Florida Carry, Inc. and The Second etc. v. City of Tallahassee, Florida, etc.
212 So. 3d 452
Fla. Dist. Ct. App.2017Background
- In 1987 Florida enacted §790.33 preempting local regulation of firearms and declaring existing local ordinances null and void; in 2011 the Legislature added penalty and remedies provisions.
- Tallahassee retained two pre-1987 firearm-related ordinances (1957 and 1984) that remained in the city code and were recodified in 2003; the City did not enforce them and the Police Chief informed personnel they were unenforceable.
- Florida Carry and Second Amendment Foundation sued the City seeking declaratory and injunctive relief to force repeal and to enjoin "promulgation" and enforcement under §790.33(3).
- The City and commissioners answered and counterclaimed, challenging §790.33’s penalty provisions as violating legislative immunity and free speech.
- The trial court granted summary judgment to the City: it held §790.33(3)(a) is the prohibition, (3)(f) is a standing/remedies clause, recodification/publication is not "promulgation," and no knowing enforcement occurred; it dismissed the counterclaim as non-justiciable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §790.33(3) separates prohibitions/penalties from standing (i.e., is (3)(f) a prohibition) | (Plaintiffs) §790.33(3)(a)-(f) together prohibit acts including "promulgation"; (3)(f) should be read to proscribe continued publication. | (Defendants) Subsection (3)(a) lists prohibited conduct (enacting/enforcing); (3)(f) is a remedies/standing provision, not a separate prohibition. | Court: (3)(a) is the prohibition; (3)(f) confers standing/remedies and does not itself proscribe conduct. |
| Whether republication/recodification/publishing of preempted ordinances equals "promulgation" under §790.33 | Plaintiffs: Keeping void ordinances in the code and republishing them is ongoing "promulgation" that injures rights and confers relief. | Defendants: "Promulgate" in context means enact/legislatively adopt or put into force; mere republication/keeping in code is not new enactment. | Court: "Promulgated" construed in context to mean enactment/put into force; republication/recodification is not prohibited "promulgation." |
| Whether the 2003 recodification was a new enactment violating §790.33 | Plaintiffs: Recodification re-adopting the provisions amounted to a new enactment after preemption. | Defendants: City’s recodification provision states restatements are continuations, not new enactments. | Court: 2003 recodification not a new enactment; statutes declaring preexisting ordinances void made them unenforceable, but their presence in the code does not equal enactment. |
| Whether dismissal of City’s counterclaim (facial challenge to penalty provisions) was improper | City: Penalty provisions violate absolute legislative immunity and free speech; warrants declaratory relief. | Plaintiffs: No actual penalties imposed and no case or controversy because no knowing/willful violation occurred. | Court: Dismissal affirmed — no present justiciable controversy (no penalties imposed; prudential restraint appropriate). |
Key Cases Cited
- Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) (standard for reviewing summary judgment)
- W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1 (Fla. 2012) (statutory construction and legislative intent principles)
- Fla. Carry, Inc. v. Univ. of N. Fla., 133 So. 3d 966 (Fla. 1st DCA 2013) (Florida constitutional right to keep and bear arms; regulation assigned to legislature)
- Dougan v. Bradshaw, 198 So. 3d 878 (Fla. 4th DCA 2016) (describing §790.33(3)(f) as creating a private cause of action for declaratory and injunctive relief)
- State v. Watso, 788 So. 2d 1026 (Fla. 2d DCA 2001) (interpretation of "promulgate" in a different chapter/context)
- Rollins v. Pizzarelli, 761 So. 2d 294 (Fla. 2000) (different statutory terms may indicate different legislative intent)
- Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So. 3d 851 (Fla. 1st DCA 2013) (elements required for declaratory judgment)
- Abruzzo v. Haller, 603 So. 2d 1338 (Fla. 1st DCA 1992) (deference to trial court dismissal of declaratory judgment claims)