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, is unusually strict. It preempts to the Legislature the entire field of firearm and ammunition regulation, voids any conflicting local ordinance, and (under § 790.33(3)) imposes personal liability and a private damages remedy on local officials who pass measures in violation. 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 that liability.

The AG said no, on a clean two-step. First, the resolutions described were non-regulatory: they did not impose rules, restrictions, or enforcement obligations on anyone. 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. Resolutions expressing the council's view, with no operative effect on anyone's right to keep and bear arms, do not deny, impair, or interfere with the constitutional right.

The opinion is narrow. It is keyed to the facts as described: resolutions that "simply express support for, or opposition to, proposed legislation." A council that drifted from a non-binding expression of view into something with regulatory operation (a directive to a department, a condition on a permit, a moratorium) would fall outside the safe harbor.

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: Per this opinion, yes, so long as the resolution is purely expressive and contains no regulatory provisions. It does not violate § 790.33's preemption.

Q: Could individual council members face personal damages for voting on such a resolution?
A: Section 790.33(3)(f) creates personal liability and a private damages action for officials who pass enactments in violation of the preemption. The AG concluded a non-regulatory resolution would not violate § 790.33, so the (3)(f) remedy would not be triggered.

Q: What is the line between regulation and expression?
A: A regulation imposes rules of conduct, prohibitions, permits, fines, or other operative legal effect. An expression of legislative view is a position statement with no operative effect. The opinion treats council statements like "we urge the Legislature to pass HB X" as expression. A resolution that conditioned action on the regulated subject (e.g., "the city will not enter contracts with firearm dealers") would be different.

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.

Q: Why does Florida have such a strict preemption regime?
A: The Legislature consolidated firearm regulation in 1987 and added the personal-liability and damages remedies in 2011 because some cities continued to enforce ordinances the state had preempted. The 2011 amendments aimed to deter local action even at the threat of fines and damages awards.

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."

Subsection (3) backs the preemption with teeth: personal civil penalties, removal from office for "knowing and willful" violations, and a private right of action by aggrieved persons for declaratory and injunctive relief plus actual damages up to $100,000.

The opinion situates "non-regulatory expression" outside both limbs. Expression neither "regulates" firearms nor abuses official authority to violate a protected right. 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
• Original PDF: 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.

[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)).