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Carrying at the beach

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brboyer

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Lezchap wrote:
tracylaud83 wrote:
WOW!!!!



We need a lawyer to look at this one, or get someones advise that's smarter than me. But this sounds VERY interesting..............
Click to expand...
It's the same law that allows open carry at your own home or business...

It's the same law that allows you to pull your gun out (open carry) at a gun range.

It's the same law that allows military members to open carry in the performance of their duties.

It's the same law that allows police officers to open carry in the performance of their duties.

It's the same law that allows armored car guards to open carry.

Just to name a few....

Just a note: It's legal to drink (alcohol) and fish, and it's legal to fish and carry, but it's not legal to do all 3, under my understanding of the law...and the legality of OC while driving to and from a fishing/hunting/camping trip is a very grey area.
Click to expand...

Incorrect. There is no law against drinking while carrying a firearm. It's illegal to use (other than self defense) a weapon with an unlawfulBAC level. Use is also interperted to mean 'hold in hand'.

790.151 Using firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances; penalties.--
(1)As used in ss. 790.151-790.157, to "use a firearm" means to discharge a firearm or to have a firearm readily accessible for immediate discharge.
(2)For the purposes of this section, "readily accessible for immediate discharge" means loaded and in a person's hand.
(3)It is unlawful and punishable as provided in subsection (4) for any person who is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his or her normal faculties are impaired, to use a firearm in this state.
(4)Any person who violates subsection (3) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(5)This section does not apply to persons exercising lawful self-defense or defense of one's property.
 
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Lezchap

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, Florida, USA
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Well color me mistaken. Nice catch...Still, I doubt I'll be carrying my weapon around when I'm drinking away from home...afterall, guns and alcohol don't mix well, but that's me. When I do drink, I tend to drink in excess...and while I've never done stupidly violent actions while drunk (including walking away when getting hit in the back of the head in a bar while drunk as can be), alcohol does cause your judgement to be suspect...
 
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Hotshot718

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Lezchap wrote:
Well color me mistaken. Nice catch...Still, I doubt I'll be carrying my weapon around when I'm drinking away from home...afterall, guns and alcohol don't mix well, but that's me. When I do drink, I tend to drink in excess...and while I've never done stupidly violent actions while drunk (including walking away when getting hit in the back of the head in a bar while drunk as can be), alcohol does cause your judgement to be suspect...
Click to expand...
I agree. Like the saying goes, "If I have one, I'll have thirteen!" Last thing I need is to be drinkin', fishin', and OCin' but YMMV. Dang fish are too hard to catch anyway the way the room spins when I get a few shots in me!
 
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Lezchap

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, Florida, USA
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The only problem I can see OCing while fishing is most places we can fish are county or city parks...I know Brevard County has an ordinance which states:
Sec. 78-115. Firearms, fireworks, weapons. No person shall carry, fire or discharge any weapon or firearm or any rocket, torpedo or fireworks of any description in any park, recreational facility or department managed lands without a permit from the department except in areas designated for such purpose.
( http://www.municode.com/resources/gateway.asp?pid=10473&sid=9 Chapter 78, Sec. 78-115)

I know Titusville, up where I live, has a similar law for Sand Point Park...but I also think Fishing is illegal from Sand Point, so it might be a moot point there...

However, I think these laws are illegal via Florida Statute: [size="-1"]790.33 Field of regulation of firearms and ammunition preempted.

[/size][size="-1"](1)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, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto.

Then again...I'm not a lawyer...the Brevard law only applies to "[/size]park, reservation, playground, beach, recreation center, refuge, sanctuary, conservation area and environmentally endangered lands or other area owned, leased, managed, operated or maintained by the county and devoted to active or passive recreation" which would probably include the majority of the non-private docks we'd be able to fish at. Then there's the fact that the State law on OC doesn't apply to Federal Property (like Playa Linda Beach) where we could also fish.
 
B

brboyer

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Tampa Bay, Florida, USA
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Lezchap wrote:
The only problem I can see OCing while fishing is most places we can fish are county or city parks...I know Brevard County has an ordinance which states:
Sec. 78-115. Firearms, fireworks, weapons. No person shall carry, fire or discharge any weapon or firearm or any rocket, torpedo or fireworks of any description in any park, recreational facility or department managed lands without a permit from the department except in areas designated for such purpose.
( http://www.municode.com/resources/gateway.asp?pid=10473&sid=9 Chapter 78, Sec. 78-115)

I know Titusville, up where I live, has a similar law for Sand Point Park...but I also think Fishing is illegal from Sand Point, so it might be a moot point there...

However, I think these laws are illegal via Florida Statute: [size=-1]790.33 Field of regulation of firearms and ammunition preempted.

[/size][size=-1](1)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, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto.

Then again...I'm not a lawyer...the Brevard law only applies to "[/size]park, reservation, playground, beach, recreation center, refuge, sanctuary, conservation area and environmentally endangered lands or other area owned, leased, managed, operated or maintained by the county and devoted to active or passive recreation" which would probably include the majority of the non-private docks we'd be able to fish at. Then there's the fact that the State law on OC doesn't apply to Federal Property (like Playa Linda Beach) where we could also fish.
Click to expand...
Local laws/regulations related to firearms (except discharge) are, if fact, unenforceable due to State preemption. Now the fishing regs...you're on your own.
 
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Lezchap

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, Florida, USA
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brboyer wrote:
Lezchap wrote:
The only problem I can see OCing while fishing is most places we can fish are county or city parks...I know Brevard County has an ordinance which states:
Sec. 78-115. Firearms, fireworks, weapons. No person shall carry, fire or discharge any weapon or firearm or any rocket, torpedo or fireworks of any description in any park, recreational facility or department managed lands without a permit from the department except in areas designated for such purpose.
( http://www.municode.com/resources/gateway.asp?pid=10473&sid=9 Chapter 78, Sec. 78-115)

I know Titusville, up where I live, has a similar law for Sand Point Park...but I also think Fishing is illegal from Sand Point, so it might be a moot point there...

However, I think these laws are illegal via Florida Statute: [size="-1"]790.33 Field of regulation of firearms and ammunition preempted.

[/size][size="-1"](1)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, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto.

Then again...I'm not a lawyer...the Brevard law only applies to "[/size]park, reservation, playground, beach, recreation center, refuge, sanctuary, conservation area and environmentally endangered lands or other area owned, leased, managed, operated or maintained by the county and devoted to active or passive recreation" which would probably include the majority of the non-private docks we'd be able to fish at. Then there's the fact that the State law on OC doesn't apply to Federal Property (like Playa Linda Beach) where we could also fish.
Click to expand...
Local laws/regulations related to firearms (except discharge) are, if fact, unenforceable due to State preemption. Now the fishing regs...you're on your own.
Click to expand...
That's my opinion on it as well...but there's always the jerks in law enforcement that needs educated...often the hard way via a court battle.
 
KBCraig

KBCraig

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Lezchap wrote:
[size="-1"](1)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, ...[/size]
Click to expand...
So, does general law expressly provide any exceptions? That's the catch you have to watch for.
 
L

Lezchap

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, Florida, USA
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KBCraig wrote:
Lezchap wrote:
[size="-1"](1)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, ...[/size]
Click to expand...
So, does general law expressly provide any exceptions? That's the catch you have to watch for.
Click to expand...
As far as I've found, the preemption law in itself gives an exception for local governments (counties and cities) to enact longer waiting periods for firearm purchases...and it doesn't cover the discharge of firearms (except in self defense)...other then that, -I- cannot find any exceptions.
 
F

fridaddy

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WOW again. I am a lawyer and never noticed the camping exemption.

On the parks issue, we had the same problem in Jax. There was a rule on the city parks website, as well as at certain parks prohibiting weapons. After a serious phone and email campaign, along with the threat of potential legal liability, the city dropped the rule. Send a letter to the parks division and the city or county attorney. IF they do not respond favorably file a complaint with the state AG.

I am tied up until after the new year, but I would be happy to discuss the situation with anyone then. Just drop me an email.
 
T

Todd Hardy

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Somebody mentioned an OC fishing/camping trip; why don't we do this? I mean, there's strength in numbers, right? Big group of people, all with sidearms? OC flyers in hand, press leak? We could actually do something to help further OC in Florida. I'm in Polk County but I'm up for travel. Hell, I used to live in Satellite Beach/Indialantic/Melbourne, and Tampa is right around the corner. Then again, Polk Co. has tons of places as well. There are plenty of barrier islands or even public shorelines; not to mention lakes.

Anyone?

-Todd


*Edit: To answer the original question, a camera case (or camcorder case, depending on how large of a gun) is a good way to carry. You can attach it to your belt or carry with a strap. They also make dry-boxes which you can get at any boating or dive shop. Those are especially good for when on a boat. They float and are air tight.
 
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Hotshot718

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I have actually been thinking about organizing one of these since lezchap pointed out the statute that it seems a lot of us overlooked. I picked up a fishing pole this weekend, matter of fact! Todd, I'm thinking the Eau Gallie Pier on the West side of the causeway, right by the library? This way we can get supporters to sign the online petition right then and there. Anyone interested? I've been thinking about any legal ramifications that may arise, but hell, who said the road would be easy. I would like to do this after the holidays, mostly because its the busy season at my job and weekends become kinda hard to plan. please post here if interested.
 
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Todd Hardy

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Yeah, west side of the causeway, definately! That's MPD's territory. IHBPD would for sure be less tolerant and understanding. After the holidays would be good for me too and probably most other people as well.

I'm envisioning signs posted on the road and calls to Florida Today and Channel 2. Also, I was the owner of Martin Media's right-hand man for 5 years. He publishes Cars 'n' More, Homes 'n' More, and Brevard Autos. I could easily have a full-page ad run announcing an "Open Carry Fishing Rally", or something. We need to get some people together who are willing to do this, set a date, come up with some ideas, and get the ball rolling.

I've been meaning to call my attorney to get solid legal advice on this but have been procrastinating. I'll do it for sure tomorrow and report back.
 
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Lezchap

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The only thing you have to look out for is a lot of the parks around here have a regulation requiring a permit for "public gatherings" held within them...which an openly publized meet would most likely qualify for...

You know how the buerocracy works...if they can't get you under one law, they'll look for another to persecute (purposely chosen over prosecute) you for.
 
T

Todd Hardy

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Good point! We used to have to do that when we held customer appreciation parties at the different parks. See, this is why we need more heads on this. We can get the permit, just have to know when and give them enough notice. Thanks!
 
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Todd Hardy

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Sorry for the delay; we had our Christmas parade last night and I was in it. Many thoughts of an Open Carry float came about.

Anyway, I spoke with an attorney at the firm and he wasn't much help. At first he said something to the effect of in the country probably but problems in the city; I pointed out paragraph (4); he said "oh". The he tried saying something about it referring to law enforcement related professionals; I pointed out the carry at home/work/range sections and the fact that sub-paragraph (h) and he finally ended with "well, it seems legal." Thank you Captain Obvious.

Bottom line is that it's legal but no one has done this to the extent we're talking. I plan on personally calling the police dept. in my city first to tell them a few guys will be fishing while open carrying at a major lake that people walk/run/bike around to see the response I get. Then, I'll call MPD. There's no rush so if anyone has any better ideas...
 
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Hotshot718

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Sounds good to me, Todd! I say we hit the local gun shows pretty hard with OC fliers and let them know what we're planning. That should get some local support.
 
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ianto94

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OK. So I'm here at South Beach for the week, and wife wound not allow me to protect her adequately, but the first thing I notice as I walk to the beach is the no firearms signs. Anyone with an opinion whether this prohibition is valid?
 
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Hotshot718

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If its a public beach, its not valid. Beaches are not on the list of prohibited places by FL790.06(12), so local government has no authority to tell you otherwise. its the same as the parks and playgrounds in my area. some of them have the no weapons signs posted, but hey, its concealed, how are they gonna know?
 
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Lezchap

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"Standard" not a lawyer warning...

Public beach, that isn't federal property, the signs hold no weight.

Public beach, that IS federal property (like Playa Linda up in Brevard), and the signs hold plenty of weight...kinda like a military reservation, state gun laws don't apply, and afaik guns aren't allowed at all from us private citizens.

Private beach, the signs do apply...but only partially. Having a gun on a private beach with a no gun sign isn't breaking the law, but they can ask you to leave and if you don't you're tresspassing with a weapon and that's not a good thing...

Either way, CC is probably your best bet with the way state laws are written...the OC while fishing law isn't well known, and if you try it you'll still probably get a lot of grief (even if it's explicitly legal).
 
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fridaddy

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Re Federal lands: new Fed Regulation takes effect next month conforming federal land weapon possession to that allowed by state law, with some exceptions. Carry will be allowed in National parks and national forest in conformance with state law.
 
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