Lawyers: Fort Lauderdale is misinterpreting gun law
05/02/2013 6:15 PM
05/02/2013 6:16 PM
An apparent misreading of state law by the Fort Lauderdale Police has kept officers from enforcing a Broward County ordinance that requires criminal background checks on gun buyers at gun shows.
Two legal experts have told BrowardBulldog.org that the Police Department is wrong to believe that a state statute enacted last year invalidates the county background checks ordinance. Similarly, the Hillsborough County Attorney said in a memo this month that his county continues to have the “authority to require criminal background checks.”
The 1998 Broward County ordinance says criminal background checks must be done on gun buyers when sales occur “on property to which the public has a right of access.” A violation is a misdemeanor.
But Fort Lauderdale Police spokeswoman Det. DeAnna Greenlaw said the county ordinance no longer is in effect due to Florida Statute 790.33, enacted in 2012. That statute declares any city or county ordinance that regulates gun possession and sales “null and void.”
The Fort Lauderdale Police Department’s legal position is important. Broward’s two largest gun shows, sponsored by Ohio-based Suncoast Gun Shows and North Lauderdale’s Trader Ritch, are held in Fort Lauderdale.
Legal experts say the city’s legal interpretation is wrong. They say the law the city cites is trumped by an amendment to Florida’s Constitution, passed by voters in 1998, that gives counties the option to enact background check ordinances like Broward’s.
“Each county shall have the authority to require a criminal history records check…in connection with the sale of any firearm…when any part of the transaction is conducted on property to which the public has the right of access,” the amendment says.
‘Police have it wrong’
Robert Jarvis, a constitutional law professor at Nova Southeastern University, explained that the null-and-void statute has no impact on the county’s ordinance because it is rooted in the state constitution.
“A statute cannot nullify a constitutional vision,” Jarvis said. “I think the police have it wrong.”
“You have a right to bear arms, but the state has a right to regulate,” Jarvis said. “When it comes to the Second Amendment, to firearms, a lot of misinterpretation and misinformation exists.”
Andrew McClurg, a firearms policy expert and law professor at the University of Memphis, agreed.
Jarvis “is certainly correct that a constitution trumps a statute. That’s a basic principle of constitutional law,” said McClurg, adding that the amendment appears to grant Florida’s counties the authority to enact background check ordinances.
The profile of Broward’s ordinance may rise with the U.S. Senate’s recent defeat of efforts to close loopholes and strengthen the federal background check law for gun buyers.
Broward State Attorney’s spokesman Ron Ishoy said in an email that his office was unable to find “any time where a law enforcement agency in Broward has brought us a case involving Broward County ordinance sec. 18-97.”
Nevertheless, Fort Lauderdale Mayor John P. “Jack” Seiler said in an interview that his city is enforcing the background check ordinance through another state statute, 790.065, regarding “the sale and delivery of firearms.”
However, that law only addresses the need for licensed gun dealers to conduct background checks. It does not address the issue of background checks for buyers who buy guns from non-licensed gun dealers, including those at gun shows.
The broader language of Broward’s ordinance covers non-licensed gun dealers. So, unless the buyer is exempt, it requires a buyer who purchases a gun from anybody at a public location to undergo a background check.
The Florida Constitution, state law and the county ordinance exempt from background checks gun buyers who are law enforcement officers or concealed weapons permit holders.
Police interpret law
Fort Lauderdale Police Chief Frank Adderley expressed a similar, apparently mistaken, opinion about the state law’s application.
“Everything in the county ordinance is included in the state statute…That is our interpretation,” said Adderley, citing legal counsel. Attorney Bradley H. Weissman is the department’s legal adviser.
“He’s interpreting it wrong,” said Nova Southeastern’s Jarvis. “The state statute does not touch on the issue which is addressed in the ordinance.”
Representatives of the Suncoast Gun Show, which holds shows at the War Memorial Auditorium, did not respond to several requests for comment about the ordinance and its background check practices. Its next gun shows at the auditorium are scheduled for Saturday and Sunday, and June 15 and 16.
Ritch Cecilio and Jim Hayden sponsor gun and knife shows in Broward County. They say they avoid violating the ordinance by requiring their gun buyers to have a Florida conceal weapons permit.
Cecilio requires a gun buyer at his shows to present a Florida driver’s license as well as a carrying permit because he is “trying to eliminate the possibility that anyone not supposed to have a gun gets a gun.” If a dealer or collector does not follow this rule, Cecilio says he will oust him from the show.
Hayden said a permit guarantees that person has been fingerprinted. A buyer who doesn’t have a permit must buy his gun through a licensed dealer who must order a background check and cannot deliver it until after a five-day waiting period, he said.
Cecilio, who operates as Trader Ritch, sponsors a show the first Sunday of every month at the Universal Palms Hotel, 4900 Powerline Road, Fort Lauderdale. Hayden’s Oakland Park Gun and Knife Show happens about every other month at American Legion No. 222, at 4250 NE Fifth Ave., Oakland Park. His next show is May 19.
Licensed gun dealers in Florida are required to do background checks through the Florida Department of Law Enforcement whenever they sell a gun. The checks are required wherever the sale is made.
In counties without a background check ordinance, civilians or collectors are not required to do background checks at gun shows or other public locations.
It is not known if promoters at the large Suncoast shows require gun buyers to have concealed weapons permits.
Mayor Seiler says that after the Sandy Hook Elementary School student massacre, he contacted City Manager Lee Feldman, Adderley and the city attorney’s office to discuss enforcing gun laws in the city.
“I support stricter background checks…We have a very strong law enforcement presence at gun shows and we are working with multiple agencies at the state and federal level to enforce our gun laws,” the mayor said.
Gun sales between civilians at non-public locations are not subject to background checks. So it is often the case that gun purchases are discussed inside gun shows but are actually sold outside in the parking lot, said Hamilton Bobb, retired Assistant Agent in Charge of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in Miami.
“It is a big issue. It happens at every gun show,” Bobb said.
The Sun Sentinel reported that private dealers violated city law during a gun show in January when they openly sold guns and ammunition outside Fort Lauderdale’s War Memorial Auditorium in Holiday Park. The city’s ordinance prohibits the sale of weapons in parks.
The Tampa Bay Times reported earlier this month that seven counties, representing 45 percent of Florida’s population, have background check ordinances similar to Broward’s. The newspaper reported the ordinances have been ineffective because of inconvenience, lack of public concern and misunderstanding of state law.
Broward Bulldog is a not-for-profit online only newspaper created to provide local reporting in the public interest. www.browardbulldog.org 954-603-1351
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