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State Of florida preemption law

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spacecoast321

Regular Member
Joined
Jan 9, 2013
Messages
31
Location
Cocoa, Florida, United States
Legislature occupying whole field of firearms and ammunition, including sale, etc.

Read the entire section of FL Constitution/Statutes referenced, only a stub for reference below.
Anyone, if I am missing something jump in.


Florida Constitution web link
ARTICLE 1 DECLARATION OF RIGHTS
SECTION 8. RIGHT TO BEAR ARMS
(b) There shall be a mandatory period of three days (etc...)

ARTICLE VIII LOCAL GOVERNMENT
SECTION. 5 LOCAL OPTION
(b) Each county shall have the authority to require a criminal history records check and a 3 to 5-day waiting period, (etc...)


Florida Statutes web link
790.33 Field of regulation of firearms and ammunition preempted.—
(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. (etc...)

790.0655 Purchase and delivery of handguns; mandatory waiting period; exceptions; penalties.—
(1)(a) There shall be a mandatory 3-day waiting period, which shall be 3 days (etc...)
 
Last edited:
N

notalawyer

Regular Member
Joined
Jun 19, 2012
Messages
1,061
Location
Florida
spacecoast321 said:
Read the entire section of FL Constitution/Statutes referenced, only a stub for reference below.
Anyone, if I am missing something jump in.


Florida Constitution web link
ARTICLE 1 DECLARATION OF RIGHTS
SECTION 8. RIGHT TO BEAR ARMS
(b) There shall be a mandatory period of three days (etc...)

ARTICLE VIII LOCAL GOVERNMENT
SECTION. 5 LOCAL OPTION
(b) Each county shall have the authority to require a criminal history records check and a 3 to 5-day waiting period, (etc...)


Florida Statutes web link
790.33 Field of regulation of firearms and ammunition preempted.—
(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. (etc...)

790.0655 Purchase and delivery of handguns; mandatory waiting period; exceptions; penalties.—
(1)(a) There shall be a mandatory 3-day waiting period, which shall be 3 days (etc...)
Click to expand...


This is the part relevant to the OP's question:
ARTICLE VIII LOCAL GOVERNMENT
SECTION. 5 LOCAL OPTION
(b) Each 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. For purposes of this subsection, the term “sale” means the transfer of money or other valuable consideration for any firearm when any part of the transaction is conducted on property to which the public has the right of access. Holders of a concealed weapons permit as prescribed by general law shall not be subject to the provisions of this subsection when purchasing a firearm.
Click to expand...
 
S

spacecoast321

Regular Member
Joined
Jan 9, 2013
Messages
31
Location
Cocoa, Florida, United States
Constitutional language is different from Statute

Does any one know the history of why was the Statute was crafted to be less restrictive than the Constitution? Seems that would cause unnecessary confusion for citizens, both buyers and sellers.

I am working on the assumption that the Constitutional language prevails whenever a Statute is in conflict...
 
N

notalawyer

Regular Member
Joined
Jun 19, 2012
Messages
1,061
Location
Florida
spacecoast321 said:
Does any one know the history of why was the Statute was crafted to be less restrictive than the Constitution? Seems that would cause unnecessary confusion for citizens, both buyers and sellers.

I am working on the assumption that the Constitutional language prevails whenever a Statute is in conflict...
Click to expand...

No conflict, two different provisions: one mandatory, one optional. Article 8, Section 5 came about in 1998 as a Constitutional amendment. Unlike others, it did not contain language requiring the Legislature to codify it in statute. So it's not in the statutes.

Take a look at Section 5, Article 8 (enacted in 1989-1990):
bla,bla,bla...
(c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony.
Click to expand...
It is codified in 790.0655.

In 2011, we did manage to remove the other optional waiting period that was contained in 790.033. This was easy as it did not result from a Constitutional amendment, simply a change to the statute.
 
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