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Thread: Florida preemption law

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    Regular Member self preservation's Avatar
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    Florida preemption law

    Looking for some info on floridas preemption law. Here in KY. our preemption law forbids local government from prohibiting public employees from carrying while in the course of their duties. (Trashman, meter readers, city clerks, etc) Does Florida law allow cities and counties the right to prohibit their employees from carrying while on the clock?
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    Regular Member Rich7553's Avatar
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    Florida's preemption law contains no such prohibition, however we are an "at-will" hire/fire state, and the courts have given great deference to government agencies' regulation of employee conduct on the job or in government vehicles. Therefore one can be fired, but not necessarily prosecuted.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Rich7553 View Post
    Florida's preemption law contains no such prohibition, however we are an "at-will" hire/fire state, and the courts have given great deference to government agencies' regulation of employee conduct on the job or in government vehicles. Therefore one can be fired, but not necessarily prosecuted.

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    Do state agencies not come under the perview and direction of the executive branch (governor) rather than the legislature (statutes)?

    In other words, the legislature has not preempted either itself or the governor from making rules/determinations. Am I right?
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    Quote Originally Posted by Grapeshot View Post
    Do state agencies not come under the perview and direction of the executive branch (governor) rather than the legislature (statutes)?
    <snip>

    Some do and some don't. Many agencies are creatures of statue, hence legislatively controlled when looking at the life and death of an agency. Some are controlled by the executive branch, some legislative branch, some judicial branch, and some other. What a governor can and cannot do is also controlled by the law. My guess? At state level? About 50% are executive, 20% legislative, 10% judicial, and 20% some other constitutionally created offices (not controlled by governor that people normally associate with an executive branch function--like attorney general [AG] as an example).

    Agencies and government officials can only do what the law allows them to do ... if the law does not authorize a public official or agency to do this or that then they cannot.

    Its likely that the legislature has authority under the law to make rules regarding the workings of that body and that the governor can also for his branch agencies ..not that they cannot break their own rules (ex:most courts opinion that when the legislature violates it own rules it actually is a showing of them amending the rules as opposed to violating them). [And, continuing one with constitutional offices, the AG can make rules too--the governor cannot interfere with the AG's office in most states].

    People think that the rule of law that guides all .... not in most states. Even kings were not able to legally break common law (hence the term "COMMON law")-- not so here, in our government, in respect to the conduct of many public officials with respect to laws, regulations, and rules that these public officials promulgate. In this respect, a monarchy looks better than our system.
    Last edited by davidmcbeth; 09-01-2015 at 11:44 PM.

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    Moderator / Administrator Grapeshot's Avatar
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    Things not expressly forbidden by law are said to be legal - that includes executive decisions and directives. Even those not in accordance with the law may take years to work their way through the court system with no way to guarantee which side will win. Meanwhile, like a double constrictor knot, it is the tie that binds our hands.
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    Can at will employees sue after dismissal for legal conduct? See Mississippi forum

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    Regular Member Rich7553's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Do state agencies not come under the perview and direction of the executive branch (governor) rather than the legislature (statutes)?

    In other words, the legislature has not preempted either itself or the governor from making rules/determinations. Am I right?
    The Legislature has preempted any other body from regulating firearms, except those specifically excepted by statute. The executive branch is preempted as well.

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    Quote Originally Posted by Grapeshot View Post
    Do state agencies not come under the perview and direction of the executive branch (governor) rather than the legislature (statutes)?

    In other words, the legislature has not preempted either itself or the governor from making rules/determinations. Am I right?
    It is express full field and a constitutional preemption to the legislature in Florida, the Executive can only regulate arms persuant to specific statutes. For example, executive branch agencies have been ruled to be preempted. See Fla. Carry v. Univ N. Fla. 1DCA 2013 and s. 790.33 Fla. Stat.
    Last edited by StogieC; 09-02-2015 at 09:13 AM.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by StogieC View Post
    It is express full field and a constitutional preemption to the legislature in Florida, the Executive can only regulate arms persuant to specific statutes. For example, executive branch agencies have been ruled to be preempted. See Fla. Carry v. Univ N. Fla. 1DCA 2013 and s. 790.33 Fla. Stat.
    That is good to know.

    Case law supporting black letter law is great.
    Last edited by Grapeshot; 09-02-2015 at 09:21 AM. Reason: fixed it
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    Quote Originally Posted by self preservation View Post
    Looking for some info on floridas preemption law. Here in KY. our preemption law forbids local government from prohibiting public employees from carrying while in the course of their duties. (Trashman, meter readers, city clerks, etc) Does Florida law allow cities and counties the right to prohibit their employees from carrying while on the clock?

    I know you asked about Florida State preemption on firearms. But if you looking for good, solid, model language, you might check out Utah's State Preemption law at 76-10-500 and53-5a-102. Some addemdums providing both a little authority and some implicit restrictions to/on colleges can be found at 53b-3-103.

    In simple terms, these sections say that all authority to regulate firearms is reserved to the State legislature except in cases where the legislature has granted specific authority to some other entity to deal with firearms. No government entity, including counties, cities, agencies, departments, school districts, public colleges, etc, can pass, maintain, nor enforce any rule, ordinance, nor policy that has the effect of restricting individual access to or possession of firearms, except as the legislature has explicitly permitted.

    As some examples: the legislature has granted specific authority to the DWR to regulate what firearms may be used during various hunts. However, DWR does not have authority to regulate firearms carried for self-defense and carried pursuant to a permit-to-carry even if that gun is carried during a hunt, by a hunter, as long as the hunter doesn't use the gun for hunting.

    Cities can regulate hunting and the discharge of firearms within their borders, but may not otherwise restrict or regulate firearms.

    Colleges may create a single, secure hearing room where guns may be banned, but may not otherwise regulate firearms. (In Utah, colleges fall under our State GFSZ law and so a permit to carry--from any jurisdiction in the nation--is required to legally carry.)

    The agency that runs prisons has explicit authority to ban weapons from the prison, for obvious reasons.

    Any law, rule, ordinance, policy, etc promulgated by a local government authority that conflicts with State gun laws is null, void, and unenforceable.

    So the lady behind the desk at the department of motor vehicles might be carrying. A public school teacher may well be carrying to school, and several of our local instructors have taken to given free permit classes to school employees to encourage them to do just that. Professors, students, or visitors at our public colleges and universities may be carrying.

    State preemption was upheld against State colleges by our State's highest court in "University of Utah v Shurtleff" in 2006. (The same case, heard by a lower State court in 2003, went in favor of the colleges. There was a small but important change in our State preemption law to specifically cover colleges by preemption between 2003 and 2006. Gave our highest court no real choice but to uphold State preemption. One judge still dissented in favor of the gun banners at the colleges.)

    It took a little pushing to get some agencies to comply with these laws. But we are pretty well there now. Some of the pushing including having the legislature call agency/department heads in to defend their rules and polices. In Utah, all exec rules have to be re-authorized by the legislature every year or two. This is normally a pro-forma rubber stamp. But Utah's gun owners (and a couple of the other leading activists/lobbyists) persuaded a couple of legislators to do an in-depth review of a couple of rules that violated State preemption. In most cases, that was enough for agencies to fix their rules. In one case, it had a nice side effect. By rule--not law, but rule--Utah used to be a "duty to inform" State. Our department of public safety lost all their rules for a year when a legislator managed to put a hold on re-approving those particular rules. By the time the next re-approval cycle rolled around, DPS was persuaded they could live without a duty to inform on permit holders if they could just get their other rules back.

    Any quarter given in State preemption laws will likely be abused by some low-level tin hat type. A solid preemption law, with a couple of RKBA-friendly legislators willing to yank in department heads for public hearings on why they are creating or maintaining rules that violate State law can go a long way.

    Our only notable exception is our courts. The State judiciary has asserted constitutional authority as an independent branch of government to maintain and enforce rules regarding guns independent of legislative authority.

    This is relevant because taking a gun into a legislatively defined "secure" area is a felony. However, the courts have declined to provide the lockers required to make courtrooms such an area. So taking a gun into a courtroom is not a felony nor otherwise a violation of State law. But it is treated as contempt of court.

    Charles
    Last edited by utbagpiper; 09-02-2015 at 10:11 AM.
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