Supreme Court of Florida ____________
No. SC21-917 ____________
NICOLE “NIKKI” FRIED, etc., Petitioners,
vs.
STATE OF FLORIDA, et al., Respondents.
____________
No. SC21-918 ____________
CITY OF WESTON, FLORIDA, et al., Petitioners,
STATE OF FLORIDA, et al., Respondents. ____________
January 19, 2023
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 of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.
1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
-2- § 790.33(1), Fla. Stat. (2021). The Legislature’s express intent in
enacting the Preemption Statute was to maintain uniform firearms
laws throughout Florida; to nullify and void all ordinances and
regulations not enacted at the state or federal level; “to prohibit the
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 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, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited;
(b) A duly organized law enforcement agency from enacting and enforcing regulations pertaining to firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their official duties;
(c) Except as provided in s. 790.251, any entity subject to the prohibitions of this section from regulating or prohibiting the carrying of firearms and ammunition
-3- by an employee of the entity during and in the course of the employee’s official duties;
(d) A court or administrative law judge from hearing and resolving any case or controversy or issuing any opinion or order on a matter within the jurisdiction of 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, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and 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 appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred.
-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 person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy, whether written or unwritten, promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or 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. 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. Adam Putnam, the then Commissioner of Agriculture, was a defendant named in the original complaints. His successor,
-5- and one private citizen. Without enacting any of the desired
ordinances and regulations, Petitioners brought suit seeking a
declaration from the circuit court that the challenged provisions are
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). Not relevant to this appeal, Petitioners also alleged the challenged provisions violate gubernatorial removal authority; are overbroad and unconstitutionally vague; are irrational, arbitrary, and capricious; violate the right to free speech, association, petition and 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. The circuit court invalidated the
challenged provisions 4 on the grounds that (1) the penalties against
local officials violate legislative immunity, and (2) the actions
against local governments violate immunity for discretionary
government functions. First, while the circuit court found that “the
legislature abrogated the common law legislative immunity,” the
circuit court also found that “legislative immunity arising from the
separation of powers clause in the Florida Constitution does apply
to judicial review of local legislators and cannot be waived by
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 holidays, in connection with the sale of any firearm occurring within such county.” The circuit court “declare[d] that counties may lawfully 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. Constitution affords local legislators
legislative immunity.” Further, the circuit court found that
“governmental function immunity applies and the local
governmental entities and their officials are immune from suit.”
The circuit court explained that “were the penalty provisions to be
enforced, they would necessarily subject local legislative planning
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 reversed the
circuit court’s ruling, holding “that the statutory penalty provisions
disputed on appeal are valid and enforceable.” City of Weston, 316
So. 3d at 404. The First District concluded that “[g]overnment
function immunity does not shield entities that act contrary to or
more restrictively than state law in the completely preempted field
-8- of firearm and ammunition regulation. Likewise, legislative
immunity does not shield individuals who knowingly and willfully
act contrary to or beyond the limits of state law.” Id. As to
legislative immunity, the First District explained that “the particular
attempt to invoke [legislative] immunity here occurs in direct
violation of state preemption,” and “[o]fficials are not immune from
having to prove lack of knowing and willful intent to violate state
preemption.” Id. at 407. The First District concluded that “[t]he
Florida Legislature has the authority to abrogate legislative
immunity,” and “[i]t has done so here.” Id. As to governmental
function immunity, the First District explained that “[t]he trial court
erred in elevating the separation of powers doctrine over the state’s
superior legislative authority validly exercised in this case.” Id. at
405. 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. Respondents counter that the First District properly
concluded that neither legislative immunity nor governmental
function immunity “shields local governments and officials from the
challenged statutes.” City of Weston, 316 So. 3d at 408. 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 local government official or officials or administrative agency 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.
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. See Bogan v. Scott-Harris, 523 U.S.
44, 48 (1998) (“The principle that legislators are absolutely immune
from liability for their legislative activities has long been recognized
in Anglo-American law.”). Petitioners argue that legislative
immunity for local officials arises from three sources: (1) Florida
common law, (2) separation of powers in the Florida Constitution,
and (3) federal law.
- 11 - In Florida, the doctrine of legislative immunity is based in
common law. See Fla. House of Representatives v. Expedia, Inc., 85
So. 3d 517, 522 (Fla. 1st DCA 2012) (“[T]he privileges and
immunities afforded to all government officials, including those who
serve in the legislative branch, arise from the common law.”); cf. id.
(“[J]udicial immunity, like legislative immunity, is based on
principles developed in the common law.”).6 An immunity conferred
by common law may be abrogated by statute. See McNayr v. Kelly,
184 So. 2d 428, 430 n.6 (Fla. 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 . . . that violates the Legislature’s occupation of the whole
6. The parties do not argue that the statutory protection for legislators found in section 768.28(9)(a), Florida Statutes, applies in this case. See § 768.28(9)(a), Fla. Stat. (2021) (“An officer, employee, or agent of the state or of any of its subdivisions may not be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function.”).
- 12 - 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. The
Preemption Statute abrogates legislative immunity in this context
for local officials by establishing that civil penalties may be imposed
upon local officials. Specifically, local officials enact local
ordinances, and by enacting the challenged statutory provisions,
the Legislature has deprived local officials of any authority to
legislate in this field beyond the enumerated exceptions.
Accordingly, as the trial court and the First District in City of
Weston concluded, the Legislature abrogated common law
legislative immunity for local officials to the extent provided in the
Preemption Statute.
Petitioners next argue that legislative immunity arises from
the separation of powers in the Florida Constitution, citing this
Court’s decision in League of Women Voters of Florida v. Florida
- 13 - House of Representatives, 132 So. 3d 135, 143 (Fla. 2013), which
held “that a legislative privilege exists in Florida, based on the
principle of separation of powers codified in article II, section 3, of
the Florida Constitution.” However, Petitioners’ cited decision in
League of Women Voters has no application to the issue in the
present case. See League of Women Voters, 132 So. 3d at 147 n.11
(“This case does not involve legislative immunity, nor does it involve
the liability of any individual legislator. We note that the legislative
privilege (that is, an evidentiary privilege against compelled judicial
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. Petitioners have provided no basis in the Florida
Constitution or precedent indicating that it would exceed the scope
of judicial power for courts to interpret statutes and hear cases
where parties seek to enforce statutory violations and penalties duly
enacted by the Legislature. To the contrary, it is within the
- 14 - judiciary’s constitutional authority and responsibility to do so. See
art. V, Fla. Const.
We likewise reject Petitioners’ argument that legislative
immunity flows from article VIII of the Florida Constitution. To the
contrary, article VIII expressly grants the Legislature plenary
authority over the state’s local governments, which have only those
“powers of local self-government not inconsistent with general law.”
Art. VIII, § 1(g), Fla. Const. (charter counties); see also id. § 2(b)
(“Municipalities . . . may exercise any power for municipal purposes
except as otherwise provided by law.”); City of Palm Bay v. Wells
Fargo Bank, N.A., 114 So. 3d 924, 928 (Fla. 2013) (“The critical
phrase of article VIII, section 2(b)—‘except as otherwise provided by
law’—establishes the constitutional superiority of the Legislature’s
power over municipal power.”). Local governments, including
counties and municipalities, are creatures of the State without any
independent sovereignty. See art. VIII, §§ 1-2, Fla. Const.; see also
Weaver v. Heidtman, 245 So. 2d 295, 296 (Fla. 1st DCA 1971)
(“[C]ounties . . . 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)). See Fla. Power Corp. v.
Seminole Cnty., 579 So. 2d 105, 107 (Fla. 1991) (“While the
authority given to cities and counties in Florida is broad, both the
constitution and statutes recognize that cities and counties have no
authority to act in areas that the legislature has preempted.”);
Metro. Dade Cnty. v. Chase Fed. Hous. Corp., 737 So. 2d 494, 504
(Fla. 1999) (“If political subdivisions were able to continue actions to
- 16 - enforce ordinances that conflict with general law, the political
subdivisions would have the power to frustrate the ability of the
Legislature to set policies for the state.”). While “state legislators
are immune from civil suits for their acts done within the sphere of
legislative activity,” Walker v. President of the Senate, 658 So. 2d
1200, 1200 (Fla. 5th DCA 1995), as the First District held below,
“legislative immunity does not shield individuals who knowingly
and willfully act contrary to or beyond the limits of state law” that
provides for statutory penalties against 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). As argued by
Respondents, before the challenged statutory provisions were
added, the onus was on citizens to challenge ordinances defensively
or by way of actions for declaratory and injunctive relief. By
enacting these statutory provisions, the Legislature shifted the
- 17 - burden to those in the position to violate the Preemption Statute.
To the extent the parties and amici disagree with this legislative
decision or argue that the challenged provisions are unnecessary or
unwise, it is for the Legislature to evaluate and resolve those policy
concerns. See Hamilton v. State, 366 So. 2d 8, 10 (Fla. 1978) (“The
Legislature has a great deal of discretion in determining what
measures are necessary for the public’s protection, and this Court
will not, and may not, substitute its judgment for that of the
Legislature insofar as the wisdom or policy of the act is
concerned.”).
Petitioners also rely heavily on federal law recognizing
legislative immunity for state, regional, and local legislators. See
Bogan, 523 U.S. at 52 (extending legislative immunity to local
government legislators); Lake Country Ests., Inc. v. Tahoe Reg’l
Planning Agency, 440 U.S. 391, 405-06 (1979) (extending legislative
immunity to regional legislators); Woods v. Gamel, 132 F.3d 1417,
1419 (11th Cir. 1998) (“[C]ounty commissioners can be entitled to
legislative immunity when acting in their legislative capacities.”).
For members of Congress, legislative immunity was established in
the Speech or Debate Clause of the United States Constitution,
- 18 - which protects not only the speech and debate of legislators but
also voting on legislative acts. See U.S. Const. art. I, § 6, cl. 1; see
also Tenney v. Brandhove, 341 U.S. 367, 372-73 (1951). To the
extent Petitioners rely on federal case law that has stated that
article I, section 6 of the United States Constitution (the Speech or
Debate Clause) creates a form of legislative immunity, Florida’s
Constitution does not contain a Speech or Debate Clause providing
legislative immunity to members of the Legislature. See Tenney,
341 U.S. at 375 n.5 (“Only the Florida Constitution has no
provision concerning legislative privilege.”). Further, the United
States Supreme Court has “made clear that the holding [in Tenney]
was grounded on its interpretation of federal common law, not on
the Speech or Debate Clause.” United States v. Gillock, 445 U.S.
360, 372 n.10 (1980). As the First District in City of Weston
concluded, these cases do not apply here. See NRP Holdings LLC v.
City of Buffalo, 916 F.3d 177, 190 n.10 (2d Cir. 2019) (explaining
that the federal common law legislative immunity recognized by the
Supreme Court protects only against federal claims, may be
abrogated by federal statute, and affords no protection from state
law actions for damages); League of Women Voters, 132 So. 3d at
- 19 - 152 (“[F]ederal courts have long recognized the existence of a federal
legislative privilege based on the explicit text of the Speech or
Debate Clause of the United States Constitution and through
federal common law—neither of which applies to an action in state
court based on a specific prohibition in the state constitution.”).
Accordingly, because legislative immunity as applied to local
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). However, in this review proceeding, Petitioners make no argument with regard to this statute; therefore, any argument would be deemed waived, and we do not address this statute.
- 20 - (f)1. A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy, whether written or unwritten, promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or 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. 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
Florida has a broad statutory waiver of sovereign immunity in
tort suits for the State. See § 768.28(1), Fla. Stat. (2021) (“[T]he
state, for itself and for its agencies or subdivisions, hereby waives
sovereign immunity for liability for torts, but only to the extent
specified in this act.”). However, governmental function immunity,
also called discretionary function immunity, is a doctrine under
which “certain ‘discretionary’ governmental functions remain
immune from tort liability . . . because certain functions of
coordinate branches of government may not be subjected to
- 21 - scrutiny by judge or jury as to the wisdom of their performance.”
Com. Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1022
(Fla. 1979). We have explained that “[i]t is ‘the nature of the
conduct, rather than the status of the actor,’ that determines
whether the function is the type of discretionary function which is,
by its nature, immune from tort liability.” Trianon Park Condo.
Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985)
(quoting United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 813 (1984)).
Petitioners argue that the enforcement of penalties against
local governments would violate governmental function immunity
because the process of determining what is preempted under the
Preemption Statute remains inherently discretionary. However, to
engage in conduct that is prohibited by statute is not a
discretionary function. As the First District concluded below,
“[g]overnment function immunity does not shield entities that act
contrary to or more restrictively than state law in the completely
preempted field of firearm and ammunition regulation.” City of
- 22 - The Florida Constitution expressly grants the Legislature
plenary authority over the state’s local governments, which have
only those “powers of local self-government not inconsistent with
general law.” Art. VIII, § 1(g), Fla. Const. (charter counties); see
also id. § 2(b) (“Municipalities . . . may exercise any power for
municipal purposes except as otherwise provided by law.”). We
have explained that if the rule were otherwise, the state’s “political
subdivisions would have the power to frustrate the ability of the
Legislature to set policies for the state.” Metro. Dade Cnty., 737
So. 2d at 504. The constitution also confers exclusively upon the
Legislature the power to abrogate common law and restrict local
government power. See art. VIII, §§ 1-2, Fla. Const.; McNayr, 184
So. 2d at 430 n.6 (acknowledging that the Florida Legislature has
the authority to “do away with the immunity altogether” as it
applied to local officials). For example, the Legislature can abolish
counties by general law, see art. VIII, § 1, Fla. Const. (“The state
shall be divided by law into political subdivisions called counties.
Counties may be created, abolished or changed by law . . . .”), and
municipalities exist only by virtue of general law, see ch. 165, Fla.
Stat. (2021). The Legislature is likewise authorized to enact general
- 23 - laws preempting all regulation in an area of the law. See Metro.
Dade Cnty., 737 So. 2d at 504 (“[W]henever ‘any doubt exists as to
the extent of a power attempted to be exercised which may affect
the operation of a state statute, the doubt is to be resolved against
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. The imposition of these civil statutory actions
for violations of the Preemption Statute does not violate
governmental function immunity. It is not a core municipal
function to occupy an area that the Legislature has preempted, and
local governments have no lawful discretion or authority to enact
ordinances that violate state preemption. See Fla. Power Corp., 579
So. 2d at 107 (“While the authority given to cities and counties in
Florida is broad, both the constitution and statutes recognize that
- 24 - 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). Accordingly, we approve the First District’s decision in City of
Weston.
It is so ordered.
MUÑIZ, C.J., and CANADY, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., dissents with an opinion. FRANCIS, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
LABARGA, J., dissenting.
In its order granting summary judgment in favor of dozens of
cities, counties, and elected local government officials, the trial
court correctly observed that the Legislature has the authority to
- 25 - abolish counties and cities if it chooses to do so.8 Additionally, the
Legislature has the power and authority to preempt local
government control by general law. However, this broad legislative
power and authority is not without limits. The trial court explained:
But once those governments are established, the Constitution mandates certain requirements for how they must be set up. The establishment of a legislative county commission is one. Art. VIII, Section 1(e), Fla. Const. Establishing municipal legislative bodies is another. Art. VIII, Section 2, Fla. Const. The legislature cannot change these fundamental aspects of counties and cities without amending the Constitution. In following this reasoning, the court sees no relevance to the legislative supremacy 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. The provision imposes a fine of up to $5,000 against
elected or appointed local government officials or administrative
agency heads for “knowing and willful” violations of the statute.
8. Article VIII, section 1(a) of the Florida Constitution provides that “[c]ounties may be created, abolished or changed by law.” Section 2(a) provides that “[m]unicipalities may be established or abolished and their charters amended pursuant to general or 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. As a
part of this separation, Florida courts cannot question any
legislator about her or his legislative process because it would be
impermissible judicial meddling in a purely political matter.”
Consequently, the requirement of judicial involvement in
determining whether the action of the public official was “knowing
and willful” amounts to nothing less than an impermissible judicial
intrusion into the official’s legislative thought process, and it
undermines the official’s ability to effectuate the constituents’ will.
As aptly observed by the trial court, “[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. 1D19-2819
(Leon County)
Genevieve Hall and Steven Hall, General Counsel, Florida Department of Agriculture and Consumer Services, Tallahassee, Florida,
for Petitioner, Nicole “Nikki” Fried, as Commissioner of Florida Department of Agriculture and Consumer Services
Edward G. Guedes and Jamie A. Cole of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Florida,
for Petitoners, Weston, Miramar, Pompano Beach, Pinecrest, South Miami, Miami Gardens, Cutler Bay, Lauderhill, Boca Raton, Surfside, Tallahassee, North Miami, Orlando, Fort Lauderdale, Gainesville, St. Petersburg, Maitland, Key Biscayne, Turkel, West Palm Beach, North Miami Beach, Safety Harbor, Village of Palmetto Bay, Dunedin, and Riviera Beach
LaShawn D. Riggans, County Attorney, Tallahassee, Florida,
for Petitioner, Leon County
Michael Cardozo and Chantel L. Febus of Proskauer Rose LLP, New York, New York, Matthew Triggs of Proskauer Rose LLP, Boca Raton, Florida, and Joseph S. Hartunian of Proskauer Rose LLP, Washington, District of Columbia; and Eric A. Tirschwell of Everytown Law, New York, New York,
- 28 - for Petitioners, Dan Daley, Frank C. Ortis, Rebecca A. Tooley, Justin Flippen, City of Coral Springs, City of Pembroke Pines, City of Coconut Creek, and City of Wilton Manors
Abigail G. Corbett and Veronica L. De Zayas of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, Florida,
for Petitioner, Coral Gables
Andrew J. Meyers, René D. Harrod, Nathaniel A. Klitsberg, and Joseph K. Jarone, County Attorneys, Fort Lauderdale, Florida,
for Petitioner, Broward County
Geraldine Bonzon-Keenan, Altanese Phenelus, Shanika A. Graves, and Angela F. Benjamin, County Attorneys, Miami, Florida,
for Petitioner, Miami-Dade County
Robert F. Rosenwald, Jr., Rafael Paz, Aleksandr Boksner, and Raul J. Aguila, City Attorneys, Miami Beach, Florida,
for Petitioner, City of Miami Beach
Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor General, and Daniel William Bell, Chief Deputy Solicitor General, Office of the Attorney General, Tallahassee, Florida,
for Respondents
Eric J. Friday of Kingry & Friday, PLLC, Jacksonville, Florida,
for Amicus Curiae Florida Carry, Inc.
John Parker Sweeney, James W. Porter, III, Marc A. Nardone, and Connor M. Blair of Bradley Arant Boult Cummings LLP, Washington, District of Columbia, and R. Craig Mayfield of Bradley Arant Boult Cummings LLP, Tampa, Florida,
- 29 - for Amicus Curiae National Rifle Association of America, Inc.
Philip R. Stein, Kenneth Duvall, and Ilana Drescher of Bilzin Sumberg Baena Price & Axelrod LLP, Miami, Florida; and Brook Dooley, David J. Rosen, Anna Porto, and Andrew S. Bruns of Keker, Van Nest & Peters LLP, San Francisco, California,
for Amici Curiae Local Government Law Professors and League of Women Voters of Florida, Giffords Law Center to Prevent Gun Violence, Brady, and Equality Florida Institute, Inc.
Michael Spellman of Sniffen & Spellman, P.A., Tallahassee, Florida; Kraig Conn and Rebecca O’Hara of Florida League of Cities, Inc., Tallahassee, Florida; and Edward G. Labrador of Florida Association of Counties, Tallahassee, Florida,
for Amici Curiae Florida League of Cities and the Florida Association of Counties
- 30 -