Can a Florida county ban manufacturing firearms at home through a zoning ordinance that also bans other home-based businesses?

Plain-English summary

A Polk County resident applied for federal Bureau of Alcohol, Tobacco, Firearms and Explosives licenses (Type 1 for firearms dealing and Type 7 for firearms manufacturing) to make and sell guns from an accessory structure on his home property. ATF sent the applicant to the Polk County Land Development Division to verify compliance with local zoning. The county's Land Development Code gave five examples of acceptable home occupations and prohibited a separate list of nine business categories, including "Manufacturing." The county asked AG Pam Bondi whether section 790.33's preemption of firearms regulation let the county apply that home-occupation rule to firearms manufacture, or whether the preemption struck it down.

The AG concluded that the county could apply its home-occupation rule to firearms manufacturing to the extent the rule prohibited all manufacturing at home and did not target firearms manufacture as a means of regulating firearms or ammunition. The zoning exception in section 790.33(4)(a), Florida Statutes, preserves ordinances "that encompass firearms businesses along with other businesses," but excludes ordinances designed to restrict firearms commerce as a method of regulating firearms. Polk County's ordinance listed nine prohibited types of home occupation, including manufacturing of any kind. The opinion echoed AGO 2008-34, where Polk County had asked about commercial-zoning restrictions on shooting ranges.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG say Polk County could specifically ban firearms manufacture?
A: No. The opinion said the county could apply its rule to firearms manufacture to the extent it prohibited all manufacturing at home. A zoning ordinance designed to restrict firearms commerce as a method of regulating firearms falls outside the section 790.33(4)(a) exception.

Q: Why didn't the broad preemption in section 790.33(1) defeat the ordinance?
A: Section 790.33(1) reserves firearms regulation to the state, except as expressly provided by the State Constitution or general law. Subsection (4) lists five exceptions. The one this opinion applies, subsection (4)(a), allows zoning ordinances encompassing firearms businesses along with other businesses, unless designed to restrict firearms commerce as a method of regulating firearms or ammunition.

Q: Why did the AG say Polk County's home-occupation rule could apply?
A: The rule barred nine categories of home occupation, including all manufacturing. The AG said that, to the extent it treated those categories and all forms of manufacturing alike, it appeared not to be designed to regulate firearms. The conclusion was limited to a rule prohibiting all manufacturing as a home occupation.

Q: What was AGO 2008-34 and how did it shape this opinion?
A: AGO 2008-34 was an earlier Polk County request asking whether the county could restrict shooting ranges to commercial zones, treating them like other commercial businesses. The 2008 opinion said yes: a zoning rule barring commercial activity in residential districts could apply to a shooting range without violating section 790.33. The 2016 opinion lifted the same reasoning over to firearms manufacture: a zoning rule barring all manufacturing in residential districts could apply to firearms manufacture.

Q: Does this mean a city can use zoning to drive firearm businesses out of town?
A: The opinion does not go that far. The opinion addresses Polk County's ban on manufacturing as a home occupation. It says a zoning ordinance designed to restrict or prohibit firearms commerce as a means of regulating firearms does not fall within the exception.

Background and statutory framework

Section 790.33, Florida Statutes, is the cornerstone of Florida's firearms preemption regime. It withdraws from local governments any power to regulate the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, or transportation of firearms or ammunition. The opinion addressed only the zoning exception in subsection (4)(a).

Subsection (4)(a) allows zoning ordinances that "encompass firearms businesses along with other businesses" but excludes ordinances "designed for the purpose of restricting or prohibiting" firearms commerce "as a method of regulating firearms or ammunition." The AG looked at the ordinance's scope: it treated all nine prohibited business categories alike and barred all manufacturing at home. On that wording, the AG said it appeared not to be designed to restrict firearms manufacture as a way of regulating firearms.

Polk County's home-occupation rule, codified at section 206-E of its Land Development Code, also addresses traffic, signage, noise, and glare. Its nine prohibited business categories include manufacturing of any kind. The AG concluded that, to the extent the regulation barred all manufacturing as a home occupation, section 790.33(1) did not preempt it.

Citations and references

Statutes:

• § 790.33, Fla. Stat. (preemption of firearms regulation)
• § 163.3202, Fla. Stat. (county and municipal land development regulations)

Prior AG opinions: Ops. Att'y Gen. Fla. 2011-20, 2011-17, 2005-40, and 2008-34.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/counties-firearms-zoning
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1514

Original opinion text

Mr. Michael S. Craig

County Attorney for Polk County

Post Office Box 9005

Bartow, Florida 33831-9005

RE: COUNTIES – FIREARMS – PREEMPTION – ZONING – application of county zoning ordinance pursuant to preemption exception in s. 790.33(4)(a), Fla. Stat., to prohibit manufacture of firearms in the home.

Dear Mr. Craig:

On behalf of the Polk County Attorney's Office, you have asked for an opinion on substantially the following question:

Does the preemption exception for zoning ordinances in section 790.33(4)(a), Florida Statutes, allow Polk County to enforce a zoning regulation that prohibits firearms manufacturing within a person's home?

In sum:

The express exemption for zoning ordinances in section 790.33(4)(a), Florida Statutes, allows Polk County to enforce its regulation restricting citizens from conducting a broad range of businesses, including manufacturing, within the home in residential areas, to the extent that the ordinance does not prohibit firearms manufacture as a means of regulating firearms or ammunition.

According to your request, an individual in Polk County applied to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives for a license to manufacture and sell firearms in his home. He applied for a Type 1 license, required for a dealer in firearms, and a Type 7 license, required for a manufacturer of firearms.[1] The Bureau directed the applicant to the Polk County Land Development Division for a determination as to whether firearms manufacturing would comply with the county's regulations regarding home occupations. The applicant seeks to conduct the manufacturing in an accessory structure on his property.

This office has repeatedly recognized that in section 790.33(1), Florida Statutes, the Legislature has preempted the entire field of firearms regulation and thus local governments have no authority to enact ordinances regulating firearms and ammunition.[2] The question you present is whether the county regulation you cite in your letter is allowed by the Legislature's exception in section 790.33(4)(a), Florida Statutes, for certain zoning ordinances. You report that Polk County has previously permitted retail and internet sales of firearms and ammunition, as well as assembly of small amounts of ammunition, but the home occupation at issue here is firearms manufacture.

The Polk County Land Development Code, Article III, was enacted pursuant to the authority of section 163.3202, Florida Statutes, which directs each county and municipality to adopt land development regulations to implement the county's comprehensive plan. Within the code are guidelines for the various standard land use districts, such as residential, commercial, and agricultural. Section 206 addresses accessory property uses, defined as "incidental and subordinate to the primary use of the property" within the districts, such as garage apartments, guest houses, security residences, clubhouses, recreation facilities, child- and adult-care facilities, outdoor storage, etc. Section 206-E regulates home occupations as an accessory property use within a residential land use district, addressing such factors as the percentage of habitable space that may be used, amount of traffic that may be generated, and signage, as well as prohibitions against display of merchandise, noise, glare, fumes, etc. Five types of acceptable home occupations are provided as "examples of home occupations":

"a. Activities conducted principally by telephone, computer, facsimile, or mail.

b. Studios where handicrafts or objects-of-art are produced.

c. Teaching and tutoring instruction of no more than four pupils at a time.

d. Dressmaking or apparel alterations.

e. Barber and beauty shop (one chair)."

In the provision at issue herein, paragraph E.12 lists nine types of at-home occupations that are prohibited:

"a. Adult entertainment.

b. Automotive service and repair.

c. Bed and breakfasts.

d. Eating and drinking establishments.

e. Kennels.

f. Manufacturing.

g. Tanning salons, tattoo parlors, massage parlors.

h. Commercial sales or leasing of vehicles.

i. Any use that requires a Building Code upgrade (i.e., from residential standards to commercial standards) to accommodate the home occupation." (e.s.)

You question whether the county has the power to prohibit firearms manufacture in the applicant's home in light of section 790.33, Florida Statutes, which preempts the field of firearm regulation to the state, as follows:

"(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, 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." (e.s.)

Paragraph (4) of the statute, however, goes on to list five exceptions that are not preempted, including:

"(4) EXCEPTIONS. – This section does not prohibit:

(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[.]"

Polk County has previously asked a question about the zoning exception, which this office answered in Attorney General Opinion 2008-34. The county asked whether under section 790.33, Florida Statutes, it would be permitted to restrict shooting ranges to commercial rather than residential land use districts, because shooting ranges were considered commercial businesses or high-intensity recreation under the land development code, which would be excluded from residential districts. This office considered the question in light of the zoning exception, stating:

"Clearly, a municipality's attempt to regulate firearms is null and void. 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. The statute is equally clear in prohibiting zoning ordinances designed to restrict or prohibit the sale, purchase, transfer, or manufacture 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." (e.s.)

This office concluded that the county was permitted to restrict the siting of a sports shooting range to a commercial land use area based upon existing zoning regulations.

Section 206-E in the Polk County Land Development Code prohibits nine broad categories of business from being conducted in the home in residential areas, including all types of manufacturing. To the extent that the ordinance treats all of the nine diverse business categories the same way, as well as all forms of manufacturing, it appears that the ordinance was not designed to restrict or prohibit firearms manufacture with the underlying goal of regulating firearms.

Based upon the plain language of the exception for zoning ordinances and the scope of section 206-E of the Polk County Land Development Code, it is my opinion that to the extent that the regulation prohibits all manufacturing as a home occupation, it is not preempted by section 790.33(1), Florida Statutes.

Sincerely,

Pam Bondi

Attorney General

PB/tebg

_______________

[1] See https://www.atf.gov/firearms/listing-federal-firearms-licensees-ffls-2016.

[2] See Ops. Att'y Gen. Fla. 11-20 (2011), 11-17 (2011), and 05-40 (2005).