Could Polk County apply residential zoning to a proposed shooting range despite Florida's firearm preemption laws?

Plain-English summary

In 2008, Polk County asked whether Florida's firearm preemption laws prevented it from applying its residential land-use rules to sports shooting ranges. The county said some ranges were already in residential districts and it wanted to confine ranges to commercial areas for public safety reasons. Attorney General Bill McCollum distinguished a proposed range from a range already in operation.

He concluded that a county could apply its existing zoning and land-use rules when deciding where a proposed range could be located. Section 790.333(8) preempted local regulation of firearm and ammunition use at sport shooting and training ranges, but the opinion said it did not address the siting of those facilities. Section 823.16(7) expressly recognized local authority to regulate a range's location and construction after the act's effective date. The opinion also read § 790.33(1) as allowing zoning rules that affected firearms businesses along with other businesses, rather than singling them out to regulate firearms.

For existing ranges, the Attorney General reached a different result: “no newly created or amended zoning or land use regulations may be enforced against existing ranges.” The opinion discussed the statutory protection for a range that had complied with existing law when a later ordinance was enacted, subject to the conditions quoted in § 823.16(6).

Currency note

This opinion was issued in 2008. 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: Could a Florida county keep a proposed shooting range out of a residential district?
A: The Attorney General said a county could apply zoning and land-use regulations already in force to the siting of a proposed range. He gave a residential district's general prohibition on commercial activity as an example that did not appear inconsistent with the firearm preemption statute.

Q: Did firearm preemption prevent all local zoning of shooting ranges?
A: No. The opinion read the range-specific preemption provision as addressing firearm and ammunition use at ranges, while leaving location and construction to the local authority recognized by § 823.16(7).

Q: Could Polk County apply a new zoning restriction to a range already operating there?
A: The Attorney General said no newly created or amended zoning or land-use rule could be enforced against an existing range. His discussion also quoted statutory conditions concerning a range's compliance with earlier law and range safety standards.

Q: Could a county single out firearms businesses through zoning to restrict firearm sales?
A: The opinion quoted § 790.33(1) as forbidding zoning designed to restrict or prohibit firearms or ammunition sales, purchases, transfers, or manufacture as a way to regulate firearms. It distinguished zoning that applied to firearms businesses along with other businesses.

Background and statutory framework

The opinion examined three statutes. Section 790.333(8) preempted local regulation of firearms and ammunition use at sport shooting and training ranges. Section 823.16 provided limited immunity for qualifying ranges and, in subsection (7), preserved local authority over the location and construction of a range after the act's effective date. Section 790.33(1) broadly preempted firearm regulation while expressly preserving zoning that encompassed firearms businesses along with other businesses.

The Attorney General read these provisions together. He reasoned that treating § 790.333(8) as a total ban on range zoning would leave § 823.16(7) with no effect. His conclusion therefore allowed existing siting rules for proposed ranges while rejecting new or amended land-use rules against existing ranges.

Citations and references

• Section 790.333(8), Florida Statutes, preemption of firearm and ammunition use regulation at ranges.
• Section 823.16(7), Florida Statutes, local regulation of location and construction.
• Section 790.33(1), Florida Statutes, statewide firearm regulation and zoning exception.
• National Rifle Association of America, Inc. v. City of South Miami, 812 So. 2d 504 (Fla. 3rd DCA, 2002), cited in the opinion's fifth footnote.
• Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972), cited in the same footnote.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/shooting-ranges-land-use-regulation
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1830

Original opinion text

Mr. Michael S. Craig

County Attorney

Polk County

Post Office Box 9005

Bartow, Florida 33831-9005

RE: FIREARMS – SHOOTING RANGES – LAND USE REGULATION – ZONING – application of land use regulations and zoning to sports shooting ranges. ss. 790.33, 790.333, and 823.16, Fla. Stat.

Dear Mr. Craig:

You ask substantially the following question:

May a county enforce its land development code to prohibit a shooting range in a residential land use district in light of section 790.333(8), Florida Statutes?

You state that currently there are shooting ranges located within residential land use districts in Polk County. Due to concerns about public safety, the county wishes to restrict such shooting ranges to commercial areas. You state that under the Polk County Land Development Code, shooting ranges are classified as either a commercial business or high intensity recreation and would be prohibited in residential land use districts.

Section 790.333(8), Florida Statutes, provides:

"Preemption.—Except as expressly provided by general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition use at sport shooting and training ranges, including the environmental effects of projectile deposition at sport shooting and training ranges." (e.s.)

While the plain language of the statute pertains to the regulation of firearm and ammunition use at shooting ranges, there is apparent confusion in determining whether local land use regulations may be enforced to restrict the location of a shooting range. A review of the legislative history of section 790.333, Florida Statutes, reveals that the committee recognized the shift in population from urban to suburban and rural areas, and "the impact of certain zoning decisions."[1] The staff analysis, however, focuses primarily on giving immunity to shooting ranges that may be subject to suit for environmental contamination and incidentally provides for the preemption of the field of regulation of firearms and ammunition use at sport shooting and training ranges.

In 1999, the Legislature provided limited immunity to sport shooting ranges from criminal prosecution or civil suits based on an underlying claim of noise or noise pollution in section 823.16, Florida Statutes.[2] The statute was clear, however, that such immunity was to be extended as long as the shooting range was in compliance with the local noise-control ordinances in effect at the time of construction or initial operation of the range.[3]

The statute also provides:

"A sport shooting range that is not in violation of existing law at the time of the enactment of an ordinance applicable to the sport shooting range shall be permitted to continue in operation even if the operation of the sport shooting range does not conform to the new ordinance or an amendment to an existing ordinance, provided the range was not in violation of any law when the range was constructed and provided that the range continues to conform to current National Rifle Association gun safety and shooting range standards."[4]

Section 823.16(7), Florida Statutes, recognizes that "[e]xcept as otherwise provided in this act, this act shall not prohibit a local government from regulating the location and construction of a sport shooting range after the effective date of this act."

Section 790.33(1), Florida Statutes, preempts the regulation of firearms and ammunition to the state:

"Except as expressly provided by 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, manufacturer, ownership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. This subsection shall not affect zoning ordinances which encompass firearms businesses along with other businesses. Zoning ordinances which 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." (e.s.)

Clearly, a municipality’s attempt to regulate firearms is null and void.[5] 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. Such an ordinance, however, could not be applied retroactively to an existing sport shooting range.

The provisions of section 790.333, Florida Statutes, are specific to the regulation of the use of firearms and ammunition at sport shooting and training ranges, but do not address the actual siting of such facilities. The primary purpose of the legislation was to grant immunity from legal action by the state and local governments for the use, release, placement, deposition, or accumulation of any projectile in the environment. The recognition that no action can be taken against shooting range facilities existing at the time of the enactment of all of the above-cited statutes relating to firearms and shooting ranges should be read together in a manner to give effect to each.[6] To read the preemption provision in section 790.333, Florida Statutes, as a total ban on the application of any zoning or land use regulation upon an existing or proposed sports shooting range would render section 823.16 (7), Florida Statutes, noted above, of no use or consequence.

Accordingly, it is my opinion that a county clearly may impose existing zoning and land use regulations upon the siting of a proposed sports shooting range; however, no newly created or amended zoning or land use regulations may be enforced against existing ranges.

Sincerely,

Bill McCollum

Attorney General

BM/tls

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[1] Senate Staff Analysis and Economic Impact Statement, CS/CS/CS/SB 1156, Appropriations Committee, Criminal Justice Committee, Judiciary Committee, March 18, 2003.

[2] Section 823.16(2), Fla. Stat.

[3] Section 823.16(3), Fla. Stat.

[4] Section 823.16(6), Fla. Stat.

[5] See National Rifle Association of America, Inc. v. City of South Miami, 812 So. 2d 504 (Fla. 3rd DCA, 2002) (municipal ordinance establishing certain safety standards for firearms null and void as regulation preempted to the state) and Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972) (municipal ordinance must not conflict with controlling provisions of state statute; any doubt as to municipality’s power is resolved against the ordinance).

[6] See, e.g., Mann v. Goodyear Tire and Rubber Company, 300 So. 2d 666 (Fla. 1974) (A law should be construed together and in harmony with any other statute relating to same subject matter and having same purpose even though not enacted at same time).