Can a Florida city council pass a non-regulatory resolution supporting or opposing pending state or federal firearm legislation without violating Florida's firearm preemption statute?

Plain-English summary

Florida's firearm preemption statute, § 790.33, reserves firearm and ammunition regulation to the Legislature and provides penalties for actions that violate its restrictions. The City of St. Petersburg's city attorney asked whether a non-regulatory resolution simply expressing the council's support for or opposition to a pending state or federal firearm bill could trigger those penalties.

The AG said the described resolutions would not appear to violate the statute, reasoning in two steps. First, the proposed resolutions were described as non-regulatory and would not impose firearm regulations. Section 790.33 reaches "competing regulations," and a resolution expressing a legislative preference is not a regulation.

Second, § 790.33(2)(b) also reaches "violation of rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof by the abuse of official authority." The relevant state constitutional right is Article I, § 8(a)'s right to keep and bear arms, with the proviso that "the manner of bearing arms may be regulated by law." The First District in Florida Carry, Inc. v. University of North Florida held that "by law" means by statute enacted by the Legislature, not by local political body. The AG said the proposed resolutions, as described, would not deny, impair, or interfere with the right to bear arms.

The opinion is limited to the facts described in the request: resolutions that "simply express support for, or opposition to, proposed legislation." The AG said it did not know the exact language of the proposed resolutions.

Currency note

This opinion was issued in 2017. 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: Can a Florida city council adopt a resolution endorsing or opposing a state firearm bill?
A: On the facts described, the AG said such a non-regulatory resolution would not appear to violate § 790.33. The letter did not review the proposed wording.

Q: Would the proposed resolutions expose the council to a suit under subsection (3)(f)?
A: The letter describes subsection (3)(f) as providing for a suit for declaratory and injunctive relief and actual damages against the council. Based on the resolutions as described, the AG said the council would not be subject to those penalties.

Q: What is the line between regulation and expression?
A: The opinion distinguishes the described resolutions, which would only express support for or opposition to pending legislation, from local regulation of firearms and ammunition. It does not assess the wording of any proposed resolution.

Q: What does Article I, § 8(a) of the Florida Constitution protect?
A: It protects "the right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state," with the proviso that "the manner of bearing arms may be regulated by law." Florida courts read "by law" to mean statutes adopted by the Legislature, not by local councils.

Background and statutory framework

Section 790.33 has two operative limbs. The first preempts to the state "the whole field of regulation of firearms and ammunition," voiding all "existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government" relating to that field. The second prohibits "violation of rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof by the abuse of official authority that occurs when enactments are passed in violation of state law or under color of local or state authority."

The letter addresses the subsection (3)(f) penalties and says they would not apply to the proposed non-regulatory resolutions as described.

The opinion treats the described resolutions as neither firearm regulation nor interference with the right to bear arms. Florida Carry (Fla. 1st DCA 2013) plus Grapeland Heights (Fla. 1972) supply the doctrinal foothold for treating "regulation by law" as a legislative-only act.

Citations and references

Statutes / Constitution:

• § 790.33, Fla. Stat. (Field of regulation of firearms and ammunition preempted)
• Art. I, § 8(a), Fla. Const. (right to keep and bear arms)

Cases:

• Florida Carry, Inc. v. University of North Florida, 133 So. 3d 966 (Fla. 1st DCA 2013)
• Grapeland Heights Civic Ass'n v. City of Miami, 267 So. 2d 321 (Fla. 1972)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipal-resolution-relating-to-firearm-regulation
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8044

Original opinion text

Ms. Jacqueline M. Kovilaritch
City Attorney
City of St. Petersburg, Florida
Post Office Box 2842
St. Petersburg, Florida 33731

Dear Ms. Kovilaritch:

On behalf of the City of St. Petersburg City Council ("Council"), you have requested an opinion addressing whether potential resolutions expressing the Council's view with respect to proposed state or federal legislation regulating firearms or ammunition would violate section 790.33(1), (2), Florida Statutes,[1] or potentially subject the Council to a "suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation[,]" as provided for in section 790.33(3)(f). While not describing the proposed language which such potential resolutions might reflect, you characterize the resolutions as non-regulatory, "simply [expressing] support for, or opposition to, proposed legislation that has already been filed and is pending for consideration by the state or federal legislative body."[2] In your letter, you note that, "[i]n passing such a resolution, the City Council would not impose regulations." We comment as follows without knowing the exact content of the proposed resolutions.

As framed by the facts presented, the question is whether a municipal legislative body's resolution expressing support or opposition to proposed state or federal legislation regulating firearms or ammunition would violate section 790.33 or "rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof[.]"[3] Florida Attorney General Bondi has asked me to respond to your letter.

As the Council acknowledges, section 790.33, Florida Statutes, preempts to the Florida Legislature the "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." Section 790.33 prohibits not only such competing regulations (in their various forms),[4] but also any "violation of rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof by the abuse of official authority that occurs when enactments are passed in violation of state law or under color of local or state authority."

Given this language, it is clear that non-regulatory actions would not infringe on the statute's prohibition against competing unauthorized local or state government regulations. The sole issue, then, is whether such a non-regulatory government action would violate "rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof[.]"

To answer this question, we must examine the provision of the State Constitution to which section 790.33(2)(b) refers. Article I, section 8(a) of the Florida Constitution provides that "[t]he right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law." As observed by the appellate court in Florida Carry, Inc. v. University of North Florida, "[t]he phrase 'by law' indicates that the regulation of the state right to keep and bear arms is assigned to the legislature and must be enacted by statute."[5] Consistent with this restriction, the potential Council resolutions, as described—by "simply [expressing] support for, or opposition to, proposed legislation"—would not constitute prohibited regulation of the preempted subject matter. The Council's proposed resolutions expressing its views would not deny, impair, or interfere in any way with the right to bear arms, or the Legislature's regulation of such right. Because the Council's proposed actions would not appear to violate section 790.33, Florida Statutes, or the constitutional right to bear arms, the Council would not be subject to penalties under section 790.33(3)(f), Florida Statutes, for adopting such non-regulatory resolutions.

These informal comments are limited to the particular facts presented in your letter. I trust they will be helpful to you in advising your client.

Sincerely,

Teresa L. Mussetto
Senior Assistant Attorney General

TLM/tsh

________________

[1] See generally Ch. 790, Fla. Stat. (2016) ("Weapons and Firearms").

[2] Letter dated December 22, 2016, from City Attorney Jacqueline M. Kovilaritch to Attorney General Pam Bondi at 3-4.

[3] See § 790.33(2)(b), Fla. Stat. (2016).

[4] Although § 790.33 refers variously to "municipal ordinances or any administrative regulations or rules adopted by local or state government" [§ 790.33(1),(3)], "ordinances and regulations…enacted by any jurisdictions other than state and federal" [§ 790.33(2)], and "any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation of this section" [§ 790.33(3)(f)], the clear intent is to prohibit unauthorized competing local or state government regulation of firearms and ammunition. See § 790.33(1) (declaring "null and void" all "existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government" relating to the "regulation of firearms and ammunition.").

[5] 133 So. 3d 966, 972 (Fla. 1st DCA 2013) (italicized emphasis added) (citing Grapeland Heights Civic Ass'n v. City of Miami, 267 So. 2d 321, 324 (Fla. 1972) (considering the enactment clause language of article III, section 6, of the Florida Constitution and interpreting the term "law" in the phrase "authorized by law" to mean an enactment by the legislature, and not by a city commission or any other political body).