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Agenda Item 8A. OM M r -4 oil TV - ri PH U R �'�s�`.'ri ' '.�_ �:�nLIrT•:� j, �I �jah'����ti y� + �•�` �'y,•� ' � i;�p :�{ ;�a 7;. 1 1I +�I����rl1r^ 4 w i �a5 rY�I�r�;,� T, �I { � :: r: �J, - �}T'°�i• ir - , - r"ji " r. E. I!,TP 1 o I . W--.M-*-7 • !F► y lt l yll�., I r, rrL I AGENDA ITEM # 8A AUGUST 22, 2011 Westlaw West's F.S.A. § 790.001 A Effective: July 1, 2006 West's Florida Statutes Annotated Currentness Title XLVI. Crimes (Chapters 775 -899) K Chapter 790. Weapons and Firearms (Refs & Antics) ..r 790.001. Definitions As used in this chapter, except where the context otherwise requires: Page 1 (1) "Antique firearm" means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade. (2) "Concealed firearm" means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person. (3)(a) "Concealed weapon" means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person. (b) "Tear gas gun" or "chemical weapon or device" means any weapon of such nature, except a device known as a "self- defense chemical spray." "Self- defense chemical spray" means a device carried solely for purposes of lawful self - defense that is compact in size, designed to be carried on or about the person, and contains not more than two ounces of chemical. (4) "Destructive device" means any bomb, grenade, mine, rocket, missile, pipebomb, or similar device contain- ing an explosive, incendiary, or poison gas and includes any frangible container filled with an explosive, incen- diary, explosive gas, or expanding gas, which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily as- sembled; any device declared a destructive device by the Bureau of Alcohol, Tobacco, and Firearms; any type of weapon which will, is designed to, or may readily be converted to expel a projectile by the action of any explos- ive and which has a barrel with a bore of one -half inch or more in diameter; and ammunition for such destructive devices, but not including shotgun shells or any other ammunition designed for use in a firearm other than a de- structive device. "Destructive device" does not include: © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com /print /printstream.aspx ?mt = Florida &utid =1 &prft = HTMLE &vr =2... 8/10/2011 AGENDA ITEM # 8A AUGUST 22, 2011 West's F.S.A. § 790.001 Page 2 (a) A device which is not designed, redesigned, used, or intended for use as a weapon; (b) Any device, although originally designed as a weapon, which is redesigned so that it may be used solely as a signaling, line- throwing, safety, or similar device; (c) Any shotgun other than a short - barreled shotgun; or (d) Any nonautomatic rifle (other than a short- barreled rifle) generally recognized or particularly suitable for use for the hunting of big game. (5) "Explosive" means any chemical compound or mixture that has the property of yielding readily to combus- tion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blast- ing caps, and detonators; but not including: (a) Shotgun shells, cartridges, or ammunition for firearms; (b) Fireworks as defined in s. 791.01; (c) Smokeless propellant powder or small arms ammunition primers, if possessed, purchased, sold, transported, or used in compliance with s. 552.211; (d) Black powder in quantities not to exceed that authorized by chapter 552, or by any rules adopted thereunder by the Department of Financial Services, when used for, or intended to be used for, the manufacture of target and sporting ammunition or for use in muzzle - loading flint or percussion weapons. The exclusions contained in paragraphs (a) -(d) do not apply to the term "explosive" as used in the definition of "firearm" in subsection (6). (6) "Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be conver- ted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime. (7) "Indictment" means an indictment or an information in any court under which a crime punishable by impris- onment for a term exceeding 1 year may be prosecuted. (8) "Law enforcement officer" means: © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http:// web2. westlaAv.com /print/printstream.aspx ?mt= Florida &utid =l &prft = HTMLE &vr =2... 8/10/2011 AGENDA ITEM # 8A AUGUST 22, 2011 West's F.S.A. § 790.001 Page 3 (a) All officers or employees of the United States or the State of Florida, or any agency, commission, depart- ment, board, division, municipality, or subdivision thereof, who have authority to make arrests; (b) Officers or employees of the United States or the State of Florida, or any agency, commission, department, board, division, municipality, or subdivision thereof, duly authorized to carry a concealed weapon; (c) Members of the Armed Forces of the United States, the organized reserves, state militia, or Florida National Guard, when on duty, when preparing themselves for, or going to or fi military duty, or under orders; (d) An employee of the state prisons or correctional systems who has been so designated by the Department of Corrections or by a warden of an institution; (e) All peace officers; (f) All state attorneys and United States attorneys and their respective assistants and investigators. (9) "Machine gun" means any firearm, as defined herein, which shoots, or is designed to shoot, automatically more than one shot, without manually reloading, by a single function of the trigger. (10) "Short - barreled shotgun" means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches. (11) "Short- barreled rifle" means a rifle having one or more barrels less than 16 inches in length and any weapon made from a rifle (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches. (12) "Slungshot" means a small mass of metal, stone, sand, or similar material fixed on a flexible handle, strap, or the like, used as a weapon. (13) "Weapon" means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt - bladed table knife. (14) "Electric weapon or device" means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury. (15) "Dart- tiring stun gun" means any device having one or more darts that are capable of delivering an electric- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?mt = Florida &utid =l &prft = HTMLE &vr =2... 8/10/2011 AGENDA ITEM # 8A AUGUST 22, 2011 West's F.S.A. § 790.001 al current. Page 4 (16) "Readily accessible for immediate use" means that a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person. (17) "Securely encased" means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access. (18) "Sterile area" means the area of an airport to which access is controlled by the inspection of persons and property in accordance with federally approved airport security programs. (19) "Ammunition" means an object consisting of all of the following: (a) A fixed metallic or nonmetallic hull or casing containing a primer. (b) One or more projectiles, one or more bullets, or shot. (c) Gunpowder. All of the specified components must be present for an object to be ammunition. CREDIT(S) Laws 1969, c. 69 -106, §§ 13, 19, 35; Laws 1969, c. 69 -306, § 1; Laws 1970, c. 70 -441, §§ 1, 2; Laws 1973, c. 73 -334, § 32; Laws 1976, c. 76 -165, § 1; Laws 1977, c. 77 -120, § 12; Laws 1978, c. 78 -200, § 1; Laws 1979, c. 79 -3, § 19; Laws 1979, c. 79 -58, § 1; Laws 1980, c. 80-112, § 1; Laws 1982, c. 82 -131, § 1; Laws 1983, c. 83 -216, § 162; Laws 1988, c. 88 -183, § 2; Laws 1988, c. 88 -381, § 43; Laws 1990, c. 90 -124, § I; Laws 1990, c. 90 -176, § 1. Amended by Laws 1993, e. 93 -17, § 1, eff. March 24, 1993; Laws 1997, c. 97 -72, § I eff. May 16, 1997; Laws 1997, c. 97 -102, § 1202, eff. July 1, 1997; Laws 2000, c. 2000 -161, § 5, eff. July 4, 2000; Laws 2003, c. 2003 -261, § 1904, eft. June 26, 2003; Laws 2004, c. 2004 -286, § 1, eff. Oct. 1, 2004, Laws 2006, e. 2006 -186, §51, eff. July 1, 2006; Laws 2006, c. 2006 -298, § 1, eff. June 26, 2006. Current with chapters in effect from the 2011 First Regular Session of the Twenty- Second Legislature through October 1, 2011. (C) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. END OF DOCUMENT © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?mt= Florida &utid =l &prft = HTMLE &vr =2... 8/10/2011 AGENDA ITEM # 8A AUGUST 22, 2011 Westlaw, West's F.S.A. § 790.33 Effective: October 1, 2011 West's Florida Statutes Annotated Currentness Title XLVI. Crimes (Chapters 775 -899) Chapter 790. Weapons and Firearms (Refs & Annos) _. 790.33. Field of regulation of firearms and ammunition preempted Page 1 (1) Preemption. -- Except as expressly provided by the State Constitution or 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, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void. (2) Policy and intent. -- (a) It is the intent of this section to provide uniform firearms laws in the state; to declare all ordinances and reg- ulations null and void which have been enacted by any jurisdictions other than state and federal, which regulate firearms, ammunition, or components thereof; to prohibit the enactment of any future ordinances or regulations relating to firearms, ammunition, or components thereof unless specifically authorized by this section or general law; and to require local jurisdictions to enforce state firearms laws. (b) It is further the intent of this section to deter and prevent the violation of this section and the violation of rights protected under the constitution and laws of this state related to firearms, ammunition, or components thereof, by the abuse of official authority that occurs when enactments are passed in violation of state law or un- der color of local or state authority. (3) Prohibitions; penalties. -- (a) Any person, county, agency, municipality, district, or other entity that violates the Legislature's occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or caus- ing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occu- pation of the field shall be liable as set forth herein. (b) If any county, city, town, or other local government violates this section, the court shall declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against the local government prohibiting it from enforcing such ordinance, regulation, or rule. It is no defense that in enacting the ordinance, regulation, or rule the local government was acting in good faith or upon advice of counsel. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2. westlaw. com / print /printstream.aspx ?mt = Florida &utid =l &prft = HTMLE &vr =2... 8/10/2011 AGENDA ITEM # 8A AUGUST 22, 2011 West's F.S.A. § 790.33 Page 2 (c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head un- der whose jurisdiction the violation occurred. (d) Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful con- duct of any person found to have knowingly and willfully violated this section. (e) A knowing and willful violation of any provision of this section by a person acting in an official capacity for any entity enacting or causing to be enforced a local ordinance or administrative rule or regulation prohibited under paragraph (a) or otherwise under color of law shall be cause for termination of employment or contract or removal from office by the Governor. (f) A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or other entity in any court of this state having juris- diction over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation. A court shall award the prevailing plaintiff in any such suit: 1. Reasonable attorney's fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law; and 2. The actual damages incurred, but not more than $100,000. Interest on the sums awarded pursuant to this subsection shall accrue at the legal rate from the date on which suit was filed. (4) Exceptions.- -This section does not prohibit: (a) Zoning ordinances that encompass firearms businesses along with other businesses, except that zoning ordin- ances that are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited; (b) A duly organized law enforcement agency from enacting and enforcing regulations pertaining to firearms, ammunition, or firearm accessories issued to or used by peace officers in the course of their official duties; (c) Except as provided in s. 790.251, any entity subject to the prohibitions of this section from regulating or pro- hibiting the carrying of firearms and ammunition by an employee of the entity during and in the course of the employee's official duties; © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http:// web2. westlaw .com/print /printstream.aspx ?mt= Florida &utid = l &prft = HTMLE &vr =2... 8/10/2011 AGENDA ITEM # 8A AUGUST 22, 2011 West's F.S.A. § 790.33 Page 3 (d) A court or administrative law judge from hearing and resolving any case or controversy or issuing any opin- ion or order on a matter within the jurisdiction of that court or judge; or (e) The Florida Fish and Wildlife Conservation Commission from regulating the use of firearms or ammunition as a method of taking wildlife and regulating the shooting ranges managed by the commission. (5) Short title. - -As created by chapter 87 -23, Laws of Florida, this section may be cited as the "Joe Carlucci Uniform Firearms Act." CREDIT(S) Laws 1987, c. 87 -23, §§ I to 4; Laws 1988, c. 88- 183, § 5. Amended by Laws 2011, c. 2011 -109, § 1, eff. Oct. 1, 201 1. Current with chapters in effect from the 2011 First Regular Session of the Twenty- Second Legislature through October 1, 2011. (C) 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. END OF DOCUMENT © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http: / /web2.westlaw.com/ print /printstream.aspx ?mt= Florida &utid =l &prft = HTMLE &v1 =2... 8/10/2011 AGENDA ITEM # 8A AUGUST 22, 2011 ORDINANCE NO. 95 -11 -104 AN ORDINANCE OF THE CITY OF ATLANTIC BEACH, FLORIDA, AMENDING CHAPTER 4 OF THE CODE OF ORDINANCES, ANIMALS, AND CHAPTER 13, OFFENSES, TO DELETE ANY REGULATION OF FIREARMS AND AMMUNITION, TO CLARIFY THE DEFINITION OF REPLICA FIREARMS, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Florida Legislature has declared that, pursuant to the amended Fla.Stat 790.33, effective October 1, 2011, it is occupying the whole field of regulation of firearms and ammunition to the exclusion of all existing and future county, city, town or municipal ordinances relating thereto, and has declared any such existing ordinances null and void, and WHEREAS, the Code of Ordinances of the City of Atlantic Beach contains certain provisions in Chapters 4 and 13 which regulate firearms which must therefore be amended and /or clarified in order to comply with F1a.Stat 790.33, as amended, and WHEREAS, the Legislature has imposed prohibitions and penalties which may apply if the City does not comply with the provisions of F1a.Stat 790.33. NOW THEREFORE, BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF THE PEOPLE OF THE CITY OF ATLANTIC BEACH, FLORIDA: SECTION 1: Sec. 4 -4 of the Code of Ordinances of the City of Atlantic Beach, Florida, is hereby amended to read as follows: "Sec. 4 -4. City designated bird sanctuary, shooting, trapping, hunting molesting, etc., of birds prohibited; exception. (a) The entire area embraced within the city is hereby designated as a bird sanctuary. (b) It shall be unlawful to trap, hunt or molest in any manner any bird or wild fowl or to rob birds' nests or wild fowl nests; provided, that if starlings or similar birds are found to be congregating in such numbers in a particular locality that they constitute a nuisance or a menace to health or property, in the opinion of the proper health authorities of the city, then the health authorities shall meet with representatives of the Audubon Society, bird club, garden club or humane society, or as many of the clubs as are found to exist in the city, after having given at least three (3) days' actual notice of the time and place of the meeting to the representatives of the clubs. (c) If as a result of the meeting no satisfactory alternative is found to abate the nuisance, then the birds may be destroyed in such number and in such manner as is deemed advisable by the health authorities under the supervision of the chief of police of the city." AGENDA ITEM # 8A AUGUST 22, 2011 SECTION 2: Secs. 13 -3 and 13 -8 of the Code of Ordinances of the City of Atlantic Beach, Florida, are hereby amended to read as follows: "Sec. 13 -3. Discharging firearms, air guns, etc., prohibited. (a) It shall be unlawful to discharge an fireaffn of any loaded air gun, air rifle, air pistol or similar device within the city. (b) This section does not apply to a person lawfully defending life or property or performing official duties. r equ i f i n g the dis ,.fge of ^ f4eari 1 Cl 111 VU�i i+i Sec. 13 -8. Replica firearms — Definition. Replica firearms shall mean any device or object made of plastic, wood, metal, or any other material which is a replica, facsimile, or toy version of, or is otherwise recognizable as a pistol, revolver, shotgun, sawed -off shotgun, rifle, machine gun, rocket launcher, or any other firearm and shall include toy guns, movie props, hobby models, starter pistols, air guns, pellet guns, BB guns, or any other device which might reasonably be perceived to be a real firearm but cannot, are not designed to and cannot readily be converted to expel a projectile by the action of an explosive SECTION 3. This Ordinance shall take effect on October 1, 2011. PASSED by the City Commission on first reading this day of 5 2011. PASSED by the City Commission on second and final reading this day of ,2011. ATTEST: DONNA L. BARTLE City Clerk LOUIS BORNO, JR. Mayor, Presiding Officer Approved as to form and correctness: ALAN C. JENSEN, ESQUIRE City Attorney 2 AGENDA ITEM # 8A AUGUST 22, 2011 POLICE DEPARTMENT 850 SEMINOLE ROAD ATLANTIC BEACH, FLORIDA 32233 -5445 TELEPHONE: (904) 247 -5859 FAX: (904) 247 -5867 Web Site: www.coab.us August 11, 2011 To: Jim Hanson -- City Manager From: Mike Classey� Chief of Police Re: State Firearms Regulations The purpose of this memorandum is to provide information relative to certain state firearm statutes. The following statutes are the most applicable for enforcement of complaints the police department may receive relating to carrying or discharging a firearm. F.S.S. 790.01 Carry concealed weapons A person must be licensed to carry a concealed firearm. F.S.S. 790.053 Open carrying of weapons It is unlawful for a person to openly carry a firearm on or about their person. F.S.S. 10 Improper exhibition of firearms It is unlawful for any person to exhibit a firearm in a rude, careless, angry or threatening manner. F.S.S 790.15 Discharging a firearm in public. It is unlawful to discharge a firearm in any public place or on the right -of -way of any public road. It is also prohibited to shoot across a public road or over any occupied premises. This statute also makes it illegal to shoot from any vehicle within 1,000 feet of any person. F.S.S. 151 Using a firearm while under the influence of alcoholic beverages, chemical substances or controlled substances. AGENDA ITEM # 8A AUGUST 22, 2011 It is unlawful for anyone to discharge or have readily accessible for immediate discharge any firearm when under the influence of the above to the extent that their normal faculties are impaired. F.S.S. 19 Shooting or throwing deadly missiles into dwellings, public or private buildings, vessels vehicles, etc.... It is unlawful for someone to shoot into any public or private building, occupied or not, or public bus or any train, vehicle of any kind which is being used or occupied by any person, boat, vessel, ship lying in the water or flying aircraft. The above is only a partial listing and does not include the specific criminal offenses where a firearm is used in the commission of a crime. Further, the state statutes relating to the discharge of a firearm are less restrictive than the current city ordinance. However, as can be seen above, there are several state laws available for the police department to enforce most complaints that may be received. If you have any questions or need additional information, please let me know.