HomeMy Public PortalAbout2018-21 Authorizing and directing the filing of a lawsuit seeking a declaration related to the regulation of firearms and ammunition are invalidRESOLUTION NO. 2018-21
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA,
AUTHORIZING AND DIRECTING THE FILING OF 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; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, over the past several years there have been a number of discussions
regarding what steps, if any, should be taken to implement gun law reforms; 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 Village may like to consider enacting;
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 pay or 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 Village Council and its
members fear taking any steps that could even remotely be viewed as a violation of the
preemption, creating a chilling effect upon Village action and preventing the Village Council
from responding to the petitions and requests of the Village's residents consider actions as it
determines to be appropriate; and
WHEREAS, the Village Council and its members may desire to consider various
reasonable measures related to firearms 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 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
Village Council 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 Village Council enjoy under law when casting votes in their official
capacities; and
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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 & Bierman, the "Firm")
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 Village desires to join the Lawsuit and invite other local governments to
join also; and
WHEREAS, the Village Council believes it is in the best interest of the citizens and
residents of the Village 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
Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF
THE VILLAGE OF KEY BISCAYNE, FLORIDA AS FOLLOWS:
Section 1. Recitals. Each of the above -stated recitals are hereby adopted, confirmed,
and incorporated herein.
Section 2. Filing of a Lawsuit. The Village Council hereby authorizes and directs
the filing of a lawsuit naming the Village and those individual Members of the Council (in their
official capacity) who choose to participate, as plaintiffs, seeking declaratory and other
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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.
Section 3. Representation. The Firm is hereby retained to represent the Village in
this litigation. The Firm will charge the Village a flat fee of $10,000 to represent the Village and
the individual Members of the Council (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 of 25% (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 Village 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 Village and the Firm consistent with the terms set
forth herein and which addresses any conflict of interest waivers.
Section 4. Invitation. The Village Council invites and urges other local
governments and elected officials to join the Village as plaintiffs in the lawsuit and to coordinate
their efforts with the Village.
Section 5. Distribution. The Village Clerk is directed to distribute this Resolution to
all local governments in Miami -Dade County.
Section 6. Implementation. The Village Council hereby authorizes the Village
Manager to take any action which is reasonably necessary to implement the purpose of this
Resolution.
Section 7. Effective Date. This Resolution shall be effective immediately upon
adoption.
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PASSED and ADOPTED this 24th day of April 2018.
MA OR MAYRA PENH INpSAY
ATT ��` , .\\
J . IFER '= DINA MC
VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL
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VILLAGE ATTORNEY
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