Florida Carry, Inc. and The Second etc. v. City of Tallahassee, Florida, etc. , 212 So. 3d 452 ( 2017 )

FLORIDA CARRY, INC. AND IN THE DISTRICT COURT OF APPEAL
THE SECOND AMENDMENT FIRST DISTRICT, STATE OF FLORIDA
FOUNDATION, INC.,
NOT FINAL UNTIL TIME EXPIRES TO
Appellants/ FILE MOTION FOR REHEARING AND
Cross-Appellees, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-5520
CITY OF TALLAHASSEE,
FLORIDA, A POLITICAL
SUBDIVISION OF THE STATE
OF FLORIDA; JOHN MARKS,
MAYOR OF THE CITY OF
TALLAHASSEE; NANCY
MILLER, CITY
COMMISSIONER OF THE CITY
OF TALLAHASSEE; ANDREW
GILLUM, CITY
COMMISSIONER OF THE CITY
OF TALLAHASSEE; AND GIL
ZIFFER, CITY
COMMISSIONER OF THE CITY
OF TALLAHASSEE,
Appellees/
Cross-Appellants.
_____________________________/
Opinion filed February 3, 2017.
An appeal from the Circuit Court for Leon County.
George S. Reynolds, III, Judge.
Eric J. Friday of Fletcher & Phillips, Jacksonville; Lesley McKinney of Law Office
of David M. Goldman, Jacksonville, for Appellants/Cross-Appellees.
Jason Gonzalez of Shutts & Bowen LLP, Tallahassee; Robert Dowlut, Bethseda,
MD, for Amicus Curiae National Rifle Association, in support of Appellants/Cross-
Appellees.
Louis C. Norvell, Assistant City Attorney, Tallahassee; Marc J. Fagel and Lauren G.
Escher of Gibson, Dunn & Crutcher LLP, San Francisco, CA, for Appellees/Cross-
Appellants.
Edward G. Guedes, Jamie A. Cole, and Adam Schwartzbaum of Weiss Serota
Helfman Cole & Bierman, P.L., Coral Gables, for Amicus Curiae City of Weston,
Florida, and City of Miramar, Florida, in support of Appellees/Cross-Appellants.
Brook Dooley and David J. Rosen of Keker & Van Nest LLP, San Franciso, CA;
Ruth E. Vafek of Ausley & McMullen, P.A., Tallahassee for Amici Curiae The Law
Center to Prevent Gun Violence, The League of Women Voters of Florida, States
United to Prevent Gun Violence, concerned local elected officials, and concerned
state elected officials, in support of Appellees/Cross-Appellants.
Harry Morrison, Jr., Tallahassee; Susan H. Churuti of Bryant Miller Olive P.A.,
Tampa; and Elizabeth W. Neiberger of Bryant Miller Olive P.A., Miami, for Amicus
Curiae The Florida League of Cities, in support of Appellees/Cross-Appellants.
LEWIS, J.
Appellants, Florida Carry, Inc. and The Second Amendment Foundation, Inc.,
appeal a Final Summary Judgment entered by the trial court in favor of Appellees,
the City of Tallahassee (“City”), John Marks, Nancy Miller, Andrew Gillum, and
Gil Ziffer. Appellants argue on appeal that the trial court erroneously determined
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that section 790.33(3)(f), Florida Statutes (2013), is a standing provision rather than
a provision prohibiting certain conduct and that the City’s re-publication of two
firearms ordinances that have been declared null and void by the Legislature’s
preemption of the field of firearms regulation constitutes “promulgation” as that
term is used in section 790.33(3)(f) and is prohibited by law. For the reasons that
follow, we reject Appellants’ arguments and, therefore, affirm as to the issue raised
on appeal. On cross-appeal, Cross-Appellants/Appellees assert that the trial court
erred in dismissing their counterclaim wherein they asserted that section 790.33’s
“penalty provisions” violate the rights of absolute legislative immunity and free
speech. Concluding that the trial court correctly determined that dismissal of the
counterclaim was appropriate, we affirm as to the issue raised on cross-appeal as
well.
FACTUAL HISTORY
In 1987, the State preempted the field of firearms regulation by enacting
section 790.33, Florida Statutes, which provided in part that the State 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 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.” At that
time, the City had two ordinances that conflicted with the newly enacted provisions
3
of section 790.33. One of the ordinances dated back to 1957, and the other dated
back to 1984. The 1957 provision is now referred to as section 12-61(a) of the
Tallahassee Code and provides, “No person shall discharge any firearms except in
areas five acres or larger zoned for agricultural uses.” This provision was in effect
in the 1957 version of the Tallahassee Code and was restated in the 2003 re-
codification in its current form. The 1984 provision, which was amended in 1988,
is now referred to as section 13-34(b)(5) of the Tallahassee Code and makes it
unlawful for any person to discharge a firearm in a park or recreational facility
owned, managed, maintained, or controlled by the City. This provision was also
restated in the 2003 re-codification in its current form. Other than the restatement
in the 2003 re-codification, neither section 12-61 nor section 13-34(b) has been
revised or amended since 1957 and 1988, respectively. The parties stipulated that
no instance of enforcement of either ordinance has been identified in the past ten
years. In 2011, the Legislature amended section 790.33, creating what the parties
term as “penalty provisions” against local officials involved in the enactment or
enforcement of firearms regulations, including a civil fine, loss of public funds in
defense of a claim, and removal from office. By memorandum dated June 30, 2011,
the Tallahassee Police Chief advised all officers and all personnel within the
Tallahassee Police Department that the Florida Legislature had preempted the
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firearms provisions of sections 12-61 and 13-34 and that the ordinances were
unenforceable.
In May 2014, Appellants filed a Complaint for Declaratory Judgment and
Injunctive Relief against Appellees. In Count I, Appellants sought a declaration on
the validity and enforceability of the two ordinances at issue in light of section
790.33 and an order requiring the City to repeal the ordinances. In Count II,
Appellants petitioned for injunctive relief pursuant to section 790.33(3)(b),
requesting that the court enjoin Appellees from enforcing and promulgating the
ordinances and requiring their repeal. Count III was a claim for declaratory relief
and a petition for injunctive relief pursuant to section 790.33(3)(f). Therein,
Appellants alleged that at a February City Commission meeting, the individual
Appellees participated in advisory discussions with the City Attorney, public
comment, debate, and a vote to determine the status of the two ordinances at issue
in light of the prohibitions of section 790.33. According to Appellants, the
individual Appellees voted to indefinitely table the discussion of repealing the two
ordinances. In Count IV, Appellants sought an injunction prohibiting the continued
promulgation and enforcement of the ordinances at issue and a writ of mandamus
ordering Appellees to repeal/amend the ordinances.
In Defendants’ Answer and Counterclaim for Declaratory Relief, Appellees
sought a declaratory judgment declaring certain portions of section 790.33
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unconstitutional. Appellees asserted that the penalty provisions provided for in
section 790.33 violated legislative immunity and the right of free expression.
Thereafter, the parties filed motions for summary judgment as did the Attorney
General who intervened in the case in order to address Appellees’ counterclaim.
In the Final Summary Judgment, the trial court set forth in part:
It is undisputed the individual Defendants have done nothing to
enact any ordinance or regulation relating to the use of firearms, during
the time they have been in office. The big complaint against the
individual Defendants is that they refused to vote on the proposed
repeal of the two challenged ordinances by “tabling” the matter
indefinitely.
This brings us to the issue of, can this Court compel the City
Commission to “untable” the proposed repeal of the Ordinances in
question and require a vote? There is little authority for a court to
mandate a governing body to vote on a legislative matter before it. . . .
This Court does not believe it has the authority under the
circumstances of this case to mandate the Commission to vote on the
requested legislation that was previously considered and “tabled.”
“Laying a matter on the table” or “tabling” is a well-known and
commonly used rule of procedure utilized to postpone voting on an
issue under consideration and it leaves the “tabled” matter in a state of
non-action. . . .
No doubt, the Commissioners in this case understood the pre-
emption issue and acted defiantly in refusing to repeal the challenged
ordinances, but the Court finds that tabling a request to repeal a pre-
empted City Ordinance is not a violation of section 790.33(3)(a)
because it is not “. . . enacting or causing to be enforced any local
ordinance or administrative rule or regulation impinging upon such
exclusive occupation of the field . . . .” (e.s.)
Therefore, the Court finds that the individual City
Commissioners are not liable, such that a mandatory fine should be
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imposed pursuant to sec. 790.33(3)(c), F.S. because the individual
Commissioners by “tabling” the matter refused to vote to repeal the
challenged ordinances. So, if the individual Commissioners can’t be
mandated to vote on the proposed repeal of the pre-empted ordinances,
can they be mandated to discontinue promulgating/publishing them in
the City Code book and online as if they were valid?
After noting that there was no evidence that either ordinance was being
enforced, the trial court set forth under the heading “Re-publishing does not equal
‘promulgation’” the following:
What does the word “promulgated” mean in the context in which
it is used in section 790.33(3)(f), F.S.? The exact statutory usage is as
follows:
Section 790.33(3)(f) states as follows:
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 jurisdiction
over any defendant to the suit for declaratory and
injunctive relief and for actual damages, as limited herein,
caused by the violation. (e.s.)
The Webster’s New Collegiate Dictionary defines “promulgate”
to mean both “to make known or public” and “to put into action or
force.” . . .
As the law-making process has evolved so too have the
definitions of the word “promulgate.” The Florida 5th Judicial Circuit
recently held that:
“while . . . open to various interpretations, generally
the dictionary definitions of the word relate to the passage
and initial publication of an ordinance, not the simple
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presence of the ordinance within a code book.” Florida
Carry, Inc. v. City of Leesburg, Florida, 2015 WL
4945748 (2015).
This Court finds the best way to describe the word “promulgate” is as
a two-fold process: first, it involves an act of legislation or law making
which occurs at a single point in time; and second, it involves the act of
publication and re-publication of the enacted provision. A good
example of the contextual distinction to be given to the meaning of the
word promulgation is found in a memorandum from the General
Counsel to the United States Environmental Protection Agency which
concludes that the act of promulgation is distinct from, and precedes,
the act of publication. . . .
The term “publication” is defined as “the offering or distribution
of copies of a work to the public.” Black’s Law Dictionary, 579 (3rd
pocket ed. 2006). The older definition and understanding of the term
promulgate leans more towards publication as being the meaning it
should be given. After all, historically, it was the town crier’s job to
“promulgate” or make known to the people that a new law was in effect.
...
Historically the word “promulgate” comes from the Latin word
promulgare, which literally means “to milk forward,” which is derived
from the Latin verb mulgere, which means “to milk.” The underlying
idea and meaning of the verb promulgare is of “bringing out into the
light of day.” . . .
Based on the foregoing, the Court finds that the word
“promulgated,” as used in section 790.33(3)(f), F.S., does not mean to
publish or re-publish, rather based on the context in which it is used
“promulgated” is used in its legislative sense as in legislatively
adopting or enacting an “. . . ordinance, regulation, measure, directive,
rule, enactment, order, or policy.”
Next, the Court must resolve whether the Defendants are in
willful violation of the statute due to their continued publication and re-
publication of two admittedly pre-empted ordinances: the purported
“promulgation.” The first question is does paragraph (f) of subsection
790.33(3), F.S. even prohibit the purported “promulgation” that
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Plaintiffs allege? Plaintiffs have seized upon the reference to
“promulgated” in section 790.33(3)(f), which confers standing on a
party. Section 790.33(3)(f) states as follows:
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 jurisdiction
over any defendant to the suit for declaratory and
injunctive relief and for actual damages, as limited herein,
caused by the violation (e.s.)
The text is clear that section 790.33(3)(f) does not by itself prohibit any
specific act; it only confers standing on person(s) or organization(s)
adversely affected by violations of section 790.33(3)(a). Therefore,
section 790.33(3)(f) cannot serve as the basis for any purported
violation.
In contrast, paragraph (a) of section 790.33(3) clearly lays out
the prohibited activity:
[“]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 causing to be
enforced any local ordinance or administrative rule or
regulation impinging upon such exclusive occupation of
the field shall be liable as set forth herein.” (e.s.)
“Where the legislature includes wording in one section of a statute and
not in another, it is presumed to have been intentionally excluded. . . .
Even when the court determines the legislature intended something not
expressed in the wording, the judiciary lacks the authority under
organic law to depart from the plain meaning of an unambiguous
statute.” . . . Accordingly, the Court finds that section 790.33(3)(a) –
the prohibition section – only addresses “. . . enacting or causing to be
enforced any local ordinance or administrative rule or regulation . . . .”
and that even if the word “promulgated” as that term is used in
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790.33(3)(f) was only given the meaning of publication it still would
not fall within the ambit of the prohibitions set forth in section
790.33(3)(a).
Lastly, the Court has considered whether the city’s re-
codification of the challenged provisions in 2003 was a new enactment
of the old challenged ordinances. Both provisions of the challenged
City Code, the one enacted before and the one after the enactment of
Sec. 790.33, F.S. (1987), have continued to be re-published in the City
Code each year thereafter through 2015. The City re-codified its Code
in 2003 and Sec. 1-10 of the City’s 2003 re-codification specifically
provided:
The provisions of this Code, insofar, as they are
substantially the same as legislation previously adopted by
the city relating to the same subject matter, shall be
construed as restatements and continuations thereof
and not as new enactments. (e.s.)
Therefore the Court finds that the re-codification by the City in 2003
was not a new enactment or new adoption of the two challenged
ordinances because the re-codification of the two ordinances in 2003
was not a new “enactment” as prohibited by section 790.33(3)(a), F.S.
This Court finds that all the City is guilty of is offering or distributing,
either electronically or in paper, copies of the City Code book of
enacted ordinances which unfortunately contain the two challenged
outdated provisions which purport to regulate firearms within the City.
However, there has been no enactment of a new law by the City or the
Commissioners such that it or they would be in violation of the statute.
....
Contrary to Plaintiffs’ assertions, the Court, for reasons stated
finds no violation of 790.33(3)(a) – the prohibition section – because
the City has continued to allowed [sic] the two challenged city
ordinances in question to be published and re-published both in written
and electronic form in spite of their pre-emption by state statute. While
cleaning up the City Code so that old city ordinances which are no
longer legal, relevant, or enforced are removed may be good public
policy, it remains the City’s prerogative – not the Plaintiffs, nor this
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Court’s.
With respect to Appellees’ counterclaim, the trial court found that the
“individual Defendants” were not and could not be subject to the penalty provisions
of section 790.33(3) because the Commissioners refused to vote on the request to
repeal the two ordinances and tabled the requested repeal by Appellants, the
challenged ordinances were republished during the time the named Commissioners
were in office, and the individual Commissioners were not on the City Commission
at the time the two challenged ordinances were initially enacted. The court set forth
in part, “Therefore, because the Court finds they are not subject to the penalty
provisions, the individual Defendants have no case in controversy upon which the
Court needs to address.” The trial court ordered and adjudged that the ordinances
are “void and unenforceable.” It denied Appellants’ motion for summary judgment
as well as the motion for summary judgment filed by the Attorney General, it granted
Appellees’ summary judgment motion, and it dismissed Appellees’ counterclaim.
This appeal and cross-appeal followed.
APPEAL
Summary judgment is proper when there is no genuine issue of material fact
and if the moving party is entitled to a judgment as a matter of law. Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary
judgment is reviewed de novo. Id. Statutory construction is a question of law also
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subject to de novo review. W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla.
2012). The polestar of statutory construction is legislative intent. Id. at 8-9. To
discern legislative intent, a court must look first to the plain and obvious meaning of
the statute’s text, which may be discerned from a dictionary. Id. at 9. If the language
of the statute is clear and unambiguous and conveys a clear and definite meaning, a
court must apply the unequivocal meaning and not resort to the rules of statutory
construction. Id. If, however, an ambiguity exists, a court should look to the rules
of statutory construction to help interpret legislative intent, which includes the
examination of a statute’s legislative history and the purpose behind its
enactment. Id.
Article I, Section 8(a) of the Florida Constitution provides, “The right of the
people to keep and bear arms in defense of themselves and of the lawful authority of
the state shall not be infringed, except that the manner of bearing arms may be
regulated by law.” As we have explained, “The phrase ‘by law’ indicates that the
regulation of the state right to keep and bear arms is assigned to the legislature and
must be enacted by statute.” Fla. Carry, Inc. v. Univ. of N. Fla., 133 So. 3d 966, 972
(Fla. 1st DCA 2013). Section 790.33, Florida Statutes (2013), the pertinent
provision for purposes of this appeal, is entitled “Field of regulation of firearms and
ammunition preempted” and provides:
(1) PREEMPTION.—Except as expressly provided by the State
Constitution or general law, the Legislature hereby declares that it is
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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 regulations 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 under 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 causing to be enforced any local
ordinance or administrative rule or regulation impinging upon
such exclusive occupation 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.
(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
13
appointed local government official or officials or administrative
agency head under whose jurisdiction the violation occurred.
(d) Except as required by applicable law, public funds may not be
used to defend or reimburse the unlawful conduct 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 jurisdiction 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.
(Emphasis added).
Appellants first contend that the trial court erred in agreeing with Appellees
that subsection (3) of section 790.33 contains distinct prohibition, penalty, remedy,
and standing provisions. According to Appellants’ interpretation, subsections (3)(a)
through (f) contain both prohibitions and penalties without any separation or
distinction as to whether a particular subdivision is a prohibition or penalty. They
then assert that the act of promulgation, as referred to in section 790.33(3)(f), is
prohibited. We disagree with Appellants’ arguments for the following reasons.
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Section 790.33(3)(a) clearly sets forth what is prohibited by law, which is the
enactment or enforcement of firearms regulations, whereas section 790.33(3)(f)
addresses standing to sue any county, agency, municipality, district or other entity
for declaratory and injunctive relief and damages. Indeed, the Fourth District
recently described subsection (3)(f) as “creat[ing] a private cause of action for
declaratory and injunctive relief as well as actual damages . . . .” Dougan v.
Bradshaw, 198 So. 3d 878, 881 (Fla. 4th DCA 2016). Appellants contend that the
trial court’s interpretation that section 790.33(3)(f) does not prohibit any activity
renders the subsection meaningless and absurd because, under that interpretation,
Appellants would have standing “where a local government has promulgated an
ordinance, but that the continued promulgation itself is not a violation of the statute.”
The problem with this argument, however, is that the Legislature rendered the
ordinances at issue null and void. See § 790.33(1), Fla. Stat. (“Any such existing
ordinances, rules, or regulations are hereby declared null and void.”). Thus, while
the ordinances may still be “on the books,” they are unenforceable and invalid.
Because it is undisputed that Appellees did not enforce or enact the ordinances at
issue, the only two acts prohibited by section 790.33(3)(a), Appellees were entitled
to summary judgment.
As the trial court reasoned, even if section 790.33(3)(f) could be construed as
containing prohibited acts, summary judgment in Appellees’ favor would still have
15
been appropriate given that the re-publication of the ordinances and their existence
in the City’s Code does not constitute promulgation. In support of their
interpretation of “promulgated,” Appellants cite State v. Watso, 788 So. 2d 1026,
1027 (Fla. 2d DCA 2001), where the State appealed an order dismissing the charge
of providing false information during the attempted purchase of a firearm in
violation of section 790.065(12), Florida Statutes (Supp. 1998). The trial court
dismissed the charge after finding that the Florida Department of Law Enforcement
(“FDLE”) had failed to properly promulgate the form required by section
790.065(1)(a), Florida Statutes; the statute describes the required form as being
“promulgated by the Department of Law Enforcement.” Id. The Second District
held that FDLE did properly promulgate the form at issue but affirmed on other
grounds. Id. In holding such, the Second District noted that rather than creating its
own form to satisfy the requirements of section 790.065(1)(a), FDLE chose to adopt
a form already created by a federal agency. Id. The Second District rejected the
appellee’s argument that the term “promulgate” meant “create.” Id. at 1027-28. The
court reasoned that FDLE “simply had to ‘declare or announce publicly’ what form
was to be used to carry out the statutory requirements.” Id. at 1028.
Although Watso addressed the term “promulgated” as used in another
provision of chapter 790, which addresses weapons and firearms, the statutory
provision at issue there addressed the promulgation of forms. It did not address
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rules, ordinances, and regulations as does section 790.33. Black’s Law Dictionary
defines “promulgate” as follows:
1. To declare or announce publicly; to proclaim. 2. To put (a law or
decree) into force or effect. 3. (Of an administrative agency) to carry
out the formal process of rulemaking by publishing the proposed
regulation, inviting public comments, and approving or rejecting the
proposal.
Black’s Law Dictionary (10th ed. 2014). The trial court in this case cited the
Webster’s New Collegiate Dictionary definitions of “promulgate,” which are “to
make known or public” and “to put into action or force.” The trial court concluded
that the word “promulgated,” as used in section 790.33, did not mean to publish or
re-publish, but “rather based on the context in which it is used ‘promulgated’ is used
in its legislative sense as in legislatively adopting or enacting . . . .”
A review of the different ways “promulgate” has been used throughout the
Florida Statutes establishes that the context in which the word is used must be
evaluated in determining the Legislature’s intent as to the word’s meaning. For
instance, in certain circumstances, the Legislature has used the word “promulgate”
in the context of creating or enacting rules and the like. See § 14.021(1), Fla. Stat.
(“The Governor of Florida is hereby authorized and empowered to promulgate and
enforce such emergency rules and regulations as are necessary . . . .”); § 255.256,
Fla. Stat. (“The department shall promulgate rules for energy performance indices
as defined in s. 255.253(3) . . . .”); § 322.63(3)(b)12., Fla. Stat. (“Promulgate rules
17
for the administration and implementation of this section . . . .”); § 195.073, Fla. Stat.
(“The department shall promulgate uniform definitions for all classifications.”); §
255.255(3), Fla. Stat. (“To determine the life-cycle costs . . ., the department shall
promulgate rules that shall include . . . .”); § 404.056(6), Fla. Stat. (“The department
shall have the authority to promulgate rules necessary to carry out the provisions of
this section, including the definition of terms.”).
In other contexts, the Legislature has differentiated between promulgation and
publishing. See § 212.0305(3)(f), Fla. Stat. (“The department shall promulgate such
rules and shall prescribe and publish such forms as may be necessary to effectuate
the purposes of this section.”); § 14.021(2), Fla. Stat. (“Whenever the Governor shall
promulgate emergency rules and regulations, such rules and regulations shall be
published and posted during the emergency in the area affected . . . .”); § 316.304(3),
Fla. Stat. (“The Department of Highway Safety and Motor Vehicles shall
promulgate, by administrative rule, standards and specifications for headset
equipment the use of which is permitted under this section. The department shall
inspect and review all such devices submitted to it and shall publish a list by name
and type of approved equipment.); § 288.1258(4)(c), Fla. Stat. (“The Department of
Revenue may promulgate such rules and shall prescribe and publish such forms as
may be necessary to effectuate the purposes of this section . . . .”); § 336.025(2)(a),
Fla. Stat. (“The department has the authority to prescribe and publish all forms upon
18
which reports shall be made to it and other forms and records deemed to be necessary
. . . and shall promulgate such rules as may be necessary . . . .”).
While the foregoing statutes support Appellees’ argument and the trial court’s
interpretation that “promulgate” means something akin to the creation or enactment
of a regulation or ordinance, in section 552.13, Florida Statutes, the Legislature set
forth in part, “The division shall make, promulgate, and enforce regulations setting
forth minimum general standards . . . .” See also § 379.2223(1), Fla. Stat. (“The Fish
and Wildlife Conservation Commission is authorized to make, adopt, promulgate,
amend, repeal, and enforce all reasonable rules and regulations . . . .”); § 379.248(4),
Fla. Stat. (“The commission is authorized and empowered to make, promulgate, and
put into effect all rules and regulations . . . notice of all rules, regulations, and orders
. . . adopted by the commission shall be published in a newspaper of general
circulation . . . .”). These statutes indicate that the Legislature intended the word
“promulgate” in the given circumstances to mean something akin to proclaiming or
declaring.
After considering the context in which the term “promulgated” is used in
section 790.33(3)(f), we agree with the trial court’s interpretation. While we are
aware of the maxim that “legislative use of different terms in different portions of
the same statute is evidence that different meanings were intended,” see Rollins v.
Pizzarelli, 761 So. 2d 294, 299 (Fla. 2000), we are guided by the fact that the
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Legislature was primarily concerned with the enactment of local regulations and
ordinances in the field of firearms regulation. If “promulgated” is construed to mean
something different than “enacted” in this context, then those persons or entities who
are adversely affected could sue for something that was not expressly prohibited by
section 790.33(3)(a).
In support of its interpretation, the trial court cited a Fifth Judicial Circuit
Court case where the trial court addressed the statute and a certain provision of the
Leesburg Code of Ordinances, which, according to the court, was repealed in light
of section 790.33. See Fla. Carry, Inc. v. City of Leesburg, Fla., No. 2012-CA-
001001, 2015 WL 4945748, at *1 (Fla. 5th Cir. Ct. May 13, 2015). The trial court
concluded that section 790.33, “although a somewhat lengthy statute,” contained
only one brief subsection – subsection (a) – actually prohibiting actions by local
governments and listing activities that would subject them to liability under the
statute. Id. Because the plaintiff offered no evidence demonstrating that the City of
Leesburg enacted the ordinance at issue or caused it to be enforced after the effective
date of section 790.33, the trial court found that the City had not violated the
statute. Id. After noting that the plaintiff initially demanded the repeal of the
ordinance, the trial court set forth, “[N]othing in the statute mandates repeal of any
ordinance, in fact the word ‘repeal’ does not even appear in the statute. Rather, the
statute [declared existing ordinances, rules, or regulations null and void]. It would
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be inconsistent, and nonsensical, to require the repeal of an ordinance the Legislature
has already declared void.” Id. After noting that the repeal of the ordinance rendered
the plaintiff’s request to enjoin the defendants moot, the court also set forth, “The
request for an injunction is also moot because the Ordinance was already nullified
and made void by the express language of s. 790.33.” Id. The trial court further set
forth:
8. Plaintiff also claimed the mere presence of the Ordinance in the City
of Leesburg’s code book was a violation of § 790.33, relying on
subsection 3(f) which states that a person or organization adversely
affected by an ordinance “… promulgated or caused to be enforced in
violation of this section …” may file an action seeking relief under the
statute. This argument fails on at least three grounds. First, subsection
3(f) is a remedies provision, not one proscribing any particular conduct.
Second, while the word “promulgate” is open to various interpretations,
generally the dictionary definitions of the word relate to the passage
and initial publication of an ordinance, not the simple presence of the
ordinance within a code book. For example, Webster’s New World
College Dictionary contains this definition: “… to make known the
terms of (a new or proposed law or statute); to put (a law) into effect by
publishing its terms.” The Ordinance was published, and thereby put
into effect, at the time of its adoption, not on a daily basis since its
adoption by the mere presence of the Ordinance in the code book. The
position taken by Plaintiff, that the Ordinance is “promulgated” each
and every day it remains in the City of Leesburg’s code book, is rejected
as being materially at variance with the normal and ordinary meaning
of the word “promulgate.”
Id. at *1-2. The Fifth District per curiam affirmed the trial court’s decision in an
unpublished disposition. See Fla. Carry, Inc. v. City of Leesburg, Fla., 197 So. 3d
562, 562 (Fla. 5th DCA 2016).
As did the trial court, we agree with the Fifth Judicial Circuit’s reasoning.
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While Appellants’ frustration with the City’s inaction and the individual Appellees’
unwillingness to engage in what some might describe as a simple task of repealing
void ordinances is understandable, section 790.33, as it currently stands, does not
prohibit the re-publication or re-printing of the void ordinances. Instead, the more
reasonable interpretation of “promulgated,” as the term is used in section
790.33(3)(f), is that the ordinances at issue were promulgated at the time they were
enacted and initially published. The fact that Appellees refused to remove the
ordinances from the City’s Code does not constitute prohibited conduct under the
statute.
In their second and related issue, Appellants contend that the trial court erred
in granting summary judgment in Appellees’ favor because a deprivation of a
constitutional right is by definition an injury and an adverse effect. After contending
that the trial court was incorrect in finding that the 1957 and 1984 enactments of the
preempted ordinances were lawful and not enacted ultra vires, Appellants aver that
summary judgment in Appellees’ favor despite their admitted failure to cease
promulgation of the ordinances was contrary to both the express terms of and the
express policy and intent behind section 790.33. However, the issue of whether or
not the ordinances were lawful when they were enacted need not be addressed given
that the Legislature rendered the ordinances null and void and the issue moot. For
the reasons previously stated, Appellants’ contention that Appellees have engaged
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in promulgation of the ordinances since 2011 is meritless.
In their third and final issue, Appellants contend that the trial court’s Final
Summary Judgment declaring the ordinances null and void should have resulted in
at least a partial summary judgment in their favor, thereby making them the
prevailing parties for the purpose of awarding attorney’s fees and costs. This
contention is also meritless. While the trial court did “order and adjudge” that the
two ordinances were void and unenforceable, section 790.33 rendered “existing”
ordinances null and void. The primary relief sought by Appellants was a declaration
that the continued publication of the ordinances was prohibited and an
accompanying injunction enjoining any future publication of such. Because the trial
court declined to award such relief, Appellants were not entitled to attorney’s fees
and costs.
CROSS-APPEAL
Turning to the cross-appeal, Cross-Appellants/Appellees contend that the trial
court erred in dismissing their counterclaim wherein they asserted that the penalty
provisions contained within section 790.33(3)(c)-(e) violated the principles of
absolute legislative immunity and their right to free speech. In declining to address
the counterclaim, the trial court relied upon the long-subscribed principle of judicial
restraint requiring courts to avoid considering a constitutional question when a case
can be decided on non-constitutional grounds. See Inquiry Concerning a Judge, re
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Gregory P. Holder, 945 So. 2d 1130, 1133 (Fla. 2006). To be entitled to a
declaratory judgment, one must demonstrate that “(1) a good-faith dispute exists
between the parties; (2) he presently has a justiciable question concerning the
existence or non-existence of a right or status, or some fact on which such right or
status may depend; (3) he is in doubt regarding his right or status . . .; and (4) a bona-
fide, actual, present, and practical need for the declaration exists.” Rhea v. Dist. Bd.
of Trs. of Santa Fe Coll., 109 So. 3d 851, 859 (Fla. 1st DCA 2013). When a trial
court dismisses a count in a complaint seeking a declaratory judgment or declines to
address the claim, the trial court’s ruling is accorded great deference. Abruzzo v.
Haller, 603 So. 2d 1338, 1339 (Fla. 1st DCA 1992). As such, the standard of review
as to the dismissal of a declaratory judgment claim is whether the trial court abused
its discretion. Id.
In determining that there was no case or controversy to address with respect
to Cross-Appellants/Appellees’ counterclaim, the trial court relied upon its
determination that the individual Cross-Appellants/Appellees were not and could not
be subject to the provisions of section 790.33(3) because there “has been no
enactment or adoption of a new ordinance relating to the regulation of firearms that
they voted to enact or adopt” and because the continued re-publication of ordinances
enacted years before the enactment of section 790.33(3) did not constitute
promulgation as the term is used in section 790.33(3)(f). We find no abuse of
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discretion in the trial court’s dismissal of the counterclaim. Had this been a situation
where Cross-Appellants/Appellees were penalized through a fine, denied the use of
public funds for their legal defense, or removed from office by the Governor, the
counterclaim would certainly need to be addressed. However, not only was there no
violation of section 790.33(3)(a) that has occurred in this case, but there were also
no penalties imposed. As such, no bona-fide, actual, present, and practical need
exists for the declaration sought by Cross-Appellants/Appellees.
CONCLUSION
Based upon the foregoing, we conclude that the trial court properly granted
summary judgment in Appellees’ favor and did not abuse its discretion in dismissing
the counterclaim filed by Cross-Appellants/Appellees. Accordingly, we affirm the
Final Summary Judgment.
AFFIRMED.
BILBREY and WINOKUR, JJ., CONCUR.
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