Florida DEP response

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Anyone that has been following what I have been doing via email with the DEP has probably already figured out how the DEP will respond. If you haven't been following along give a read through this thread.

http://opencarry.mywowbb.com/forum17/31310-1.html


Well today I got what appears to be the DEP's position. As follows:
=======================================================


Mr.xxxxx:

I appreciate the opportunity to assist you regarding the firearm question you submitted concerning the open display of same within the State Parks. I have been in contact with the Division of Law Enforcement’s Senior Counsel, Tracey Hartman, and now provide his response:

The open display of a firearm within a state park is prohibited. Rule 62D-2.014, FloridaAdministrative Code, states in part "No person shall use or openly display in any state park weapons such as firearms of any type . . ." Section 790.25(3)(h), Florida Statutes, which states"A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition;"is inapplicable.

The members of the Park Police will continue to abide by the above statement in order to enforce the law regarding the open display of firearms within a State Park. I sincerely hope this information assists you in making any recreational plans. If I can be of any further assistance, please feel free to call or contact me utilizing the listed contact information.

Sincerely,

Stewart F. Romack, Esq.
Captain - Special Operations
Commander - State Environmental Response Team
Commander - Reserve Officer Program
Florida Department of Environmental Protection
Division of Law Enforcement
Bureau of Park Police
=========================================================================
Now, I find this response unacceptable given the explanation above. I will be pursuing other options to get this specific issue addressed.

Of those options,I shall respond and post my response to this email and hopefully further engage the DEP on this issue. I will also be preparing a letter and sending this to every representative in the legislature as well as seeking legal advise. My only real question is, who is with me on this?



Rebel
American by birth, Southern by choice

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Rebel,
Thanks for the update on this.

Tracey Hartman wrote:

Section 790.25(3)(h), Florida Statutes, ...is inapplicable.

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Mr. Romack, for Mr. Hartman, needs to explain why it is inapplicable. Section 790.33, Florida Statutes, clearly states that the State Legislature, not theDEP or any other agency, occupies the regulation of firearms within the State of Florida. They also need to look deeper into section 790.25 and see subsection (4).

(4)CONSTRUCTION.--This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act is supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights. This act shall supersede any law, ordinance, or regulation in conflict herewith.

Even the law passed in 2006 (can't remember the session law #) stated that they must bring their regulations to coincide with state law.

They have authority to create rules pertaining to the operations and administration of the park, but banning open carry is out of their legal jurisdiction. They have been informed of the laws and ignorance is no longer an issue.

What is this going to take? Do we need to bombard them with letters? Eventually a lawsuit?



Tucky


Edit: A.D.H.D.

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That is enough BS for me. PM me with this guy's contact info. I'm pretty busy right now but I will send a letter asking for clarification. Also a full copy of hiss response.

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Tucky wrote:

Rebel,
Thanks for the update on this.

Tracey Hartman wrote:

Section 790.25(3)(h), Florida Statutes, ...is inapplicable.

Click to expand...

Mr. Romack, for Mr. Hartman, needs to explain why it is inapplicable. Section 790.33, Florida Statutes, clearly states that the State Legislature, not theDEP or any other agency, occupies the regulation of firearms within the State of Florida. They also need to look deeper into section 790.25 and see subsection (4).

(4)CONSTRUCTION.--This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act is supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights. This act shall supersede any law, ordinance, or regulation in conflict herewith.

Even the law passed in 2006 (can't remember the session law #) stated that they must bring their regulations to coincide with state law.

They have authority to create rules pertaining to the operations and administration of the park, but banning open carry is out of their legal jurisdiction. They have been informed of the laws and ignorance is no longer an issue.

What is this going to take? Do we need to bombard them with letters? Eventually a lawsuit?



Tucky


Edit: A.D.H.D.

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Yep the law that directed the rule change was very specific:

CHAPTER 2006-103 aka House Bill No. 1029

Section 3. The Department of Environmental Protection shall amend rule 62D-2.014(10), Florida Administrative Code, to allow the possession of weapons in compliance with all applicable Florida Statutes. The rule shall be amended to indicate that such weapons shall be at all times in the possession of a responsible party or properly secured within or to a vehicle or temporary housing, which shall include motor homes, travel trailers, recreational vehicles, campers, tents, or other enclosed structures, while in state parks.

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Last time I checked, 790.25(3)(h) is still a Florida Statute.

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Tucky wrote:

Rebel,
Thanks for the update on this.

Tracey Hartman wrote:

Section 790.25(3)(h), Florida Statutes, ...is inapplicable.

Click to expand...

Mr. Romack, for Mr. Hartman, needs to explain why it is inapplicable. Section 790.33, Florida Statutes, clearly states that the State Legislature, not theDEP or any other agency, occupies the regulation of firearms within the State of Florida. They also need to look deeper into section 790.25 and see subsection (4).

(4)CONSTRUCTION.--This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act is supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights. This act shall supersede any law, ordinance, or regulation in conflict herewith.

Even the law passed in 2006 (can't remember the session law #) stated that they must bring their regulations to coincide with state law.

They have authority to create rules pertaining to the operations and administration of the park, but banning open carry is out of their legal jurisdiction. They have been informed of the laws and ignorance is no longer an issue.

What is this going to take? Do we need to bombard them with letters? Eventually a lawsuit?



Tucky


Edit: A.D.H.D.

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Tucky,

You are welcome and I am sure there is more to come. My new work schedule is keeping me from posting as much as I have but I am still around.

Anyway a couple of points. As I stated I will be responding to this but will probably wait till Sunday or Monday when I have time to properly compose the communication. They definitely need to explain WHY it is inapplicable and in doing so site specific law that provides them the authority for making rulings of this nature.

The legislation you are looking to quite is 2006-103 otherwise commonly known as HC1029.. may be close but wrong on the House Bill # but I am rushed right now.

Anyway.. will update the group as I move forward.
Thanks for the support.

Rebel-Patriot
American by birth, Southern by choice

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fridaddy wrote:

That is enough BS for me. PM me with this guy's contact info. I'm pretty busy right now but I will send a letter asking for clarification. Also a full copy of hiss response.

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Check your inbox fridaddy. 3 communications sent all related to this matter.

Thanks for the support.

Rebel Patriot
American by birth, Southern by choice

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Hello everyone.

My name is Matthew, and I go by Gideon on here.

I recently researched the issues of open carry in state parks. Here are my conclusions.

790.25 is clear that open carry is allowed, and there is a preemption.

I contacted Evalin Lynn and she was kind enough to send a letter to the judicial department for me, and this was the response....

"Although it would appear that there is a conflict between the statute and the Code, if we consider (4) of s. 790.25, we will understand that the statute cannot supersede something (a law, ordinance or regulation) that didn’t exist at the time the statute was passed.

During the 2006 Session, the Legislature directed the Florida Department of Environmental Protection to amend the Rule (see “state park no hunting” attachment). It seems one should look to the Rule for guidance because the amendment to the Rule, at the direction of the new law, came last. It eliminated the prior prohibition against possessing, using or carrying a firearm in a state park and instead set forth the parameters for possessing, using or carrying (see “final DEP Rule” attachment). Note that the new Rule prohibits use or open display in a state park."

Senator Evelyn Lynn
536 N. Halifax Avenue, Suite 101
Daytona Beach, FL 32118-4018


So, the official stance of the justice department is that the statute does not apply. I can assure you that htey will prosecute, and that you will have to defend yourselves.



Now, on another issue. While researching it, I realzied that it does not state that fishing has to be in a state park, or in a forest, or even out of town. As a result, I am planning an open carry fishing picnic in Holly Hill Florida. My email is DGO@daytonagunowners.comif you are interested in joining us. I have no date set yet, just that it will be sometime next month. The police have alrady given me tacit approval for the event and are aware that it will happen.

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Hello Matthew, nice to meet you albeit online.

My name is Don, and I have been visiting this board off and on now for the past few months. I am 50 years old and have been around firearms all of my life in one aspect or another.

In your previous post, you stated that Florida Senator Evelyn Lynn contacted the justice department and that their reply was as follows:

"Although it would appear that there is a conflict between the statute and the Code, if we consider (4) of s. 790.25, we will understand that the statute cannot supersede something (a law, ordinance or regulation) that didn’t exist at the time the statute was passed.

During the 2006 Session, the Legislature directed the Florida Department of Environmental Protection to amend the Rule (see “state park no hunting” attachment). It seems one should look to the Rule for guidance because the amendment to the Rule, at the direction of the new law, came last. It eliminated the prior prohibition against possessing, using or carrying a firearm in a state park and instead set forth the parameters for possessing, using or carrying (see “final DEP Rule” attachment). Note that the new Rule prohibits use or open display in a state park."

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Now.. please do understand IANAL. However, I believe that the laws have been written very clearly and their language and intent are obvious.

790.25 supersedes 790.053 which is the ban on openly carrying of firearms with preemption. What has been discussed specifically relating to the DEP in other threads has been subsection h to 790.25 in regards to fishing and camping. Hunting is not allowed in State Parks and therefore not an issue.

There is no argument that the rule the DEP is currently using was written after Chapter 2006-103 became effective. However let us now look at the actual wording of 2006-103 for guidance.

Section 3. The Department of Environmental Protection shall amend
rule 62D-2.014(10), Florida Administrative Code, to allow the possession of
weapons in compliance with all applicable Florida Statutes. The rule shall
be amended to indicate that such weapons shall be at all times in the
possession of a responsible party or properly secured within or to a vehicle
or temporary housing, which shall include motor homes, travel trailers,
recreational vehicles, campers, tents, or other enclosed structures, while in
state parks.

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Therefore: Since Rule 62D-2014(10) WAS written and placed into effect AFTER Chapter 2006-103 became effective, I respectfully submit that it is invalid due to the fact that it did not then, nor does it now, comply with all applicable Florida Statutes as it still prohibits the open carrying and display of firearms even if in the possession of a responsible party actively engaged in the qualified activities described in 790.25.

I would very much appreciate it if you would contact me via PM, and make arrangements to forward on the original communications described in your post. There is much happening behind the scenes that I am not at liberty to discuss at this time, but I believe your communications would prove beneficial.

All the best
Gulf Coast Gunman


Edit - I actually had to correct a statute quote.. lol

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Law of Statutory Construction - if there is a conflict then the issue is resolved in favor of the conflict. Well rooted case law in FL supports this. So, let them figure out their issues and go be the test case. LOL

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Yesterday I formally sent in a request to have this rule considered for revising pursuant to statute 120.536(2). I cannot cite this or copy the letter as I am on my mobile, however, later tonight it will be up. This statute gives the DEP 30 days to accept my petition or provide a reason as to why not.
From the looks of this topic, we have a handful of Florida members in contact with the department; they cannot deny this indefinitely. Keep it up everyone


Tucky

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MrRadioActive wrote:

Law of Statutory Construction - if there is a conflict then the issue is resolved in favor of the conflict. Well rooted case law in FL supports this. So, let them figure out their issues and go be the test case. LOL

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Wonderful idea. Let us now speak of the Law of Statutory Construction and specifically Construction as it relates to Florida Statute 790.25

[size="-1"](4)CONSTRUCTION.--This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act is supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights. This act shall supersede any law, ordinance, or regulation in conflict herewith.

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I am pretty sure this ends that part of the discussion. Thanks for bringing it up.

Gulf Coast Gunman
[/size]

Final Outcome?

I realize this thread is old but I haven't found an updated rule. I saw the related resolution thread but the rule still hasn't been updated.

According to this:

http://www.dep.state.fl.us/legal/Final_Orders/2009/dep09-1244.pdf

the petition was granted by Gen Counsel to amend the rule but the DEP site does not indicate any changes. Anyone know why?

This topic seems to warrant a necropost. I just checked the FAC and it the current version of rule 62D-2.014(10) still categorically prohibits open carry of firearms in Florida state parks. As mentioned above, this contravenes state law.

It isn't particularly burdensome for me as I don't presently find myself frequently engaged in an exempted activity that allows open carry, but for those that do, it seems like this is a good rule to just break and deal with in court. Why? Unless I'm reading it wrong, violating 62D-2.014(10) is a "level 3 violation" according to 62D-2.015(4)(a). According to 62D-2.015(4)(b)-(e) this is a noncriminal violation punishable by a civil penalty of $150 per violation for your first infraction.

62D-2.015(4)
[...]
(b) A person who commits a Level Three violation commits a noncriminal infraction and shall be cited to appear before the county court.
(c) The civil penalty for a person who commits a Level Three violation is $150 per violation, unless paragraph (d) or (e) applies.
(d) The civil penalty for a person who commits a Level Three violation is $300 per violation if the person cited has previously committed the same Level Three violation within the preceding 36 months.
(e) The civil penalty for a person who commits a Level Three violation is $500 per violation if the person cited has twice previously committed the same Level Three violation within the preceding 60 months.

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For the relatively low risk of a noncriminal violation and $150 you buy the opportunity to go before a judge and demonstrate that when the DEP was ordered by the legislature to revise the rule to comply with all applicable statutes, they did not. You could also show that in the petition previously filed (documentation in prior post) General Counsel granted the petition to revise the rule (and denied the petition to strike it), yet the rule either was not revised, or was still not revised to comply with all applicable statutes.

Normally you have to risk being convicted of a crime to challenge some of these things - this one is almost a freebie (or so it seems).

If I had a little free time and had a genuine desire to open carry in a state park while engaging in an exempted activity (e.g. fishing) I'm pretty sure I'd set out to get cited for it.

Alternatively someone can submit a new petition (as was done and reported in a prior post) and resurrect the topic with DEP. Reference the previously granted petition, inquire as to the actions taken from it, and once again demand the rule be struck or amended.

Even though it doesn't particularly affect me, knowing the DEP is engaging in these shenanigans irritates the crap outta me.

Of course I'm not a lawyer, and this is not legal advice, so do your own research and form your own conclusions before proceeding.

I thought 790.33 makes their jobs go away if they enforce this old rule?

Mas49.56 said:

I thought 790.33 makes their jobs go away if they enforce this old rule?

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Ah yes. That little treat went into effect after the above complaints and petitions were filed. Even so much more reason to try to get cited for violating this - not only is it a good chance to get the thing officially struck down, but perhaps also a chance to get some bureaucrats fined and/or fired.

I have this in my archives but is undated. Perhaps someone can research this an put a date on it. ISTR that it was in the past year or so ...

/quote/

FROM: Tracey S. Hartman, Sr. Attorney, Office of the General Counsel

SUBJECT: Open Display of Firearms in State Parks


The Department is interpreting rule 62D-2.014(10) to be consistent with section 790.25(3)(h), Florida Statutes, regarding the open display of firearms. This will allow persons visiting the state parks to lawfully display firearms while they are engaged in fishing, or camping or going to or returning from a fishing, camping, or lawful hunting expedition. It remains a criminal violation of section 258.008(3)(e) for any person to engage in the act of hunting within the boundaries of a state park without first obtaining the express permission of the Division of Recreation and Parks.

The Department still fully intends to enforce the strictures of Chapter 790 in the parks, including the prohibitions against the improper exhibition of dangerous weapons or firearms, discharging a firearm in public, using a firearm while under the influence, shooting into dwellings, public or private buildings and the safe storage of firearms. The rule still prohibits the use of weapons within the parks and requires that:

Weapons shall at all times be in possession of a responsible party or properly secured within or to a vehicle or temporary housing, which shall include motor homes, travel trailers, recreational vehicles, campers, tents, or other enclosed structures, while in state parks. Properly secured means the weapon shall be locked away and not accessible to minors, and, if in a tent, means the weapon shall be secured in a locked container.

As I have stated in previous bulletins, these memoranda cannot begin to address every situation an officer will encounter. It is intended merely to provide general information regarding the Department’s decision to interpret the rule in conformance with state law. The Department expects you to use you professional judgment based on the totality of circumstances and act accordingly.

/unquote/

Ironside said:

I have this in my archives but is undated. Perhaps someone can research this an put a date on it. ISTR that it was in the past year or so ...

FROM: Tracey S. Hartman, Sr. Attorney, Office of the General Counsel
SUBJECT: Open Display of Firearms in State Parks

The Department is interpreting rule 62D-2.014(10) to be consistent with section 790.25(3)(h), Florida Statutes, regarding the open display of firearms. This will allow persons visiting the state parks to lawfully display firearms while they are engaged in fishing, or camping or going to or returning from a fishing, camping, or lawful hunting expedition. {snip}

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According to something I found on THR, that "advice" comes from the Florida Department of Environmental Protection Bulletin 09-03 - though I can't find a copy of such bulletin anywhere online.

I'm at a loss to understand exactly how "[t]he Department" can interpret this:

FAC 62D-2.014 Activities and Recreation.
(10) Hunting and Firearms. [...] No person shall use or openly display in any state park weapons such as firearms of any type [...]

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(Emphasis added)

to be consistent with this:

FS 790.25(3)
(h) A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition [may carry a firearm openly or concealed without a license]

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Perhaps they are aware of some form of reading or nuance to the English language that I am not.

My opinion is that so long as FAC 62D-2.014 maintains its current wording, and continues to be available from official sources, the agency is "promulgating" a rule in violation of 790.33. That seems to be actionable in and of itself. Anybody here make a habit of open carrying while fishing (or engaging in another exempted activity) in state parks? Have you been hassled by park personnel or LE? If they truly aren't enforcing it, then it's not as big a deal as if they are - but they still should revise the rule as it violates 790.33 in my opinion.

A copy of the "Florida Department of Environmental Protection Bulletin 09-03" would be nice to have.

Florida D.E.P. Final Order 09-1244, issued in late 2009, required D.E.P. to revise their regulations to comply with the applicable law. They have not done so, but did issue the above 'bulletins' to the public and their officers.

Any attempt by any LEO to enforce these unlawful regulations could/will result in civil penalties for him/her personally, and subject them to termination of employment. Plus other applicable remedy against their supervisors/managers/etc. if they are involved in the decision to make the unlawful detention/arrest/citation.

Do you have a date I can add to my "bulletin"?

Ironside said:

Do you have a date I can add to my "bulletin"?

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Found it. 11/13/09.

http://www.dep.state.fl.us/legal/Final_Orders/2009/dep09-1244.pdf