Florida Carry declares victory over City of Leesburg in preemption case
Motivated by the filing of a lawsuit by Florida Carry alleging violation of Florida's 25 year-old Firearms law preemption statute, the Leesburg City Commission has repealed their anti-gun ordinance. Ironically, the lawsuit could have been completely avoided had the city simply repealed the unlawful ordinance when they were originally notified that the ordinance was in violation of preemption by Florida Carry.
On behalf of Florida Carry's membership, Executive Director Richard Nascak sent a letter on December 15, 2011 demanding compliance, citing Florida Statute 790.33 passed in 1987 and Public Law 2011-109 which enhanced enforceability of the firearms preemption statute and became effective on October 1, 2011. Referencing Leesburg's Code of Ordinances §15-3. This ordinance, originally enacted in 1953, prohibited the discharge of firearms within the city limits. Mr. Nascak received a terse response from the Leesburg City Manager, Jay Evans, stating:
'The City of Leesburg is well aware of FS 790.33. You will note the statute says specifically that local governments are prohibited from "enacting, enforcing, or promulgating ordinances which regulate firearms and ammunition...". None of these things has occurred since October 1, 2011. There is no requirement that we repeal said laws, as you seem to indicate is necessary. Any action taken in the future regarding the existence of these laws in our Code of Ordinances will be done at the discretion, pleasure, and timing of the Leesburg City Commission.'
Florida Statute §790.33, enacted by the state legislature in 1987, declared all existing local ordinances, rules, and regulations which regulated firearms null and void at that time. Naively believing local governments would immediately comply with state law, the legislature included no penalties for noncompliance. Despite being null and void, over 300 local governments still had such ordinances on the books in 2010, and remained defiant when state legislators reminded them that they were in violation of state statute, essentially telling the legislature, "there are no penalties, so we won't comply."
Infuriated, state legislature introduced HB 45 in the 2011 legislative session, which amended §790.33 Florida Statutes to include stiff penalties for local governments who insist on attempting to regulate firearms in violation of preemption, and even includes personal sanctions for officials who participate up to and including removal from office. Also included in the amendment is the statutory granting of legal standing for gun rights organizations like Florida Carry to file suit on behalf of their membership in cases challenging offending ordinances.
Leesburg's apparent unwillingness to repeal an ordinance they knew had been null and void since 1987 was puzzling. We could only assume that the city wished to willfully misrepresent the order of law. Since the ordinance was published as part of the City Code of Ordinances, an unknowing citizen would assume the city had the legal right to enforce said ordinance, despite the statute forbidding enforcement or promulgation. Deliberately playing on the ignorance of the public, Florida Carry believed the ordinance would have a chilling effect on the rights of citizens, who were complying with state statute. Therefore suit was filed against both the City of Leesburg and the City Manager Jay Evans in March on behalf of Florida Carry and its membership by counsel Patrick Buckley of The Law Office of J. Patrick Buckley III in Fort Myers, and co-counsel Eric J. Friday of Fletcher and Phillips in Jacksonville.
Subsequent to our lawsuit, the City Commission of Leesburg repealed the offending ordinance on April 29, 2012. Had the city repealed their ordinance in response to our earlier notification, rather than taking a "we'll get around to it when and if we feel like it" approach, the suit would never have been filed.
Since the statute's effective date of October 1, 2011, Florida Carry has been in the process of identifying and contacting local governments in violation. The majority of local governments contacted have either repealed offending ordinances or amended such ordinances to bring them into compliance with state law. Florida Carry has taken, and will take, no legal action against those local governments who indicate they intend to comply within a reasonable time-frame. However, those local governments who enact, or stubbornly continue to enforce or promulgate unlawful firearms ordinances are subject to suit by Florida Carry as we seek to protect the rights of all lawfully armed Floridians.