Res No 050-21-15670RESOLUTION NO. 0 5 0- 21 -15 6 7 0
A Resolution of the Mayor and City Commission of the City of South Miami,
Florida, to seek review by the Florida Supreme Court of the appellate
decision in the case of City of Weston, et al., v The Honorable Ron DeSantis
and concerning the enforceability of Section 790.33, Florida Statutes.
WHEREAS, over the past several years there have been an unprecedented number of
mass shootings in American communities; 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
Page 1 of 4
Res. No. 050-21-15670
(such as 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 perform 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 of South Miami voted in favor of joining the Lawsuit; 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; and
WHEREAS, on April 2, 2018, the City of Weston, along with various other municipalities,
including the City of South Miami, filed a complaint in the Leon County 2nd District Circuit
Court, Case No. 2018 CA 0699 ("Weston case"). The goal of the lawsuit was to eliminate three
specific penalties: (1) removal of local officials from office by the Governor, (2) fines against
local officials of up to $5,000, and (3) lawsuits against local entities for damages of up to
$100,000 and attorney's fees; and
Page 2 of 4
Res. No. 050-21-1 5670
WHEREAS, on July 26, 2019, a final judgment was issued by Leon County Circuit Court
Judge Dodson that ruled in favor of the local governments and local officials and invalidated all
three penalties; and
WHEREAS, on August 1, 2019, the Defendants filed a Notice of Appeal in the 1st District
Court of Appeal, Case No. 1D19-2819. The State defendants only appealed as to the last two, so
the invalidation of the provision allowing removal of local officials by the Governor remains in
place.
WHEREAS, on Friday, April 9, 2021, the Florida First District Court of Appeal (111 DCA)
reversed Judge Dodson's well -reasoned opinion that had invalidated all the onerous penalties
that the State Legislature had enacted for local officials and local governments that violate the
State's preemption of local regulation of firearms; and
WHEREAS, the 1st DCA's decision disagreed with the cities' argument regarding
legislative immunity and governmental function immunity. Both of these immunities are pillars
of democracy at the local level. And this issue is not only about firearms - if the decision of the
1st DCA stands, it would set a precedent allowing the State Legislature to enact legislation
providing similar $5,000 (or even greater) fines against local officials and for lawsuits against
local governments (potentially not limited to $100,000) for violation of ANY preemption that
currently exists or may in the future be enacted; and
WHEREAS, the primary attorneys working on the case have analyzed the opinion and
agreed that the next potential step in the lawsuit is seeking a review by the Florida Supreme
Court. Unlike other appellate courts, the Florida Supreme Court does not have to hear the
appeal - we will need to file a request to appeal. There are two potential grounds: (1) a
certification by the 1st DCA of great public importance, or (2) the showing of a conflict with
decisions of other District Courts of Appeal or of the Florida Supreme Court. We plan to submit
a request to the 1st DCA to certify the issues as of great public importance, which needs to be
filed on or before April 26. The petition to the Supreme Court would be due within 30 days
after that motion is ruled upon by the 1st DCA; and
WHEREAS, at the time that the South Miami first joined the lawsuit, it authorized an
expenditure of up to $10,000. Because a large number of municipalities joined, the attorneys
refunded $900 to each municipality. Therefore, South Miami has spent $9,100 of the original
$10,000 authorization on the lawsuit. In order to offset some of the cost of the appeal to the
Florida Supreme Court, the attorneys have requested that each participating municipality pay
the additional $900 that had previously been refunded.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSIONERS OF THE
CITY OF SOUTH MIAMI, FLORIDA:
Section 1. The foregoing recitals are hereby ratified and confirmed as being true and
they are incorporated into this resolution by reference as if set forth in full herein.
Page 3 of 4
Res. No. 050-21-15670
Section 2. The City Attorney is authorized, on behalf of the City of South Miami, to join
the other plaintiffs in the Weston case in petitioning the Florida Supreme Court to reverse the
decision of the 1st DCA and uphold the trial court's final summary judgment for an amount not
to exceed $900.
Section 3. Corrections. Conforming language or technical scrivener -type corrections
may be made by the City Attorney for any conforming amendments to be incorporated into the
final resolution for signature.
Section 4. 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 will
not affect the validity of the remaining portions of this resolution.
Section 5. Effective Date. This resolution will become effective immediately upon
adoption.
PASSED AND ADOPTED this 4`h day of May, 2021.
ATTEST: APPR VIED: ;r
N
CITY LERI MAYOR
READ AND APPROVED AS TO FORM, COMMISSION VOTE: �-0
LANGUAGE, LEGALITY, AND Mayor Philips: Yea
EXECU THEREOF Commissioner Gil: Yea
Commissioner Corey: Ye4
Commissioner Harris: Yea
�n Commissioner Liebman: Yea
Page 4 of 4
Agenda Item No:3.
City Commission Agenda item Report
Meeting Date: May 4, 2021
Submitted by: Thomas Pepe
Submitting Department: City Attorney
Item Type: Resolution
Agenda Section:
Subject:
A Resolution of the Mayor and City Commission of the City of South Miami, Florida, to seek review by the
Florida Supreme Court of the appellate decision in the case of City of Weston, et al., v The Honorable Ron
DeSantis and concerning the enforceability of Section 790.33, Florida Statutes. 3/5 (City Attorney)
Suggested Action:
Attachments:
Reso_auth_Weiss_Serota to_Represent_CSM_in_Weston_Case_2_.doc