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Thread: Challenging a state law

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    Challenging a state law

    Recently I spoke with someone about the open carry in parks rule here in Florida, and the law was challenged and failed. I'm trying to remember the process, and what it was called to do that.

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    Quote Originally Posted by GIdeon_70 View Post
    Recently I spoke with someone about the open carry in parks rule here in Florida, and the law was challenged and failed. I'm trying to remember the process, and what it was called to do that.
    First, there is no 'open carry in parks' rule.

    Open carry is generally prohibited in Florida. There are, however some exceptions including at home & work; also hunting, fishing, camping, and the range - including going to/from.

    Can you be a little more specific?

    Also, not sure what you mean by "law was challenged and failed."

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    Quote Originally Posted by GIdeon_70 View Post
    Recently I spoke with someone about the open carry in parks rule here in Florida, and the law was challenged and failed. I'm trying to remember the process, and what it was called to do that.
    On what grounds/reason would you be suing for ... the process is called a lawsuit ..

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    Quote Originally Posted by notalawyer View Post
    First, there is no 'open carry in parks' rule.
    Can you be a little more specific? ."
    Surely.

    About five years ago the State of Florida passed an administrative law that totally banned openly carried firearms in state parks. I spoke with a lawyer in this forum who was challenging the law on the basis of it being an illegitimate law - or a law that does not have a basis in the State Constitution. The challenge was successful and the administrative rule was repealed. The new administrative regulation, which allows openly carried firearms in parks while fishing, camping and hunting is what I was referring to by the open carry rule.

    I forgot the name of the process that was used to challenge the administrative law, and wondered if anyone remembered.

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    Quote Originally Posted by davidmcbeth View Post
    On what grounds/reason would you be suing for ... the process is called a lawsuit ..
    There are administrative methods to utilize before it is necessary to file an actual lawsuit. My reasons are my own.

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    Quote Originally Posted by GIdeon_70 View Post
    There are administrative methods to utilize before it is necessary to file an actual lawsuit. My reasons are my own.
    If it for US constitutional reasons then there are no admin. procedures needed ... FYI

    Go seek a lawyer...

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    Quote Originally Posted by GIdeon_70 View Post
    Surely.

    About five years ago the State of Florida passed an administrative law that totally banned openly carried firearms in state parks. I spoke with a lawyer in this forum who was challenging the law on the basis of it being an illegitimate law - or a law that does not have a basis in the State Constitution. The challenge was successful and the administrative rule was repealed. The new administrative regulation, which allows openly carried firearms in parks while fishing, camping and hunting is what I was referring to by the open carry rule.

    I forgot the name of the process that was used to challenge the administrative law, and wondered if anyone remembered.

    You've got some of the details wrong, but you are referring to rule 62D-2.014(10), Florida Administrative Code.

    Back in 2006 (General Law 2006-103), the Florida Legislature ordered the DEP to modify the rule to comply with all Florida Laws. DEP did correct most of it but failed to remove the portion related to open display of a firearm.

    It was challenged in a petition in 2009 and D.E.P. Final Order 09-1244 required the department to amend their rule (again), which they have not done to this date.

    But it really does not matter because of preemption and the fact that many courts in Florida have ruled:
    It is axiomatic that an administrative rule cannot enlarge, modify or contravene the provisions of a statute.

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