Florida/Georgia Personal Injury & Workers Compensation

...May a county impose new regulations impacting a private shooting range if the shooting range is not in compliance with current "National Rifle Association gun safety and shooting range standards?" 3. 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. 2. Pursuant to section 823.16 (6), Florida Statutes, a sport shooting range that was lawful at the time of its construction loses any applicable exemption from a "new ordinance or an amendment to an existing ordinance" if the shooting range does not "continue[] to...

...ould regulate the use of firearms "any place where firearms are discharged" simply by couching an ordinance in terms of regulating "shooting ranges." Specifically, your request asserts that "[t]he definition of `shooting range' provided in [section] 823.16 (1)(c) essentially makes a `shooting range' synonymous with any location where firearms are discharged." This office respectfully disagrees with that characterization 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....

...rt shooting and training ranges exist on public and private lands throughout this state." Clearly, the Legislature does not deem a "shooting range" to consist of any location where firearms are discharged. Your request concludes with questions about section 823.16 (6), Florida Statutes....

...g range standards" and were not in violation of any law at the time the range was constructed. If a shooting range does not comply with current "National Rifle Association gun safety and shooting range standards," it falls outside the protections of section 823.16 (6), Florida Statutes, and new county regulations governing shooting ranges would be effective as imposed on such property. Again, however, we note that the Legislature's intent is clear that a "shooting range" is not synonymous with any place a firearm is discharged. Finally, you ask whether the reference in section 823.16 (6), Florida Statutes, to current "National Rifle Association gun safety and shooting range standards" is a reference to the "NRA Range Source Book." A review of the legislative history of this statute 9 does not provide any clear dire...

...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. Stat. I see no conflict between these opinions. 7 Section 823.16 (1)(c), Fla....

..., or any other type of sport or training shooting." 9 See, e.g. , Senate Staff Analysis and Economic Impact Statement for SB 776, 1999 Florida Legislative Session, dated March 15, 1999. SB 776 was the companion bill to the house version which became s. 823.16 , Fla....

...on of firearms and ammunition use at sport shooting and training ranges. In 2001, the Legislature provided limited immunity to sport shooting ranges from criminal prosecution or civil suits based on an underlying claim of noise or noise pollution in section 823.16 , Florida Statutes....

...amendment to an existing ordinance, provided the range was not in violation of any law when the range was constructed and provided that the range continues to conform to current National Rifle Association gun safety and shooting range standards." 4 Section 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...

...ther 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....

...enforced against existing ranges. Sincerely, Bill McCollum Attorney General BM/tls 1 Senate Staff Analysis and Economic Impact Statement, CS/CS/CS/SB 1156, Appropriations Committee, Criminal Justice Committee, Judiciary Committee, March 18, 2003. 2 Section 823.16 (2), Fla. Stat. 3 Section 823.16 (3), Fla. Stat. 4 Section 823.16 (6), Fla....

...So the Gartmans sued the Range and raised a nuisance claim, arguing that the Range’s operations cause unreasonable noise that interferes with the Gartmans’ use and enjoyment of their property. But the trial court refused to even consider the merits of their claim. Relying on section 823.16, Florida Statutes—which expressly exempts sport shooting ranges from civil liability in “any matter” related to noise and declares such ranges are “not subject to an action for nuisance”—the trial court granted summary judgment for the Range on the Gartmans’ noise-based nuisance claim. We now must consider whether section 823.16, as applied to the Gartmans, denies their right to access the courts under article I, section 21 of the Florida Constitution....

...their daily lives and activities, such as working in their yard, eating meals, watching television, and reading. The Range moved for summary judgment, arguing in part that it was immune from liability for noise-related nuisances under sections 823.16(2) and (3), Florida Statutes (2018). The Gartmans responded by arguing that section 823.16 was unconstitutional as applied to them and violated their due process rights and right to access the courts under article I, section 21 of the Florida Constitution. After a hearing, the trial court found that the Range qualified for the exemption from civil liability under section 823.16(2) and concluded that the Gartmans’ noise claims were non-actionable, in nuisance or otherwise. The trial court also found that the Range qualified as a “sport shooting range” under section 823.16(1)(c), that it was permitted as a gun range, and complied with the local noise control laws. Without explanation, the trial court also rejected the Gartmans’ as-applied constitutional challenge to section 823.16 under Florida’s access- to-courts provision. The case proceeded on several other remaining claims. Eventually, the trial court concluded that the Range was entitled to summary judgment on all issues, declining the Gartmans any relief....

...Id. at 4; see also Warren v. State Farm Mut. Auto, Ins., 899 So. 2d 1090, 1097 (Fla. 2005); Doss v. United Parcel Servs., 331 So. 3d 216, 218 (Fla. 1st DCA 2021). B. This brings us to the challenged statute: section 823.16, Florida Statutes. In 1999, the Florida Legislature enacted section 823.16, prohibiting nuisance actions against sport shooting ranges....

...shooting range on the basis of noise or noise pollution, if the range is in compliance with any noise control laws or ordinances that applied to the range and its operation at the time of construction or initial operation of the range. § 823.16(3), Fla. Stat. (2018). Additionally, section 823.16 exempts sport shooting ranges from civil liability and criminal prosecution based on noise pollution, and exempts sport shooting ranges from state and agency noise regulations. § 823.16(2), Fla. Stat. III. On appeal, the Gartmans argue that subsections 823.16(2) and (3), Florida Statutes, as applied to them, violate their right to access the courts under the Florida Constitution....

...2 We agree. 2 As required under Florida Rule of Civil Procedure 1.071 and Florida Rule of Appellate Procedure 9.425, the Gartmans provided notice of their constitutional challenge to Florida’s Office of the 6  As applied to the Gartmans, these two provisions of section 823.16 eliminate their ability to bring a noise-based nuisance claim against the Range....

...[] subject to civil liability . . . in any matter relating to noise or noise pollution . . . , if the range is in compliance with any noise control laws or ordinances adopted by a unit of local government applicable to the range” at the time of its construction or opening. § 823.16(2), Fla....

...7 court of equity is thoroughly established.’”). As the common-law right to bring a nuisance claim existed at the Florida Constitution’s adoption in 1968, we apply the Kluger test to assess the validity of section 823.16. A....

...These systems provide parties with “adequate, sufficient, and even preferable safeguards,” satisfying Kluger’s “reasonable alternative” requirement. See Kluger, 281 So. 2d at 4. We find no similar “reasonable alternative” here. And the Range fails to point to anything that would qualify as such. Under section 823.16, immunity kicks in so long as a shooting range complies with any local noise-control ordinances in effect at the time of the range’s construction or initial operation. § 823.16(3), Fla....

...They have no alternative pathway to seeking relief for that claim, let alone a “reasonable” one. 8  We also note that the Gartmans’ complaints cannot be remedied by any future attempts by the County to regulate noise at the Range. Section 823.16 itself exempts sport shooting ranges that are “not in violation of existing law” from having to comply with any newly enacted local regulations or ordinances “provided the range was not in violation of any law when the range was constructed and provided that the range continues to conform to current National Rifle Association gun safety and shooting range standards.” § 823.16(6), Fla....

...The Range, thus, has not identified any “adequate, sufficient, [or] preferable safeguards” that would provide the Gartmans with a “reasonable alternative” to their common-law right to seek redress of their asserted injuries. See Kluger, 281 So. 2d at 4. Section 823.16 is therefore distinguishable from the “reasonable alternatives” established by workers’ compensation, medical malpractice, and no-fault automobile insurance statutes. As applied, section 823.16 does not just limit, but eliminates the Gartmans’ ability to bring a nuisance action against the Range for noise. Without any statutory scheme, arbitration agreement, or other “reasonable alternative” in place, section 823.16 fails the first part of the Kluger test....

...Overpowering Public Necessity We now consider whether the other Kluger standard has been met. With no “reasonable alternative” in place, the Legislature must show an “overpowering public necessity” for abolishing the right to bring a claim. Kluger, 281 So. 2d at 4; see § 823.16, Fla. Stat....

...policy, giving “great weight to legislative determinations of facts.” Univ. of Miami v. Echarte, 618 So. 2d 189, 196 (Fla. 1993) (citing Am. Liberty Ins. v. W. & Conyers Architects & Eng’rs., 491 So. 2d 573 (Fla. 2d DCA 1986)). But on its face, section 823.16 is silent as to any legislative findings or any other justification for abolishing nuisance causes of action against sport shooting ranges. And chapter 99-134, Laws of Florida, which enacted section 823.16, did not otherwise contain any factual or policy determinations to support the existence of an “overpowering public necessity.” In this sense, section 823.16 is not unlike the challenged statute in Kluger, where the Florida Supreme Court found that the Legislature had not shown an “overpowering public necessity” to abolish the right to sue an automobile tortfeasor for property damage. 281 So. 2d at 5. It is up to the Legislature to present such a case; without these findings, section 823.16 fails under Kluger. Id....

...showing that an overwhelming public necessity existed to support 10  Invoking the interpretive canon of in pari materia, the Range urges us to look to a completely different statute, enacted five years after section 823.16, to find the necessary legislative statements of public policy....

...neighbor for noise-based nuisance. For purposes of our inquiry under Kluger, the 2004 Legislature’s express findings and policy statements in section 790.333 about government-initiated environmental lawsuits against shooting ranges do not supply what is lacking from the face of section 823.16. The 1999 Legislature could have included similar express language when it enacted section 823.16....

...nclude. All in all, we look only to the language of the statute itself. Maggio v. Fla. Dep’t Lab. & Emp’t. Sec., 899 So. 2d 1074, 1076–77 (Fla. 2005) (“[L]egislative intent is determined primarily from the language of the statute.”). Section 823.16 includes no legislative findings to control our analysis. And we are hesitant to look to other later-enacted statutes in completely different chapters to speculate as to the Legislature’s unstated intent in enacting section 823.16. As a result, the Legislature has not shown an “overpowering public necessity” supporting the abolishment of the Gartmans’ ability to pursue their nuisance claim, and section 823.16 fails the Kluger test. IV. For all the above reasons, we conclude that section 823.16, as applied, is invalid under Kluger as a violation of the Gartmans’ right of access to the courts under article I, section 21. Section 823.16 does not just reduce the Gartmans’ ability to bring a noise- based nuisance claim against the Range; it prohibits it altogether without a “reasonable alternative” in place or an “overpowering public necessity” to do so....