly distinct from defensive devices as defined in section 790.06(12)(a)13. The prohibitions and penalties for encroachment on preemption of firearms and ammunition contained in section 790.33(3) do not apply to defensive devices as defined by section 790.06(12)13....

...because those devices are not firearms or ammunition. While the Legislature in section 790.06(15) “finds it necessary to occupy the field of regulation of the bearing of concealed weapons or firearms for self-defense,” nothing in section 790.06 creates a cause of action like section 790.33(3) does....

...on was knowing and willful.” Although the trial court’s order granting summary final judgment did not address this, Appellees are correct. In UF, we discussed whether the University of Florida’s president could be liable for damages under section 790.33. UF, 180 So. 3d at 150-51. We concluded that the specific language in section 790.33(3)(f) permitting suit against “any county, agency, 4 Our decision allows any other available remedy to address this issue....

...If amendment of the complaint is available, Appellants are free to seek it. 10 municipality, district, or other entity” did not include a person. UF, 180 So. 3d at 150-51. The complaint here also sought injunctive and declaratory relief as allowed by section 790.33(3)(f) against President Thrasher and Chief Perry, but our holding in UF and a plain reading of section 790.33(3)(f) precludes those remedies as to individuals as well. The complaint also sought statutory fines against President Thrasher and Chief Perry, presumably referring to the civil fine of up to $5,000 as permitted in section 790.33(3)(c)....

...in vehicles. As further stated in Chief Perry’s affidavit, immediately after our UNF decision, FSU undertook action to comply with the decision. The undisputed facts are that any violation by President Thrasher or Chief Perry of the preemption in section 790.33 was not knowing and willful....

...governing firearms in vehicles.” UF, 180 So. 3d at 139. Here, Appellants brought suit over a year and a half after UNF, and the FSU Student Conduct Code at the time the complaint was filed still contained regulations contrary to the preemption in section 790.33(1)....

...Also like here, the ordinance in City of Tallahassee remained “on the books” as part of the Tallahassee City Code. Id. at 462. The provisions of the FSU Student Conduct Code which attempt to impose regulations beyond what is permitted by statute are clearly void per section 790.33(1). Since the mere re-publication of an ordinance, rule, or regulation is not sufficient to find a violation of section 790.33, Florida Statutes, per City of Tallahassee, the question which remains is when the FSU Student Conduct Code was enacted or promulgated....

...Id. at 465. The sparse record before us leaves us unable to answer that 12 question. Therefore our de novo review finds material facts remain such that the summary final judgment on this issue was error. Under section 790.33(3)(a), liability exists for “enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field.” Per Chief Perry’s affidavit, it is undisputed that t...

...were not being enforced during the litigation. Therefore the fact question which remains is when was the Student Conduct Code enacted or promulgated so as to permit proceeding per City of Tallahassee. See Ch. 87-23, Laws of Fla. (creating the preemption in § 790.33(1)); Ch. 2011-109, Law of Fla. (creating the private cause of action under § 790.33(3)(f))....

...It is therefore necessary to reverse and remand for further proceedings so the trial court can determine when the FSU Student Conduct Code section prohibiting firearms was enacted or promulgated as defined by City of Tallahassee, and accordingly, whether to allow a recovery under section 790.33(3). 5 We decline to determine whether the applicable date for when an ordinance or regulation is enacted or promulgated is enactment or promulgation after Legislative preemption in 1987, or enactment or promulgation after creation of the private cause of action in 2011....

thus were preempted by section 790.33, Florida Statutes (2014). Section 790.33 declares a legislative

Dear Mr. Craig: You ask substantially the following question: May a county enforce its land development code to prohibit a shooting range in a residential land use district in light of section 790.333 (8), Florida Statutes? You state that currently there are shooting ranges located within residential land use districts in Polk County....

...Due to concerns about public safety, the county wishes to restrict such shooting ranges to commercial areas. You state that under the Polk County Land Development Code, shooting ranges are classified as either a commercial business or high intensity recreation and would be prohibited in residential land use districts. Section 790.333 (8), Florida Statutes, provides: "Preemption....

...ns to the regulation of firearm and ammunition use at shooting ranges, there is apparent confusion in determining whether local land use regulations may be enforced to restrict the location of a shooting range. A review of the legislative history of section 790.333 , Florida Statutes, reveals that the committee recognized the shift in population from urban to suburban and rural areas, and "the impact of certain zoning decisions." 1 The staff analysis, however, focuses primarily on giving immunit...

...823.16 (7), Florida Statutes, recognizes that "[e]xcept as otherwise provided in this act, this act shall not prohibit a local government from regulating the location and construction of a sport shooting range after the effective date of this act." Section 790.33 (1), Florida Statutes, preempts the regulation of firearms and ammunition to the state: "Except as expressly provided by general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and am...

...of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited." (e.s.) Clearly, a municipality's attempt to regulate firearms is null and void. 5 However, the general provisions in section 790.33 , Florida Statutes, recognize that local zoning ordinances which affect other businesses in the same way are allowed....

...cture of firearms or ammunition as a method of regulating firearms or ammunition. Thus, a zoning ordinance prohibiting any commercial business activities within an area zoned for residential use would not appear to be inconsistent with the intent of section 790.33 , Florida Statutes. Such an ordinance, however, could not be applied retroactively to an existing sport shooting range. The provisions of section 790.333 , Florida Statutes, are specific to the regulation of the use of firearms and ammunition at sport shooting and training ranges, but do not address the actual siting of such facilities....

...The recognition that no action can be taken against shooting range facilities existing at the time of the enactment of all of the above-cited statutes relating to firearms and shooting ranges should be read together in a manner to give effect to each. 6 To read the preemption provision in section 790.333 , Florida Statutes, as a total ban on the application of any zoning or land use regulation upon an existing or proposed sports shooting range would render section 823.16 (7), Florida Statutes, noted above, of no use or consequence....

The Honorable Curtis A. Golden State Attorney First Judicial Circuit Dear Mr. Golden: You ask the following question: Do the 3-day waiting periods for handgun purchases which are required by section 790.0655 (1)(a) and 790.33 (2)(a), Florida Statutes, refer to a 72-hour waiting period or would any part of three working days satisfy the requirement? In sum: 1....

...A "day" for purposes of section 790.0655 (1)(a), Florida Statutes, which mandates a 3-day waiting period for purchase of a handgun, is 24 hours. Thus, 72 hours must elapse between the purchase and the delivery at retail of any handgun, exclusive of weekends and legal holidays. 2. For purposes of section 790.33 (2), Florida Statutes, a "working day" would appear to refer to the hours between 8 a.m....

...ween the purchase and delivery of a handgun, it would be a violation of the statute to deliver a handgun purchased on a Friday at 4 p.m., before the following Wednesday at 4 p.m. You have also asked whether a "working day," as that phrase is used in section 790.33 (2), Florida Statutes, means a 24-hour day. Pursuant to section 790.33 (2)(a), Florida Statutes: "Any county may have the option to adopt a waiting-period ordinance requiring a waiting period of up to, but not to exceed, 3 working days between the purchase and delivery of a handgun....

...ained in section 790.065 (2)(c)2., Florida Statutes. Pursuant to the statute "working hours" means the hours from 8 a.m. to 5 p.m., Monday through Friday, excluding legal holidays. Therefore, it is my opinion that the phrase "working day" as used in section 790.33 (2), Florida Statutes, refers to the hours between 8 a.m....

...Thus, if a county adopts a waiting period ordinance requiring a delay of 3 working days between the purchase and delivery of a handgun, and a purchase is made at 4 p.m., Friday, delivery could not take place before 4 p.m., on the following Wednesday. However, while section 790.33 (2), Florida Statutes, authorizes counties to adopt a waiting period ordinance, the mandate of section 8 (b), Article I , Florida Constitution, would continue to apply....

...And see , The American Heritage Dictionary of the English Language 1475 (new college ed. 1979), defining "workday" as "[a]ny day on which work is done." 10 While it is arguable that Saturday is a "working day" for most retail establishments, I would note that, in order to read s. 790.33 (2), Fla....

...automatically substituted for Swearingen to the extent that Swearingen was sued in his official capacity. See Fla. R. App. P. 9.360(c)(2). The automatic substitution provision does not apply to the extent that the appellants sued Swearingen in his individual capacity. See § 790.33(3)(c), Fla....

...1st DCA 2021), opinion approved sub nom. Fried v. State, 355 So. 3d 899 (Fla. 2023).  EN BANC WINOKUR, J. Appellants (hereinafter “Pretzer”) brought an action against Appellees (hereinafter “FDLE”) under section 790.33(3)(f), Florida Statutes, alleging that FDLE violated the preemption provision of section 790.33(1), by adopting a policy, rule, or regulation regarding firearms without specific authorization from the Legislature to do so....

...The trial court granted FDLE’s motion, rendering final judgment against Pretzer, concluding that Pretzer first had to seek remedies on the preemption claim through administrative proceedings. Pretzer appeals that ruling. In the opinion that follows, we discuss the applicable law, the trial court’s interpretation of section 790.33, the provision of the Administrative Procedure Act (“APA”) explicitly addressing exhaustion of administrative remedies, and the applicability of the doctrine of exhaustion of administrative remedies with regard to an action pursuant to section 790.33. Finding that the relief authorized by section 790.33(3)(f)1....

..., Fla. Stat. (“A proposed or existing rule is an invalid exercise of delegated legislative authority if . . . . [t]he agency has exceeded its grant of rulemaking authority . . . .”). B Section 790.33 In 1987, the State enacted the Joe Carlucci Uniform Firearms Act, which created section 790.33. See Ch. 87-23, Laws of Fla. In it, the Legislature preempted all local regulation regarding firearms. In pertinent part, the original version of section 790.33(1) stated as follows: PREEMPTION.—Except as expressly provided by general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase...

...possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. § 790.33(1), Fla. Stat. (1987). In 2011, the Legislature amended section 790.33(1), expanding the scope of preemption to include all state agencies. See Ch. 11-109, § 1, Laws of Fla. The portions underlined here were added to section 790.33(1): 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 ....

...Reemployment Assistance Appeals Comm’n, 183 So. 3d 460, 462 (Fla. 1st DCA 2016) (noting that agencies “only have the authority . . . conferred by statutes”). State agency rulemaking is circumscribed by delegated legislative authority, even without the limitations that section 790.33(1) imposes. What section 790.33(1) prohibits beyond the limitations in rulemaking already imposed is a key issue in Pretzer’s suit against FDLE....

...(rather than preempting) some of the regulatory power previously provided to state agencies. The 2011 amendments invalidated any existing firearm or ammunition regulation adopted by an agency under a general grant of rulemaking authority. See § 790.33(1), Fla....

...previously authorized home-rule power). Additionally, the 2011 amendments withdrew all legislative authority for future firearms or ammunition regulations when such regulations are based only on the general language of an agency’s enabling statute. See § 790.33, Fla....

...directly from the state constitution, is not authorized to enact rules or policies restricting the right to bear arms without a specific legislative delegation). And absent a specific grant of rulemaking authority, any agency action that contravenes section 790.33 is ultra vires and therefore null and void. See Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So. 2d 504, 506 (Fla. 3d DCA 2002) (holding that a city’s ordinance is “null and void as it is in conflict with section 790.33, Florida Statutes”); cf. Masone v. City of Aventura, 147 So. 3d 492, 498 (Fla. 2014) (finding ordinances imposing penalties for red light violations “invalid because they are expressly preempted by state law”). In addition to expanding the scope of section 790.33(1) to include state agencies, the 2011 amendments created a mechanism for plaintiffs to sue governmental entities that violate the statute. See Ch. 11-109, § 3, Laws of Fla. Specifically, the Legislature created a private cause of action so that those “adversely affected” could seek redress of a grievance in a court of law. See § 790.33(3)(f)1., Fla. Stat. Under that cause of action, a plaintiff may sue both governmental entities and government officials. See § 790.33(3)(a), Fla....

...field of regulation of firearms and ammunition . . . shall be liable as set forth herein.” (emphasis supplied)). A plaintiff may seek declaratory relief, injunctive relief, actual damages, as well as reasonable attorney’s fees and costs by filing an action in court. See § 790.33(3)(f)1., Fla. Stat. While government officials cannot be subject to damage awards under subsection 790.33(3)(f)1.b., they can face civil fines under subsection 790.33(3)(c)....

...rule or regulation without the authority to do so [under section 790.065] 3 FDLE had sought dismissal of part or all of two previous versions of Pretzer’s pleading. 8 and in direct contravention of Sec. 790.33, Fla. Stat.” 4 Pretzer claimed that these violations caused him and the other plaintiffs varying degrees of harm. He sought declaratory, injunctive, and monetary relief, as permitted by section 790.33(3)(f)1. FDLE answered this last iteration of Pretzer’s complaint, asserting a host of what it characterized as affirmative defenses. In one of the defenses, FDLE asserted that Pretzer had failed to exhaust all available administrative remedies before filing suit....

...Florida Statutes, at the Division of Administrative Hearings in the first instance. According to FDLE, by filing a civil action in circuit court instead of a rule challenge in an administrative forum, Pretzer failed to exhaust all available administrative remedies. Regarding section 790.33, FDLE argued that the Legislature did not rescind any rulemaking authority to administrative agencies. For his part, Pretzer denied that he was challenging Rule 11C- 6.009, and was instead challenging FDLE’s exercise of regulat...

...gment on the pleadings, the trial court correctly identified Pretzer’s claim: that FDLE’s actions were “outside the scope of [its] authority, as codified within sections 790.065 and 790.0655, Florida Statutes, and are therefore preempted under section 790.33, Florida Statutes.” The court even described Pretzer’s claim as a “preemption claim.” Nevertheless, the trial court concluded that Pretzer’s claim was a “quintessential rule challenge.” Instead of focusing on the statutor...

...trial court focused on the nature of the complaint and ruled that “[i]n all but name, [Pretzer’s] complaint is a rule challenge.” Because Pretzer’s preemption claim looks like a rule challenge, according to the trial court, it must be one—regardless of whether section 790.33 provides a cause of action separate from the APA. After classifying Pretzer’s complaint under section 790.33 as a rule challenge, the trial court faulted Pretzer for filing his complaint “in the wrong forum,” presumably because the APA provides for a rule challenge....

...rendered final judgment in favor of FDLE. For the following reasons, we reject this conclusion. A Trial Court Order In granting final judgment on the pleadings, the trial court misapprehended the preemption language of subsection 790.33(1). Specifically, the trial court ignored the phrase, “[e]xcept as expressly provided,” and misinterpreted the term “general law” to mean that FDLE can rely on the general grant of rulemaking authority found in its enabling statute to regulate the purchase of firearms and ammunition, stating the following: [T]here is no suggestion that Section 790.33 was intended to strike the APA, circumvent its application to FDLE’s rules and policies, or even address the enactment of rules within the authority conferred by the Legislature. In fact, by its plain language, Section 790.33 specifically exempts the APA, a general law, from its reach. 10 (emphasis supplied). 5 As to State agencies, the trial court’s interpretation of section 790.33(1) renders meaningless the preemption language expressly contained in the statute. The following table illustrates this conclusion. Actual Language of § 790.33(1) vs. Trial Court’s Interpretation Rule Exception “[T]he Legislature “Except as expressly hereby declares that provided by the it is occupying the State Constitution or § 790.33(1) whole field of general law” regulation of firearms and ammunition” Except as provided An administrative b...

...Trial Court’s agency may not Constitution or any Interpretation regulate firearms and source of general ammunition. rulemaking authority. If, as the trial court found, section 790.33(1) limits an agency’s rulemaking authority to the Constitution, the APA, and an agency’s enabling statute, then the state-agency provision of section 790.33(1) proscribes nothing that the APA does not already proscribe....

...See, e.g., § 120.536(1), Fla. Stat. (prohibiting an agency from adopting rules unless they “implement or interpret the specific powers and duties granted by the enabling statute”). Under the trial court’s interpretation, the 2011 amendments to section 790.33(1) took nothing back from administrative agencies. 5 The enabling statute relied upon here is section 943.03(4), Florida Statutes, which empowers FDLE to “adopt rules pursuant to ss....

...Indeed, under the trial court’s interpretation, it is hard to see what impact the 2011 amendments had on state agencies at all. To support its decision, the trial court relied on the “Policy and Intent” statement contained in subsection (2) of section 790.33. The court stated that “[T]he Legislature expressed its intent to ‘declare all ordinances and regulations null and void which have been enacted by any jurisdictions other than state and federal.” As originally enacted and a...

...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. Ch. 87-23, § 4, Laws of Fla.; § 790.33(2)(a) Fla....

...or policies restricting the right to bear arms without a specific legislative delegation would render the 2011 amendment superfluous. See 133 So. 3d at 972 (emphasis supplied) (citations omitted). Therefore, to the extent that the trial court relied on subsection (2) of section 790.33 to conclude that subsection (1) does not limit FDLE’s authority to regulate firearms, it erred. B 1 Section 120.56(1)(e) The trial c...

...d was actually a rule challenge. Even if section 120.56(1)(e) did not conclusively refute FDLE’s exhaustion argument, we find that a plaintiff is not required to exhaust administrative remedies under the APA before filing a suit authorized by section 790.33(3)(f)1. 2 Trial Court’s Exhaustion Analysis In support of its decision, the trial court explained exhaustion of administrative remedies as follows: “The doctrine of exhaustion...

...into account in determining whether to impose an administrative exhaustion requirement. 16  b i Nature of the Claim Presented As stated above, section 790.33(1) announces that “the Legislature is occupying the whole field of regulation of firearms and ammunition.” Even though this preemption language had been in the statute for 24 years by 2011, in that year the Legislature presumably f...

...nforcement mechanism for its preemption of firearm regulation, explicitly creating a cause of action authorizing persons or organizations to “file suit” against governmental bodies for violating the preemption requirements of subsection (1). See § 790.33(3)(f)1., Fla....

...7 But even if the lack of an administrative exhaustion requirement in a statute creating a cause of action did not conclusively reject such requirement, we would still find that the statute itself is inconsistent with the requirement. An exhaustion requirement is also inconsistent with subparagraph (3)(f)2. of section 790.33, which reads as follows: “If after the filing of a complaint a defendant voluntarily changes the ordinance [or] regulation [at issue in the suit], with or without court action, the plaintiff is considered a prevailing plaintiff for p...

...uirement for federal prisoner litigation. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). This is why McCarthy is “superseded by statute.” It remains to be seen whether the Florida Legislature will enact an administrative exhaustion requirement for section 790.33 lawsuits. 18 of State of Fla., 457 U.S. 496, 501–02 (1982). The statutory intent apparent in section 790.33(3)(f) is inconsistent with an administrative exhaustion requirement....

...cs of the particular administrative procedure provided.” Id. FDLE claims that an administrative challenge to its rules pursuant to section 120.56 provides an adequate remedy to Pretzer, and therefore it must be sought before he can file suit under section 790.33....

...1991) (noting “Florida’s strong adherence to a strict separation of powers doctrine” as set forth in Art. II, section 3 of the Florida Constitution). 19 procedure, we find that a rule challenge under section 120.56 is inconsistent with a section 790.33 action. First, as stated above, section 120.56 imposes a different standard than section 790.33....

...legislative authority.” In defining “invalid exercise of delegated legislative authority,” the APA notes that “[a]n agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute.” § 120.52(8), Fla. Stat. But section 790.33(1) imposes a different standard. An agency cannot regulate firearms merely because the regulation is permitted by the enabling statute; indeed, no regulations or rules regarding firearms are permitted “[e]xcept as expressly provided by the State Constitution or general law.” § 790.33(1), Fla....

...permissible under this provision. We do find, however, that the standard for a rule challenge under section 120.56 (whether the rule is an invalid exercise of delegated legislative authority) is markedly different than the standard for imposing liability under section 790.33 (whether the rule is specifically authorized by this section or by general law). An administrative law judge may be authorized to decide whether an agency rule meets the requirements of the APA, but is not authorized to determine whether an agency rule forecloses liability under section 790.33. Second, the remedy available in a section 120.56 challenge is a determination that the rule is invalid. § 120.56(1)(a), Fla. Stat. In contrast, a prevailing plaintiff in a section 790.33 suit can recover “[t]he actual damages incurred, but not more than $100,000.” § 790.33(3)(f)1.b., Fla. Stat. FDLE brushes aside this distinction by noting that a successful rule challenger could then file a section 790.33 suit, and recover damages there....

...fees if it “demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust.” § 120.595(2), Fla. Stat. But the Legislature imposed no such limitation on recovery of fees in a suit under section 790.33(f)(3). The statute even permits a contingency fee multiplier and the only limitation it places upon fees is that they be “[r]easonable.” § 790.33(3)(f)1.a., Fla. Stat. In short, a successful rule challenger would not be entitled to attorney’s fees in the same manner as a successful section 790.33(3)(f) plaintiff. Another relevant characteristic of a rule challenge is the decision-making process involved....

...Stat. The agency is only a party to that proceeding, and the administrative law judge’s order on the challenge is final agency action. § 120.56(1)(e), Fla. Stat. In short, FDLE can invoke its expertise in a rule challenge the same way it would in a 790.33 suit: as a party to the proceeding. Nothing about the administrative process allows FDLE to invoke its expertise in any manner that it could not in a section 790.33(3)(f) suit....

...not address that issue because FDLE never raised it. 9 4 Florida Carry v. Thrasher This conflation may account for some of our approach in Thrasher. There, we held that a plaintiff may not file an action authorized by section 790.33(3)(f) against a university and its president regarding university firearms regulations without exhausting administrative remedies....

...ministrative process, the Thrasher opinion does not describe any such process for a person to challenge the university regulation, simply stating that an administrative remedy authorized by section 1001.706(2)(c) and the cause of action permitted by section 790.33(3)(f) “can co-exist without depriving a party of its constitutional or statutory rights absent extraordinary circumstances.” Id....

...resolve the question of whether a suit must be dismissed for failure to exhaust administrative remedies. In this case, for example, it is undisputed that a person could file a rule challenge pursuant to section 120.56 rather than a suit pursuant to section 790.33(3)(f)....

...23 merely states that administrative exhaustion is generally required and that no “exception” exists. Id. Thrasher does not, however, discuss how the administrative process involved can adequately vindicate the rights of a person under section 790.33(3)(f)....

...extent that it is inconsistent with this opinion. IV Conclusion Even if we did not rely explicitly on section 120.56(1)(e) to conclude that a plaintiff need not exhaust an APA rule challenge before filing suit under section 790.33(3), we still conclude that Pretzer was not required to exhaust an administrative remedy. Pretzer does not raise “a quintessential rule challenge.” Rather, he raises a legislative preemption challenge. With the 2011 amendments to section 790.33, the Legislature expressly provided Pretzer with a judicial remedy—not an administrative one. Because the relief authorized by section 790.33(3)(f)1. is the remedy in this case, Pretzer could bring an action under section 790.33(3)(f) in circuit court without exhausting any administrative remedies. Therefore, we REVERSE the judgment rendered in favor of FDLE. OSTERHAUS, C.J., and LEWIS, ROBERTS, ROWE, RAY, BILBREY, KELSEY, M.K....

...9.330. _____________________________ TANENBAUM, J., concurring in part. The holding here is narrow but important. We reverse the trial court’s judgment against the individual and organizational plaintiffs—themselves simply pursuing the public cause of action that the Legislature created for them in section 790.33, Florida Statutes—because, contrary to the trial court’s rationale, that statute does not require pursuit of any administrative remedy as a condition precedent for suing....

...The appellants—both individual and organizational plaintiffs—did not sue under chapter 86 for declaratory relief, pursuing instead several forms of relief, including money damages, 28 against the Florida Department of Law Enforcement (“FDLE”) and its principal under section 790.33....

...tion,” allowing such person or organization to seek “in any court of this state having jurisdiction . . . over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation.” § 790.33(3)(f)1., Fla. Stat. (emphasis supplied); see also id. (3)(a) (making governmental officers and entities liable for action in violation of the Legislature’s statutory preemption). With section 790.33(3)(f)1., the Legislature created a “public right” to judicial relief against the State, thereby waiving sovereign immunity and providing a statutory remedy for harms suffered from agency violations of the section....

...to choke the already crowded federal courts with new types of litigation or prevented from committing some new types of litigation to administrative agencies with special competence in the relevant field”). The Legislature could have made the claim reflected in section 790.33 an administrative remedy, but it instead made the claim a statutory right of action, allowing that action to be filed against government officers and adjudicated in a court exercising judicial power under Article V of the Florida Constitution. See § 790.33(3)(a), (f)1., Fla. Stat. In other words, for harm flowing from a violation of section 790.33, the public right to sue the State in court is the remedy....

...or public road or right-of-way in order to preserve the life and safety of the general public in Indian River County. The proposed ordinance specifies exceptions. 1 There remains a question, however, as to whether such an ordinance is prohibited by section 790.33 , Florida Statutes. Section 790.33 , Florida Statutes, preempts the field of regulation of firearms and ammunition to the Florida Legislature, as follows: "(1) PREEMPTION....

...ms. 5 Accordingly, it is my opinion that a county ordinance prohibiting the discharge of a firearm in proximity to persons or property when such discharge endangers the health, welfare, and safety of the citizens of such county would be preempted by section 790.33 , Florida Statutes....

...than number four (4) shot on land which is zoned agricultural and which has a minimum parcel size of five (5) acres, so long as no discharge of firearms is conducted within three hundred (300) yards of any building situated on another's property." 2 Section 790.33 (3)(a), Fla....

ordinance until a court declares otherwise. Section 790.33, Florida Statutes, however, should be construed

...at Appellees were “legally responsible for their complicity in the entirely foreseeable, deadly use of the assault-style weapons they place on the market.” However, the complaint recognized a potential obstacle—the first two subsections of section 790.331, Florida Statutes (2018), and the “automatic sanction” created by subsection (6)(b) of that statute. Section 790.331 is titled “Prohibition of civil actions against firearms or ammunition manufacturers, firearms trade associations, firearms or ammunition distributors, or firearms or ammunition dealers.” The pertinent provisions of section 790.331 are as follows: (1) The Legislature finds and declares that the manufacture, distribution, or sale of firearms and ammunition by manufacturers, distributors, or dealers duly licensed by the appropriate federal...

...he court finds that the defendant is immune as provided in this section, the court shall award the defendant all attorney’s fees, costs and compensation for loss of income, and expenses incurred as a result of such action. § 790.331 (1), (2), (3), (6)(b), Fla. Stat. (2018). Appellants contend that section 790.331 prohibits (and potentially punishes) only suits by state actors against firearms manufacturers, not those brought by private citizens. Nevertheless, Appellants were hesitant to test that theory by filing their tort claims against Appellees, as a lawsuit might subject them to the sanctions provided in section 790.331(6)(b) if the trial court found Appellees were immune from suit. As a result, Appellants filed the instant complaint for declaratory relief, requesting that the trial court declare section 790.331 “is inapplicable and does not prohibit an individual person from bringing any cause of action for damages, abatement, or injunctive relief against a firearms manufacturer, distributor, or dealer arising out of their design, marketing, distribution, or sale of firearms to the public.” (emphasis added). Alternatively, Appellants requested that the trial court declare subsections 790.331(2), (3), and (6) unconstitutional under the Florida Constitution because they violate Appellants’ constitutional right of access to courts. Appellees moved to dismiss the complaint, arguing that Appellants did not show a present adversi...

...ey were immune from suit, focusing solely on the jurisdiction argument. Ultimately, the trial court dismissed Appellants’ complaint for declaratory relief on the basis that the court lacked jurisdiction, and never reached the issue of whether section 790.331 barred claims from private citizens nor whether certain provisions of section 790.331 were unconstitutional....

...Carry, Inc., 212 So. 3d at 465 (alteration in original) (quoting Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So.3d 851, 859 (Fla. 1st DCA 2013)). C. Appellants have not demonstrated entitlement to a declaratory judgment Florida Carry also involved section 790.33, Florida Statutes (2013), which is titled “Field of regulation of firearms and ammunition preempted.” There, two “gun rights” organizations sued Tallahassee local government officials for noncompliance with the statute’s prov...

...As such, no bona-fide, actual, present, and practical need exist[ed] for the declaration sought by [the complainants].” Fla. Carry, Inc., 212 So. 3d at 466. Here, Appellants have refrained from filing any tort claims against Appellees which could potentially violate section 790.331 and lead to the imposition of “penalties,” opting instead to file the instant complaint for declaratory relief to determine whether their potential tort claims, if filed, would constitute a violation of the statute and subject them to liability....

...uch statute . . . . In these circumstances there is no justiciable controversy.” (quoting 1 WALTER A. ANDERSON, ACTIONS FOR DECLARATORY JUDGMENTS (2d ed. 1951)). As in Boyd and Ervin, in the absence of controversy as to an actual violation of section 790.331, the instant case does not, in its present posture, present a “justiciable controversy” appropriate for declaratory relief. In reaching this conclusion, we recognize Appellants’ argument that situations exist in which, even...

...An action for declaratory judgment will not be permitted to give rise to a mere advisory opinion.”). In the instant case, we cannot say that future harm or litigation is unavoidable because Appellants could decline to file their potential tort claims against Appellees or the latter may decline to rely upon section 790.331 in answering the complaint....

...sought.” Apthorp v. Detzner, 162 So. 3d 236, 241 (Fla. 1st DCA 2015). To reiterate, Appellants’ claim of unavoidable harm or litigation is speculative as many contingencies and unknowns must occur before a trial court may determine the applicability of section 790.331 to a complaint filed by Appellants against Appellees....

...but rather attempts to gain a litigation advantage by obtaining an advance ruling on an affirmative defense.”). Conclusion As set forth above, Appellants have failed to demonstrate the existence of a bona fide need for a declaratory judgment as to the construction and validity of section 790.331....

...On appeal from the Division of Administrative Hearings. James H. Peterson, III, Administrative Law Judge. January 29, 2025 PER CURIAM. AFFIRMED. See Pretzer v. Swearingen, 394 So. 3d 175, 192 (Fla. 1st DCA 2024) (“Because the relief authorized by section 790.33(3)(f)1. is the remedy in this case, Pretzer could bring an action under section 790.33(3)(f) in circuit court without exhausting any administrative remedies.” (Emphasis in original)). LEWIS, ROBERTS, and BILBREY, JJ., concur.  _____________________________ Not final until disposition of any timely and authorized motion under Fla....

...The Third District criticized the county’s use of the court’s injunctive powers to mandate the re-design of firearms and to regulate firearms and ammunition through the medium of the judiciary, but recognized that the county was frustrated with its inability to directly regulate firearms, an exercise proscribed by section 790.33, Florida Statutes, which expressly provides for the state legislature to occupy the field....

...POLSTON, J. This case involves whether the common law doctrines of legislative immunity and governmental function immunity prohibit the statutory civil actions and penalties imposed against local governments and officials for certain violations of section 790.33, Florida Statutes (2021), the firearms preemption statute. We agree with the decision of the First District Court of Appeal in State v. City of Weston, 316 So. 3d 398 (Fla. 1st DCA 2021), that neither doctrine prohibits the statutory civil actions and penalties in sections 790.33(3)(c), (d), and (f).1 I. BACKGROUND In 1987, the Florida Legislature acted to preempt the field of firearms and ammunition regulation. See ch. 87-23, § 2, Laws of Fla. Section 790.33 (the “Preemption Statute”), currently provides as follows: PREEMPTION.—Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field o...

...or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void. 1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. -2- § 790.33(1), Fla....

...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.” § 790.33(2)(a). Petitioners in this case do not challenge the Legislature’s authority to preempt the field of regulation of firearms and ammunition. The Preemption Statute also contains the following exceptions: (a) Zoning ordi...

...that court or judge; or (e) The Florida Fish and Wildlife Conservation Commission from regulating the use of firearms or ammunition as a method of taking wildlife and regulating the shooting ranges managed by the commission. § 790.33(4)(a)-(e). In 2011, the Legislature amended the Preemption Statute, see chapter 2011-109, Laws of Florida, to include a series of civil penalties and actions, which apply to: Any person, county, agency, municipality, district,...

...ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein. § 790.33(3)(a). Relevant to this case, sections 790.33(3)(c)-(d) are applicable to local officials and provide as follows: (c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointe...

...-4-  (d) Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section. § 790.33(3)(c)-(d). Section 790.33(3)(f) is applicable to local governments and provides as follows: 1....

...A court shall award the prevailing plaintiff in any such suit: a. Reasonable attorney fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law; and b. The actual damages incurred, but not more than $100,000. § 790.33(3)(f)1. Petitioners in these consolidated cases consist of thirty municipalities, three counties, more than seventy elected officials,2 2....

...re invalid. Petitioners brought numerous claims alleging various constitutional violations 3 and violations of legislative immunity and governmental function immunity. On summary judgment, as relevant here, Petitioners argued that enforcement of section 790.33(3) against local officials would violate legislative immunity and enforcement of section 790.33(3)(f) and section 790.335(4)(c), Florida Statutes (2021), against local governments would violate Petitioner Nicole “Nikki” Fried, declined to join the State’s appeal and supported the trial court’s ruling before the First District. 3. Petitioners challenged both section 790.33, Florida Statutes (2021), and section 790.335(4)(c), Florida Statutes (2021), which penalizes governmental entities for maintaining any “list, record, or registry of privately owned firearms” or the owners of those firearms. § 790.335(2)....

...instruction; violate the contract clause; and violate due process. Petitioners also sought declaratory judgment that certain proposed regulations were permissible. The circuit court denied all constitutional claims, except two pertaining to the governor removal provision in section 790.33(3)(e), which the State did not appeal. -6- governmental function immunity....

...statute.” The circuit court explained that “[b]ecause local governments must have what amount to small legislatures, and because courts cannot interfere in legislative processes, neither this 4. The circuit court’s order refers to section 790.33(3) and section 790.335(4)(c) collectively as the “penalty provisions.” For purposes of this appeal, the parties present no argument pertaining to section 790.335(4)(c). The circuit court’s order also contained several “Declarations.” One such declaration pertained to section 790.335(4)(c) and article VIII, section 5(b) of the Florida Constitution, which provides that “[e]ach county shall have the authority to require a criminal history records check and a 3 to 5- day waiting period, excluding weekends and legal...

...enact enabling regulations to enforce the Local Option powers of Article VIII, Section 5(b).” The parties did not appeal these rulings to this Court. -7- court, nor any other court in Florida, can enforce the civil penalty provisions of Section 790.33 against local legislators.” The circuit court also ruled that “the U.S....

...decisions to judicial scrutiny because the penalty provisions create liability for enacting legislation—an inherently discretionary governmental function.” On appeal, as relevant here, Respondents argued that the circuit court erred by concluding that sections 790.33(3)(c) and (d) violate legislative immunity and that section 790.33(3)(f) violates governmental function immunity....

...The First District reasoned that “[t]he separation of powers doctrine protects only lawful and authorized planning-level activity,” not “violation of state preemption statutes.” Id. at 405-06. II. ANALYSIS Petitioners argue that sections 790.33(3)(c) and (d) are invalid because they violate legislative immunity, and that section 790.33(3)(f) is invalid because it violates governmental function -9- immunity....

...We agree with Respondents and approve the First District’s decision in City of Weston.5 A. Legislative Immunity Petitioners first argue that the First District in City of Weston erred in concluding that legislative immunity does not prohibit the statutory penalties in sections 790.33(3)(c) and (d) because local officials are entitled to legislative immunity for purely legislative acts....

...However, because legislative immunity as applied to local officials is a common law doctrine that the Legislature abrogated in the context covered by the Preemption Statute, we conclude that legislative immunity does not prohibit the statutory penalties in sections 790.33(3)(c) and (d). 5. This Court’s standard of review is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). - 10 -  The challenged statutory provisions, sections 790.33(3)(c)-(d), applicable to local officials, provide as follows: (c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed loca...

...head under whose jurisdiction the violation occurred. (d) Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section. § 790.33(3)(c)-(d). Legislative immunity is commonly understood as a doctrine that protects legislators from being sued for all actions taken in their lawmaking capacity and is a doctrine broadly recognized by federal and state courts alike....

...1966) (“The Legislature, for example, could extend absolute immunity to certain high state, county or municipal officials or do away with the immunity altogether.”). Here, the Legislature has exercised its power—since 1987—to preempt “the whole field of regulation of firearms and ammunition.” § 790.33(1). Section 790.33(3)(a) states in pertinent part that “[a]ny person ....

...field of regulation of firearms and ammunition . . . by enacting or causing to be enforced any local ordinance . . . impinging upon such exclusive occupation of the field shall be liable as set forth herein.” (Emphasis added.) The challenged provisions, sections 790.33(3)(c) and (d), set forth the civil fines for local officials who knowingly and willfully enact a preempted firearms regulation and prohibit the use of public funds to defend or reimburse such officials....

...process) is different than legislative immunity from suit, even though federal courts have held that the legislative privilege is derived from the principles underlying legislative immunity.”). Further, we find no merit in Petitioners’ argument that section 790.33(3) violates separation of powers principles because it authorizes the judiciary’s interference with legislative acts of local officials....

...do not possess any indicia of sovereignty; they are creatures of the legislature, created under Art. VIII, Sec. 1, of the - 15 - State Constitution . . . and accordingly are subject to the legislative prerogatives in the conduct of their affairs.”). Section 790.33(3)(c) imposes a civil fine of up to $5,000 against “the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred,” if a court determines the violation was “knowing and willful.” Section 790.33(3)(d) prohibits the use of public funds to defend or reimburse such individuals for civil fines or costs of defense, unless another law provides to the contrary. By expressly preempting the field of firearms and ammunition regulation, the Legislature has deprived local governments and officials of any authority or discretion to contravene, exceed, or evade the Legislature’s regulation of this field (subject to the limited exceptions set forth in section 790.33(4))....

...t government officials. City of Weston, 316 So. 3d at 404. To the extent Petitioners argue that the challenged statutory provisions penalize “mistaken” violations of the Preemption Statute, all that is required to avoid the penalties in section 790.33(3)(c) is to refrain from knowingly and willfully violating the Preemption Statute. The narrow exceptions to the Preemption Statute are expressly identified in sections 790.33(4)(a)-(e)....

...officials is a Florida common law doctrine that the Legislature abrogated in the context addressed in the Preemption Statute, we conclude that the First District properly concluded that legislative immunity does not prohibit the statutory penalties in section 790.33(3)(c) and (d). B. Governmental Function Immunity Petitioners next argue that the First District erred in concluding that governmental function immunity does not prohibit the statutory actions in section 790.33(3)(f).7 We disagree. Section 790.33(3)(f) is applicable to local governments and provides as follows: 7. The First District’s decision in City of Weston also addressed section 790.335(4)(c)....

...A court shall award the prevailing plaintiff in any such suit: a. Reasonable attorney fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law; and b. The actual damages incurred, but not more than $100,000. § 790.33(3)(f)1. Florida has a broad statutory waiver of sovereign immunity in tort suits for the State....

...the ordinance and in favor of the statute.’ ”) (quoting Rinzler v. Carson, 262 So. 2d 661, 668 (Fla. 1972)). By enacting the Preemption Statute, the Legislature exercised its power to preempt the field of firearms and ammunition (subject to limited exceptions). See §§ 790.33(1), (4). As it did in the present case, the Legislature has the authority to change substantive law. Section 790.33(3)(f) authorizes lawsuits against local governments and authorizes awards of damages, attorney’s fees, and costs to prevailing plaintiffs....

...cities and counties have no authority to act in areas that the legislature has preempted.”). Accordingly, we conclude that the First District did not err in concluding that governmental function immunity does not prohibit the statutory actions in section 790.33(3)(f). III. CONCLUSION For the reasons explained above, we conclude that neither legislative immunity nor governmental function immunity prohibit the statutory actions and penalties in section 790.33(3)(c), (d), and (f)....

...y argument when considering the separation of powers question because the legislature cannot change the fundamental aspects of separation of powers. Here, the majority approved a penalty provision included by the Legislature in section 790.33(3)(c)-(d) applicable to local officials....

...r special law.” - 26 - Section (3)(d) also prohibits the use of public funds to defend or reimburse the public official “found to have knowingly and willfully violated this section.” To make matters worse, section 790.33(3)(c) requires the judicial branch to determine whether the violation by the public official was “knowing and willful.” As noted by the trial court, “[j]udicial power is vested in courts alone and judges cannot wield executive or legislative power....

...“[b]ecause local governments must have what amounts to small legislatures, and because courts cannot interfere in legislative processes, neither this court, nor any other court in Florida, can enforce the civil penalty provisions of [s]ection 790.33 against local legislators.” - 27 -  I respectfully dissent. Application for Review of the Decision of the District Court of Appeal Direct Conflict of Decisions and Statutory Validity/Direct Conflict of Decisions First District – Case No....

...On appeal from the Division of Administrative Hearings. James H. Peterson, III, Administrative Law Judge. February 26, 2025 PER CURIAM. AFFIRMED. See Pretzer v. Swearingen, 394 So. 3d 175, 192 (Fla. 1st DCA 2024) (“Because the relief authorized by section 790.33(3)(f)1. is the remedy in this case, Pretzer could bring an action under section 790.33(3)(f) in circuit court without exhausting any administrative remedies.” (emphasis in original)). OSTERHAUS, C.J., and RAY and LONG, JJ., concur.  _____________________________ Not final until disposition of any timely and authorized motion under Fla....

...14). Under section 86-86, the definition of property to which the public has a "right" of access includes "flea markets, gun shows and firearms exhibitions." Prior to the adoption of this ordinance, the Florida Legislature created section 790.33 announcing a "preemption" of the "whole field" of regulation of firearms and ammunition "[e]xcept as expressly provided by general law," but with a limited 2 See https://www.municode.com/library/fl/pine...

...f_ordinances?nodeId =PTIIPICOCO_CH86OFMIPR_ARTIIIOFINPUSA_DIV3SAFI (last visited Jan. 5, 2016). -3- exception to allow counties to adopt a "cooling-off-period ordinance" as further described therein. § 790.33(1)-(2), Fla. Stat. (1987). The first line of subsection 790.33(1) was amended in 2011 to begin: "Except as expressly provided by the State Constitution or general law." § 790.33(1), Fla. Stat. (2011) (emphasis added). At the same time, the limited exception that authorized cooling-off-period ordinances, which was set forth in subsection 790.33(2), was removed from section 790.33. Article I, section 8 of the Florida Constitution provides: "The 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." Art....

...This count is somewhat more specific and suggests that the class of people who do not possess concealed weapons permits are being denied equal protection of the law. Count V seeks a declaration that the ordinance is "null and void" in whole or part because it violates the statutory preemption in section 790.33....

...In the end, it declares that the ordinance does not in any way under any circumstances violate the Second Amendment or the Equal Protection Clause of the U.S. Constitution, that it does not violate the Florida Constitution, and that it does not exceed the scope of section 790.33.4 3 Counts II, IV, and VI each seek injunctive relief under the theory alleged in the preceding count and do not add any substantive theories to the case. 4 The possible weakn...

...2d 423, 425-26 (Fla. 2d DCA 1961); see also § 86.021, Fla. Stat. (2014). Likewise, it may have been authorized to declare that Mr. Jensen had not established a legal and factual basis for the court to hold the ordinance unconstitutional or otherwise invalid under section 790.33....

...d him to arm himself. A fellow employee on the inspection team led by Pelt did know that Pelt carried a gun. The only employees DOT had authorized to carry weapons were sworn law enforcement officers who served as weight inspectors. Pelt argued that Section 790.33, Florida Statutes, preempts DOT from regulating the possession and use of firearms by employees, and that the agency rule should be construed to apply only to possession or use of firearms not authorized under Section 790.33. We are persuaded by the reasoning of the hearing officer herein as follows: Section 790.33 is directed toward local governments' regulation of the conduct of its citizenry, not to an employer's regulation of the conduct of its employees....

...Appellant, Cynthia E. Heffron¸ appeals the trial court’s order dismissing her amended complaint filed against Appellees, the Florida Department of Agriculture and Consumer Services (“FDACS”) and the Florida Department of Law Enforcement (“FDLE”) pursuant to section 790.33, Florida Statutes....

...For the following reasons, we reverse the order and remand for further proceedings. In her lawsuit, Appellant challenged certain actions taken by Appellees with respect to the initial denial of her application for a concealed firearms license. She alleged that the agencies violated section 790.33, in which the Legislature declared that it was occupying the whole field of regulation of firearms and ammunition and provided a statutory cause of action for any person who is “adversely affected by any ordinance, regulation, measur...

...dismissal was appropriate because Appellant failed to exhaust administrative remedies, the court relied upon our opinion in Florida Carry, Inc. v. Thrasher, 315 So. 3d 771 (Fla. 1st DCA 2021), in reaching its conclusion. However, we recently receded from Thrasher and held that section 790.33 “does not require a plaintiff to exhaust administrative remedies before filing suit.” See Pretzer v....

...n the ground that no bona fide dispute existed because Appellant successfully reapplied for her firearms license, we agree with Appellant that the eventual receipt of her license did not nullify or render moot her allegations that Appellees violated section 790.33 when her initial application was denied. Indeed, section 790.33(3)(f)2. contemplates situations where a defendant may voluntarily change course and remedy its violation of section 790.33 after being sued....

...The statute does not direct the dismissal of the action in that situation. Instead, it deems the plaintiff the prevailing party. Thus, the fact that Appellant ultimately received her firearms license is of no consequence to the issue of whether Appellees violated section 790.33 in response to her initial application. The Fourth District’s decision in Dougan v....

...There, the Fourth District addressed a lawsuit challenging the Palm Beach County Sheriff’s policy of not returning firearms seized as a result of a safety call or safety check without a court order. The trial court dismissed the appellant’s claim under section 790.33, and the Fourth District reversed....

...In doing so, the Fourth District noted that the appellant, whose firearms were seized during a safety check, had to file a replevin action against the Sheriff and “obtained a court order requiring the return of his firearms.” Id. Thereafter, the appellant filed suit under section 790.33, alleging that the Sheriff enforced an illegal policy, and he sought damages for the deprivation of his property rights and the cost of bringing the replevin action as well as an injunction preventing the Sheriff from enforcing his policy. Id. at 881. After noting that section 790.33(3)(f) creates a private cause of action for declaratory and injunctive relief, as well as actual damages, for anyone who is adversely affected by something that violates section 790.33, the Fourth District held that the appellant “could maintain a suit against the Sheriff if the Sheriff had a policy regulating firearms which was not authorized by an existing statute and enforced the policy against [him].” Id. As in Dougan where the appellant was permitted to bring suit under section 790.33 even though his property was returned to him, we hold that Appellant was not foreclosed from seeking 3 redress under the statute for the denial of her initial license application and any damages and...

...See § 790.06(6)(a), Fla. Stat. (providing that FDACS “shall forward the full set of fingerprints of the applicant to the Department of Law Enforcement . . . to be processed for any criminal justice information”). In her amended complaint, Appellant, pursuant to section 790.33, challenged an alleged interagency agreement and memorandum of understanding between both agencies and asserted that the creation of both documents “was an attempt by the Defendants to circumvent the Legislature’s preemption of Defendants[’] respective roles in carrying out the ....

...lass is automatically substituted for Swearingen to the extent that Swearingen was sued in his official capacity. See Fla. R. App. P. 9.360(c)(2).  We review the trial court’s order dismissing a complaint alleging that a state agency violated section 790.33, Florida Statutes, on the ground that the plaintiff failed to exhaust available administrative remedies....

...law enforcement officers,” “corrections officers,” and “correctional probation officers” (collectively “Officers”) that attempted to purchase a firearm from a federally licensed firearms dealer. The complaint alleged that FDLE violated section 790.33 by promulgating and enforcing a rule that required CWFL Holders and Officers to submit to supplemental criminal history checks when such persons are exempt under section 790.06, Florida Statutes, and by forcing CWFL Holders and Officers to pay fees for the processing of the supplemental criminal history checks....

...Statutes, before filing the complaint. The trial court granted the motion with regard to Swearingen in his individual capacity but otherwise denied the motion. During a case management conference, the trial court on its own raised jurisdictional concerns. Caranna argued that section 790.33 creates a cause of action when an agency promulgates rules in violation of that section and, in the alternative, that they qualified for an exception to the exhaustion 2 requirement because there was no adequate administrative remedy and FDLE acted without colorable statutory authority. They further argued that FDLE acted unconstitutionally because the rule “plainly contradicts” section 790.33. The trial court ultimately dismissed the amended complaint for failure to exhaust administrative remedies and denied Caranna’s motion to reconsider the final order....

...This appeal follows. II. We considered the same issue in Pretzer v. Swearingen, 49 Fla. L. Weekly D1541 (Fla. 1st DCA July 19, 2024). As in this case, the appellants in Pretzer brought suit against FDLE pursuant to section 790.33(3)(f) claiming that certain rules and policies of FDLE with regard to firearms violated the preemption provision of section 790.33(1). We held in Pretzer that a plaintiff suing a state agency under section 790.33(3)(f) is not required to exhaust an administrative remedy; in particular, the plaintiff is not required to file and exhaust a rule challenge under section 120.56 before filing suit. “[T]he Legislature expressly provided Pretzer with a judicial remedy—not an administrative one.” Id. “Because the relief authorized by section 790.33(3)(f)1. is the remedy in this case, Pretzer could bring an action under section 790.33(3)(f) in circuit court without exhausting any administrative remedies.” Id. Pretzer applies here....

...Friday of Kingry & Friday, PLLC, Jacksonville, for appellants. Matthew H. Mandel of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellees. GERBER, J. The appellant-plaintiffs sued the appellee-defendants for allegedly violating section 790.33, Florida Statutes (2017), which preempts local governments and local officials from enacting and enforcing ordinances or regulations relating to firearms and ammunition, subject to exceptions. The circuit court granted final summary judgment for the defendants, finding section 790.33’s first exception was met. On the plaintiffs’ appeal, we conclude a genuine factual dispute remains as to whether an exception to section 790.33’s first exception applies. Therefore, we reverse. We present this opinion in six sections: 1. Section 790.33 and its exceptions at issue; 2. The parties’ pleadings; 3. The defendants’ summary judgment motion; 4. The plaintiffs’ summary judgment response; 5. The circuit court’s summary judgment findings; and 6. Our review.  1. Section 790.33 and its Exceptions at Issue Section 790.33 pertinently states: (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, inc...

...that are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited[.] § 790.33(1)-(4)(a), Fla....

...gun store by limiting gun stores to a C-3 and C-4 designation …. … … [T]he only C-3 and C-4 [z]ones within [the city] are in areas unsuitable for general retail … and would result in a significant reduction in drive-by business. … [Section] 790.33, [Florida Statutes (2017)], prohibits [the] defendants from enacting or enforcing any ordinance, rule, or regulation to regulate firearms businesses. The only applicable exception to [section] 790.33 allows [the] defendants to create zoning ordinances that “encompass firearms businesses along with other businesses, except that zoning ordinances that are designed for the purpose of restricting or prohibiting the sale, purchase, transfer,...

...for retail sales. Retail stores selling firearms are … retail shops that should be treated as other retail shops. Disparate treatment of firearms retailers from other general retailers [violates] … [section] 790.33[.] (paragraph numbers and exhibit reference omitted). Based on the foregoing allegations, the plaintiffs alleged separate counts against the city, Baldwin, and James. Count 1 alleged the city had “enacted a zoning ordinance that is designed for the purpose of restricting or prohibiting the sale, purchase, and transfer of firearms, as a method of regulating firearms.” Count 1 sought, under section 790.33(3)(b), a declaratory judgment that the city’s ordinances violating section 790.33 were invalid, and injunctive relief to prohibit the city from enforcing such invalid ordinances. Counts 2 and 3 respectively alleged Baldwin and James, as local government officials under whose jurisdiction the violation had occurred, had “knowingly and willfully violated [section] 790.33 by … enforcing zoning ordinances that treated firearms businesses separately from other businesses.” Counts 2 and 3 sought statutory fines against Baldwin and James under section 790.33(3)(c). The defendants’ answer generally denied the plaintiffs’ allegations. The answer also included the following two affirmative defenses: The plaintiffs fail to state a cause of action as section 790.33(4)(a) … specifically allows the city to have zoning ordinances that encompass firearms businesses along with other businesses, and the subject zoning ordinances meet this exception. The plaintiffs fail to state a cause of action as the city is lawfully enforcing its zoning ordinances as allowed by [s]ection 790.33(4)(a)[.] (paragraph numbers omitted). 6  3....

...indoor boat storage facilities; (4) charity and thrift shops; (5) check cashing stores; (6) contractor repair or service shops; (7) motor fuel pump retail shops; and (8) pawn shops. This is precisely the kind of zoning ordinance exempted from section 790.33’s reach—a zoning ordinance that encompasses firearms businesses with other businesses. ... Simply, under [section 790.33(4)(a)’s] plain language, a zoning ordinance that regulates firearms businesses, such as [the retailer’s store], is unaffected by section 790.33’s prohibitions....

...A zoning ordinance is deemed null and void … only to the extent that the zoning ordinance is “designed for the purpose” of restricting transactions involving firearms. Thus, to prevail on their claims that [the] defendants have violated section 790.33, [the] plaintiffs must show, not only that the subject [zoning] ordinances impact firearms sales, but also [the] defendants enacted the subject [zoning] ordinances with the specific intent to restrict or prohibit such 7  sales....

...en that … other broad categories of businesses are likewise limited to operating solely in zoning districts C-3 and C-4[.] …. … … Because the subject zoning ordinances fall squarely within the [first] exemption set forth in section 790.33, the Court should find [the] plaintiffs’ claims fail as a matter of law and grant summary judgment in favor of [the] defendants. 4. The Plaintiffs’ Summary Judgment Response The plaintiffs’ summary judgment response pertinently argued: [Section 790.33] prohibits [the] defendants from using zoning ordinances to restrict or prohibit the sale of firearms. Zoning ordinances may not single out gun stores as a separate type of retailer, but must treat them the same as any other retail operation. To interpret the exception as [the] defendants [argue] would allow for … the very result [the] defendants have achieved[:] the banning of firearm sales throughout the city limits. … [The] defendants misconstrue [section 790.33’s] exception … to claim that as long as other businesses are treated unfavorably, so may gun[-]related business[es] be treated unfavorably....

...and [the gun rights group’s] members. 5. The Circuit Court’s Summary Judgment Findings The circuit court’s order granting the defendants’ summary judgment motion pertinently found: All [the] defendants are entitled to summary judgment because [section 790.33, Florida Statutes (2017)] explicitly exempts zoning ordinances, such as the one at issue here, from its preemption. The individual defendants are further entitled to summary judgment as there was no evidence presented that they “knowingly and willfully violated [section 790.33] by enacting and enforcing zoning ordinances that treated firearms businesses separately from other businesses.” … A plain reading of the challenged zoning regulations … clearly show that th...

...… … Given the totality of the circumstances, the applicable [zoning] regulations and Florida law, the Court finds that the 9  city’s zoning ordinances are specifically allowed by [section 790.33]; the Court finds that the city and the individual defendants are entitled to summary judgment as a matter of law....

...Shortly after issuing the foregoing order, the circuit court entered a final judgment for the defendants. This appeal followed. 6. Our Review Applying de novo review, and resolving any doubts in favor of enforcing section 790.33’s expressed policy and intent, we conclude the circuit court erred in granting summary judgment for the defendants, because a genuine factual dispute exists as to whether a reasonable jury could return a verdict for the plaintiffs as the nonmoving parties....

...the correct test for the existence of a genuine factual dispute is whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”) (citation and internal quotation marks omitted). We recognize the zoning ordinances at issue meet section 790.33(4)(a)’s first exception by “encompass[ing] firearms businesses along with other businesses.” § 790.33(4)(a), Fla. Stat. (2017). However, the defendants’ summary judgment motion did not satisfy their burden to show the inapplicability of the exception to section 790.33(4)(a)’s first exception....

...That is, the defendants did not show without factual dispute that the zoning ordinances were not “designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition.” § 790.33(4)(a), Fla....

...In effect, the defendants contend that as long as the zoning ordinances treat several other businesses in an arguably unfavorable manner, the zoning ordinances may treat firearms businesses in the same unfavorable manner. Not so. Unlike other businesses, section 790.33 provides firearms businesses with express protection from “the violation of rights … under the constitution and laws of this state related to firearms, ammunition, or components thereof, by the abuse of official authority that occu...

...hen enactments are passed in violation of state law or under color of local or state authority,” regardless of whether “in enacting the ordinance, regulation, or rule[,] the local government was acting in good faith or upon advice of counsel.” § 790.33(2)(b) & (4)(b), Fla. Stat. (2017). Thus, even if the zoning ordinances treat both firearms businesses and several other businesses in the same unfavorable manner, the zoning ordinances may violate section 790.33 if such ordinances were “designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition.” § 790.33(4)(a), Fla....

...11 to decide—whether the zoning ordinances were “designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition.” § 790.33(4)(a), Fla....

...We remand for further proceedings. Reversed and remanded for further proceedings. FORST, J., concurs. WARNER, J., dissents with opinion. WARNER, J., dissenting. I dissent, as I conclude the defendants satisfied their burden on summary judgment, but the plaintiffs did not. Section 790.33, Florida Statutes (2017), provides for an exception to the legislative preemption of firearms regulation: (4) Exceptions.--This section does not prohibit: (a) Zoning ordinances that encompass firearms businesses alo...