Res No 062-18-15095RESOLUTION NO. 062-18-15095
A Resolution of the Mayor and City Commission of the City of South Miami,
Florida, hiring Weiss Serota Helfman Cole & Bierman and authorizing them to
join with the City of Weston and file a lawsuit seeking a declaration that the
provisions punishing elected officials set forth in section 790.33, Florida Statutes,
for violating the preemption related to the regulation of firearms and
ammunition are invalid, and inviting other local governments to join the lawsuit.
WHEREAS, over the past several years there have been an unprecedented number of mass
shootings in American communities including, most recently, at Marjory Stoneman Douglas High
School in Parkland, Florida; and
WHEREAS, national and state leaders continue to fail to act to implement sensible gun law
reforms that are supported by a majority of the nation; and
WHEREAS, in Section 790.33, Florida Statutes, the State of Florida (a) declared that it is
occupying the whole field of regulation of firearms and ammunition, to the exclusion of all existing
and future county or city ordinances, regulations, or rules, (b) purports to prohibit the enactment of
any future ordinances or regulations "relating to firearms," and (c) also purports to create potential
liability for damages for actions other than ordinances and regulations, including any "measure,
directive, rule, enactment, order, or policy promulgated or caused to be enforced"; and
WHEREAS, the purported preemption, by using the terms "relating to firearms" and "any
measure, directive, rule, enactment, order or policy promulgated," is extremely broad and vague, and
could apply to a panoply of measures that the City would like to consider enacting, including the
restricting of guns in City facilities and parks, the placing of signs relating to guns in City facilities
and parks, the regulation of gun accessories (such as holsters, high capacity magazines, or bump
stocks) or the creating of "gun free zones" or "gun safe zones"; and
WHEREAS, the potential violation of the broad and vague preemption of firearm regulation
in Section 790.33, Florida Statutes, carries the risk of onerous and punitive consequences, including
but not limited to damages up to $100,000 and fines up to $5,000 (for which the official may be
personally liable), removal from office by the Governor without due process of law, and a
prohibition of the use of public funds to payor reimburse the official for fines, damages or defense
costs (collectively, the "Onerous Preemption Penalties"); and
WHEREAS, as a result of the Onerous Preemption Penalties, the City Commission and its
members fear taking any steps that could even remotely be viewed as a violation of the preemption,
creating a chilling effect upon City action and preventing the City Commission from responding to
the petitions and requests of the City's residents to do something to protect against the dangers of
firearms; and
WHEREAS, the City Commission and its members desire to consider various reasonable
measures related to firearms, including the restriction of guns in City facilities and parks, the placing
of signs related to guns in City facilities and parks, the regulation of gun accessories (such as
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Res. No. 062-18-15095
holsters, high capacity magazines, or bump stocks), the creation of "gun free zones" or "gun safe
zones," or other measures related to guns, but have refrained from doing so because they could
possibly be viewed as falling under the preemption and be subjected to the Onerous Preemption
Penalties; and
WHEREAS, the Onerous Preemption Penalties strike at the core of the American system of
democratic representation: they suppress, in an insidious, Orwellian fashion, the voice of the local
electorate through intimidation of local elected officials; and
WHEREAS, the Onerous Preemption Penalties infringe on the free speech rights of the City
Commission and its members, and interfere with their ability to perfonn their official duties; and
WHEREAS, the Onerous Preemption Penalties infringe upon the legislative immunity the
members of the City Commission enjoy under law when casting votes in their official capacities;
and
WHEREAS, the portion of the Onerous Preemption Penalties related to the removal from
office by the Governor conflicts with Article 4, Section 7 of the Florida Constitution, by allowing
the Governor to remove a municipal official who has not been indicted for any crime, and violates
due process; and
WHEREAS, on February 26, 2018, the City of Weston passed Resolution 2018-30,
authorizing and directing its City Attorney (Weiss Serota Helfman Cole & Biennan) to file a lawsuit
seeking a declaration that the provisions punishing elected officials set forth in Section 790.33,
Florida Statutes, for violating the preemption related to the regulation of firearms and ammunition
are invalid ("Lawsuit"), and invited other local governments to join the Lawsuit; and
WHEREAS, the City desires to join the Lawsuit and invite other local governments to join
also; and
WHEREAS, the City Commission believes it is in the best interest of the citizens and
residents of the City to file a lawsuit seeking a declaration that the Onerous Preemption Penalties are
invalid and urging other local governments to join the lawsuit as plaintiffs with the City.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSIONERS OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1: The foregoing recitals contained in the preamble to this Resolution are ratified
. and confinned as being true and correct and are made a specific part of this Resolution are
incorporated by reference herein.
Section 2: The City Commission hereby authorizes and directs the filing of a lawsuit
naming the City and those individual Members of the Commission (in their official capacity) who
choose to participate, as plaintiffs, seeking declaratory and other appropriate relief to challenge the
Onerous Preemption Penalties contained in Section 790.33, Florida Statutes, based upon any
appropriate legal theories, including those set forth above.
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Res. No. 062-18-15095
Section 3: Weiss Serota Helfman Cole & Bierman, the "Firm" is hereby retained to
represent the City of South Miami in this litigation. The Firm will charge the City a flat fee of
$10,000 to represent the City and the individual Members of the Commission (in their official
capacity) who choose to participate as plaintiffs, for the litigation, including all appeals. If more
than 15 cities choose to have the Firm represent them, the flat fee will be reduced by 1 % for each
city over 15 up to a maximum reduction of25% (which would lower the fee to $7,500 if 40 or more
cities have the Firm represent them), and refund any amounts paid in excess of the flat fee. The City
also acknowledges that the Firm will be representing other local governments and officials in this
lawsuit and waives any conflicts related to such representation. The Firm's retention is subject to
execution of a retainer agreement between the City and the Firm consistent with the terms set forth
herein and which addresses any conflict of interest waivers.
Section 4: The City Commission invites and urges other local governments and elected
officials to join the City as plaintiffs in the lawsuit and to coordinate their efforts with the City.
Section 5: The City Clerk is directed to distribute this Resolution to all local governments in
Miami-Dade County.
Section 6: The appropriate City Officials are hereby authorized to do all things necessary
and expedient to carry out the aims of this Resolution.
Section 7: Severability. If any section clause, sentence, or phrase of this resolution is for
any reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not
affect the validity of the remaining portions of this resolution.
Section 8: Effective Date. This resolution shall become effective immediately upon
adoption.
PASSED AND ADOPTED this 20th day of March ,2018.
COMMISSION VOTE: 4-1
Mayor Stoddard: Yea
Vice Mayor Harris: Yea
Commissioner Welsh: Yea
Commissioner Liebman: Nay
Commissioner Gil: Yea
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(Name of elected official)
(Name of municipality)
(Address)
(address)
Date
Re: Lawsuit Challenging Section 790.33, Florida Statutes
Dear ---
We are pleased that the City of __ wishes to engage our Firm to perform legal services
in connection with the referenced matter. From our experience, we have found that ,clients
appreciate a frank and open discussion and understanding of the services that we will perform and
the basis upon which they will be expected to pay for those services.
This letter is intended to set forth our understanding as to the nature and scope of the legal
services we have agreed to render for the City, the amount of our fees for those services, the manner
in which our fees for those services shall be determined and the terms upon which the City will
make payment.
1. Nature of Legal Services. The City has engaged us to represent it and any of its
elected officials who wish to participate as party plaintiffs, in their official capacities, in filing a
lawsuit to challenge the legality of certain penalty provisions set forth in section 790.33, Florida
Statutes. Our services will include the filing and prosecution of a lawsuit against appropriate state
officials and/or agencies, as well as an appeals that may follow thereafter (together, the "Action").
The City and any elected officials signing below also acknowledge that the Firm will be
representing other local governments and officials in this Action and waive any conflicts related to
such representation.
2. Fees for Services. The City will be charged and agrees to pay a flat fee of
$10,000.00 for our services, together with applicable taxes, if any. This payment will also be on
behalf of any City elected officials who elected to participate in the Action. If more than 15 cities
choose to have the Firm represent them in connection with the Action, the flat fee set forth herein
will be reduced by 1 % for each city over 15 up to 8: maximum reduction of 25% (which would
lower the flat fee to $7,500 if 40 or more cities engage the Firm to represent them), and the Firm
will refund any amounts paid in excess of the flat fee. It is contemplated that Jamie A. Cole and
Edward G. Guedes will have primary responsibility for this matter.
2. Costs. All litigation costs are incorporated within the flat fee referenced In
paragraph 2, above.
3. Payment of Fees and Costs. The flat fee referenced in paragraph 2, above, will be
due within 30 days of execution of this retainer agreement.
4. Withdrawal from Representation. We reserve the right to withdraw from
representing you if you have misrepresented or failed to disclose material facts to us, or if we
disagree about the course of action which should be pursued.
6. Representation of Other Clients. We are bound by rules of legal ethics not to
represent any client if the representation of that client will be directly adverse to the interests of
another client unless each such client consents to such representation after consultation. If this letter
is addressed to more than one person, your signature of this letter will constitute such consent from
each of you with respect to the matter or matters specifically described in the paragraph ofthis letter
entitled "Nature of Legal Services."
Please be advised that from time to time we are called upon by clients to represent them as
to requests for various approvals and as to other matters with respect to or involving your City. You
recognize and acknowledge that by signing this letter, you will be deemed to have waived any
potential conflict of interest in our representation of those clients arising from our representation of
the City in the Action.
7. Fees for Other Services. In the event you ask us to render legal services with respect
to other matters, a separate retainer agreement will be necessary in order to provide those services.
8. Commencement of Representation. If the foregoing is agreeable to you, please
acknowledge your understanding and agreement by signing this letter and delivering it to us,
together with payment of the flat fee referenced in paragraph 2, above. If any of the City's elected
officials wish to participate as plaintiffs in their official capacities, they should countersign this
agreement as well in the space provided below.
We appreciate your confidence in our Firm and we assure you that we will make every
effort to perform our services in a prompt and efficient manner.
CITY OF ____ _
Very truly yours,
WEISS SEROTA HELFMAN
COLE & BIERMAN
By: ___________ _
By: ___________________ _
Title:
AGREED AND ACCEPTED on _______ , 2005.
[NAME OF ELECTED OFFICIAL]
By: _________ _